828 F.2d 361 (6th Cir. 1987), 86-5741, The Courier Journal v. Marshall

Docket Nº:86-5741.
Citation:828 F.2d 361
Party Name:In re THE COURIER-JOURNAL and Louisville Times Company, Petitioners, v. Robert MARSHALL and Martha Marshall, Respondents.
Case Date:August 26, 1987
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 361

828 F.2d 361 (6th Cir. 1987)

In re THE COURIER-JOURNAL and Louisville Times Company, Petitioners,


Robert MARSHALL and Martha Marshall, Respondents.

No. 86-5741.

United States Court of Appeals, Sixth Circuit

August 26, 1987

Argued Feb. 5, 1987.

Jon L. Fleischaker (argued), Kimberly K. Greene, William H. Hollander, Wyatt, Tarrant and Combs, Louisville, Ky., for petitioners.

J. Richard Cohen, Morris S. Dees, Jr., Montgomery, Ala., Alexander R. Sussman (argued), New York City, for respondents.

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Before LIVELY, Chief Judge, RYAN, Circuit Judge, and PORTER, Senior District Judge. [*]

RYAN, Circuit Judge.

Petitioner Courier-Journal and Louisville Times Company seeks a writ of mandamus to compel the district court to vacate protective orders effectively limiting public and media access to specified fruits of discovery 1 in the Marshalls' civil rights lawsuit against persons who destroyed their home. We conclude that the protective orders were proper and that the writ should not issue.


The Marshalls are a black couple whose home was twice firebombed after they moved into the exclusively white community of Sylvania, in Jefferson County, Kentucky. Ku Klux Klan activity temporally and physically proximate to the two incidents led the Marshalls to list unnamed Ku Klux Klan members as defendants in the complaint they filed, under 42 U.S.C. Secs. 1985(3) & 1986 (1981), against those who conspired to firebomb their home.

Shortly after the first arson, the local media revealed that nonparty appellant Young, then a Jefferson County police officer, was a Ku Klux Klan member. The Marshalls sought to depose him in connection with their suit. Because Young admitted to being a Klan official, rather than a common Klansman, the Marshalls sought from him a list of members of Young's local Klan group. A subpoena duces tecum was issued requiring Young to bring with him to the deposition hearing any such membership lists he might have.

Young moved to quash the subpoena, or in the alternative for a protective order preventing disclosure of information revealed in his deposition, contending that disclosure would lead to economic and social retribution against those whose Klan affiliation would thereby be made public. The court eventually ordered Young to comply with the subpoena and reveal the information requested, but ordered that only the law firms involved in the suit could have access to the deposition's contents.

Young then gave his deposition, but he refused to bring along the membership list, as ordered, citing his first amendment right of association. Young admitted to having a post office box in the name of the Confederate Officers Patriot Squad (COPS) that he used to receive Ku Klux Klan mailings and correspondence, but insisted that COPS was never an organization. He admitted to the existence of a list of Klan members to which he had access, which contained roughly forty names, and stated that "probably more than half" of the persons named were law enforcement officers. He named a few names, but claimed to know nothing first-hand about the firebombings.

The protective order turned out to be ineffectual, because language in it permitted use of Young's deposition "to pursue and/or defend this civil litigation." The Marshalls used information from the deposition in their court pleadings. The local media immediately obtained access to the pleadings, and accounts summarizing this information appeared in the local newspapers and on radio and television. The key information as thus transmitted was that Young headed a Klan-affiliate with forty members called COPS, over half of whom were local law enforcement officers.

The Marshalls continued to seek, and Young to resist production of, the membership list. Eventually, Young was cited for contempt. 2

The petitioner here, the Courier-Journal and Louisville Times Company (the publisher)

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is a news organization that has been covering the Marshalls' case. The publisher brought a motion to vacate the protective order as violative of the press first amendment right of access to judicial proceedings, especially proceedings of intense public concern. This motion was denied.

Later, in the hope of resolving the discovery dispute, the district court entered a second and more stringent protective order, addressed solely to the problem of preserving the presumptive privacy and associational rights of those whose names were on the membership list. This second protective order stated in part:

Deponent Alex Young is being ordered to deliver to plaintiffs' counsel the names and addresses of his Klan unit under seal. To prevent the possibility of anyone learning the contents of the membership list, no copy of the list will be filed with the Clerk of the Court. The plaintiffs and their counsel are directed not to file with the Clerk of the Court any deposition taken of any past or present Klan members included on said list, or any document that contains the names or addresses of persons on said list.

The publisher then sought a writ of mandamus to compel the district court to vacate both of the protective orders.


We have jurisdiction to review these protective orders because the publisher's first amendment rights were arguably "impaired and curtailed by the order[s]," and the publisher:

being neither a party to the litigation nor specifically enjoined by the order[s] from discussing the case ... was not in a position to seek a remedy by direct appeal to this Court.

CBS, Inc. v. Young, 522 F.2d 234, 237 (6th Cir.1975). The scope of review called for by a mandamus petition, however, is quite narrow:

The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Will v. United States, 389 U.S. 90, 95, 19 L.Ed.2d 305, 88 S.Ct. 269 (1967); Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382-385, 98 L.Ed. 106, 74 S.Ct. 145 [147-149] (1953); Ex parte Fahey, 332 U.S. 258, 259, 91 L.Ed. 2041, 67 S.Ct. 1558 [1559] (1947). As we have observed, the writ "has traditionally been used in the federal courts only 'to confine an inferior...

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