In Re Adele Halkin

598 F.2d 176, 194 U.S. App. D.C. 257

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 31, 1979
• Docket: 18-5218
• Status: Published

Opinions

BAZELON, Circuit Judge:

On the motion of defendants in Halkin v. Helms, Civ. No. 75 1773 (D.D.C.), the district court entered an order on February 14, 1976 prohibiting the parties and counsel in that case from making any extra-judicial statements about information produced through discovery, and from publicly disclosing any material produced through discovery, except by making such material a part of the court record. Plaintiffs in that case now petition this court for a writ of mandamus and/or prohibition¹ vacating the district court’s order.

I. BACKGROUND

Plaintiffs in Halkin are a number of individuals and organizations who allege that certain government agencies, principally the Central Intelligence Agency and the National Security Agency, as well as several common carriers, conducted unlawful programs of surveillance of United States citizens who opposed the war in Vietnam or engaged in other lawful political activities. Plaintiffs seek damages and equitable relief for alleged violations of their constitutional and statutory rights. Neither plaintiffs nor defendants in Halkin have demanded a jury trial.

After filing their complaint, plaintiffs requested, under Fed.R.Civ.P. 34, documents relating to Operation CHAOS, the code name for the CIA’s surveillance of anti-war activists. On December 30, 1976, defendants made available to plaintiffs some of these documents, constituting approximately 3000 pages. Appendix (App.) at 10. At the same time, defendants also filed a document styled “Federal Defendant George Bush’s Partial Response to Plaintiffs’ First Request for Production of Documents,” App. at 6 -9, which indicated that the produced documents had been purged of all matter which the Government asserted would (1) impair the United States’ diplomatic and foreign relations, including the CIA’s relationships with foreign intelligence or security services, or (2) reveal CIA intelligence sources and methods or the investigative or intelligence activities of another United States government agency, or (3) implicate the privacy interests of third parties.² Defendants sought no protective order under Fed.R.Civ.P. 26(c) limiting-plaintiffs’ use of these documents,³ nor was there any express or implied agreement between the parties concerning their use.

Plaintiffs’ counsel, however, believed that some of these documents contained important information not previously known concerning the operation of CHAOS. App. at 13. On January 24, 1977, plaintiffs gave written notice that they intended to release several documents on January 31, and provided defendants with a copy of the press release by which they planned to announce the availability of the documents.⁴

In response, defendants moved for a protective order pursuant to Rule 26(c). Citing Local Rule 1 27(d),⁵ defendants argued that public disclosure of the documents would be “prejudicial to the defendants’ right to adjudication of the issues in this civil action in an uncolored and unbiased climate, including a fair trial.” App. at 24.⁶ Defendants’ motion was not accompanied by any affidavits, nor was any other evidence adduced in its support.

Plaintiffs opposed defendants’ motion, arguing that a protective order would lack the “good cause” required by Fed.R.Civ.P. 26(c) and would violate the First Amendment. As part of their opposition plaintiffs lodged with the district court three documents and the press statement which plaintiffs asserted they had intended to release.⁷

On February 14, 1977, the district court signed defendants’ proposed order restraining the parties and their counsel from publicly disclosing information obtained through discovery. The court made no findings of fact, but stated that disclosure would be “contrary to rules applicable to the conduct of litigation before this Court and inconsistent with the obligations of parties and their counsel to further the just determination of matters within its jurisdiction.”⁸ Although the parties'Claim to have complied with this order, the New York Times somehow acquired access to these documents and, on February 22, 1977, reported on their contents. App. at 30.

Plaintiffs have petitioned this court for a writ of mandamus⁹ to vacate the district court’s order. Since jurisdiction to issue this extraordinary writ depends upon our evaluation of the merits of petitioners’ claims, we defer discussion of the propriety of relief until after our evaluation of the substantive issues raised by this petition. Colonial Times, Inc. v. Gasch, 166 U.S.App. D.C. 184, 187, 509 F.2d 517, 520 (1975).

The importance of the issue presented by this case, and the relatively scant attention it has received in previous cases, requires us to consider in some depth petitioners’ claim.

II. THE FIRST AMENDMENT AND THE DISCOVERY PROCESS

In many respects, the order of February 14 is comparatively narrow. It does not prohibit comment by the news media, but only extrajudicial statements by the parties and their counsel.¹⁰ Nor does it forbid publication of information of public record, or information acquired outside the court’s processes, but only publication of documents and information obtained in discovery. Even if the order is relatively narrow, however, it restrains petitioners from communicating matters of public importance for an indefinite period of time.¹¹ As such, it constitutes direct governmental action limiting speech and must be carefully scrutinized in light of the First Amendment.

A. Judicial Prior Restraints

Plaintiffs characterize the order issued by the district court as a “prior restraint” of expression and argue therefore that the order, while not unconstitutional per se, nonetheless bears a “heavy presumption” against its validity. Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975).¹² “The presumption against prior restraints is heavier — and the degree of protection broader — than that against limits on expression imposed by criminal penalties.” Id. at 558-59, 95 S.Ct. at 1246. Indeed, the Supreme Court has recently indicated that prior restraints “are the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976).

The term “prior restraint,” at common law, referred to a system of unreviewable administrative censorship or licensing.¹³ But the concept has not been so confined. In a long line of cases beginning with Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), the Supreme Court has extended the meaning of prior restraints to include judicial orders having an impact analogous to administrative censorship. Among the judicial orders that have been considered prior restraints are orders restraining extrajudicial comment about a [lending or anticipated trial. In Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), the Court held that an order prohibiting any publication or broadcast by the news media “strongly implicative” of an accused criminal defendant was a prior restraint, and indicated that such an order would survive constitutional scrutiny only in the most unusual circumstances.¹⁴

A judicial order pursuant to Rule 26(c) limiting lawyers’ and parties’ expression does possess many of the characteristics of an administrative licensing scheme, the paradigmatic prior restraint.¹⁵ At the same time, it is equally clear that such an order need not present the same dangers as many delegations of authority to an administrative censor,¹⁶ nor the same threat to expression generated by other judicial or-tiers previously condemned as prior restraints.¹⁷

We do not believe, however, that the proper resolution of this case in the end turns on whether this order can be termed a prior restraint. We observe the admonition of Justice Frankfurter that the term “prior restraint” should not be used as “a talismanie test,” Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441, 77 S.Ct. 1325 (1957), and do not begin our examination with an almost insurmountable presumption against the validity of this order. However, the fact that the order poses many of the dangers of a prior restraint is sufficient to require close scrutiny of its impact on protected First Amendment expression.

The dissent does not dispute that the order has many of the characteristics of a “prior restraint,” but contends that there are, in effect, two different types of prior restraints, one “solely directed at information and documents obtained in discovery” and a second covering all other orders restricting expression. Dissent at-of 194 U.S.App.D.C., at 204 of 598 F.2d. Restraining orders directed at discovery materials are subject to less stringent scrutiny than other restraining orders, according to the dissent, because “[t]he First Amendment interests of litigants in the promulgation of materials exacted from another party through the compulsory processes of the courts are much more limited and of a fundamentally different character” than litigants’ other First Amendment interests. Id. at - of 194 U.S.App.D.C., at 206 of 598 F.2d. We cannot agree with this bifurcated approach to the First Amendment’s protection for speech.

B. The First Amendment Interests of Litigants and Lawyers

1. The First Amendment Interest in Litigation and the Administration of Justice

Defendants correctly point out that attorneys “have historically been ‘officers of the courts[,]’ ” Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975), and that they have a legal and ethical responsibility to safeguard the right to a fair trial.¹⁸ But lawyers’ responsibility to protect the fairness of the judicial process does not mean that lawyers and litigants surrender their First Amendment rights at the courthouse door. Even public officials who have special responsibilities to the court do not necessarily have a “more severely curtailed” right to freedom of expression than “the average citizen.” Wood v. Georgia, 370 U.S. 375, 393, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962).¹⁹

In fact, orders restraining extrajudicial comment by parties and lawyers have been uniformly held a serious restriction of fundamental First Amendment rights. In CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975), for example, the court of appeals confronted an order forbidding court personnel, counsel, parties, and the parties’ “relatives, close friends, and associates” to discuss the case with the news media or the public. The court found the order impermissibly overbroad. Id. at 239. “According to its literal terms no discussions whatever about the case are permitted by the persons upon whom the ban is placed — whether prejudicial or innocuous, whether subjective or objective, whether reportorial or interpretive.” Id. at 239 -40. The court concluded that the order was “an extreme example of a prior restraint upon freedom of speech and expression . . Id. at 240. Similarly, in Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970), the appellate court considered an order that barred counsel and defendants from making any public statements about the merits of the case, the jury, the evidence, the witnesses, or the rulings of the court. Again, the reviewing court found insufficient justification for curtailing all of these statements; it concluded that the order was overbroad and that it constituted “a prior restraint on protected first amendment conduct.” Id. at 1062.²⁰

Litigation itself is a form of expression protected by the First Amendment. The Supreme Court has recently stressed that litigation may be “a vehicle for effective political expression and association, as well as a means of communicating useful information to the public.” In re Primus, 436 U.S. 412, 431, 98 S.Ct. 1893, 1904, 56 L.Ed.2d 417 (1978).²¹ Moreover, as the Seventh Circuit has noted:

., in our present society many important social issues became entangled to some degree in civil litigation. Indeed, certain civil suits may be instigated for the very purpose of gaining information for the public. Often actions are brought on behalf of the public interest on aj)nvate attorney general theory. Civil litigation nTgenefSTofien exposes the need for governmental action or correction. Such revelations should not be kept from the public. Yet it is normally only the attorney who will have this knowledge or realize its significance. . . . Therefore, we should be extremely skeptical about any rule that-silences that voice.²²

It is thus indisputable that attorneys and parties retain their First Amendment rights even as participants in the judicial process. For the very reasons that have led courts to conclude that lawyers and parties retain their First Amendment rights generally, we conclude that those rights extend to discovery materials.

