Dow Jones & Co., Inc. v. Kaye

• Decision Date: 05 April 2000
• Docket Number: No. 00-0962-CIV.,00-0962-CIV.
• Parties: DOW JONES & COMPANY, INC., New York Times Company, Media General Operations, Inc., Miami Herald Publishing Company, Gannett Satellite Information Network, Inc., and Sun-Sentinel Company, Inc. Plaintiffs, v. The Hon. Robert P. KAYE as Circuit Court Judge for the Eleventh Judicial Circuit of Florida, Defendant.
• Court: U.S. District Court — Southern District of Florida

90 F.Supp.2d 1347

DOW JONES & COMPANY, INC., New York Times Company, Media General Operations, Inc., Miami Herald Publishing Company, Gannett Satellite Information Network, Inc., and Sun-Sentinel Company, Inc. Plaintiffs, v. The Hon. Robert P. KAYE as Circuit Court Judge for the Eleventh Judicial Circuit of Florida, Defendant.

No. 00-0962-CIV.

United States District Court, S.D. Florida, Miami Division.

April 5, 2000.

COPYRIGHT MATERIAL OMITTED

Sanford L. Bohrer, Gregg D. Thomas, Rachel E. Fugate and David S. Bralow of Holland & Knight, LLP, Tampa, FL, for Plaintiffs.

Lee Kraftchick, Asst. County Atty., Miami-Dade County Attorney's Office, Miami, FL, for Defendant.

Stanley M. Rosenblatt, and Susan Rosenblatt of Stanley M. Rosenblatt, P.A., Miami, FL, for Intervenors.

JORDAN, District Judge.

The plaintiffs — Dow Jones & Company, Inc., New York Times Company, Media General Operations, Inc., Miami Herald Publishing Company, Gannett Satellite Information Network, Inc., and Sun-Sentinel Company, Inc. — publish newspapers. See Verified Complaint [D.E. 1] ¶¶ 4-8 at 3-4 (March 10, 2000); Plaintiff's Motion to Add a Party [D.E. 18] ¶ 3 at 2 (March 23, 2000). Their complaint, brought pursuant to 42 U.S.C. § 1983, challenges as unconstitutional an order entered by the defendant, Judge Robert P. Kaye of Florida's Eleventh Judicial Circuit, in a case pending before him, Engle et al. v. R.J. Reynolds Tobacco Co. et al., No. 94-8273. See Verified Complaint ¶ 1 at 2. The newspaper publishers move for a temporary restraining order enjoining enforcement of the order. Judge Kaye moves to dismiss the complaint.

Facts

Engle is a class action lawsuit against several tobacco companies to recover damages for diseases contracted as a result of cigarette addiction. The class includes all Florida citizens and residents who have been medically harmed by addiction to cigarettes. See id. ¶¶ 11, 12 at 4-5. The Engle lawsuit is newsworthy for several reasons, including the unprecedented scope of the plaintiff class and the staggering amount of money at stake. See id. ¶¶ 20-29 at 6-7. Issues of liability and damages were bifurcated for trial.

In October of 1998, after jury selection was completed for the liability phase of Engle, Judge Kaye entered the order that is the subject of this action. The order states:

All parties and their agents are prohibited from holding any public meetings and/or press conferences or briefings which relate to any facts or issues concerning this case. In addition, no party [or] their agents are to make any public statement, written or oral, which pertains to any court proceedings in this case, including any part[y's] version of the facts, issues, merits, and theories of the case. All parties will also refrain from publicly characterizing any party or witness in this case.

Engle Order on Motion for Relief ("Gag Order") (Exhibit A to Verified Complaint) ¶ 6 at 3-4 (Oct. 20, 1998). The plaintiff newspaper publishers claim that the order unconstitutionally infringes their right, guaranteed by the First Amendment to the United States Constitution, to gather the news. See Verified Complaint ¶¶ 56-58 at 11-12. Reporters who work for the publishers have covered the Engle trial despite the order. They "have been able to attend and report on the trial" but claim that they "have been unable to obtain any information from the parties or their agents" because of the gag order. Memorandum of Law in Support of Motion for Temporary Restraining Order ("Plaintiffs' TRO Memo") [D.E. 5] at 15 (March 13, 2000).

Judge Kaye entered the order because he became aware that the tobacco companies had planned a press conference and issued a press release that he determined "could conceivably have a detrimental effect on the fairness and impartiality of this trial." Gag Order ¶ 1 at 1. Upon learning of the scheduled press conference, Judge Kaye conducted a hearing to discuss entering the gag order. See Engle Transcript (Exhibit 1 to Defendant's Memorandum of Law in Support of Motion to Dismiss ("Defendant's Dismissal Memo") [D.E. 10] (March 17, 2000)) (Oct. 16, 1998, 9:25 a.m.). Judge Kaye did not permit members of the media to attend the hearing, see id. at 5, and he and the parties concurred that there should be an agreement or an order preventing the parties and their counsel from speaking with the press during the trial. See id. at 6-10. The parties had input into the phrasing of the written order. See id. at 12-13; Engle Transcript (Exhibit 5 to Defendant's Dismissal Memo) (Oct. 16, 1998, 12:45 p.m.).

