598 F.2d 176 (D.C. Cir. 1979), 77-1313, In re Halkin

Docket Nº:77-1313.
Citation:598 F.2d 176
Party Name:In re Adele HALKIN et al., Petitioners.
Case Date:January 19, 1979
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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598 F.2d 176 (D.C. Cir. 1979)

In re Adele HALKIN et al., Petitioners.

No. 77-1313.

United States Court of Appeals, District of Columbia Circuit

January 19, 1979

As Amended Jan. 31, 1979.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Mark H. Lynch and John H. F. Shattuck, Washington, D. C., were on the pleadings, for petitioner.

Barbara Allen Babcock, Asst. Atty. Gen., David J. Anderson, Elizabeth Gere Whitaker, Gordon W. Daiger and Larry L. Gregg, Attys., Dept. of Justice, Washington, D. C., were on the pleadings, for respondent.

Charles P. Sifton and Taylor R. Briggs, New York City, were on the pleadings for respondent, ITT World Communications, Inc.

H. Richard Schumacher and R. Bruce Dickson, New York City, were on the pleadings, for respondent, RCA Global Communications, Inc.

Walter C. Pozen and Alvin K. Hellerstein, New York City, were on the pleadings, for respondent, Western Union International, Inc.

Before WRIGHT, Chief Judge, and BAZELON and WILKEY, Circuit Judges.

Opinion for the Court filed by BAZELON, Circuit Judge.

Dissenting opinion filed by WILKEY, Circuit Judge.

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 prohibition 1 vacating the district court's order.


Plaintiffs in Halkin are a number of individuals and organizations who allege that

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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

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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

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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 mandamus 9 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.


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

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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.

  1. 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 pending 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,

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    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

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    censor, 16 nor the same threat to expression generated by other judicial orders previously condemned as prior restraints. 17

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    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 talismanic 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...

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