2. The First Amendment Interest in Discovery Materials

The inherent value of speech in terms of its capacity for informing the public does not turn on how or where the information was acquired. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 778-783, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). Even where information has been stolen, New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 (1971); Rodgers v. United States Steel Corp., 536 F.2d 1001, 1008 n. 16 (3d Cir. 1976), or retained in violation of a security agreement, United States v. Marchetti, 466 F.2d 1309, 1317 (4th Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516 (1972), individuals who obtain such information have been held to have First Amendment rights in its dissemination.

A party’s right to disseminate information is far stronger for discovery materials than for information that has been stolen or obtained in breach of contract. Generally speaking, when a party obtains documents or information through the discovery process, he can “use that information in any way which the law permits.” Leonia Amusement Corp. v. Loew’s, Inc., 18 F.R.D. 503, 508 (S.D.N.Y.1955). Accord Essex Wire Corp. v. Eastern Electric Sales Co., 48 F.R.D. 308, 312 (E.D.Pa.1969). The discovery rules themselves place no limitations on what a party may do with materials obtained in discovery. Under Rule 26(c), Fed.R.Civ.P., the party or person from whom discovery is sought must establish “good cause” for any restriction on the use of discovery documents.²³ The implication is clear that without a protective order materials obtained in discovery may be used by a party for any purpose, including dissemination to the public.²⁴

Defendants do not argue that discovery materials generically constitute one of the “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). Unlike libelous falsehoods, Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), or obscenities, Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), or fighting words, Chaplinsky, 315 U.S. at 572, 62 S.Ct. at 769, discovery materials cannot be described as a class of utterances of “no essential part of any exposition of ideas,” or of “slight social value as a step to truth.” Id. at 572, 62 S.Ct. at 769. In fact, the information contained in discovery documents in this case, pertaining to an allegedly illegal program of Government surveillance of citizens opposed to the war in Vietnam, lies near the heart of the information protected by the First Amendment. First National Bank of Boston v. Bellotti, 435 U.S. at 781, 98 S.Ct. 1407; Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966).

Defendants, citing International Products Corp. v. Koons, 325 F.2d 403 (2d Cir. 1963), nevertheless contend that plaintiffs voluntarily waived any First Amendment rights in discovery materials when they entered into the discovery process. Although one court, in dicta, has suggested that Koons can be interpreted as standing for this extreme proposition, Rodgers v. United States Steel Corp., 536 F.2d at 1006, we think it should be read less broadly.

At issue in Koons was a restraining order forbidding the parties from publicly disclosing information contained in a deposition. Disclosure of the information, involving illegal payments to officials in South America, was said to be “contrary to the best interests of the foreign policy of the United States.” 325 F.2d at 405. The court ruled that to the extent the order barred disclosure of information obtained before the deposition was taken, it was an impermissible prior restraint on First Amendment rights. Id. at 408-09. The court also stated, however, that

[t]he portion of the order which seals the deposition of Seldes and limits defendants and others in their use of information obtained therefrom was plainly authorized by F.R.Civ.Proc. [26(c)] and we entertain no doubt as to the constitutionality of a rule allowing a federal court to forbid the publicizing, in advance of trial, of information obtained by one party from another by use of the court’s processes.

Id. at 407.

This passage does not say that parties have no First Amendment rights in discovery materials. At most, it establishes that a properly drawn restraining order, supported by a proper showing of good cause, is compatible with the First Amendment.²⁵ Significantly, this interpretation of Koons has been recently adopted in a case expressly holding that a party has First Amendment rights in information obtained in the tliscovery process. Reliance Insurance Co. v. Barron's, 428 F.Supp. 200, 204 05 (S.D.N.Y.1977). See Davis v. Romney, 55 F.R.D. 337, 344-45 (E.D.Pa.1972).

If Koons does stand for the proposition that the parties in a civil action waive all First Amendment rights In discovery materials, as the Rodgers court suggested in dicta,²⁶ then we think it is wrong. Waivers of First Amendment rights are to be inferred only in “clear and compelling” circumstances. Curtis Publishing Co. v. Butts, 388 U.S. 130, 145, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (Harlan, J.). See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Rodgers v. United States Steel Corp., 536 F.2d at 1007 n. 14. Plaintiffs here never agreed to forego any First Amendment claim related to discovery materials. Nor do we find clear and compelling evidence of an implied waiver of First Amendment rights in the system of civil discovery. As noted above, the presumption under the discovery rules is that a party may do anything it wants with discovery material, absent a protective order entered “for good cause shown.” Fed.R. Civ.P. 26(c).

Furthermore, assuming arguendo that parties implicitly agree not to publicly disclose information obtained in the discovery process, this does not establish a waiver of First Amendment rights. Even where individuals have entered into express agreements not to disclose certain information, either by consent agreement, Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir.), cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963); or by an employment contract and secrecy oath, United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516 (1972), the courts have held that judicial orders enforcing such agreements are prior restraints implicating First Amendment rights.

Defendants also appear to argue that because plaintiffs can obtain discovery materials only through the court’s processes, the court can condition their access to these materials without regard to the First Amendment. Fed.Res.Br. at 27. This argument, first and most fundamentally, confuses plaintiffs’ right of access to materials with restraints imposed on materials after they have been obtained. We agree that plaintiffs do not have a First Amendment right of access to information not generally available to members of the public. Pell v. Procunier, 417 U.S. 817, 834, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); see also Nixon v. Warner Communications, Inc., 435 U.S. 589, 609-10, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). A prohibition on what plaintiffs may say about information once they have obtained it, however, directly implicates the First Amendment.²⁷ Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 837-38, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978). Even if plaintiffs have no right to discovery materials, a court cannot condition the “privilege” of access on a waiver of First Amendment rights. As the Court observed in Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972):

even though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460. Such interference with constitutional rights is impermissible.²⁸

The conclusion that First Amendment rights attach to materials made available through the discovery process does not, however, end our inquiry. As plaintiffs acknowledge, the First Amendment is not an absolute, see Near v. Minnesota, 283 U.S. at 716, 51 S.Ct. 625, 75 L.Ed. 1357, and the protection afforded the exercise of First Amendment rights may be limited in certain narrow circumstances. In particular, protection of a subordinating public interest may justify narrowly drawn restrictions of First Amendment rights, NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Thus, the appropriate constitutional standard governing the issuance of restraining orders under Rule 26(c) must take account of the important public interests in the functioning of the discovery process, and the unique characteristics of that process, as well as the First Amendment interest in unfettered expression. We proceed, then, to an examination of the constitutional standard which the trial judge must apply before entering a restraining order under Rule 26(c).

C. The Constitutional Standard

Initially, the trial court must determine whether a particular protective order in fact restrains expression and the nature of that restraint. First Amendment interests will vary according to the type of expression subject to the order. An order restraining publication of official court records open to the public,²⁹ or an order restraining political speech,³⁰ implicates different interests than an order restraining commercial information.³¹ The interests will also vary according to the timeliness of the expression. An order restraining highly newsworthy information ³² raises a different issue than a temporary restraint of materials having “constant but rarely topical interest.” ³³

The court must then evaluate such a restriction on three criteria: the harm posed by dissemination must be substantial and serious; ³⁴ the restraining order must be narrowly drawn and precise;³⁵ and there must be no alternative means of protecting the public interest which intrudes less directly on expression.³⁶

In assessing the propriety of a protective order in each case (/. e., whether there is “good cause” for an order which restricts expression), the trial court must consider and make the necessary findings on each element of the standard. Certain general considerations, however, will apply to most requests for a restraining order under Rule 26(c).

1. Nature of the Harm Posed by Dissemination

Widely varying interests have been advanced in support of restraining orders, from protection of national security information, see International Products Corp. v. Koons, 325 F.2d 403 (2d Cir. 1963), to preservation of privileged information, Rodgers v. United States Steel Corp., 536 F.2d 1001 (3d Cir. 1976), to maintenance of trade secrets, Natta v. Zletz, 405 F.2d 99 (7th Cir. 1968). The weight of these interests will vary from case to case.

Rule 26 establishes a mechanism for accommodating the interest in “[m]utual knowledge of all the relevant facts gathered by both parties,” Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), with these countervailing interests. The Rule requires general disclosure of information “relevant to the subject matter involved in the pending action,” Fed.R.Civ.P. 26(b), unless the party from whom discovery is sought obtains a protective order to shield some competing interest. Id. at 26(c). To insure that this mechanism functions properly, the trial court must have flexibility in fashioning appropriate protective orders, including restraining orders.³⁷ Protective orders not only serve to protect against unfairness in a particular judicial proceeding, but may also help preserve the effective functioning of the civil discovery system more generally. A smoothly operating system of liberal discovery is in the interests of litigants and ; society as a whole, for it contributes to a full and fair airing of all material facts in' controversy.³⁸ If parties are to be forthcoming in responding to requests for discovery, they must have fair assurance that legitimate countervailing interests will be protected, if necessary by a restraining order.