More than a year later, some of the tobacco companies challenged the gag order. The liability phase of Engle had concluded by then and the case had progressed into its compensatory damages phase. Judge Kaye denied the motion to vacate the gag order, see Engle Order on Motion for Immediate Termination of Order (Exhibit 6 to Defendant's Dismissal Memo) (Feb. 3, 2000), and the tobacco companies appealed to Florida's Third District Court of Appeal. Plaintiff Dow Jones & Company sought to intervene in that appeal, but the Third District denied the request without explanation. See Order, R.J. Reynolds Tobacco Co. v. Engle, No. 3D00-372, (Exhibit 8 to Defendant's Dismissal Memo) (Feb. 11, 2000). Instead, Dow Jones & Company participated in the appeal as amicus curiae. The Third District sustained the gag order. See R.J. Reynolds Tobacco Co. v. Engle, 750 So.2d 781 (Fla. App. 3d Dist. 2000). As far as the record indicates, no one has sought review of that decision. Instead, the newspaper publishers brought this original action to challenge the gag order pursuant to 42 U.S.C. § 1983. See Verified Complaint ¶¶ 38-42, 54 at 9, 11.

The Engle plaintiffs moved to intervene in this action and were granted permissive intervenor status. See Order Denying Motion to Intervene [D.E. 21] (March 24, 2000). The Engle plaintiffs have adopted Judge Kaye's arguments. See Intervenors' Response and Joinder in Defendant's Motion to Dismiss [D.E. 14] at 9 (March 17, 2000).

Motions, Arguments, and Issues

The newspaper publishers move on an emergency basis for a temporary restraining order that would prevent enforcement of the gag order. At this point, the compensatory damages phase of Engle is very nearly at an end; closing arguments are underway. There may be a third phase yet to come on the issue of punitive damages. See Engle Transcript (Exhibit 7 to Defendant's Dismissal Memo) at 44145-46, 44150-51 (Feb. 1, 2000, 2:00 p.m.).

Judge Kaye argues that the newspaper publishers' complaint should be dismissed and that their motion for a preliminary injunction should be denied out of respect for the authority of the state courts and principles of comity. See Defendant's Response to Motion for Temporary Restraining Order ("Defendant's TRO Memo") [D.E. 12] at 4-5 (March 17, 2000); Defendant's Dismissal Memo at 7-16. The newspaper publishers argue that their complaint should not be dismissed because they have been denied any opportunity to present their constitutional claims in state court. See Plaintiffs' Response to Motion to Dismiss [D.E. 15] at 3-4 (March 22, 2000). They point out that Judge Kaye prevented "media representatives" from attending the hearing preceding entry of the gag order and that the Third District did not allow Dow Jones & Company to intervene in the tobacco companies' appeal.

Shortly after the newspaper publishers responded to Judge Kaye's motion to dismiss, all parties presented argument at a hearing. Under these circumstances, the motion for a temporary injunction should and will be treated as a motion for a preliminary injunction. This order is therefore appealable. See Cuban American Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1421-22 (11th Cir.1995).

The four prerequisites to a preliminary injunction are familiar; the movant must show (i) that he is substantially likely to succeed on the merits; (ii) that there exists a substantial threat of irreparable injury if the requested injunction is not entered; (iii) that the threatened injury outweighs the harm that the injunction might cause; and (iv) that the injunction will not harm the public interest. See Tefel v. Reno, 180 F.3d 1286, 1295 (11th Cir.1999). The movant must clearly demonstrate that these criteria are met because a preliminary injunction is an extraordinary and drastic remedy. See Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir.1994).

Judge Kaye argues that the newspaper publishers are not likely to succeed on the merits in this case because they could have sought relief from him. Therefore, the complaint should be dismissed out of respect for the state court's authority and to prevent interference with its proceedings. See Defendant's TRO Memo at 4-5. Defendant's Dismissal Memo at 7-16. Thus, Judge Kaye's first argument in opposition to the newspaper publishers' motion for a preliminary injunction is the same argument underlying his motion to dismiss.

Standing

A threshold issue is whether the newspaper publishers have standing to bring this lawsuit. See United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). A plaintiff has standing if he shows that he has been injured or threatened with injury and that the lawsuit is likely to redress that injury. See id. at 742-43, 115 S.Ct. 2431; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). This irreducible constitutional minimum ensures that the plaintiff has a real stake in the case and an incentive to pursue it.

The newspaper publishers demonstrate an injury to their First Amendment rights by showing that, but for Judge Kaye's gag order, parties to the Engle litigation would talk to their reporters. See Davis v. East Baton Rouge Parish School Bd., 78 F.3d 920, 926-27 (5th Cir.1996); FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 838-39 (3d Cir.1996); In re Application of Dow Jones & Co., 842 F.2d 603, 606-08 (2d Cir.198...