Gonsalves v. The City of Bedford

• Court: Court of Appeals for the First Circuit
• Decided: August 24, 1992
• Docket: 92-1733
• Status: Published

Opinion

USCA1 Opinion

August 24, 1992          ____________________
        August 24, 1992          ____________________
        No. 92-1733
        No. 92-1733

                         DELORES GONSALVES, ADMINISTRATRIX OF
                         DELORES GONSALVES, ADMINISTRATRIX OF
                          THE ESTATE OF MORRIS PINA, JR., AS
                          THE ESTATE OF MORRIS PINA, JR., AS
                        ADMINISTRATRIX, AND ON HER OWN BEHALF,
                        ADMINISTRATRIX, AND ON HER OWN BEHALF,

                                Plaintiff, Appellant,
                                Plaintiff, Appellant,

                                          v.
                                          v.

                   THE CITY OF NEW BEDFORD, MASSACHUSETTS, ET AL.,
                   THE CITY OF NEW BEDFORD, MASSACHUSETTS, ET AL.,

                                Defendants, Appellees.
                                Defendants, Appellees.

                                 ____________________
                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS
                          FOR THE DISTRICT OF MASSACHUSETTS

                 [Hon. Andrew A. Caffrey, Senior U.S. District Judge]
                 [Hon. Andrew A. Caffrey, Senior U.S. District Judge]
                                          __________________________

                                 ____________________
                                 ____________________

                                        Before
                                        Before

                            Cyr and Boudin, Circuit Judges,
                            Cyr and Boudin, Circuit Judges,
                                            ______________

                             and Hornby,* District Judge.
                             and Hornby,* District Judge.
                                          ______________

                                 ____________________
                                 ____________________

             Harvey A.  Schwartz with  whom Robert  A. Griffith and  Schwartz,
             Harvey A.  Schwartz with  whom Robert  A. Griffith and  Schwartz,
             ___________________            ___________________      _________
        Shaw & Griffith were on brief for appellant.
        Shaw & Griffith were on brief for appellant.
        _______________
             Armand Fernandes, Jr. with whom Fernandes, Fraze  & Finnerty were
             Armand Fernandes, Jr. with whom Fernandes, Fraze  & Finnerty were
             _____________________           ____________________________
        on brief for appellees.
        on brief for appellees.
             Robert A. Bertsche, Hill & Barlow and John Reinstein on brief for
             Robert A. Bertsche, Hill & Barlow and John Reinstein on brief for
             __________________  _____________     ______________
        the Civil Liberties Union of Massachusetts and the New Bedford Minori-
        the Civil Liberties Union of Massachusetts and the New Bedford Minori-
        ty Action Committee as amici curiae.
        ty Action Committee as amici curiae.

____________________
                                 ____________________

____________________
                                 ____________________

____________________

        *Of the District of Maine, sitting by designation.
        *Of the District of Maine, sitting by designation.

Per Curiam.   The present appeal requires  us to deter-
                    Per Curiam.
                    __________

          mine the  constitutionality of  a district court  order enjoining

          plaintiff's counsel, Robert A. Griffith,  Esquire, from appearing

          on television for  any purpose during the pendency of plaintiff's

          civil rights action.  For the reasons which follow, we vacate the

          order.

BACKGROUND
                                      BACKGROUND
                                      __________

The underlying action, asserting claims under 42 U.S.C.

            1983 and Massachusetts  law, includes  allegations of  wrongful

          death,  police  brutality  and  race discrimination  by  the  New

          Bedford police department and certain individual police officers,

          pursuant  to  a policy  and practice  tolerated  by the  city and

          various  city and police  officials.   The parties  currently are

          engaged in pretrial discovery.