There can be no doubt.that protecting the fairness of the judicial process is a substantial interest, for it is central to the maintenance of liberty. Accordingly, courts have always valued the need to protect the administration of justice from “abuses, oppression and injustice.” Gumbel v. Pitkin, 124 U.S. 131, 144, 8 S.Ct. 379, 31 L.Ed. 374 (1888). “[T]he right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government . . Wood v. Georgia, 370 U.S. at 383, 82 S.Ct. at 1369.

When asked for a protective order based on the right to a fair trial, the trial court should assess the strength of the interest according to the following factors:

(a) Civil versus criminal trial. Although the right to a fair trial is fundamental to both civil and criminal litigation,³⁹ there are important distinctions between the two in this context.

[Although we rightfully place a prime value on providing i. system of impartial justice to settle civil disputes, we require even a greater insularity against the possibility of interference with fairness in criminal cases. Perhaps this is symbolically reflected in the Sixth Amendment’s requirement of an “impartial jury” in criminal cases whereas the Seventh Amendment guarantees only “trial by jury” in civil cases.

Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 257-58 (7th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976).⁴⁰

(b) Bench trial versus jury trial. The principal concern about pretrial publicity is that it will prejudice a lay jury. It is true that judges, too, are human. Cox v. Louisiana, 379 U.S. 536, 565, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). But life-tenured judges are “supposed to be men of fortitude, able to thrive in a hardy climate.” Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1974); In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972). Although the threat of prejudicial publicity is entitled to some weight in a bench trial, see Chicago Council of Lawyers v. Bauer, 522 F.2d at 256-57, it is entitled to greater weight where a jury trial has been demanded.

2. Precision of the Restriction

To establish “good cause” for a protective order under Rule 26(c), “[t]he courts have insisted on a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements. . . . ” 8 Wright & Miller, Federal Practice and Procedure § 2035 at 265 (1970).⁴¹ This requirement is constitutionally mandated when the order restricts expression, see Chase v. Robson, 435 F.2d at 1061, to assure that the order is no broader than absolutely necessary to protect the countervailing interest. An order restraining speech cannot be based on a record that reveals only naked speculation that the right to a fair trial might be jeopardized. ■Nebraska Press Ass’n, 427 U.S. at 569, 96 S.Ct. 2791. Thus, in determining whether “good cause” exists to issue a restraining order limited to discovery material and to lawyers and parties, the trial court must also require a specific showing that dissemination of the discovery materials would pose a concrete threat to an important countervailing interest.⁴²

Except in unusual circumstances, a protective order issued under Rule 26(c) can be tailored to avoid many of the infirmities associated with judicial restraints on expression. If the party against whom discovery is sought makes a timely motion for a protective order, the court can examine the relevant documents or information in camera before determining whether a restraining order should issue. See Kerr v. United States District Court, 426 U.S. 394, 404-06, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). In appropriate cases, opposing counsel should be permitted to participate in such in camera proceedings, so that the judge will have the benefit of adversarial presentation.⁴³ The court should therefore have no difficulty drafting a narrow order covering only specifically identified materials that may be proscribed consistent with the First Amendment. In short, when judicial restraints on discovery materials are involved, there should be no need for the court to issue vague or overbroad orders, or to speculate “in advance what [the speaker] will say.” Southeastern Promotions Ltd. v. Conrad, 420 U.S. at 559, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448.

3. Less Intrusive Alternatives

A protective order pursuant to Rule 26(c) may be the least intrusive means of achieving the goals of protecting the fairness of the judicial process and preserving the discovery system. An order directed only against parties and lawyers undoubtedly represents a less sweeping curtailment of First Amendment rights than, e. g., an order broadly restraining the press.⁴⁴ Although, from the public’s point of view, the probable effect of such an order will be to dry up a valuable source of news about the trial, and although this is a serious consequence, CBS, Inc. v. Young, 522 F.2d at 239, an order binding the entire news media will likely have the much more serious effect of depriving the public information about the trial altogether. Similarly, an order barring all comment on a pending case by lawyers and litigants would restrict expression more drastically.⁴⁵

The only plausible alternative to a protective order may be the denial of discovery altogether. Such a result benefits no one, for in neither event will the public learn the contents of the discovery material, and when discovery is denied, the litigant will be deprived of information relevant to the preparation of the case.⁴⁶

However, when the threatened harm is prejudice to a fair trial, a number of alternatives less restrictive of expression may be available. They include

(a) change of trial venue to a place less exposed to intense publicity . ; (b) postponement of the trial to allow public attention to subside; (c) searching questioning of prospective jurors to screen out those with fixed opinions as to guilt or innocence; (d) the use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court[;] (e) [sequestration of jurors [to] . . . enhance]] the likelihood of dissipating the impact of pretrial publicity and emphasize]] the elements of the jurors’ oaths.

Nebraska Press Ass’n, 427 U.S. at 563-64, 96 S.Ct. at 2805; see also Sheppard v. Maxwell, 384 U.S. 333, 357-62, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Not all of these measures will be available or feasible in every case, but they should be carefully considered before resorting to a restraining order.

These considerations demonstrate that, in appropriate cases, an order restricting the dissemination of discovery materials under Rule 26(c) may survive constitutional scrutiny. We stress, however, that in each case, before entering a protective order that restricts expression, the trial judge must determine that it meets those criteria mandated by the First Amendment. Different orders will have different impact on expression. Only in the context of particular discovery material and a particular trial setting can a court determine whether the threat to substantial public interests is sufficiently direct and certain. Only in a particular case can the judge determine whether an order is sufficiently narrow and precise to accomplish the desired goal with the least restriction on expression. And only in the particular case can the judge determine whether alternative methods with less intrusive impact on expression could accomplish the same goal.⁴⁷

III. THE ORDER OF FEBRUARY 14,1977

Applying these principles, we have no difficulty concluding that the district court’s order of February 14, 1977 is seriously infirm. By preventing plaintiffs from divulging or commenting on the documents at issue, the order restrained them from criticizing certain government practices. To justify such a restriction on political expression, the government does not contend that it is necessary to protect national security or the privacy of third parties.⁴⁸ Rather, counsel for defendants merely asserted that the intended news release would be “prejudicial to adjudication of these issues . . . in an uncolored and unbiased climate,”⁴⁹ without providing any evidence to support this conclusory allegation.⁵⁰

The district court made no evaluation of the First Amendment interests at stake, nor any finding that release of the documents would preclude a fair trial. Yet the district court broadly restrained the dissemination of an indeterminate amount of material of unknown content, barring extra-judicial statements about any discovery documents not made part of the public record. The order bars plaintiffs and their counsel from making extra-judicial statements about any discovery documents not made part of the public record. When the order was issued, plaintiffs had 55 CIA documents in their possession, App. at 23, and defendants had promised to hand over additional documents in the near future. Supplementary Appendix (Supp.App.) at 34-35. But the only materials the court had actually examined, in addition to the moving papers, memoranda, and correspondence between the parties, were: a two-paragraph letter from counsel for plaintiffs describing three documents plaintiffs proposed to release to the news media; photocopies of these three documents; and a draft press release, slightly over one page in length, interpreting the significance of these three documents. The court accordingly had no way of knowing what was contained in the bulk of the materials enjoined, or whether material other than the three documents and press release would be prejudicial if released.⁵¹

The district court failed even to assess the specific harm posed by the three documents actually before it, concluding only that “extra-judicial statements of disclosure of discovery materials . . are contrary to rules applicable to the conduct of litigation before this Court and inconsistent with the obligations of parties and their counsel to further the just determination of matters within its jurisdiction. . . . ” App. at l.⁵²

Finally, the defendants made no showing, nor the court any finding, that potential prejudice could not be avoided by means less intrusive on expression.⁵³

Judged by the standards imposed by Rule 26(c) and the First Amendment, the district court’s. order is indisputably deficient. It prohibits political expression, yet it is silent as to its reasons, rests on no express findings, and is unsupported by any evidence.

IV. THE PROPRIETY OF MANDAMUS

Plaintiffs seek a writ of mandamus.⁵⁴ We are empowered to issue such writs by the All Writs Act, 28 U.S.C. § 1651(a) (1976):

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.⁵⁵

The remedy of mandamus “is a drastic one, to be invoked only in extraordinary situations.” Kerr v. United States District Court, 426 U.S. at 402, 96 S.Ct. at 2123. Although the traditional touchstone for the use of the writ in aid of appellate jurisdiction has been the necessity of confining “an inferior court to a lawful exercise of its prescribed jurisdiction,” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943), “courts have never confined themselves to an arbitrary and technical definition of ‘jurisdiction’ . . . Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). Instead the writ has issued to correct those exceptional circumstances where there has been a “clear abuse of discretion or ‘usurpation of judicial power’ . . Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953). See Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964).

