The Second District holds requiring an attorney to delete references to prior, similar cases for the duration of trial violates the attorney’s right to free speech.
Richard and Christie Steiner filed a personal injury action against Volkswagen Group of America (Volkswagen), Ford Motor Company (Ford), and others after Richard contracted lung cancer allegedly caused by exposure to asbestos in automobile parts. The trial court granted Volkswagen’s motion to order the Steiners’ attorney, Simona Farrise, to remove two pages from her website publicizing her successes against Ford in similar cases. Volkswagen argued the pages included provocative and prejudicial information that would prejudice the jury process during the trial if viewed by a juror. The Steiners countered the order infringed upon Farrise’s Constitutional right of free speech and the appropriate remedy was to admonish the jury not to search the Internet for information about the attorneys or parties.
After direction from the Supreme Court, the Court of Appeal issued an order to show cause. Although the issue was moot because the trial was over, the Court of Appeal nonetheless reviewed the order under the public interest exception.
The Court of Appeal observed the trial court’s order, essentially a “gag order”, placed a direct prior restraint on Farrise’s right to freedom of speech under the United States and California Constitutions. However, the trial court failed to analyze the Constitutional issues.
Typically gag orders are subject to strict judicial scrutiny. They cannot be imposed unless the speech poses a clear and present danger or serious and imminent threat to a protected competing interest; the order is narrowly tailored to protect that interest; and no less restrictive alternative is available.
Volkswagen argued the order should be analyzed under the less restrictive standard for commercial speech, entitled only to an intermediate measure of First Amendment protection. There is a four-prong scrutiny standard that applies to state regulations on commercial speech. The court must first determine whether the speech concerns lawful activity and is not misleading. If so, the court must decide whether the asserted governmental interest is substantial; whether the restraint directly advances that interest; and whether it is more extensive than is necessary to serve that interest.
The Court of Appeal found the trial court order did not pass Constitutional muster under commercial speech test, nor would it survive the more rigorous strict scrutiny analysis.
Applying the first prong of the commercial speech analysis, there was no evidence Farise’s description of her prior cases was misleading. Moreover, Volkswagen did not seek the order to prevent deceptive or misleading advertising, but to deny jurors access to the pages for the duration of the trial. Although a substantial governmental interest exists in assuring parties a fair trial, and the restraint directly advanced this interest, it was more extensive than necessary.
To protect the right to free speech, the government must employ means narrowly tailored to advance the interest at stake. It is well established that frequent and specific cautionary admonitions constitute the accepted, presumptively adequate, and plainly less restrictive means of dealing with the threat of jury contamination.
The Court noted trial courts have grappled with the “wired” juror for years, and there has been extensive writing on the subject. No one has suggested prior restraints on speech are the answer to the problem of juror’s access to information. The trial court’s order did not apply to other websites discussing verdicts against Ford, only Farrise’s website. Thus, the admonitions not to research the parties did more to prevent potential jury misconduct than the removal of Farrise’s pages. Jurors are statutorily prohibited from using social media and the Internet to research or disseminate information about cases under threat of contempt or criminal prosecution.
The admonitions of the trial court were sufficient to protect the parties’ right to a fair trial. The court must assume jurors will obey its admonitions, and, if a juror does not do so, the court has other tools to address the behavior. The solution was not to impose a prior restraint on information unrelated to the case before the court.
Comment: An attorney’s obligations as an officer of the court do not require her to waive Constitutional protections.