Columbia Broadcasting Systems, Inc. v. U.S. Dist. Court for Cent. Dist. of California

Decision Date23 October 1983
Docket NumberNo. 83-7790,83-7790
Citation729 F.2d 1174
Parties10 Media L. Rep. 1529 COLUMBIA BROADCASTING SYSTEMS, INC., Petitioner, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent, and United States of America and John Z. DeLorean, Real Parties in Interest.
CourtU.S. Court of Appeals — Ninth Circuit

Jack B. Purcell, O'Melveny & Myers, Los Angeles, Cal., for CBS Inc.

Stephen E. Trott, Asst. U.S. Atty., Los Angeles, Cal., for U.S.D.C. for Central California.

Howard L. Weitzman, Weitzman & Re, Los Angeles, Cal., for DeLorean.

Emergency Petition for Writ of Mandamus to the United States District Court for the Central District of California.

Before GOODWIN, NORRIS, and REINHARDT, Circuit Judges.

NORRIS, Circuit Judge:

The Columbia Broadcasting System, Inc. (CBS) contends that a district court order temporarily restraining CBS from "disseminating and/or broadcasting any portion of any and all government surveillance tapes generated in the investigation and prosecution of the matter entitled United States of America v. John Z. DeLorean " violates the network's rights under the first amendment. We agree and therefore vacate the restraining order.


On Saturday, October 22, 1983, defendant John DeLorean filed an ex parte application for a temporary restraining order with the District Court for the Central District of California. In the application, defendant alleged that CBS had obtained and intended to broadcast video tapes made by the government during an investigation of him. The government joined defendant in urging the court to restrain CBS from broadcasting the tapes.

On the basis of defendant's application and accompanying documents, the district court found that public dissemination of the government tapes "would irreparably harm defendant's Sixth Amendment fair trial right" and, on October 22, the day the application was filed, issued a temporary restraining order prohibiting CBS from broadcasting the tapes. In addition, the district court scheduled a hearing on the issuance of a preliminary injunction for Monday, October 24, 1983 at 3:30 P.M.

On Saturday afternoon, prior to issuing the temporary restraining order, the district court contacted counsel for CBS by telephone. Counsel was informed of the nature of the proposed order and of the court's intention to file it. After permitting counsel to present counter arguments during the phone conversation, the district court issued the order.

CBS immediately sought relief in this court.


At the outset, we must address a jurisdictional question. Although CBS has styled its request for relief as an appeal, under Ninth Circuit precedent CBS has no right to appeal in this case. In United States v. Sherman, 581 F.2d 1358 (9th Cir.1978), the court considered whether representatives of the media could appeal a court order requiring that all members of the public, including the media, refrain from contacting jurors. The court held that an appellant "not a party to the action below ... lacks standing to bring an appeal." Id. at 1360. See also United States v. Brooklier, 685 F.2d 1162 (9th Cir.1982). While we may question the wisdom of this rule, see, e.g., United States v. Chagra, 701 F.2d 354 (5th Cir.1983); Newman v. Graddick, 696 F.2d 796 (11th Cir.1983); Belo Broadcasting Co. v. Clark, 654 F.2d 423 (5th Cir.1981); United States v. Hubbard, 650 F.2d 293 (D.C.Cir.1980); United States v. Gurney, 558 F.2d 1202 (5th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978); United States v. Schiavo, 504 F.2d 1 (3d Cir.1974) (en banc), cert. denied, 419 U.S. 1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1975), we are bound nonetheless to follow Sherman as controlling Ninth Circuit precedent. Accordingly, we hold that CBS lacks standing to appeal the temporary restraining order issued by the district court.

The fact that CBS has styled its pleadings as an appeal does not, however, foreclose us from reviewing the temporary restraining order under our mandamus jurisdiction. 28 U.S.C. Sec. 1651. If the appropriate criteria are met, we are free to treat CBS's request for relief as a petition for a writ of mandamus. Unified Sewerage Agency v. Jelco, Inc., 646 F.2d 1339, 1343 (9th Cir.1981).

