U.S. v. Ford, s. 87-5686

• Decision Date: 25 September 1987
• Docket Number: 87-5695,Nos. 87-5686,s. 87-5686
• Citation: 830 F.2d 596
• Parties: , 14 Media L. Rep. 1901 UNITED STATES of America, Plaintiff-Appellee, v. Harold E. FORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 596

830 F.2d 596

56 USLW 2219, 14 Media L. Rep. 1901

UNITED STATES of America, Plaintiff-Appellee, v. Harold E. FORD, Defendant-Appellant.

Nos. 87-5686, 87-5695.

United States Court of Appeals Sixth Circuit.

Argued Sept. 23, 1987.

Sept. 25, 1987.

John W. Gill, U.S. Atty., Knoxville, Tenn., J. Laurens Tullock (argued), for plaintiff-appellee.

Janina Jaruzelski, Steven R. Ross (argued), Charles Tiefer, U.S. House of Representatives, Washington, D.C., for amicus, Speaker and Leadership Group.

Vincent J. Fuller, Williams and Connolly, Washington, D.C., J. Alan Hanover, Hanover, Walsh, Jalenak, Blair, Memphis, Tenn., William F. McDaniels (argued), Washington, D.C., Vincent J. Fuller, Ellen Huvelle, for defendant-appellant.

Before MERRITT, KRUPANSKY and NELSON, Circuit Judges.

MERRITT, Circuit Judge.

In this federal criminal case for mail and bank fraud, set for trial on November 9, 1987, the defendant, Congressman Harold Ford of Memphis, seeks an interlocutory ruling setting aside as constitutionally invalid a broadly worded, so-called "gag" order entered sua sponte in the District Court. The order prohibits Congressman Ford from "making" any "extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication," including any "opinion of or discussion of the evidence and facts in the investigation or case," any statement about a prosecuting attorney, any statement about "any alleged motive the government may have had in filing the indictment" or any statement "which relates to any opinion as to ... the merits of the case." The order excepts from these restrictions on Ford's speech any statement "on the floor of the House," or in committee or to another member of the House or any statement that he is "not guilty of the charges placed against him." (See Appendix A for the full text of the order in question.) The parties have filed with the court numerous press clippings indicating that the case against Congressman Ford has received wide publicity, including editorials condemning Ford for the conduct charged in the 19 counts of the 34 page indictment, and statements by Ford attacking the government's prosecution.

The first question presented on appeal is whether the free speech clause of the First Amendment limits the authority of a federal trial judge to restrain the extra-judicial comments of an accused standing trial before him in a criminal case. No issue is presented in the instant appeal concerning the authority of judges to restrain the speech of lawyers, officers of the court, or witnesses. Only the interests of the defendant are raised.

The free speech issue is also presented to us as a separation of powers issue by Congressman Ford and amici curiae, who are the Speaker of the House, Mr. Wright, the Majority Leader, Mr. Foley, and the House Leadership Group. They assert that the District Court order abridges the authority of the legislative branch. They present the separation of powers issue as follows:

This case presents questions of institutional importance to the House: Whether In the words of Thomas Jefferson, the House is "entrusted with the preservation of its own privileges" and has an obligation to "vindicate its immunities against the encroachments and usurpations of a co-ordinate branch." 8 The Works of Thomas Jefferson 327 (Fed. ed. 1904). It is in performance of this obligation that the Speaker and the Leadership Group appear today.

upon indictment, a Member of Congress may continue to perform the representational and communicative functions of his office in a vigorous, effective manner free from any fear of judicial interference and without censorship by court order curtailing his communication with the electorate who have chosen him; and whether a Representative's half-million constituents may be deprived of a major aspect of representation--the accountability of their Representative to them, through his communication with them--on the basis of a mere issuance of charges against their duly chosen Representative.

(Brief for Amici Curiae, p. 2.)

