Hirschkop v. Snead, No. 76-2016

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, and PHILLIPS; PER CURIAM; PHILLIPS; WINTER and BUTZNER; WIDENER
• Citation: 594 F.2d 356
• Decision Date: 02 March 1979
• Docket Number: No. 76-2016
• Parties: 4 Media L. Rep. 2599 Philip J. HIRSCHKOP, Appellant, and American Civil Liberties Union of Virginia and Richmond Newspapers Professional Association, Plaintiff-Intervenors, v. Hon. Harold F. SNEAD, Hon. Lawrence W. I'Anson, Hon. Lee Carrico, Hon. Albertis S. Harrison, Hon. Alexander M. Harman, Jr., Hon. George Cochran, and Hon. Richard H. Poff, in official and Individual capacities, Appellees.

Page 356

594 F.2d 356 4 Media L. Rep. 2599 Philip J. HIRSCHKOP, Appellant,
and
American Civil Liberties Union of Virginia and Richmond
Newspapers Professional Association, Plaintiff-Intervenors,
v.
Hon. Harold F. SNEAD, Hon. Lawrence W. I'Anson, Hon. Lee
Carrico, Hon. Albertis S. Harrison, Hon. Alexander M.
Harman, Jr., Hon. George Cochran, and Hon. Richard H. Poff,
in official and Individual capacities, Appellees. No. 76-2016. United States Court of Appeals,
Fourth Circuit. Argued Oct. 3, 1978.
Decided March 2, 1979.

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Philip J. Hirschkop, Alexandria, Va. (John D. Grad, Hirschkop & Grad, Alexandria, Va., Jeremiah S. Gutman, New York City, Richard C. Shadyac, Fairfax, Va., on brief), for appellant.

John W. Riely, Richmond, Va. (James E. Farnham, Jack E. McClard, Hunton & Williams, Richmond, Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, and PHILLIPS, Circuit Judges, sitting En banc.

PER CURIAM: ^*

This case presents the question of whether rule 7-107 of the Virginia Code of Professional

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Responsibility ¹ which restricts lawyers' comments about pending litigation violates the right of freedom of speech secured by the first and fourteenth amendments. ² The district court issued a declaratory judgment upholding the constitutionality of the rule. ³ We affirm in part and reverse in part.

Upon petition of the Virginia State Bar, the Supreme Court of Virginia promulgated rule 7-107 pursuant to authority conferred by Virginia Code § 54-48 (1974). The rule reflects long-standing concern that prejudicial publicity threatens the fairness of trials. Canon 20 of the American Bar Association's Canons of Professional Ethics, the predecessor of the rule, indicated generally that published statements by a lawyer during the course of litigation may interfere with a fair trial and are usually to be condemned. In 1964 the American Bar Association, responding in part to the events following the assassination of President Kennedy, appointed an advisory committee on fair trial and free press whose final report contained the prototype of those parts of rule 7-107 pertaining to criminal trials. See ABA Standards Relating to Fair Trial and Free Press (1968). A committee of the Judicial Conference of the United States also issued a report, recommending that district courts adopt local rules based largely on the Bar Association's standards. See Report of the Committee on the Operation of the Jury System on the "Free Press Fair Trial" Issue, 45 F.R.D. 391 (1968). Subsequently, the Bar's standards were adopted in Virginia and in other states, and they were incorporated into the local rules of many federal courts.

Much of the litigation about restrictions on the publication of news about trials has involved specific gag orders and not rule 7-107. See, e. g., Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Central South Carolina Chapter, Society of Professional Journalists v. Martin, 556 F.2d 706 (4th Cir. 1977); In re: Oliver, 452 F.2d 111 (7th Cir. 1971); See generally, Symposium, National Press Association v. Stuart, 29 Stanford L.Rev. 383-626 (1977). The constitutionality of rule 7-107 apparently has been considered by only one appellate court. That court found the rule to be constitutionally infirm primarily because of its failure to restrict the ban on lawyers' comments to those instances where they posed a serious and imminent threat to a fair trial. Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 251 (7th Cir. 1975). We disagree. The more appropriate standard is that the publication present a reasonable likelihood that it will be prejudicial to the fair administration of justice.

I.

At the outset, we consider whether Philip J. Hirschkop, an attorney licensed to practice in Virginia, has standing to maintain this action even though no complaints charging violations of rule 7-107 are pending against him.