Although mandamus is a common law writ, it may, “like equitable remedies, ... be granted or withheld in the sound discretion of the Court . . .” Ex parte Peru, 318 U.S. 578, 584, 63 S.Ct. 793, 797, 87 L.Ed. 1014 (1943). Various doctrines govern the issuance of the writ. A petition for mandamus will be denied where “other adequate remedy is available,” id., or where its issuance would “thwart the congressional policy against piecemeal appeals.” Parr v. United States, 351 U.S. 513, 521, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956). A petitioner for mandamus must thus demonstrate that “appeal is a clearly inadequate remedy.” Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041 (1947), because he “will be damaged or prejudiced in a way not correctable on appeal.” Bauman v. United States District Court, 557 F.2d 650, 654 (9th Cir. 1977). Consideration will be given to the severity and extent of this damage,⁵⁶ and in particular to whether a petitioner has lost precious constitutional rights.⁵⁷ A petitioner for mandamus must also demonstrate that his “right to issuance of the writ is ‘clear and indisputable,’ ” Bankers Life & Casualty Co. v. Holland, 346 U.S. at 384, 74 S.Ct. at 148, although “writs will issue where the question of jurisdiction is undecided.” Morrow v. District of Columbia, 135 U.S.App.D.C. 160,169, 417 F.2d 728, 737 (1969).

After careful consideration of these many factors, we conclude that mandamus is appropriate in this case. Plaintiffs have demonstrated the “special circumstances which . . justify the issuance of the writ . . . .” Roche v. Evaporated Milk Ass’n, 319 U.S. at 31, 63 S.Ct. at 944. The order restrains plaintiffs’ expression, yet the court made no assessment of the strength of the continuing interest, the need for such a broad restriction, or the availability of alternative measures. In the absence of these findings, the petitioner’s right to be free of the restriction is clear and indisputable.

A number of courts have issued the writ of mandamus in order to strike down similar restraints.⁵⁸ In this case the district court’s issuance of an overbroad restraint without any findings or particularized showing whatsoever is “so ‘egregiously erroneous’ that the action could be deemed a ‘usurpation of power.’ ” Plekowski v. Ralston-Purina Co., 557 F.2d 1218, 1220 (5th Cir. 1977). As the Third Circuit stated in reviewing a restraining order imposed by a district court on a party and her attorney, “[imposition of an order on anything less than a clear showing of particularized need removes it from the area of discretion unreviewable by mandamus.” Coles v. Marsh, 560 F.2d 186, 189 (3d Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977).

Mandamus is especially appropriate in this case because plaintiffs have no other available adequate remedy. The Supreme Court has frequently noted the importance of timeliness to the rights of expression protected by the First Amendment. See, e. g., Nebraska Press Ass’n, 427 U.S. at 559, 96 S.Ct. 2791. “It is vital to the operation of democratic government that the citizens have facts and ideas on important issues before them. A delay of even a day or two may be of crucial importance in some instances.” Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 182, 89 S.Ct. 347, 352 (1968), quoting with approval, A Quantity of Books v. Kansas, 378 U.S. 205, 224, 84 S.Ct. 1723 (Harlan, J., dissenting). The Court has thus stressed the necessity of “immediate appellate review” of court issued restraints. National Socialist Party of America v. Skokie, 432 U.S. 43, 44, 97 S.Ct. 2205 (1977) (per-curiam). See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 485-86, 95 S.Ct. 1029 (1975). The duration of a trial is intolerably long when measured by this First Amendment clock. Bridges v. California, 314 U.S. 252, 268-69, 62 S.Ct. 190 (1941). Appeal is therefore a clearly inadequate remedy for plaintiffs. If they were forced to wait for appellate review until a final disposition of their case by the district court, their First Amendment rights to timely expression would be irretrievably lost. Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329-30, 96 S.Ct. 251, 46 L.Ed.2d 237 (1975) (Blackmun, J. in chambers); Citizens for a Better Environment v. City of Park Ridge, 567 F.2d 689, 691 (7th Cir. 1975).

The only other remedy available to plaintiffs is to test the validity of the district court’s order through contempt proceedings. Even assuming, however, that the collateral bar rule would not apply to such a proceeding, see United States v. Ryan, 402 U.S. 530, 532 n. 4, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), we conclude that it would not provide an adequate avenue of relief. The puissant threat of contempt might well suffocate the “breathing space” necessary for the exercise of petitioners’ First Amendment rights. See New York Times Co. v. Sullivan, 376 U.S. 254, 271-72, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). As the Seventh Circuit said in reviewing by mandamus a restraining order imposed by a district court, “[s]ince there is likelihood that the order will have a chilling effect on speech, defendants should not be forced to assert the invalidity of the order as a defense in a contempt proceeding. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).” Chase v. Robson, 435 F.2d at 1062. It is true that in the past we have required petitioners for mandamus to contest through contempt proceedings the validity of orders limiting the scope or availability of discovery. See National Right to Work Legal Defense and Education Foundation, Inc. v. Richey, 167 U.S.App.D.C. 18, 24, 510 F.2d 1239, 1245, cert. denied, 422 U.S. 1008, 95 S.Ct. 2631, 45 L.Ed.2d 671 (1975). Challenges to such discovery orders by mandamus are particularly disfavored,⁵⁹ since they undermine the congressional policy against piecemeal appeals. See Usery v. Ritter, 547 F.2d 528, 532 (10th Cir. 1977); cf. Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 2453, 57 L.Ed.2d 364 (1978). This is because the underlying cause of action in the district court is derailed while such challenges are decided. In appropriate cases, however, courts have entertained challenges to discovery orders by mandamus.⁶⁰ In the instant case, the underlying trial of petitioners’ claims continues unaffected by our disposition of this mandamus petition. The district court’s order, in other words, affects rights of petitioners that are “separable from, and collateral to” rights asserted in their complaint. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See United States v. Schiavo, 504 F.2d 1, 4-5 (3d Cir.) (en banc), cert. denied, 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974).⁶¹

V.

In accordance with our usual practice, we will not issue the writ at this time. Instead, we will transmit a copy of this opinion to the district court to permit further proceedings in light of the discussion herein.⁶² Defendants are free to seek a new restraining order if they are able to present a detailed showing that a narrowly drafted order restraining promulgation of the documents by plaintiffs would be constitutional under the principles outlined in this opinion. It will remain open, however, for the parties to seek such further relief from this court as the circumstances may require.

Judgment accordingly.

1 . The writ of mandamus is often used by a higher court to compel certain positive actions on the part of a lower court, while the writ of prohibition is used to prevent such actions. The two writs are thus counterparts and “are often . . . used together by a higher court to bring a lower court back within its jurisdiction.” Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 165, 417 F.2d 728, 733 (1969). A petitioner need not precisely distinguish which writ he seeks. See, e. g., In re Simons, 247 U.S. 231, 38 S.Ct. 497, 62 L.Ed. 1094 (1918); Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.L. Rev. 595, 595 n.1 (1973). Since the grounds for issuing the writs are virtually identical, we shall for convenience refer to petitioners’ request as though it were for mandamus alone.

2 . Defendant Bush’s response set out a code explaining the deletions in the documents (App. 8-9):

The following numbers and letters have been inserted where deletions have been made to indicate the nature of information or words which have been withheld from disclosure to the plaintiffs. These numbers and letters denote a particular objection and the grounds therefor.

1. Words or text denoting or revealing CIA field station, bases, or components.

2. Cryptonym, sensitivity indicator, or information handling indicator.

3. Words or text identifying a CIA employee or organizational component.

4. Security classification of the document.

A. Information obtained from or about the investigative or intelligence activities of another United States Government agency.

B. Words or text identifying an intelligence or security service of a foreign government in liaison with CIA, or information obtained from such liaison relationship with CIA.

C. Irrelevant information or words identifying a non-party whose privacy interests are entitled to protection from disclosure.

D. Words or text identifying or aiding the identification of CIA foreign intelligence or counter-intelligence sources or methods.

3 . Fed.R.Civ.P. 26(c) provides:

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following. (1) that the discovery not be had: (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

4 . In a letter to defendants, plaintiffs’ counsel stated (App. 19 20):

It is our view that all discovered documents are available for inspection by the press and public, unless the party producing the documents moves and obtains from the court an appropriate protective order. It is further our view that attorneys and their researchers and consultants are free to alert the public and press of discovered documents, to explain the significance of such documents, and to answer any questions from the public or press regarding such documents, unless directed otherwise by a court. Such expression constitutes “a quotation from or reference to public records” which is expressly not prohibited by Local Rule 1 27(d). Particularly since this case is not being tried to a jury, we see no reasonable likelihood that the dissemination we contemplate can interfere with a fair trial. Moreover, the produced documents concern Operation CHAOS which has been a matter of intense public interest and an extended Congressional investigation. Under all the circumstances, we believe that the public should not be denied access to any additional information about Operation CHAOS which may come to light through this lawsuit.

******

The responsibility for applying for a protective order rests with the party producing the documents. Despite the fact that the documents were produced without such an application having been made and despite the fact that we gave ample notice over the telephone to defendants of our intention to release the documents, we are providing you with this formal notice that we intend to make the produced documents available to the public and press on January 31, 1977. We further intend to announce this availability by means of a press release, the text of which is enclosed. Counsel for the plaintiffs and their researchers and consultants will be available to answer any questions directed to them concerning the documents. Because the above-captioned case is likely to involve the production of a substantial number of documents which will be of significant interest to the public and press, your letter has given us an opportunity to consider how we will handle the public release of such documents. In the future, we will consider ourselves free to release forthwith any produced documents which are not covered by a protective order. In a letter lodged in the chambers of the district court on February 9, 1977, plaintiffs’ counsel stated that plaintiffs had planned to release only three documents to the press.

5 . Local Rule 1 27(d) provides:

(d) Conduct of Attorneys in CiVil Cases. A lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, which a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that such dissemination will interfere with a fair trial and which relates to:

(1) Evidence regarding th'e occurrence or transaction involved.