                    On May 15, 1992, defendant  Police Chief Benoit filed a

          motion  under Local Rules 83.2A and  83.2B, D. Mass. L. R. 83.2A,

          83.2B, for (1)  an order limiting out-of-court  statements by all

          parties  and their  attorneys,  (2) an  order prohibiting  public

          dissemination of  discovery  materials,  and  (3)  any  "special"

          orders the court  might deem  necessary.  The  motion alleged  in

          conclusory  fashion  that  plaintiff's  attorney  had  cultivated

          widespread  publicity  about  the  case  by  releasing  discovery

          materials to the media, holding a public rally and appearing on a

          local cable television  talk show.   During the television  show,

          Attorney Griffith is alleged to have requested public support for

2

alleged victims  of New  Bedford  police brutality,  and to  have

          urged anyone who had suffered  brutality or discrimination in the

          past  to come forward to help establish the "policy and practice"

          allegations in  plaintiff's complaint.   See Elliott  v. Cheshire
                                                   ___ _______     ________

          County, N.H.,  940 F.2d 7, 12  (1st Cir. 1991) (citing  Monell v.
          ____________                                            ______

          New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978)).
          ____________________________________

                    At  a  scheduling  conference on  June 1,  the district

          court  acceded to  Benoit's request  to be  heard on  the motion.

          Benoit's  counsel summarized  the  relief requested,  emphasizing

          Benoit's  concern  that,  absent  the requested  relief,  certain

          discovery  materials  currently  sought  by  plaintiff  might  be

          disclosed  publicly.    In  response,  plaintiff's  counsel,  Mr.

          Griffith, alluded to the allegations about his television appear-

          ance.   Griffith informed the court that the pending legal action

          had not  been the subject  of the television  show, but that  his

          remarks were made in  response to a question the  moderator asked

          about  the case.   Griffith defended his  statements as "entirely

          legitimate"  and not  prejudicial  to defendants.   The  district

          court orally directed Attorney Griffith not to appear on  televi-

          sion for any purpose during the pendency of the case.

                    Following the  district court's  denial of a  motion to

          stay its order,  Griffith filed a motion  with this court for  an

          emergency stay.   See Fed. R. App.  P. 8.  We issued  two partial
                            ___

          stays  pending  receipt  of  "particularized findings"  from  the

          district court, which  were received  on June 22.   The  district

          court's particularized findings were as follows:

3

1)  The nature of the harm posed by  Attorney
                    Griffith's conduct  is that it  amounts to  a
                    poisoning of  the jury pool to  the prejudice
                    of  the defendant police officers.  Given the
                    fact that the  defendants presented  evidence
                    of the  proclivity  of Attorney  Griffith  to
                    garner  publicity for his  client in this ac-
                    tion,  the potential  harm posed  by Attorney
                    Griffith's inclination to publicize  the case
                    could be extensive if left unchecked.

                    2)  Less restrictive alternatives seem inade-
                    quate  to  protect the  interests threatened.
                    As noted above,  Griffith has repeatedly pub-
                    licized information about the pending case in
                    various  mediums.   Thus, a  less restrictive
                    protective order, such as one allowing him to
                    be  on  television but  ordering  him not  to
                    discuss the case,  would not  be adequate  in
                    this instance.  Furthermore, as indicated, in
                    this instance, Griffith did not  initiate the
                    discussion of this pending  case on the tele-
                    vision show;  he merely responded  to a ques-
                    tion posed to him.  To allow him to appear on
                    television,  on the  condition  that  he  not
                    initiate discussion on this matter, would not
                    prevent  this   circumstance  from  happening
                    again.  Given the publicity in this case, his
                    mere  presence on  television  would tend  to
                    stimulate  further  discussion and  publicity
                    regarding  this  case,  even  if  he  himself
                    refused to discuss it.

                    3)   The  proposed protective  order  will be
                    effective in preventing the harm of poisoning
                    the jury pool.   To the extent that publicity
                    in this  case can be  discouraged, the police
                    officers  stand a  better  chance  of a  fair
                    trial on this matter.

We expedited  the  appeal and  stayed  the district  court  order

          pending appeal.