In Bauman v. United States District Court, 557 F.2d 650 (9th Cir.1977), we set forth the criteria which determine the availability of mandamus. 1 Three of the Bauman factors weigh heavily in favor of an exercise of our mandamus jurisdiction. The first Bauman factor--lack of other adequate means of obtaining the desired relief--is satisfied because, as already indicated, direct appeal is unavailable. The second Bauman factor--damage not correctable on appeal--is also satisfied. The first amendment informs us that the damage resulting from a prior restraint--even a prior restraint of the shortest duration--is extraordinarily grave. Thus, in Nebraska Press Association v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2803, 49 L.Ed.2d 683 (1976), the Court stated that "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights" and indicated that "the burden on the [party seeking the restraint] is not reduced by the temporary nature of a restraint." See also Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."). Finally, as will be explained below, we believe that the district court's decision to restrain CBS was clear error as a matter of law and consequently the case satisfies the third Bauman factor. Thus, the Bauman analysis favors an exercise of our mandamus jurisdiction. 2

We conclude that this is an appropriate case for the exercise of our mandamus jurisdiction, and we construe CBS's pleadings accordingly.


This case requires that we resolve the tension between two constitutional rights of first importance: the right of the criminal defendant to "an impartial jury," U.S. Const. amend. VI, and the right of the press to be free from governmental restraint, U.S. Const. amend. I.

The Supreme Court addressed the problem of how to reconcile these two seemingly incompatible constitutional rights in Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), and set forth guidelines which control our decision today. Before an appellate court may uphold a lower court restraint on the reporting of a trial, the appellate court

must examine the evidence before the trial judge when the order was entered to determine (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.

Id. at 562, 96 S.Ct. at 2804. Only if it is "clear [from this independent inquiry] that further publicity, unchecked, would so distort the views of potential jurors that 12 c[an] not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court" can an appellate court even consider upholding a prior restraint. Id. at 569, 96 S.Ct. at 2807. 3

This standard is an extraordinarily exacting one. In Nebraska Press, the Supreme Court itself reserved judgment on whether the showing it required could ever be made adequately. Id. at 569-570, 96 S.Ct. at 2807-2808. And since Nebraska Press was decided, federal and state appellate courts have held without exception that trial court restraints on the reporting of judicial proceedings failed to meet the requirements set forth in Nebraska Press. See, e.g., In re CBS, 697 F.2d 1225 (5th Cir.1983); Arkansas Gazette Co. v. Lofton, 269 Ark. 109, 598 S.W.2d 745 (1980); Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493 (Iowa 1976). 4

In the case before us, however, the district court made the inquiry required by Nebraska Press and concluded that a prior restraint was permissible. The district court found (1) that this case has generated "enormous, incessant and continually increasing publicity" and, consequently, release of the government tapes would have a "devastating effect"; (2) that "there is absolutely no method ... to remove the taint upon the minds of potential jurors"; and (3) implicitly, that an order restraining CBS from broadcasting the tapes would adequately guard against the threatened danger. 5 On the basis of these findings, the district court held that the public dissemination of the government tapes would "irreparably harm defendant's Sixth Amendment fair trial right" and that an order restricting CBS's freedom of expression was appropriate.

Subjecting the district court's determinations to the de novo review required by Nebraska Press, 427 U.S. at 562, 96 S.Ct. at 2804; see also United States v. McConney, 728 F.2d 1195 (9th Cir.1984) (en banc) (a question is reviewed de novo when "the inquiry involved ... goes well beyond the facts of the case and requires consideration of the abstract legal principles that inform constitutional jurisprudence"), we conclude that the first two of the district court's determinations are unfounded. The district court's conclusion that this case meets the requirements enunciated in Nebraska Press is thus clear error under the Bauman test. 6


The district court's determination that release of the government tapes would be prejudicial was based upon two grounds: first, that the case had generated "enormous" publicity and that this increased the danger that dissemination of the tapes would prejudice jurors because "the potential for irreparable harm to defendant's right to a fair trial is directly proportional to the amount of public attention accorded this case; " second, that the nature of the audiovisual...

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