We have jurisdiction of this interlocutory appeal. Courts of Appeals have found orders restraining speech in connection with pending cases appealable as Sec. 1291 final orders under the "collateral order" doctrine of Cohen v. Beneficial Ind. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), see, e.g., United States v. Schiavo, 504 F.2d 1, 4-5 (3rd Cir.1974), cert. denied, 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974) (en banc decision reversing pretrial order restraining the press from reporting on a criminal trial), and as injunctive orders under Sec. 1292(a)(1), Parker v. CBS, Inc., 320 F.2d 937 (2nd Cir.1963) (injunction against plaintiff's communication concerning trial document), as well as in mandamus, CBS v. Young, 522 F.2d 234 (6th Cir.1975) (mandamus lies to review order restraining public comment by parties and their relatives in Kent State civil litigation); Chase v. Robson, 435 F.2d 1059 (7th Cir.1970) (mandamus available writ to attack "no comment" order against defendant in a criminal case). The government does not contest appellate jurisdiction in this case.

I.

The defendant argues that the broad "no discussion-of-the-case" order entered sua sponte is a content based prior restraint on speech and that it therefore must meet the exacting "clear and present danger" test for free speech cases enunciated in Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The government contends in response that in a criminal case the Near test is inapplicable and that the question is whether there is a "likelihood that prejudicial news prior to trial will prevent a fair trial," quoting language taken from Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1965), as establishing a lower standard in such cases. This contention is in error. Sheppard arose from the failure of a state criminal court to prevent irresponsible elements of the press from taking "over practically the entire courtroom, hounding most of the participants in the trial" and creating a "carnival atmosphere" in which the defendant was held up to ridicule. 384 U.S. at 355, 358, 86 S.Ct. at 1518, 1520. No restraint on the defendant's speech was at issue. In Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 556, 96 S.Ct. 2791, 2801, 49 L.Ed.2d 683 (1976), decided ten years after Sheppard, the Supreme Court held that the Near standard applies to restraints on the press in criminal cases. We see no legitimate reasons for a lower threshold standard for individuals, including defendants, seeking to express themselves outside of court than for the press. See Pell v. Procunier, 417 U.S. 817, 834-35, 94 S.Ct. 2800, 2810, 41 L.Ed.2d 495 (1974) (rejecting distinction between first amendment rights of the press and "members of the public generally").

In CBS v. Young, 522 F.2d 234 (6th Cir.1975), we applied the clear and present danger test to a similar broad "no discussion" order entered in the Kent State civil litigation. Our Court issued the writ of mandamus after making the following observations We are not unmindful of the sensitive nature of the trial, the public interest in it, and the heavy responsibility resting upon the district judge to take such reasonable measures as may be required by the circumstances to obviate the possibility of contamination of the trial process. We entertain no doubt that the respondent [district judge] entered the order in the good faith belief that his duty required it because of the nature of the case itself, the parties connected with it, and the publicity which the trial would be likely to attract. Every trial judge is charged with the primary responsibility of ensuring that the judicial proceedings over which he presides are carried out with decorum and dispatch and thus has every broad discretion in ordering the day-to-day activities of his court.... Yet, as the authorities demonstrate, any restrictive order involving a prior restraint upon First Amendment freedoms is presumptively void and may be upheld only on the basis of a clear showing that an exercise of First Amendment rights will interfere with the rights of the parties to a fair trial.

that apply equally to the case at bar:

Id. at 241.

As we indicated clearly in the CBS case, such broadly based restrictions on speech in connection with litigation are seldom, if ever, justified. Trial judges, the government, the lawyers and the public must tolerate robust and at times acrimonious or even silly public debate about litigation. The courts are public institutions funded with public revenues for the purpose of resolving public disputes, and the right of publicity concerning their operations goes to the heart of their function under our system of civil liberty. The courts have available other less restrictive approaches for insuring a fair trial. They may, for example, consider a change of venue or the sequestration of the jury or a searching voir dire examination of the jury. On this record, these remedies are sufficient to preserve the conditions of a fair trial in the instant case.

The principles that underlie Young, a civil case, are even more forceful in the area of criminal proceedings. A criminal defendant awaiting trial in a controversial case has the full power of the government arrayed against him and the full spotlight of media attention focused upon him.

The defendant's interest in replying to the charges and to the associated adverse publicity, thus, is at a peak. So is the public's interest in the proper functioning of the judicial machinery. The "accused has a First Amendment right to reply publicly to the prosecutor's charges, and the public has a right to hear that reply, because of its ongoing concern for the integrity of the criminal justice system and the need to hear from those most directly affected by it." Freedman & Starwood, Prior Restraints on...