(2) The character, credibility, or criminal record of a party, witness, or prospective witness.

(3) The performance or results of any examinations or tests or the refusal or failure of a party to submit to such.

(4) His opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule.

(5) Any other matter reasonable likely to interfere with a fair trial of the action.

Defendants also cited the Code of Professional Responsibility as amended by the District of Columbia Court of Appeals, which retains Canon 20 of the Canons of Professional Ethics “in lieu” of DR7 107(G) and (H). Canon 20 reads:

20. Newspaper Discussion of Pending Litigation.

Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the court; but even in extreme cases it is better to avoid any ex parte statement.

6 . Defendants also argued that the documents provided through discovery were not part of the public record; that plaintiffs’ press release constituted a “comment on or characterization of the contents of the documents”; and that plaintiffs had failed to demonstrate any “need” for public disclosure of the documents. ,.App. at 25-26.

7 . These documents have now been filed under seal with this court.

8 . The court’s order stated, in full:

Upon consideration of the federal defendants’ Motion for Protective Order, plaintiffs’ opposition thereto, and of plaintiffs’ counsel’s letter of January 24, 1977 and the proposed press release attached thereto, and it appearing to the Court that extra-judicial statements or disclosure of discovery materials by the parties, their counsel, and researchers, consultants, or other persons who may be associated with them in this civil action are contrary to rules applicable to the conduct of litigation before this Court and inconsistent with the obligations of parties and their counsel to further the just determination of matters within its jurisdiction, it is this 14th day of February, 1977,

ORDERED that documents and information furnished during the course of discovery in this civil action shall not, unless made a part of the open Court record herein, be the . subject, either directly or indirectly, of extrajudicial statements or publication by the parties or their counsel, nor shall they otherwise disclose any such information or documents except in proceedings before this Court, and it is further

ORDERED that the prohibition against disclosure other than for purposes directly in furtherance of litigation of this civil action before this Court shall continue until modified or removed by subsequent express order of this Court.

9 . See note I supra.

10 . Although the operative portion of the order is limited to “the parties or their counsel,” see n. 8 supra, the preamble refers disapprovingly to “extra-judicial statements or disclosure of discovery materials by . researchers, consultants, or other persons who may be associated with [the parties or their counsel] in this civil action. . ” Id. In CBS, Inc. v. Young, 522 F.2d 234, 239 (6th Cir. 1975), the court held that an order silencing the parties’ “relatives, close friends and associates” was impermissibly vague and overbroad. To the extent the order here raised doubts in the minds of the plaintiffs’ “researchers,” “consultants,” or “associates” as to whether the order applied to them, it too had an impermissible chilling effect on persons other than the parties and their counsel.

11 . The dissent maintains that “the order is limited in duration, contemplating . . public disclosure during trial. . . . ” Dis. op. at of 194 U.S.App.D.C., at 203 of 598 F.2d (emphasis in original). Similarly, the defendants aver that the order "expires of course at the conclusion of the litigation.” Fed.Res.Br. at 33. Although it is reasonable to assume this is what the district court had in mind, there is no support for this in the record. By its terms, the order continues in effect “until modified or removed by subsequent express order of this Court.” See note 8 supra.

12 . Accord, New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); Bantam Books v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963).

13 . Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376, 389 90, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973); Near v. Minnesota, 283 U.S. 697, 713 15, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp.Prob. 648, 650 (1955).

14 . Under the standards laid down by the Court, the press may be restrained only when (1) pretrial publicity is likely to be so pervasive that it probably will have an effect on jurors; (2) there are no alternative methods of dealing with the problem through (a) change of venue, (b) postponement of the trial, (c) questioning jurors closely during voir dire, (d) clear instructions at trial, or (e) sequestration of the jury; and (3) the prior restraint will be effective. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562, 563 64, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). As one commentator has noted, “the practical impact of the rule announced by Chief Justice Burger is to outlaw all prior restraints in fair trial/free press cases.” Goodale, The Press Ungagged: The Practical Effect on Gag Order Litigation of Nebraska Press Association v. Stuart, 29 Stan.L.Rev. 497, 498 (1977).

15 . An administrative censorship scheme provides less protection for expression than a system of subsequent punishment because it permits sanctions to be imposed for failure to obtain the censor’s approval, regardless of the nature of the expression. Expression may be punished in a censorship scheme upon proof of one fact — the failure to obtain prior approval. A would-be speaker thus cannot ignore the censor, for later he will be unable to defend his expression on the ground that it posed no danger and therefore the censor could not have suppressed it consistent with the First Amendment. See Poulos v. New Hampshire, 345 U.S. 395, 408-09, 73 S.Ct. 760, 97 L.Ed. 1105 (1953). In contrast, under a system of subsequent punishment, the state must show in each case that the particular expression which the state seeks to punish did in fact pose an immediate threat to an interest which the state has a right to protect. See Landmark Communications Inc. v. Virginia, 435 U.S. 829, 843-44, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978).

A judicial order barring expression may pose a threat to expression similar to that generated by a licensing scheme, through the operation of the so-called “collateral bar” rule. The collateral bar rule precludes one who violates a judicial order from raising the order’s unconstitutionality (as applied in a particular case) as a defense to contempt. See, e. g., Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967) (sustaining conviction for violation of an ex parte injunction and upholding state court’s application of collateral bar rule where injunction was not transparently invalid and petitioners failed to utilize opportunity to appeal.) But see Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (where authorizing statute invalid on its face, invalidity a complete defense to contempt conviction for violating injunction issued pursuant to the statute).

If the collateral bar rule applies to an order restraining expression, the would-be speaker faces a Hobson’s choice: either violate the order, risking almost eertain conviction for contempt, and lose the right to challenge the order’s constitutionality, or alternatively, obey the order, seek review, and forfeit, at least temporarily, the very right the would-be speaker seeks to vindicate. The dilemma is particularly acute where First Amendment interests are at stake, for even a temporary restraint on expression may constitute irreparable injury. Nebraska Press Ass'n, 427 U.S. at 559, 96 S.Ct. 2791, Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 182, 89 S.Ct. 347 (1968).

A judicial order restraining speech casts the judge in a role comparable to that of a censor. To escape the sanctions associated with violating the order, the speaker is inevitably led to clear his expression with the judge in advance, and the speaker bears the burden of proving that the expression is inoffensive. See Near v. Minnesota, 283 U.S. at 712-13, 51 S.Ct. 625; cf. Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) (to avoid constitutional infirmity censor must bear burden of showing that film is unprotected.) Where the restriction is by criminal law, of course, the burden is on the state to prove that the speech did in fact pose a great danger. In Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248-49 (7th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976), the Court concluded that since the collateral bar rule did not apply in a challenge to the constitutionality of the district court’s standing “no comment” rules, such rules did not constitute a “prior restraint.” Nonetheless, the Court did subject them to close scrutiny. See note 22, infra. We have no occasion to decide whether the collateral bar rule could constitutionally be applied in this case. Compare United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), with United States v. Dickinson, 465 F.2d 496, 509-513 (5th Cir. 1972), aff’d 476 F.2d 373 (5th Cir.), cert. denied, 414 U.S. 979, 94 S.Ct. 270, 38 L.Ed.2d 223 (1973). See generally, Goodale, supra note 14 at 508-12; Barnett, The Puzzle of Prior Restraint, 29 Stan.L.Rev. 539, 551 58 (1977).

Even in the absence of the collateral bar rule, judicial orders may provide less protection for expression than a criminal statute:

1) Unlike prosecution for a violation of a statute, one who violates a judicial order may not be afforded the full safeguards of a criminal prosecution, including the right to a jury trial. See, e. g., Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp.Prob. 657-658 (1955); L. Tribe, American Constitutional Law 726 n. 1 (1978).

2) While a statute poses only a “mute, impersonal threat,” a judicial order singles out particular individuals, increasing both the likelihood of punishment if the order is violated, and the probability that protected speech will be chilled regardless of the defenses which may ultimately be available in subsequent proceedings. L. Tribe, American Constitutional Law 726 n. 2. It is notéworthy that, in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), the newspapers apparently were prepared to obey an injunction, but were not deterred from publishing initially by the possibility of prosecution under criminal statutes. See Kalven, The Supreme Court, 1970-Term— Foreword: Even When a Nation Is at War, 85 Harv.L.Rev. 1, 34 & n. 156 (1971); O. Fiss, Injunctions 154-155 (1972).

16 . Administrative censorship schemes often differ from orders such as those under Rule 26(c) because their proscriptions become effective prior to a judicial adversary proceeding to determine, on the merits, the constitutionality of the restraint. Compare A Quantity of Books v. Kansas, 378 U.S. 205, 210, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) and Marcus v. Search Warrant, 367 U.S. 717, 734 38, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961) (seizure of allegedly obscene books before adversary determination of their obscenity impermissible) with Kingsley Books, Inc. v. Brown, 354 U.S. 436, 443, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957) (determination of obscenity under “essential procedural safeguards”) and Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376, 390, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (no interim relief granted, so order not in effect before final determination that advertising policy was unprotected). Cf. Freedman v. Maryland, 380 U.S. at 58, 85 S.Ct. 734. The requirement of adequate procedural safeguards applies to judicial orders as well as administrative schemes. See Carroll v. President and Commissioners of Princess Anne, 393 U.S. at 181 83, 89 S.Ct. 347.