4

DISCUSSION
                                      DISCUSSION
                                      __________

A.   Presumption Against Prior Restraint
          A.   Presumption Against Prior Restraint
               ___________________________________

We  are met at the outset with a disagreement among the

          parties as to the appropriate criteria to be applied in balancing

          the right to free speech against  the right to trial by an impar-

          tial jury.  In particular, the parties urge divergent interpreta-

          tions  of the recent Supreme  Court decision in  Gentile v. State
                                                           _______    _____

          Bar of Nevada, 501 U.S. ___, 111 S. Ct. 2720 (1991).
          _____________

                    Plaintiff,  joined by  amici curiae,  the Massachusetts

          Civil Liberties Union and the New Bedford Minority Action Commit-

          tee,  characterizes the challenged order as  a prior restraint on

          the exercise  of Griffith's  First Amendment  right to engage  in

          political  speech.  A  prior restraint on  First Amendment rights

          traditionally carries a "heavy presumption" against its validity,

          especially  if it  chills  comment  on governmental  proceedings.

          Nebraska  Press Ass'n  v. Stuart,  427  U.S. 539,  558-59 (1976).
          _____________________     ______

          Advance  censorship,  it  is  reasoned,  entails an  irreversible

          sanction and strikes  at the stability  of our democratic  system

          when it  restrains political comment.  Id.  at 559-60.  For these
                                                 ___

          reasons,  plaintiff and the amici insist  that the stringent test

          applicable  to prior restraints upon  the press should be applied

          to  the prior restraint  imposed on  plaintiff's counsel  in this

          case; that is, the order is to be overturned in the absence of  a

          "clear  and present danger" or a "serious and imminent threat" to

5

the  orderly  and fair  administration  of justice.    Bridges v.
                                                                 _______

          California, 314 U.S. 252, 263, 270 (1941).
          __________

                    Amici curiae  distinguish Gentile on its  facts.  There
                                              _______

          the Court upheld against a First Amendment challenge the standard

          in a Nevada disciplinary rule prohibiting attorneys from comment-

          ing on  pending cases in circumstances  presenting a "substantial

          likelihood of material prejudice" to the proceedings.  As Gentile
                                                                    _______

          involved subsequent sanctions against  an attorney for commenting
                   __________ _________

          about a pending case,  amici curiae reason that Gentile  does not
                                                          _______

          diminish  the  First Amendment  protection from  prior restraints
                                                           _____ __________

          upon comment by counsel in a case  of political importance to the

          public.   Amici further  argue that the  "substantial likelihood"

          standard approved  in Gentile  represents  the minimum  constitu-
                                _______

          tional  requirement for  prior  restraints  on  attorney  speech.

          Accordingly, amici contend that  Local Rules 83.2A and 83.2B  are

          unconstitutional insofar as  their "reasonable likelihood"  stan-

          dard  is less  stringent than  the "substantial  likelihood" test

          adopted in Gentile.
                     _______

                    Appellee  Benoit, on  the other  hand, argues  that the

          constitutional  right to a fair trial before an impartial jury is

          entitled to no less,  if not greater, protection than  an attorn-

          ey's  First Amendment right to free speech on matters involved in

          a pending judicial proceeding.   Cf. Nebraska Press, 427  U.S. at
                                           ___ ______________

          561 (Bill of Rights  did not assign priorities to First and Sixth

          Amendment  rights, ranking one as superior to the other).  Preju-

          dicial  publicity, Benoit points out, might divert the trial from

6

its primary purpose     "to adjudicate controversies, both crimi-

          nal and civil, in the calmness and solemnity of the courtroom . .

          .  ."  Sheppard  v. Maxwell, 384  U.S. 333,  350 (1966) (citation
                 ________     _______

          omitted).   As the Supreme Court reasoned in Gentile, 501 U.S. at
                                                       _______

          ___-___, 111 S. Ct. at 2743-45, the threat of prejudicial public-

          ity  is greatest when it is  generated by an attorney involved in

          the  proceedings.  An attorney, moreover, unlike the press, has a

          fiduciary professional  obligation to preserve the  integrity and

          fairness  of judicial proceedings.  Thus, Benoit urges that it is

          not  improper to  restrain  extrajudicial comment  by counsel  if

          there  is a  "reasonable  likelihood" that  the  fairness of  the

          judicial  proceeding would  be  prejudiced absent  the restraint.

