In the iconic film “The Good, The Bad and The Ugly,” Tuco (Ugly) tells Blondie (Good), “If you miss, you had better miss very well.” “Good” only ostensibly lives up to his title in the movie. So it is with In re Clark, ____ F.3d ____, 2012 WL 2087185 (5th Cir. June 11, 2012), where the Fifth Circuit Court of Appeals has ruled that a reporter has constitutional standing to challenge a confidentiality order in a criminal case that restricts the speech of trial participants. However, the court also ruled that granting intervention in the case would be futile and denied all relief.
The same day the government filed its indictment against Khalid Ali–M Aldawsari for attempted use of a weapon of mass destruction, the district court entered an order barring the parties, their representatives and their attorneys of record from communicating with the news media concerning the case. James Clark, a journalist, sought to intervene to challenge the gag order. The district court denied intervention, finding that Clark had not explained his standing to challenge the order and that the order imposed narrowly tailored and reasonable restrictions on communications with the news media.
On appeal, Clark argued that the district court wrongly found that he had no right to intervene and that the district court’s gag order violated his First and Fifth Amendment rights. He did not argue that the government had failed to meet the threshold showing for imposing the prior restraint of a gag order. For better or for worse, Clark represented himself in the case.
For constitutional standing, a “plaintiff must have suffered an injury in fact” that is “fairly traceable to the challenged action” and that likely “will be redressed by a favorable decision.” The government argued that Clark could not establish injury in fact because he had not shown that anyone bound by the court’s gag order would be willing to speak to him about the case. Clark argued that he did not have to prove the existence of a particular willing speaker, that the gag order itself showed there are willing speakers, and that he had standing because the order has impaired the ability of the news media to gather news.
In Davis v. East Baton Rouge Parish School Board, 78 F.3d 920 (5th Cir. 1996), the Fifth Circuit had declined to decide “whether, in every case, the media must demonstrate the existence of a willing speaker to establish standing to challenge a court’s confidentiality order.” A willing speaker existed in that case, which involved a desegregation plan, because the parties had stipulated that the news agencies had been able to discover information about desegregation of the school system prior to the court’s issuance of the confidentiality order. In addition, in Davis, the parties had stipulated that the subject of the case was “newsworthy and of great public interest in the community.” While the trial court here ruled that Clark lacked standing because there was no evidence any trial participant wished to grant him an interview, the Fifth Circuit noted that both the government and Aldawsari’s counsel issued press releases prior to the district court’s entry of the gag order and that Aldawsari’s prosecution on terrorism charges is unquestionably newsworthy and of public interest. There was therefore no dispute that, if permitted to do so, Clark would attempt to speak with the parties, parties’ counsel or representatives about the case. On this basis, the court held that the gag order affected Clark’s right to gather news and he had standing to challenge it.
This, viewed in the abstract, is good. However, given the Fifth Circuit’s late history on the constitutionality of gag orders, the victory may be the very definition of Pyrrhic. Among other things, the issue of which standard for the government’s threshold showing applies to this First Amendment right of the press to gather news from trial participants was not addressed in the opinion. The Fifth Circuit has established a different standard for a prior restraint on “trial participants” than on the press with regard to criminal cases. In the former, the government must show a “substantial likelihood” that the extrajudicial commentary could compromise the defendant’s right to a fair trial. To gag the press, however, the government must show a “clear and present danger” or the equivalent formula of “serious and imminent threat.” United States v. Brown, 218 F.3d 415, 427-29 (5th Cir. 2000). The constitutional standing of the press to challenge a gag order, however, apparently does not invoke the test used when the trial court has gagged the press, but rather the test used when the trial court has gagged the press’ would-be interlocutors, the trial participants.
There is a three-way circuit split with respect to this threshold standard for imposing a gag order. The Sixth, Seventh and Ninth Circuits have held that the speech at issue must present a “clear and present danger” or a “serious and imminent threat” to a fair trial. The Third and Fifth Circuits have adopted the “substantial likelihood of material prejudice” standard. The Fourth and Tenth Circuits have held that the appropriate standard is “reasonable likelihood” of prejudice. Accordingly, the Fifth Circuit would appear to be using the intermediate of these tests. However, in Brown the court also made known its sympathies for the “reasonable likelihood” standard. Brown, 218 F.3d at 426, 429 (finding that the “substantial likelihood” test set out in Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720 (1991), does not set a constitutional minimum and suggesting potential applicability of the “reasonable probability” test).
