Marceaux v. Lafayette City-Parish Consol. Gov't

• Citation: 731 F.3d 488
• Decision Date: 30 September 2013
• Docket Number: No. 13–30332.,13–30332.
• Parties: Kane MARCEAUX; Greg Cormier; Scott Poiencot; Gabriel Thompson; Norbert Myers; Novey Stelly; Uletom P. Hewitt; Regina Briscoe; Aleeta M. Harding; Gus Sanchez; Robert Polanco; Kencil D. Joseph; Donald Ceasar; Paul Taylor, Jr.; Rachel Roberts, Plaintiffs–Appellants v. LAFAYETTE CITY–PARISH CONSOLIDATED GOVERNMENT; City Police Of Lafayette; Lester Joseph Durel, Jr., in his capacity as President of the Lafayette City–Parish Consolidated Government; Dee Edward Stanley; James P. Craft; George Jackie Alfred, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

731 F.3d 488

Kane MARCEAUX; Greg Cormier; Scott Poiencot; Gabriel Thompson; Norbert Myers; Novey Stelly; Uletom P. Hewitt; Regina Briscoe; Aleeta M. Harding; Gus Sanchez; Robert Polanco; Kencil D. Joseph; Donald Ceasar; Paul Taylor, Jr.; Rachel Roberts, Plaintiffs–Appellants

v.LAFAYETTE CITY–PARISH CONSOLIDATED GOVERNMENT; City Police Of Lafayette; Lester Joseph Durel, Jr., in his capacity as President of the Lafayette City–Parish Consolidated Government; Dee Edward Stanley; James P. Craft; George Jackie Alfred, Defendants–Appellees.

No. 13–30332.

United States Court of Appeals, Fifth Circuit.

Sept. 30, 2013.

John Christopher Alexander, Sr., Esq., Attorney, Alexander Law Firm, Stanley Stephen Spring, II, Esq., Spring & Spring. L.L.C., Baton Rouge, LA, Richard Royal Alexander, Shreveport, LA, for Plaintiffs–Appellants.

Michael P. Corry, Patrick J. Briney, Esq., Hallie Pilcher Coreil, Briney Foret Corry, Lafayette, LA, for Defendants–Appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before OWEN and HAYNES, Circuit Judges, and LEMELLE, District Judge. ^*

HAYNES, Circuit Judge:

Several current and former officers in the Lafayette Police Department (“Officers”) appeal the district court's grant of a protective order requiring, among other things, that a particular website they operate be “taken down” in its entirety, which was issued at the request of Appellees, officials and entities within the City of Lafayette Police Department (collectively, “Lafayette PD Defendants”). We VACATE in part and REMAND for further proceedings.

I. Jurisdiction

A prior motions panel of this court denied the Lafayette PD Defendants' motion to dismiss this interlocutory appeal for want of jurisdiction. Although the Lafayette PD Defendants do not renew their jurisdictional arguments in their merits brief, we may consider whether we have appellate jurisdiction sua sponte at any time. See Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102 (5th Cir.1981) (“Because we may not proceed without requisite jurisdiction, it is incumbent upon federal courts trial and appellate to constantly examine the basis of jurisdiction, doing so on our own motion if necessary.” (emphasis added)).

We agree with the motions panel, concluding that we have jurisdiction pursuant to the collateral order doctrine, which provides appellate jurisdiction to review “a small set of prejudgment orders ... [1] that are conclusive, [2] that resolve important questions separate from the merits, and [3] that are effectively unreviewable on appeal from the final judgment in the underlying action.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103–06, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (citation and internal quotation marks omitted). We have repeatedly found the doctrine applies in cases in which pre-trial orders arguably infringe on First Amendment rights. See In re Hearst Newspapers, L.L.C., 641 F.3d 168, 174 (5th Cir.2011); Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 926 (5th Cir.1996). In United States v. Brown, 218 F.3d 415, 420–21 (5th Cir.2000), we concluded that we had jurisdiction to consider a criminal defendant's pre-trial appeal of a gag order imposed by the district court on litigants in the case. We similarly conclude that we have appellate jurisdiction over the Officers' challenge here.