          The Supreme Court's approval of a lesser standard than "clear and

          present danger," Benoit says,  supports the constitutionality  of

          the  lesser standard in Local Rule 83.2A, even though its wording

          is not identical to  the rule approved in Gentile.   Furthermore,
                                                    _______

          Benoit says, the reasoning in Gentile supports the district court
                                        _______

          order  insofar  as it  prohibits  Attorney  Griffith from  making

          extrajudicial statements about the case.2

____________________

          2The  parties  disagree also  as  to whether  the  district court
          order, prohibiting Griffith from  appearing on television for any
          purpose, unconstitutionally interferes  with plaintiff's  alleged
          First  Amendment and/or due process right to appeal to the public
          at  large for evidence supporting her  claim that defendants have
          engaged  in a practice of depriving minority individuals of their
          constitutional rights.

                                          7

B.   Balancing Test
          B.   Balancing Test
               ______________

We  need not choose between these competing contentions

          at this  juncture, as  the challenged order  fails under  either.

          First, there was  no sufficient  showing of an  actual threat  to

          defendants'  right to a fair  trial.  Second,  the order provided

          ineffective  protection from  the  perceived harm.   Third,  less

          restrictive conventional alternatives were not considered.

1.  Threat of Harm
          1.  Threat of Harm
              ______________

As  it  recognized,  the  district court  is  under  an

          affirmative  duty  to safeguard  the  due process  rights  of the

          parties before it  by minimizing the adverse effects  of prejudi-

          cial  pretrial  publicity  in  proceedings   under  its  control.

          Gannett Co. v. De Pasquale, 443 U.S. 368, 378 (1979) (emphasizing
          ___________    ___________

          district court  duty to  control the proceedings);  Sheppard, 384
                                                              ________

          U.S. at 333.   See also Report of the  Committee on the Operation
                         ___ ____ _________________________________________

          of  the  Jury System  on the  "Free  Press-Fair Trial"  Issue, 45
          _____________________________________________________________

          F.R.D.  391, 401  (1969) (revised,  87 F.R.D.  518 (1980)).   The

          district court  enjoys considerable leeway to select from among a

          variety  of  devices  for  meeting its  difficult  and  important

          responsibility.  Sheppard, 384 U.S. at 357-62.
                           ________

                    At a minimum, however, a  prior restraint can be justi-

          fied only  if the prohibited speech poses an actual threat to the
                                                       ______

          right to a fair trial before an impartial jury.  See In re Perry,
                                                           ___ ___________

          859  F.2d  1043, 1050  (1st  Cir. 1988)  (a  vague threat  is not

          enough; there  must be  a "cognizable" compelling  interest which

                                          8

could  be furthered  by the  restraint).   Thus, no  matter which

          recommended standard is used to evaluate the appropriateness of a

          prior  restraint on  the exercise  of the  right of  free speech,

          there must  be a sufficient  showing of an  actual threat to  the

          right to  a fair trial.  United States v. Noriega, 917 F.2d 1543,
                                   _____________    _______

          1549 (11th  Cir.) ("imminent  danger"  standard; First  Amendment

          protections  cannot be  overcome by  "conclusory"  assertion that

          publicity  might hamper fair trial), cert. denied, 111 S. Ct. 451
                                               ____  ______

          (1990);  In re  Dow Jones  &  Co., 842  F.2d 603,  609 (2d  Cir.)
                   ________________________

          (employing "reasonable likelihood"  standard; "gag" order  justi-

          fied only if the  exercise of the right of free  speech "actually

          tramples upon  Sixth Amendment  rights"), cert. denied,  488 U.S.
                                                    ____  ______

          946 (1988).