Under any fair reading under the standards enunciated by the Fifth Circuit, it is hard to see how the gag order in this case passes muster. The government’s arguments that there was a substantial likelihood that extrajudicial commentary could compromise Aldawsari’s right to a fair trial appear to be based exclusively upon the fact that there was press coverage. As the court put it, “When the criminal complaint against Aldawsari was unsealed, the allegations generated a good deal of media coverage that highlighted Aldawsari’s alleged radical Islamist views, bomb-making activities, and targeting of former President George W. Bush.” However, there is no hint that the reported information would have been inadmissible and therefore unfairly prejudice the jury panel. Nor does the opinion discuss the fact that the gag order was put in place immediately after the indictment as opposed to after voir dire or otherwise at a critical time in the progress of the case. The gag order itself is not recited verbatim in the opinion, but in the government’s appellate brief it is set out as:
The court takes judicial notice that the events made the basis of the above-styled and numbered cause have generated an extraordinary amount of media coverage. The court finds that there is a substantial likelihood that extrajudicial commentary could prejudice a fair trial in the above-referenced cause. Thus, the Court has the discretion and authority to “place restrictions on parties, jurors, lawyers, and others involved with the proceedings” by “adopting reasonable measures to avoid prejudicial or inflammatory publicity.”
IT IS, THEREFORE, ORDERED that the parties, their representatives, or their attorneys of record SHALL NOT communicate with the news media concerning this case.
Aside from having no findings at all to support the order other than the adorned fact of heavy press coverage, the gag order precludes any contact at all between the trial participants and the press concerning the case. It’s essentially a “no comment” rule, and is thus far broader than the order considered in Brown, which allowed assertions of innocence, general statements about the nature of an allegation or defense, and statements of matters of public record. Id. at 429-30. The Fifth Circuit in Brown considered the matter to be a “close call.”
However, post-Clark Fifth Circuit opinions have regularly accepted conclusory findings on the issue of the prejudicial effect of press coverage. This is illustrated in the government’s appellate brief wherein it states that:
Evidence of “extensive media attention” and “enormous local and national publicity” are sufficient to support a “substantial likelihood” finding. Brown, 218 F.3d at 428-30.
The cited pages to Brown, which involved a public corruption trial where the trial court also entered an order for an anonymous jury, say nothing of the sort. But that is effectively the current application of Brown. Neither the government’s brief nor the Clark opinion addresses the relevant Supreme Court holdings that recognize that “pretrial publicity even pervasive, adverse publicity does not inevitably lead to an unfair trial.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976); Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054-55 (1991) (opinion of Kennedy, J.) (“Only the occasional case presents a danger of prejudice from pretrial publicity. Empirical research suggests that in the few instances when jurors have been exposed to extensive and prejudicial publicity, they are able to disregard it and base their verdict upon the evidence presented in court.”). Indeed, just the year before Aldawsari was charged, the Supreme Court again emphasized that “[p]rominence does not necessarily produce prejudice, and juror impartiality . . . does not require ignorance. A presumption of prejudice . . . attends only the extreme case.” Skilling v. U.S., 130 S. Ct. 2896, 2914-15 (2010) (emphasis added).
However, Clark apparently did not contest the district court’s determination that the press attention garnered by the Aldawsari prosecution put Aldawsari’s right to a fair trial at risk. Nor did he argue that the district court could have taken steps other than restraining the trial participants’ communication with the press to protect Aldawsari’s Sixth Amendment rights.
Rather than attack the real vulnerabilities in the gag order, Clark argued that the order restricted the speech of “every person in the entire world who acts on delegated authority for the United States” and anyone elected to a federal office in the United States and thus is not narrowly tailored or “the least restrictive corrective measure.”
While the gag order was almost surely overbroad in terms of the speech it enjoined, given that the order actually only restrained the parties, their representatives, and the parties’ attorneys of record, this shot went wide of the mark. It may be inferred from this that, while hyperbole may be a useful rhetorical device, it should not be relied upon as literally true. At least not in a point on appeal.
The court also made short shrift of Clark’s claim that the denial of his motion to intervene limited his right to earn a living through news gathering in violation of his Fifth Amendment due process rights. This broadside would also invalidate gag orders where there was a proper showing and the Sixth Amendment right to a fair trial properly at issue. Further, Clark had not shown that he has been deprived of pursuing work as a journalist, but that at most, the gag order limited his access to some information about Aldawsari’s case.
While some of the reporter’s legal arguments did not hit the target, he missed well on the issue of standing. The Fifth Circuit’s ruling that a reporter has standing in high publicity cases to challenge a gag order is a welcome development for the media. Unfortunately, the fact a case draws high publicity now also routinely stands as sufficient grounds for a gag order suggests that impact may be limited.