17 . An order under Rule 26(c) may differ from other judicial orders barring expression because the order can be limited to specific expression rather than imposing a restraint of unknown breadth on speech. As the Court noted in Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 559, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975):

[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of free-wheeling censorship are formidable.

Typically the reach of judicial orders that have been condemned as prior restraints necessarily was unknown and unknowable at the time the order was issued. See Near v. Minnesota, 283 U.S. at 706, 51 S.Ct. 625 (injunction against as yet unpublished “scandalous” newspaper); Organization for a Better Austin v. Keefe, 402 U.S. at 418-19, 91 S.Ct. 1575 (injunction against distributing literature “of any kind”); Nebraska Press Ass’n, 427 U.S. at 545, 96 S.Ct. 2791 (order barring publication of any facts “strongly implicative” of the accused). Cf. Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (order enjoining publication of juvenile’s name and photograph).

Under Rule 26(c) the judge need not guess what the party will say, since the judge can consider each document. See Pittsburgh Press Co., 413 U.S. at 390, 93 S.Ct. 2553, 2561, 37 L.Ed.2d 669 (upholding restriction where “order is based on a continuing course of repetitive conduct,” court needn’t “speculate as to the effect of publication”); Kingsley Books, 354 U.S. at 445, 77 S.Ct. 1325, 1330 (scheme for enjoining distribution of obscene books “studiously withholds restraint upon matters not already published”).

The fact that the court could review specific documents before entering an injunction in New York Times v. United States led one commentator to question whether, under those circumstances, a judicial order restraining speech induces more self-censorship than criminal sanctions. If not, the differences between an injunction of that type and criminal sanctions might be insufficient to justify applying different constitutional standards in assessing their validity. See Kalven, supra note 15 at 33; The Supreme Court, 1970 Term, 85 Harv.L.Rev. 40, 309 (1971).

Also, unlike many judicial restraints on speech, an order pursuant to Rule 26(c) does bear, to some extent, a congressional imprimatur. Although not affirmatively enacted by Congress, the Federal Rules of Civil Procedure are subject to a mandatory 90-day “layover period” between the time that they are reported by the Chiet Justice, and their effective date. 28 U.S.C. § 2072 (1976). The purpose of this layover period is clearly to permit legislative scrutiny and, where appropriate, legislative veto. See, e. g., Act of Mar. 30, 1973, P.L. 93 12, 87 Stat. 9 (1973). Cf. Walko Corp. v. Burger Chef Systems, 180 U.S.App.D.C. 306, 554 F.2d 1165, 1168 n. 29 (1977) (Congressional inaction gives Federal Rules of Civil Procedure status “not of a legislative enactment, but of a regulation pursuant to the [Rules Enabling] Act [§ 2072].”)

The absence of an authorizing legislative judgment has not typically been viewed as a characteristic of a prior restraint. See, e. g., Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625 (1931) (injunction pursuant to statute authorizing abatement by injunction of malicious or scandalous newspaper a prior restraint). Nevertheless, it is clear that the Court has been willing to accord greater deference to a legislative judgment that restraint of expression is necessary than to a restraint imposed pursuant to the inherent powers of a court, Bridges v. California, 314 U.S. 252, 260-61, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Wood v. Georgia, 370 U.S. 375, 385-86, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), or the common law, Cantwell v. Connecticut, 310 U.S. 296, 307-08, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Indeed, in New York Times v. United States, 403 U.S. at 740-48, 91 S.Ct. 2140, Justice Marshall suggested that an important reason for treating that injunction by a standard different than for a criminal statute was the absence of congressional authorization for injunctive relief. See also id. at 730, 91 S.Ct. 2140 (Stewart, J., concurring); id. at 731-32, 91 S.Ct. 2140 (White, J., concurring); Supreme Court, 1970 Term, supra at 204.

18 . In particular, defendants point- to Rule I-27(d) of the Local Rules of the District Court for the District of Columbia, which forbids an attorney in a civil action from making an extrajudicial statement about a case “if there is a reasonable likelihood that such dissemination will interfere with a fair trial.” Defendants also note that the local Code of Professional Responsibility finds that “[njewspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial[,]” and cautions that “[gjenerally they are to be condemned.” Id. The argument that the Code of Professional Responsibility should determine what discovery materials should be made public is specifically rejected in Davis v. Romney, 55 F.R.D. 337, 343 (E.D.Pa.1972).

19 . In Wood, the Supreme Court reversed the contempt conviction of a deputy sheriff who had been publicly critical of a pending grand jury proceeding. The Court did not accept the contention that, because the deputy sheriff had a special responsibility to the court, he therefore had less First Amendment rights than an ordinary citizen. Id. at 393, 82 S.Ct. 1364. The sheriff’s status did not provide “any basis for curtailing his right of free speech.” Id. at 394, 82 S.Ct. at 1375. The Court stressed that the case involved an elected official, and that the “role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of public importance.” Id. at 395, 82 S.Ct. at 1375. Attorneys — even if not elected officials — also perform a vital role in our society closely linked with interests protected by the First Amendment. See In re Primus, 436 U.S. 412, 431-32, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978). See also In re Sawyer, 360 U.S. 622, 631-36, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959). And the fact that an attorney is presently involved in conducting a case does not, without more, “make [his] out-of-court remarks more censorable,” id. at 636, 79 S.Ct. at 1383.

20 . See Rodgers v. United States Steel Corp., 536 F.2d 1001, 1006 (3d Cir. 1975); international Products Corp. v. Koons, 325 F.2d 403, 408 09 (2d Cir. 1963); Parker v. Columbia Broadcasting System, Inc., 320 F.2d 937, 939 (2d Cir. 1963).

21 . See also N.A.A.C.P. v. Button, 371 U.S. 415, 429 431, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

22 . Chicago Council of Lawyers v. Bauer, 522 F.2d at 258 (emphasis added). The court in that case held that the standing no-comment rules of the District Court for the Northern District of Illinois impermissibly restricted lawyers’ expression. Id. at 249. Although the court concluded that the rules did not constitute a prior restraint (primarily because the collateral bar rule was inapplicable, see In re Oliver, 452 F.2d 111 (7th Cir. 1971)), it nevertheless subjected them to close scrutiny in light of the significant First Amendment interests at stake. 522 F.2d at 248-249.

23 . “The rule requires that good cause be shown for a protective order. This puts the burden on the party seeking relief to show some plainly adequate reason therefor.” 8 Wright & Miller, Federal Practice and Procedure § 2035 at 264-65 (1970).

24 . 4 Moore’s Federal Practice, 'i 26.75 at n. 3 (1977-1978 Supp.). “Outside the area of trade secrets, research etc. the contemplation is that discovery proceedings are public proceedings and there is a heavy burden placed on a party seeking protection against disclosure.”

25 . The court also approved a portion of the order sealing all affidavits submitted by defendants on various motions, stating,

we have no question as to the court’s jurisdiction to do this under the inherent “equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices,” [citations], or as to the propriety of the exercise of discretion here.

Id. at 407-08.

Defendants’ reliance on Dellums v. Powell, 182 U.S.App.D.C. 244, 561 F.2d 242, cert. denied, 434 U.S. 880, 98 S.Ct. 234, 54 L.Ed.2d 160 (1977), is similarly misplaced. There we affirmed the district court’s denial of former President Nixon’s motion to quash a subpoena duces tecum seeking transcripts of White House conversations in connection with a civil action for damages for alleged violation of constitutional rights. We noted, however, that our affirmance was without prejudice to any request by the former President for a protective order requiring

that before any documents are disclosed in a public proceeding or record there would be due and ample notice to Mr. Nixon, and an opportunity to litigate the issue of need for public disclosure, on a determination to be made in the light of the actual litigating posture of the case and the contents of the document(s).

Id. at 249. Again, this only establishes that a properly limited restraining order may be obtained upon a proper showing of cause.

26 . The Rodgers court had no occasion to determine the constitutional standards applicable to protective orders limiting dissemination of information obtained through discovery, and simply assumed the constitutionality of such orders for the purpose of argument:

At the outset, we emphasize that we need not and do not consider here whether a protective order which prohibits parties or their counsel from disclosing information or matters obtained solely as a result of the discovery process is ever subject to the First Amendment’s prohibitions against the establishment of laws that abridge freedom of speech.

Rodgers v. United States Steel Corp., 536 F.2d at 1006.

Significantly, the Rodgers court held that the district court’s order restricting counsel’s speech constituted a prior restraint, see, pp. of 194 U.S.App.D.C., p. 187 of 598 F.2d, supra, and that a writ of mandamus would issue to vacate the order “to confine the district court to. the proper sphere of its lawful power.” Rodgers at 1006. See Section IV, infra.

27 . Since plaintiffs had 55 CIA documents in their possession when the order of February 14 was issued, they had standing to challenge the constitutionality of the order. In addition, plaintiffs had a statutory right to “any matter, not privileged, which is relevant to the subject matter involved in the pending action . . .” Fed.R.Civ.P. 26(b). Whether and under what circumstances petitioners would have standing to challenge an order entered before they obtained possession of any further documents we need not decide now.

