Radio and Television News Ass'n of Southern California v. U.S. Dist. Court for Cent. Dist. of California
| Citation | 781 F.2d 1443 |
| Decision Date | 10 February 1986 |
| Docket Number | No. 85-7524,85-7524 |
| Parties | , 12 Media L. Rep. 1739 The RADIO AND TELEVISION NEWS ASSOCIATION OF SOUTHERN CALIFORNIA, Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent, Joel Levine, Stanley I. Greenberg, Richard Miller and United States of America, Real Parties in Interest. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Kent Farnsworth, Paul, Hastings, Janofsky & Walker, Santa Monica, Cal., for petitioner.
Robert C. Bonner, U.S. Atty., Robert L. Brosio, Russell Hayman, Asst. U.S. Attys., Los Angeles, Cal., for respondent.
Petition for Writ of Mandamus to the United States District Court for the Northern District of California.
Before SNEED, NELSON and BEEZER, Circuit Judges.
The Radio and Television News Association, an organization representing
broadcast journalists, filed this petition for a writ of mandamus seeking to compel the district court to vacate its amended restraining order. That amended order restrains trial counsel for a criminal defendant from making extrajudicial statements to members of the news media. We hold that restraints on the statements of trial participants, although indirectly denying the media access to those participants, do not infringe freedom of the press under the first amendment. Accordingly, we deny the petition.
In Levine v. U.S. District Court, 764 F.2d 590 (9th Cir.1985), we considered a petition brought by Richard A. Miller and his attorneys, Stanley I. Greenberg and Joel Levine, seeking a writ of mandamus to compel the district court to dissolve a restraining order that prohibited the attorneys involved in Miller's trial from communicating with the media regarding the merits of the case. Miller, a former special agent with the Federal Bureau of Investigation, was then awaiting trial on espionage charges in the district court. The circumstances of that case and the conduct of counsel which lead to the district court's restraining order are set out fully in that opinion. Id. at 591-93.
We held that the record supported the district court's conclusion that a restraining order was necessary to reduce prejudicial publicity impairing the fairness of the trial and threatening the integrity of the judicial system. Id. at 598. However, we concluded that the district court's order restraining counsel from making any public statements about "any aspect of this case that bears upon the merits to be resolved by the jury" was overbroad. Id. at 599. The district court was ordered to fashion an order specifying the proscribed types of extrajudicial statements which "pose a serious and imminent threat to the administration of justice" in this case. Id.
The district court, following a hearing, amended its restraining order on July 23, 1985. The court held that "a serious and imminent threat to the administration of justice" still existed. The amended order prohibits counsel from making extrajudicial statements to members of the news media relating to several subjects. 1
A trial of Miller on these criminal charges has since been conducted and ended with the jury unable to reach a verdict. Miller is presently awaiting retrial on those espionage charges.
The Radio and Television News Association, representing broadcast journalists, filed this petition for a writ of mandamus alleging that the order is an unconstitutional prior restraint infringing freedom of the press.
We have jurisdiction to issue a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. Sec. 1651(a). 2 However, a writ of (1) The party seeking the writ has no other adequate means, such as direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first.) (3) The district court's order is clearly erroneous as a matter of law. (4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court's order raises new and important problems, or issues of law of first impression.
mandamus should be issued only in extraordinary circumstances, as determined by reference to five guidelines:
Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977) (citations omitted).
The first two guidelines weigh in favor of an exercise of the court's mandamus jurisdiction. Prior restraints may be challenged by way of a petition for a writ of mandamus. See Levine, 764 F.2d at 593-94. As with Levine, the fourth Bauman guideline does not apply in this case. See id. at 594. The fifth Bauman guideline might appear to be applicable as the petition raises the issue of the press' interest in a restraining order against trial participants. However, in light of Supreme Court and other case precedent defining the rights of the press with regard to criminal trials, we believe this guideline is not applicable in this case.
As in the Levine case, issuance of a writ depends on the third Bauman guideline. See Levine, 764 F.2d at 594. The RTNA must show that the district court's order is "clearly erroneous as a matter of law." Bauman, 557 F.2d at 654-55.
The Radio and Television News Association of Southern California (RTNA), an umbrella organization representing all broadcast journalists in southern California, filed this petition for a writ of mandamus seeking to compel the district court to vacate the amended restraining order. The RTNA claims that the order, by effectively denying media access to the trial participants, constitutes an unconstitutional restraint on the media's ability to gather news.
The RTNA argues, first, that there has been no demonstration of a serious and imminent threat to either Miller's right to a fair trial or to the administration of justice and, second, that the district court failed to make express findings in support of its amended restraining order as directed by this court.
In Levine, we noted the tenuous nature of the first amendment interest articulated on behalf of the press with regard to an order restraining, not the press, but trial participants. See 764 F.2d at 594. However, we declined to reach that issue as defendant's counsel lacked standing to assert the constitutional rights of nonparty media organizations. Id. Now that issue is placed squarely before us.
The RTNA has demonstrated a sufficient stake in this controversy to establish standing to raise freedom of the press concerns under the first amendment. There are two elements to standing. First, the plaintiff must allege an "injury in fact" sufficient to show a "personal stake" in the outcome of the legal action. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 438 U.S. 59 (1978); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). As the district court's order impairs the media's ability to gather news by effectively denying the media access to trial counsel, a concrete personal interest is affected.
Second, the plaintiff must show that "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in However, as we indicated in Levine, 764 F.2d at 594, the impact on the media in this case is significantly different from situations where the media is denied access to a criminal trial or is restricted in disseminating any information it obtains. We have invalidated as unconstitutional prior restraints on the reporting of events relating to a criminal proceeding. E.g., CBS, Inc. v. United States District Court, 729 F.2d 1174, 1178-79 (9th Cir.1984); see Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); ABA Standards for Criminal Justice Standard 8-3.1 (1982). We have also invalidated restraints on the access of the media to criminal proceedings. Associated Press v. United States District Court, 705 F.2d 1143, 1145-47 (9th Cir.1983); see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980).
question." Association of Data Processing Service Organizations, 397 U.S. at 153, 90 S.Ct. at 830. Although we conclude otherwise on the merits, the RTNA asserts an interest that is at least "arguably" protected by the first amendment. The RTNA, therefore, has standing to bring this petition
In contrast, the district court's order in this case is not directed toward the press at all. On the contrary, the media is free to attend all of the trial proceedings before the district court and to report anything that happens. Levine, 764 F.2d at 594. In fact, the press remains free to direct questions at trial counsel. Trial counsel simply may not be free to answer. In sum, the media's right to gather news and disseminate it to the public has not been restrained. 3 See id.
As we noted in Levine, the district court's order "raises a freedom of the press issue that is analytically distinct from the issues that were raised in Associated Press and CBS." Id.; see Sack, Principle and Nebraska Press Association v. Stuart, 29 Stan.L.Rev. 411, 427-28 (1977) (). Rather, the RTNA asserts a first amendment right of full access to trial participants. This assertion is not supported by constitutional case law. See Pell v. Procunier, 417 U.S. 817, 829-35, 94 S.Ct. 2800, 2807-11, 41 L.Ed.2d 495 (1974) ().
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