II. Facts and Background

The Officers sued under 42 U.S.C. §§ 1983, 1988, alleging, inter alia, that the Lafayette PD Defendants imposed a “code of silence” to prevent police officers from reporting certain civil rights abuses and corruption within the Lafayette Police Department and that the Lafayette PD Defendants retaliated against them for objecting to these practices. Relevant here, the Officers communicated with the media concerning the case and maintained a website, www. realcopsvcraft. com (the “Website”), which contained: an image of the Lafayette Police Chief, a party in this suit; excerpts of critical statements made in the media concerning the Lafayette PD Defendants;certain voice recordings of conversations between the Officers and members of the Lafayette Police Department; and other accounts of the Lafayette PD Defendants' alleged failings. The Officers' attorneys eventually transferred ownership of the website to one of the Officers.

In response to this publicity, the Lafayette PD Defendants sought a protective order seeking certain limits on communications with the media and removal of the Website. At the conclusion of the two-day hearing, the magistrate judge orally granted the Lafayette PD Defendants' request to limit the trial participants' communication with the media and public. The magistrate judge then entered a written order accompanied by a memorandum ruling.

The magistrate judge opined from the bench that “[t]he [W]ebsite ... is patently offensive on its face as a means of producing information rather than being an objective source of information supposedly created for the protection of the litigants.” In the subsequent written order, the magistrate judge

ordered that the parties' and their attorneys' contact and communication with and through the media shall be limited to (a) information contained in the public record; (b) identification of parties and claims/defenses asserted in this matter; (c) the scheduling or result of any step in this litigation; (d) references that investigation(s) is in progress, without disclosure of investigation details; (e) requests for assistance in obtaining evidence or information; (f) warnings of danger concerning the behavior of persons who are parties in this case when there is reason to believe, based on a reasonable factual inquiry, that there exists a likelihood of substantial harm to an individual or the public interest.

The magistrate judge “further ordered that the website www. realcopsvcraft. com shall be closed and removed immediately, ceasing all operations and publication, and that the recordings shall not be publicly disclosed outside the confines of this case and any other pending legal proceeding, absent leave of court.” The restrictions on communications with the media were expressly modeled on Louisiana Rule of Professional Conduct 3.6 and the language approved in Brown, 218 F.3d at 429–31, and Levine v. U.S. District Court, 764 F.2d 590, 598–99 (9th Cir.1985). The magistrate judge also “order[ed] the [W]ebsite be taken down” because it “not only contain[ed] comments and information that would violate [Louisiana Rule of Professional Conduct] 4.4, it is and has been used as a vehicle by which to disseminate inappropriate information to the media and the public.” The primary rationale for the order was to allow for a fair trial by avoiding a taint on the prospective jury pool. Over objection, the district court adopted the magistrate judge's order, and this appeal followed.

III. Standard of Review

We review a district court's grant of a protective order for abuse of discretion. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1394 (5th Cir.1994). The district court's legal conclusions should be reviewed de novo, and its factual findings should not be disturbed unless they are clearly erroneous. See United States v. Aldawsari, 683 F.3d 660, 664 (5th Cir.2012) (explaining that “[b]ecause [evaluating the validity of a gag order] involves constitutional and other legal questions, we review the district court's orders de novo. Specific factual findings of the district court on the issue are, of course, entitled to review under the clearly erroneous standard.” (citations and internal quotation marks omitted)). Importantly, however, “in cases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 284–86, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).

IV. Discussion

When restrictions are sought to be imposed on litigants after litigation is filed, a district court must balance a litigant's First Amendment rights against other important, competing considerations. See Brown, 218 F.3d at 424 (“ ‘[A]lthough litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise’ in the context of both civil and criminal trials.” (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 n. 18, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984))). Court orders restricting trial participants' speech are evaluated under the prior restraint doctrine, which requires that the record establish that the speech creates a potential for prejudice sufficient to justify the restriction. See Brown, 218 F.3d at 424–25. In addition, the restriction must be narrowly tailored and employ the least restrictive means of preventing the prejudice. Id. at 425. We note that the Officers represent that they are willing to accept the application to them of Louisiana Rules of Professional Responsibility 3.6 and 4.4 in this context, although those rules ordinarily would not apply to clients who are not lawyers. They object to the terms of the court's order only as they support or apply to the portion of the order mandating that the Website be removed in its entirety. Thus, we focus our analysis only on the portion of the order addressing removal of the entire Website.

We begin by addressing the necessity of deferring to district courts in matters affecting the daily functioning of their courts. See, e.g., United States v. Gurney, 558 F.2d 1202, 1209 (5th Cir.1977) (“The trial judge is ... granted broad discretion in ordering the daily activities of his court.”). In a broader sense, considerable discretion is vested in district courts in ensuring fair...