                    Although we do not doubt that the  district court acted

          "out  of a legitimate concern, in an effort to protect the defen-

          dant's right  to a fair trial,"  the record before us  reveals no

          evidentiary basis  for the conclusion that  future appearances by

          Attorney  Griffith  would "poison[]  the  jury  pool."   Nebraska
                                                                   ________

          Press, 427  U.S. at 569.   There are no findings  identifying the
          _____

          substance of Griffith's  remarks:  whether, for  example, he dis-

          paraged defendants  or witnesses, mischaracterized evidence or in

          any way  tended to  prejudice the  public perception.   Moreover,

          were there proof, which we are unable to discern from the record,

          that Griffith  "repeatedly publicized  . . . the pending  case in

          various mediums," it would provide an  insufficient basis for the

          breadth  of  the present  order.    "Pretrial  publicity     even

9

pervasive, adverse publicity     does not  inevitably lead to  an

          unfair trial."  Id. at 554.  A jury need not be entirely ignorant
                          ___

          of the case; all that the Constitution requires is a jury that is

          impartial.  See Sheppard, 384 U.S. at 351; Dow Jones, 842 F.2d at
                      ___ ________                   _________

          603.

                    We perceive  scant basis  in the record  for concluding

          that Griffith's  appearance on  a local cable  television station

          threatened pervasive impact  on the attitudes of those  who might

          be called as jurors.  We note  that a trial date has not yet been

          set.  The jury pool in this case normally would be drawn from the

          nine counties  comprising  populous eastern  Massachusetts.   See
                                                                        ___

          United States District Court, District of Massachusetts,  Amended
                                                                    _______

          Jury Plan  (Sept. 6,  1989).   On the  present record, given  the
          _________

          remoteness of any trial date, the size of the available jury pool

          and the geographic  diversity of  the jury pool  drawing area,  a

          prediction  that all  publication of  information about  the case

          would poison the jury pool seems speculative at best.3

                    The Benoit motion included vague allegations  of poten-

          tial  harm  to  other  pretrial interests  which  arguably  might

          warrant protection (e.g.,  possible privacy interests,  or privi-
                              ____

          lege against  public disclosure, on  the part  of defendants  and

          third  persons; and  undefined  harm  from plaintiff's  counsel's

____________________

          3The only other publicity about the case which was brought to the
          district court's  attention by  Benoit's motion was  contained in
          five  articles appearing  in New  Bedford and  Boston newspapers.
          Attorney  Griffith's name  does  not appear  in the  articles and
          there  is no indication that the order was crafted in reaction to
          the articles.

                                          10

efforts to drum up support for litigation).  Neither the district

          court,  nor  this  court,  has  addressed  the  discovery-related

          matters  raised by  the  Benoit motion.    However, in  order  to

          provide an appropriate benchmark for identifying and weighing the

          interests involved and the sort of protection needed, the precise

          harm must be carefully delineated, Noriega, 917 F.2d at 1550, and
                       _________ __________  _______

          the restraint must be  tailored narrowly to serve  the particular

          interests  warranting  protection,  see  id. at  1549;  see  also
                                              ___  ___            ___  ____

          Anderson v. Cryovac, Inc., 805 F.2d 1, 8 (1st Cir. 1986) (in case
          ________    _____________

          involving allegations  that city water supply  had been poisoned,

          district court  demonstrated  appropriate "sensitivity  to  First

          Amendment concerns  by striving to  keep the protective  order as

          narrow  as possible,"  excepting  from its  scope disclosures  to

          public health authorities as required in the public interest).

                    The challenged order does  not identify with the requi-

          site particularity a pretrial  interest warranting the protection

          of its broad prior  restraint upon First Amendment rights.   See,
                                                                       ___

          e.g.,  Seattle Times  Co. v.  Rhinehart, 467  U.S. 20,  37 (1984)
          ____   __________________     _________

          (orders   protecting  against  disclosure  of  otherwise  private

          discovery  materials may  be  permitted for  "good cause"  shown,

          where the restriction is carefully limited to discovery materials

          and  the  order does  not  affect materials  obtained  from other

          sources); Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981) (order
                    ____________    _______

          restricting communication, as a  means of protecting absent class

          members and potential class members, must  be carefully drawn and

          based  on  a clear  record  and  specific  findings reflecting  a

11

balancing  of the need for the restrictions and protection of the

          parties'  rights); Anderson,  805  F.2d at  6 (protective  orders
                             ________

          prohibiting  discovery  abuse  are  subject  to  First  Amendment

          scrutiny within framework  of "good cause" requirement in Fed. R.