28 . The dissent finds it “anomalous” that, on the one hand, discovery may be denied completely without implicating the First Amendment, yet, on the other hand, restrictions on dissemination of discovery materials pose a significant First Amendment issue. The dissent’s apparent confusion stems from its adherence to the discredited “benefits-privileges” distinction as elaborated in Justice Rehnquist’s opinion in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Dissent at --, -- of 194 U.S.App.D.C., at 207, 208, of 598 F.2d. That position was rejected by a majority of the Court. See Arnett at 211, 94 S.Ct. at 1672 (Marshall, J., dissenting) (“a majority of the Court rejects Mr. Justice Rehnquist’s argument that because appellee’s entitlement arose from statute, it could be conditioned on statutory limitation of procedural due process protections . . .’’) See generally, L. Tribe, American Constitutional Law § 10-8.

29 . Oklahoma Publishing Co. v. District Court, 430 U.S. at 310-11, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977); Nebraska Press Ass’n, 427 U.S. at 568, 96 S.Ct. 2791.

Arguably there is an absolute privilege to disseminate information contained in public court records. See Oklahoma Publishing Co., supra; Nebraska Press Ass’n, supra; Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 96, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). See also Barnett, supra note 15 at 545-46.

Plaintiffs here, however, cannot claim that privilege. The documents were disclosed pursuant to Rule 34 Fed.R.Civ.P. This rule, unlike other methods of discovering information under the Federal Rules, including depositions (Rule 30), interrogatories (Rule 33), and requests for admissions under Rule 36, does not provide that responsive material be filed with the court and made part of the public record. In practice, therefore, responses to requests for documents under Rule 34 do not become part of the public record unless one of the parties seeks to introduce them into evidence or to rely on them in a pleading. Since it does not appear that at this stage in the proceedings either party has entered any of the documents into the record, they are not “official records.”

30 . Political expression is at the core of the First Amendment’s protection. See, e. g. Landmark Communications, Inc. v. Virginia, 435 U.S. at 838-39, 98 S.Ct. 1535; Mills v. Alabama, 384 U.S. 214, 218-19, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); New York Times v. Sullivan, 376 U.S. 254, 269 70, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

31 . Cf. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 n. 24, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).

32 . See Nebraska Press Ass’n, 427 U.S. at 650-61, 96 S.Ct. 2791; New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).

33 . Carroll v. President and Commissioners of Princess Anne, 393 U.S. at 182, 89 S.Ct. 347 (quoting A Quantity of Books v. Kansas, 378 U.S. at 224, 84 S.Ct. 1723 (Harlan, J., dissenting)).

34 . See Landmark Communications, Inc. v. Virginia, 435 U.S. at 844 45, 98 S.Ct. 1535; Wood v. Georgia, 370 U.S. at 384 85, 82 S.Ct. 1364; Bridges v. California, 314 U.S. at 262-63, 62 S.Ct. 190; Chicago Council of Lawyers v. Bauer, 522 F.2d at 249; cf. Nebraska Press Ass’n, 427 U.S. at 562, 96 S.Ct. 2791.

35 . “An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by the constitutional mandate . ." Carroll v. President and Commissioners of Princess Anne, 393 U.S. at 183, 89 S.Ct. at 353. See also Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974).

36 . Nebraska Press Ass’n, 427 U.S. at 563, 96 S.Ct. 2791; Carroll, 393 U.S. at 183-84, 89 S.Ct. 347; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

37 . Fed.R.Civ.P. 26(c), supra note 3, specifically contemplates restraining orders, including orders

(5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed can be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way .

38 . See, e. g., 8 Wright and Miller, Federal Practice and Procedure § 2001 at 14, 17-19.

[I]t should be remembered that under the prior [discovery] procedure the means by which parties could narrow the issues and discover information needed to prepare for trial were very limited. Under the philosophy that a judicial proceeding was a battle of wits rather than a search for the truth, each side was protected to a large extent against disclosure of his case.

. . Some of these purposes [of the liberal discovery rules] are to avoid surprise and the possible miscarriage of justice, to disclose fully the nature and scope of the controversy, to narrow, simplify, and frame the issues involved, and to enable a party to obtain the information needed to prepare for trial. In this way it was sought to put an end to the “sporting theory of justice,” by which the result depends on the fortuitous availability of evidence or the skill and strategy of counsel.

39 . Chicago Council of Lawyers v. Bauer, 522 F.2d at 257-58.

40 . It is also relevant that civil litigation frequently lasts much longer than a criminal trial. A civil restraining order will therefore generally restrict expression for a longer period of time, and it is also more likely that the prejudicial effect of pre-trial publicity will be diluted by the time the trial is reached. Chicago Council of Lawyers, 522 F.2d at 258.

41 . See, e. g., Reliance Insurance Co. v. Barrons, 428 F.Supp. 200, 202-03 (S.D.N.Y.1977); Davis v. Romney, 55 F.R.D. 337, 340 (E.D.Pa.1972); Williams v. Johnson & Johnson, 50 F.R.D. 31, 33 (S.D.N.Y.1970); In re Natta, 264 F.Supp. 734, 742 (D.Del. 1967), aff’d, 388 F.2d 215 (3d Cir. 1968); Vogue Instrument Corp. v. Lem Instruments Corp., 41 F.R.D. 346, 349 (S.D.N.Y. 1967).

42 . The protection afforded expression by the First Amendment would be illusory if every conceivable threat to an important public interest, no matter how remote or speculative, were sufficient to justify a restriction of speech. Yet, as the Supreme Court noted in Nebraska Press Ass’n, 427 U.S. at 563, 96 S.Ct. 2791, a determination of the likelihood of future harm from as yet unuttered speech will necessarily be speculative. Courts have struggled mightily to capture in words the requisite probability of harm mandated by the First Amendment, seeking to maximize the range of possible expression consistent with the valid claims of important conflicting interests. From the days of Holmes’ “clear and present danger,” see Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919), various formulations have been put forward to crystalize the appropriate standard.

To justify restrictions on lawyers and litigants in order to protect the right to a fair trial, two such formulations have predominated. 1) “reasonable likelihood” of harm, which is the basis of Local Rule l-27(d), has been adopted by several other courts. See, e. g., U. S. v. Tijerina, 412 F.2d 661, 666 (10th Cir.), cert. denied, 396 U.S. 990, 90 S.Ct. 478, 24 L.Ed.2d 452 (1969); Society of Professional Journalists

v. Martin, 431 F.Supp. 1182, 1188 (D.S.C.), aff’d with qualifications, 556 F.2d 706 (4th Cir. 1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 771 (1978); Hirschkop v. Va. State Bar, 421 F.Supp. 1137, 1148-52 (E.D.Va.1976).

2) Other courts have held that the “reasonable likelihood” standard provides insufficient protection for the First Amendment interests, and have required a “serious and imminent threat” of harm before restricting comment by lawyers and parties. See e. g., Chicago Council of Lawyers, 522 F.2d at 249; In re Oliver, 452 F.2d 111, 114 (7th Cir. 1971); see also C.B.S. v. Young, 522 F.2d 234, 238 (6th Cir. 1975) (“clear and present danger”). The ABA recently revised its standards for proscribing extra-judicial statements by attorneys (Standard 8-1.1) to prohibit only those statements which pose a “serious and imminent threat” to a fair trial. The ABA concluded that “the reasonable likelihood test is too relaxed to provide full protection to the first amendment interests of attorneys.” ABA Standards — Fair Trial and Free Press (2d ed. Tentative draft) 3 (1978).

We recognize, however, that prejudice to a fair trial is not the only danger posed by unfettered dissemination of discovery materials. Inevitably, the possibility of dissemination will lessen (to some degree) judges’ willingness to order liberal discovery, and inhibit willing compliance with discovery requests. To maximize the full flow of discovery would require nothing short of a blanket prohibition on disclosure. Yet suth a rule would clearly cut too deeply into First Amendment freedoms, and would render meaningless Rule 26(c)’s requirement of “good cause.”

In view of our disposition of this case, we need not choose among the competing standards. We decide today that an order restricting dissemination must be based on full assessment of the interests at stake, with party seeking the restraining order bearing the burden of making a concrete and specific showing of the likelihood of harm. The failure of the district court to consider these factors, and to make the necessary findings, undermines the validity of its order. We are reluctant at this time to fashion a hard and fast standard governing the requisite likelihood of harm which would justify all restrictive orders under Rule 26(c). Dissemination of different categories of discovery documents, in conjunction with different types of litigation, may well pose greater or lesser risks to the discovery process, and thus may require different treatment under Rule 26(c). We express no opinion on that issue at this time, preferring instead to permit trial courts to develop greater experience under the general standards set forth in our opinion today. Nevertheless, we stress that the mere allegation of conjectural harm is insufficient to meet the moving party’s burden.

43 . The infirmities associated with ex parte orders, see Carroll, 393 U.S. at 183-85, 89 S.Ct. 347, strongly militate against issuing protective orders without participation by both parties. There should be no barriers to participation by counsel for both sides, particularly where, as here, both parties already have the materials in their possession. Both parties have been permitted to participate in in camera proceedings in other contexts. See, e. g.. United States v. Nixon, 418 U.S. 683, 715 n. 21, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Black v. Sheraton Corp. of America, 184 U.S.App.D.C. 46, 59-60, 564 F.2d 531, 544-45 (1977); Dellums v. Powell, 561 F.2d at 251. Cf. United States v. American Telephone and Telegraph Co., 179 U.S.App. D.C. 198, 209, 210-211, 567 F.2d 121, 132, 133-34 (1977).