All attorneys in Virginia must belong to the Virginia State Bar which processes complaints about violations of the rule. Virginia Code § 54-49 (1974). Hirschkop brought this action, alleging that the rule is unconstitutional on its face and as applied to him. Eleven of the 22 complaints filed with the Virginia State Bar from 1965 to 1975 charging violations of the rule cited Hirschkop, who has been active in many civil rights and civil liberties cases. One complaint was filed after he did no more than tell the press that he was representing an indicted prison official because the official was "a good guy."

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Eventually, Hirschkop and the Virginia State Bar reached a settlement in which the executive committee of the Bar admitted that the complaints against Hirschkop were meritless and had been filed in cases where "the complainants may have disagreed with the causes supported and espoused" by Hirschkop. In return, Hirschkop consented to dismissal of his claims against the State Bar, its officers, and employees. The agreement, however, did not deal with the rule's constitutionality, and it expressly provided that Hirschkop would not be immune from appropriate disciplinary action in the future should he violate the rule. Consequently, the only issue presented in this appeal is the facial constitutionality of rule 7-107. ⁴

The Supreme Court has consistently relaxed normal standing requirements in first amendment cases. See, e. g., Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Dombrowski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); N.A.A.C.P. v. Button,371 U.S. 415, 432-33, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). The Court justified this exception to the general rule of standing by explaining in Broadrick,413 U.S. at 612, 93 S.Ct. at 2916:

Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.

This policy is particularly strong when, as here, only speech and not conduct is at issue. See Broadrick, 413 U.S. at 615, 93 S.Ct. 2908.

Hirschkop is subject to discipline, including disbarment, for comments violating rule 7-107. We conclude that he has standing to challenge the rule because the threat of disciplinary action may deter him and other Virginia attorneys from making constitutionally protected statements.

II.

Hirschkop suggests that the first amendment precludes any rule limiting speech by lawyers. He contends that fair trials can be obtained even when prejudicial publicity is imminent by carefully drawn orders confining restrictions on speech to the peculiar circumstances confronting the trial judge.

Hirschkop's rejection of every rule regulating lawyers' comments will not withstand constitutional analysis. The first amendment's right of freedom of speech is not absolute, and courts must consider the "special characteristics of the . . . environment" in which the speech is uttered. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Drawing on many prior decisions, Mr. Justice Powell formulated a two-step test in Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), for determining the constitutionality of governmental restrictions on speech:

First, the regulation . . . in question must further an important or substantial governmental interest unrelated to the suppression of expression. . . . Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.

There can be little question whether rule 7-107 satisfies the first part of the test prescribed by Martinez. State and federal courts have a substantial interest in assuring every person the right to a fair trial, a right which the Supreme Court has described as "the most fundamental of all freedoms." Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543 (1965). Experience shows that this right can be impaired by lawyers' unrestrained, prejudicial

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comment pending trial. See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); ABA, Standards Relating to Fair Trial and Free Press (1968); Report of the Committee on the Operation of the Jury System on the "Free Press Fair Trial" Issue, 45 F.R.D. 391 (1968). Consequently, we conclude that the rule furthers a "substantial governmental interest unrelated to the suppression of expression."

The second part of the Martinez test is designed to determine whether the restrictions on speech are "unnecessarily broad." 416 U.S. at 413-14, 94 S.Ct. 1800. In the context of this case, Martinez prohibits the imposition of all such restrictions that are not essential to the preservation of a fair trial. Application of this part of the Martinez test requires an examination of both the scope of the rule and the nature of its restrictions. Consideration of the rule's scope is necessary because it applies to criminal, civil, and administrative proceedings. Inquiry about its restrictions is essential because the parties differ on the appropriate constitutional standard for determining what comments should be barred. Therefore, we will apply the second part of the Martinez test to each type of proceeding to which the rule refers.

III.

Criminal Jury Trials

The committee of both the American Bar Association and the Judicial Conference of the United States emphasize that prejudice from lawyers' unrestrained comments is most likely to occur in criminal cases which are heard by a jury. See ABA, Standards Relating to Fair Trial and Free Press 22 (1968); Report of the Committee on the Operation of the Jury System, "Free Press-Fair Trial Issue", 45 F.R.D. 391, 392 (1968)....