          Civ. P. 26(c)).4

2.   Ineffectiveness of Order
          2.   Ineffectiveness of Order
               ________________________

The order is  not tailored to protect against  the per-

          ceived harm (poisoning the jury  pool), as its overbroad prohibi-

          tion of  any and all television appearances  by Griffith facially

          restrains speech  and other expressive conduct  having no connec-

          tion  with the  pending case.    In re  Perry, 859  F.2d at  1050
                                           ____________

          (overbroad order cannot survive constitutional scrutiny); compare
                                                                    _______

          Levine v. United States Dist. Court, 764 F.2d 590 (9th Cir. 1985)
          ______    _________________________

          (in  case applying  "clear  and present  danger" standard,  order

          prohibiting statements which "bear upon the merits to be resolved

          by the jury" is too broad, as it would prohibit statements posing

          no danger  to the administration  of justice), cert.  denied, 476
                                                         ____   ______

          U.S.  1158 (1986).    "[D]evising the  most effective  preventive

          measure  is not the  proper goal.   Rather, the goal  is to craft

          measures that ensure an  impartial jury without restricting First

          Amendment  rights any  further than  absolutely necessary."   Dow
                                                                        ___

          Jones, 842 F.2d at 612 n.1.
          _____
                              
          ____________________

          4We note no suggestion  that Griffith's statements threatened the
          secrecy  of grand jury proceedings.   Cf. Globe  Newspaper Co. v.
                                                ___ ____________________
          Pokaski, 868  F.2d 497, 509 (1st Cir.  1989) (public has no First
          _______
          Amendment  right of access to  grand jury records,  as secrecy is
          traditional and essential to system).

                                          12

Furthermore, the order is  too underinclusive to effect

          meaningful protection  against the perceived harm.   It restrains

          access to but one of several public information media on the part

          of  one attorney in the  case, leaving seven  other attorneys and

          all twelve  parties free to discuss  the case in any  forum.  See
                                                                        ___

          Nebraska Press,  427 U.S. at 565-69  (practical problems involved
          ______________

          in predicting what information may in fact undermine impartiality

          of jurors, and dilemmas  encountered in drafting effective orders

          which are  not overly broad,  call for careful  advance consider-

          ation of  alternative measures to counter threat  to fair trial).

          We do not  imply that  a more  inclusive order  (or, indeed,  any

          order) was  indicated, but that the  challenged order represented

          an inappropriate response in the circumstances presented.

3.   Less Restrictive Alternatives
          3.   Less Restrictive Alternatives
               _____________________________

Finally, the district court  did not discuss particular

          alternatives to limiting the  exercise of Griffith's First Amend-

          ment rights.   The case law identifies  several alternative means

          of  mitigating pretrial  publicity,  including change  of  venue,

          searching voir dire, sequestration of the jury, and emphatic jury

          instructions.  Nebraska Press, 427 U.S. at 563-64;  Sheppard, 384
                         ______________                       ________

          U.S.  at  357-62.   We  recognize that  restrictions  directed to

          counsel or  other  trial participants  may stand  on a  different

          footing  than those directed to the press or public, Gentile, 111
                                                               _______

          S.  Ct. at 2742-44;  Levine, 764 F.2d  at 595-96,  and that other
                               ______

          means  of  mitigating publicity  may  have  costs  of their  own.

13

Gentile,  111  S. Ct.  at 2745.    Nevertheless, given  the First
          _______

          Amendment interests  at stake and  the breadth of  the challenged

          order, we think an explicit consideration of alternatives  to the

          restraint was required.   Nebraska  Press, 427 U.S.  at 563;  Dow
                                    _______________                     ___

          Jones, 842 F.2d at 611; Levine, 764 F.2d at 599-601.
          _____                   ______

                    The district court order of June 1, 1992, is vacated.
                    ____________________________________________________

14