Since protective orders pursuant to Rule 26(c) pose dangers similar to other prior restraints, they should not be entered without the necessary “procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. at 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649. This means, at a minimum, actual notice of the proposed restraint, Carroll v. President and Commissioners of Princess Anne, 393 U.S. at 181, 89 S.Ct. 347, a judicial determination in an adversary proceeding, Blount v. Rizzi, 400 U.S. 410, 418, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); Freedman v. Maryland, 380 U.S. at 58, 85 S.Ct. 734; and prompt appellate review, see National Socialist Party v. Skokie, 432 U.S. at 44, 97 S.Ct. 2205.

44 . Although the Supreme Court has never squarely addressed the issue, its decisions suggest that orders restricting comments by parties and attorneys are a less drastic alternative to gagging the press. See, e. g„ Sheppard v. Maxwell, 384 U.S. 333 at 359, 361-62, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600; Nebraska Press Ass’n, 427 U.S. at 564 & n. 8, 96 S.Ct. 2791 & n. 8; id. at 601 & n. 27, 96 S.Ct. 2791 & n. 27 (Brennan, J., concurring). But cf. Chicago Council of Lawyers, 522 F.2d at 250.

45 . Thus, even the courts which have found particular protective orders against dissemination of discovery materials to be constitutional, Koons, 325 F.2d at 407-08; Rodgers, 536 F.2d at 1006 (dicta), have struck down on constitutional grounds restraints on material gathered outside the discovery process. See Koons at 408-09, Rodgers at 1006-1008.

46 . Accordingly, it has been suggested that while a party bears a substantial burden to demonstrate “good cause” for orders restricting dissemination of discovery materials, the burden is even heavier for denial of discovery altogether. 4 Moore’s Federal Practice § 226.-69 and cases cited in note 1.

47 . We recognize that flexibility will be required to accommodate the practical needs of the discovery process with the standards enunciated herein, particularly where the discovery embraces a large quantity of documents. It may be appropriate for example, for a trial court (on a proper showing) to issue a blanket protective order covering all documents in a large-scale exchange of files without prejudice to raising the merits of the protective order as applied to particular documents at a later time. If a party wishes to disseminate a particular document, he might then inform the opposing party (precisely as plaintiffs have done here). At that point the burden would revert back to the party resisting dissemination to establish “good cause” as applied to the particular documents), consistent with the standards enunciated in this opinion. This procedure is commonly used to preserve parties’ right to assert claims of privilege with respect to particular documents in complex cases, while at the same time facilitating needed discovery.

This example illustrates that a proper regard for First Amendment interests need not interfere significantly with the operation of the discovery process.

48 . See p. 3, supra.

49 . In their memorandum in support of their Motion for a Protective Order, defendants also suggested that the order was necessary to prevent abuse of court process. There is no indication, however, that this litigation is not serious or that it was brought for the purpose of disclosing the documents in question. Instead, the record reflects that plaintiffs are interested in vindicating their constitutional rights and simultaneously publicizing their grievances. To the extent that defendants meant to contend that this dual goal evidenced an abuse of court process, they were mistaken. See In re Primus, 436 U.S. at 431-32, 98 S.Ct. 1893; Chicago Council of Lawyers v. Bauer, 522 F.2d at 258.

50 . The dissent elaborates at length its view of the “climate” surrounding this litigation: an “onslaught” against the CIA generating “massivé and concentrated” publicity. Dissenting op. at - - - of 194 U.S.App.D.C., at 200-201 of 598 F.2d. The purpose of this characterization is unclear. Perhaps these “findings” are intended to compensate for the totally barren record on which the district court order was based.

We note, however, that even if the dissent’s speculations were established, the harm caused by plaintiffs’ release of discovery material would still not have been ascertained. Since a court has no way of controlling prior publicity, the relevant consideration in such circumstances is the marginal harm to the litigative environment that is likely to occur as a result of further disclosure, not the harm that has already occurred.

51 . “Even in the presence of sufficient justification for curtailing certain first amendment utterances, an order must be drawn narrowly so as not to prohibit speech which will not have an effect on the fair administration of justice along with speech which will have such an effect.” Chase v. Robson, 435 F.2d 1059, 1961 (7th Cir. 1970). Accord CBS, Inc. v. Young, 522 F.2d 234, 242 (6th Cir. 1975).

52 . The district court merely signed defendants’ proposed order and failed to make any independent findings on these questions. We thus have no way of knowing exactly why the district court concluded that the possibility of a fair trial was in danger. It might have reasoned, for example, that release of the documents would so bias the litigative climate as to reduce the likelihood of an unprejudiced decision. But the court failed to make the findings necessary to support such reasoning. There is no explicit finding that the documents in question are so sensational in nature as to generate massive and prejudicial publicity. Such a finding, at least with respect to the three documents plaintiffs planned to release at their press conference on January 31, 1977, would at present be highly unlikely, since the New York Times published a story summarizing their contents on February 22, 1977. See p.--of 194 U.S.App.D.C., p. 182 of 598 F.2d, supra.

As this case was to be tried to a judge rather than to a jury, this reasoning also entails the anomalous premise that a trial judge, trained in law, would, after evaluating specific documents, be unduly prejudiced by the reappearance of these same documents in the news media. The district court might have had in mind, of course, the possible impaneling of an advisory jury under Fed.R.Civ.P. 39(c). But the court made no findings to that effect, nor did it assay any conclusions about less drastic means .of preserving this possible jury from the effects of prejudicial publicity. See Nebraska Press Ass'n, 427 U.S. at 563-65, 96 S.Ct. 2791.

53 . In this case, for example, the district court’s order was entered in the early stages of what promised to be lengthy pre-trial proceedings. The court made no finding, however, that time alone would not blunt the effects of whatever adverse publicity might be expected.

54 . See note 1 supra.

55 . The authority of a United States Court of Appeals to issue a writ of mandamus

is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected. Otherwise the appellate jurisdiction could be defeated and the purpose of the statute authorizing the writ thwarted by unauthorized action of the district court obstructing the appeal. Ex parte Bradstreet, 7 Pet. 634, 8 L.Ed. 810; Insurance Company v. Comstock, 16 Wall. 258, 270, 21 L.Ed. 493; McClellan v. Carland, supra, 217 U.S. 280, 30 S.Ct. 504, 54 L.Ed. 762; Ex parte United States, 287 U.S. 241, 246, 53 S.Ct. 129, 77 L.Ed. 283; cf. Ex parte Siebold, 100 U.S. 371, 374-5, 25 L.Ed. 717; Ex parte Peru, 318 , 63 S.Ct. 793, 87 L.Ed. 1014, and cases cited.

Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943).

56 . See United States Alkali Export Ass’n v. United States, 325 U.S. 196, 202-204, 65 S.Ct. 1120, 89 L.Ed. 1554 (1945); Pfizer, Inc. v. Lord, 456 F.2d 545, 548 (8th Cir. 1972).

57 . See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472-73, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon. Theatres, Inc. v. Westover, 359 U.S. 500, 501, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Winters v. Travia, 495 F.2d 839 (2d Cir. 1974); Sanders v. Russell, 401 F.2d 241, 244 (5th Cir. 1968).

58 . See, e. g., Coles v. Marsh, 560 F.2d 186, 189 (3d Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977); Rodgers v. United States Steel Corp., 536 F.2d at 1006; CBS, Inc. v. Young, 522 F.2d at 237; Rodgers v. United States Steel, 508 F.2d 152, 161-65 (3d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975); Chase v. Robson, 435 F.2d at 1062.

59 . See Kerr v. United States District Court, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Dow Chemical Co. v. Taylor, 519 F.2d 352, 355-56 (1975); Grinnell Corp. v. Hackett, 519 F.2d 595, 598-99 (1st Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 566, 46 L.Ed.2d 407 (1975).

60 . See, e. g., Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); In re United States, 348 F.2d 624 (1st Cir. 1965); International Products Inc. v. Koons, 325 F.2d 403 (2nd Cir. 1963); United States Board of Parole v. Merhige, 487 F.2d 25 (4th Cir. 1973), cert, denied, 417 U.S. 918, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974); Colonial Times v. Gasch, 166 U.S.App.D.C. 184, 509 F.2d 517 (1975); Harper & Row Publishing Co. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff’d without opinion by an equally divided court, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433 (1971); Pfizer v. Lord, 456 F.2d 545 (8th Cir. 1972); Heathman v. United States District Court, 503 F.2d 1032 (9th Cir. 1974); Usery v. Ritter, 547 F.2d 528 (10th Cir. 1977).

61 . In Schiavo the Third Circuit, relying on the “collateral order” doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221 (1949), decided that a restraining order addressed to the news media was an appealable final order under 28 U.S.C. § 1291. In Parker v. Columbia Broadcasting Systems, Inc., 320 F.2d 937 (2d Cir. 1963), the Second Circuit held that a gag order addressed to a party, her attorney and “her agents” was appealable under 28 U.S.C. § 1292(a)(1) as a preliminary injunction. See also Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 2453, 57 L.Ed.2d 364 (1978).

Since the petitioners have sought a writ of mandamus and since we conclude that we have jurisdiction to issue this extraordinary writ, we do not reach the question whether the restraining order in this case would be appealable under either § 1291 or § 1292(a)(1).

62 . See In re Zweibon, 184 U.S.App.D.C. 167, 173, 565 F.2d 742, 748 (1977); Relf v. Gasch, 167 U.S.App.D.C. 238, 242, 511 F.2d 804, 808 (1975).