Russell, In re, 84-1018
| Decision Date | 08 February 1984 |
| Docket Number | No. 84-1018,84-1018 |
| Citation | 726 F.2d 1007 |
| Parties | 10 Media L. Rep. 1359 In re Lacie RUSSELL, Signe Waller, Mark Smith, Dale Sampson, Martha Nathan, Floris Cause, Paul Bermanzohn, Nelson Johnson, Thomas Clark, Frankie Powell, James Wrenn, Donald Pelles, Rand Manzella, Willena Cannon, Allen Blitz, Kate White, and Joyce Johnson, Petitioners. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Eugene R. Scheiman, William A. Brandt, Jr., New York City, P. Lewis Pitts, Jr., Daniel P. Sheehan, Washington, D.C., for plaintiffs.
James W. Clute, Washington, D.C., for respondent.
Before PHILLIPS and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
Petitioners, who have been selected as potential witnesses in a criminal proceeding brought by the United States under 18 U.S.C. Sec. 245 against several alleged members of the Ku Klux Klan and Nazi Party, have filed this action for a writ of mandamus requiring the district judge presiding over the criminal proceeding to vacate his order of January 5, 1984, which, inter alia, prohibited "potential witness[es]" from discussing their proposed trial testimony with members of the media. Petitioners contend that the district judge's order (hereinafter gag order) amounts to an unconstitutional prior restraint of their right to free speech protected by the first amendment. Specifically, they argue that the gag order is unconstitutional because the district judge did not conduct an "evidentiary" hearing before entering the order or articulate specific factual findings as a basis for his decision; they also argue that the order is unconstitutionally overbroad and vague, and that it violates petitioners' rights of free association. On January 10, 1984, petitioners' motion to stay the district court's order pending appellate consideration of the mandamus petition was denied by a panel of this court, and the United States was directed to file a response to the petition by January 17, 1984. Having studied the briefs and considered the oral argument of counsel, we conclude that the January 5 order does not violate petitioners' first amendment rights and we therefore deny the petition for writ of mandamus.
This petition grows out of an order issued by Judge Thomas A. Flannery, who is currently presiding over a federal criminal prosecution in the Middle District of North Carolina brought against several alleged Ku Klux Klansmen and/or Nazi Party members for putative civil rights violations arising out of a shooting that occurred in Greensboro, North Carolina, on November 3, 1979, and that resulted in the deaths of five individuals. It is an understatement to say that the incident has generated a substantial amount of media attention and publicity. See generally In re Greensboro News Co., 727 F.2d 1320, (4th Cir.1984).
Each petitioner in this case has received a notice from the Department of Justice that he or she may be required to testify in the criminal proceeding. Some of the witnesses were present at the incident in Greensboro and others are relatives of several of the individuals who were killed. Many of the petitioners are plaintiffs in two civil suits pending in federal court, one of which seeks damages and the other of which seeks the appointment of a special prosecutor to investigate allegations of a law enforcement conspiracy.
The gag order at issue in this case, as modified, 1 provides in pertinent part:
3. Any person who is a potential witness in this case, as defined in subparagraph (a) below, SHALL NOT make any extrajudicial statement that relates to, concerns, or discusses the testimony such potential witnesses may give in this case, or any of the parties or issues such potential witness expects or reasonably should expect to be involved in this case, or the events leading up to and culminating in the shooting incident at Everitt and Carver Streets in Greensboro, North Carolina, on November 3, 1979, if such statement is intended for dissemination by means of public communication.
(a) A "potential witness" is a person who has been notified by the government or by defendants that he or she may be called to testify in this case, or any person who has actually testified in this case.
(b) Potential witnesses SHALL NOT conduct any interviews with the print or electronic media during which such potential witness makes any statement, orally or in writing, that is proscribed by this paragraph of this Order.
(c) An extrajudicial statement proscribed by this paragraph of this Order SHALL NOT be made by any potential witness if such potential witness intends such statement to be disseminated by means of public communication. This includes any proscribed statement by a potential witness to any third party whom such potential witness authorizes, intends, or expects to disseminate such statement by means of public communication.
(d) Nothing in this Order shall be deemed to prevent or interfere with the right of potential witnesses to discuss this case or any other case fully with counsel.
(e) Nothing in this Order shall be deemed to prevent or interfere with the right of any potential witness to testify in court or by way of court authorized depositions or interrogatories in connection with any other case about all events, issues and persons relevant to such case.
(f) Nothing in this Order shall be deemed to prevent potential witnesses from privately soliciting funds to aid in the prosecution or defense of any related case. During the course of such private solicitation, potential witnesses are free to discuss the events leading up to and following the Greensboro shootings, provided such discussions are not intended by potential witnesses to result in dissemination of proscribed statements by means of public communication. Potential witnesses are permitted, pursuant to such efforts to solicit funds, to send private letters to potential contributors, provided such potential contributors are in no way involved in this case.
In a ten-page memorandum accompanying this order, Judge Flannery explained the basis for his decision. After noting that the trial was "the subject of intense local and national publicity," he determined that the proscription of certain extrajudicial communications by prospective witnesses was necessary in order to protect the right of the defendants to a fair trial "based solely on admissible evidence." He concluded, based on the representations of petitioners' counsel, various documentary evidence (including press reports and published interviews with witnesses), and statements made in pleadings filed by petitioners' counsel, that petitioners' views were, while understandable, "directly contrary to the defendant's interests" and "highly prejudicial." After rejecting as infeasible the suggested alternative of a change of venue and considering the possibility of using only jury control measures, the district judge determined that it was necessary to confine the petitioners' public statements about the November 3 incident to the courtroom, even in the face of petitioners' admittedly weighty first amendment rights.
In Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), the Supreme Court vacated, as violative of the first amendment, an order prohibiting the media from publishing or broadcasting accounts of certain confessions or admissions made by the accused in a murder trial. The Court pointed out that other measures could be taken by the trial judge to ensure that the defendant received a fair trial stating:
the measures a judge takes or fails to take to mitigate the effects of pretrial publicity--the measures described in Sheppard [v. Maxwell]--may well determine whether the defendant receives a trial consistent with the requirements of due process. Id. at 555, 96 S.Ct. at 2801.
In Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the Court outlined various "strong," but necessary measures by which a trial judge can ensure the sixth amendment rights of a criminal defendant:
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