Order to Take Down Firm’s Web Pages Was Unlawful Prior Restraint on Lawyer’s Speech

By Samson Habte  

Nov. 4 --A trial judge infringed on a lawyer's First Amendment rights by ordering the removal of pages on the lawyer's website that advertised her past success in two cases that raised issues similar to those involved in a case she was about to try, the California Court of Appeal, Second District, declared Oct. 31 (Steiner v. Superior Court (Volkswagen Grp. of Am.), 2013 BL 301591, Cal. Ct. App. 2d Dist., No. B235347, 10/31/13).

Writing for the court, Justice Steven Z. Perren said the order “was an unlawful prior restraint” on speech, and that admonitions warning the jurors “not to 'Google' the attorneys or to read any articles” about the case “were the presumptively adequate means of addressing the threat of jury contamination in this case.”

“Notwithstanding the good faith efforts of a concerned jurist, the order went too far,” the court said.

Take-Down Order

After Richard Steiner contracted lung cancer, he and his wife filed suit against Volkswagen Group of America (Volkswagen), Ford Motor Co. (Ford), and others, alleging that the cancer was caused by exposure to asbestos in automobile parts manufactured and distributed by the defendants.

The plaintiffs retained attorney Simona A. Farrise to litigate the action. After the jury was empaneled, the defendants moved for an order requiring Farrise to remove during the pendency of trial two pages from her law firm website that touted recent successes against Ford in similar asbestos cases.

The motion characterized the descriptions of those cases -- which resulted in verdicts of $1.6 million and $4.35 million -- as “provocative and prejudicial,” and argued that such information “should not intentionally be prominently displayed on the internet, by the parties or their counsel in this case during trial.”

The plaintiffs countered that the request infringed on their counsel's First Amendment rights and said the court should simply admonish jurors not to search the Internet for information about the attorneys or other aspects of the case.

The trial court gave that instruction, but it also granted the defendants' motion and ordered Farrise to take down the pages. The plaintiffs appealed.

Fails Either Way

The plaintiffs contended that the trial court's order was a prior restraint on speech and thus subject to the exacting test of “strict scrutiny.” The defendants' position, Perren said, was that “the order is not subject to strict scrutiny, but rather to the less restrictive standard for commercial speech” the U.S. Supreme Court formulated in Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980).

Under that standard, Perren continued, “the court must determine whether the speech concerns lawful activity and is not misleading. If it satisfies that criteria, the court must decide whether the asserted governmental interest is substantial, whether the restraint directly advances that interest and whether it is 'more extensive than is necessary to serve that interest.'”

Statutory Restrictions on Jurors' Internet Use

The opinion notes that California recently enacted a statutory amendment that directs trial courts to formally admonish jurors not to use the Internet to conduct research about a pending trial. See Cal. Civ. Proc. Code §611 and Cal. Penal Code §166(a)(6). The amendments provide that jurors who willfully ignore such instructions may be guilty of a misdemeanor.

“The adoption of these amendments underscores that trial courts are appropriately focusing on tougher admonition rules and contempt consequences, rather than on trying to restrain speech on the Internet,” the court said.

The appellate court expressed doubt that intermediate scrutiny was the correct standard, noting that the defendants cited no cases applying that level of review to prior restraints on speech.

But the panel nevertheless conducted an intermediate scrutiny analysis and concluded that the trial judge's order failed even under that standard. “In so doing, we do not decide whether Central Hudson extends to judicial restraints on commercial speech,” Perren cautioned. “We decide only that since the trial court's order 'cannot satisfy this intermediate-scrutiny test, it necessarily fails under a strict scrutiny analysis.'”

The trial judge's order fails to meet at least two Central Hudson requirements, the panel concluded.

“Volkswagen asserts the restraint was proper under the first prong of the Central Hudson test because the challenged speech was misleading,” Perren noted. However, he added, “Volkswagen presented no evidence or argument demonstrating the pages were subject to restraint as misleading advertising, and the trial court made no such finding.”

The trial judge's restraint on speech also could not “withstand the fourth prong as it was more extensive than necessary to serve [the government's asserted] interest,” the panel concluded.

Old Tools Still Effective

The court ultimately concluded that juror admonitions and instructions remain the appropriate remedy in this type of situation.

In doing so, it rejected Volkswagen's argument “that while juror admonishments may have been sufficient to prevent juror misconduct in the past, they are no longer effective in today's world of 24-hour news, Google, Twitter and the Internet.”

The panel acknowledged that courts “have grappled with this issue” in recent years. “The parties cite dozens of law review and legal news articles addressing such topics as the 'wired juror,' 'mistrial by twitter' and how to silence the 'twittering juror,'” Perren noted.

But although these articles recognize “imperfections” in the traditional solutions such as admonitions and cautionary jury instructions, he added, “the authors stop short of suggesting that prior restraints of out-of-courtroom speech are the answer.”

“The trial court properly admonished the jurors not to Google the attorneys and also instructed them not to conduct independent research,” the court said.

“If a juror ignored these admonitions, the court had tools at its disposal to address the issue,” Perren added. “It did not, however, have authority to impose, as a prophylactic measure, an order requiring Farrise to remove pages from her law firm website to ensure they would be inaccessible to a disobedient juror.”

The plaintiffs were represented by Simona A. Farrise and Carla V. Minnard of the Farrise Firm, P.C., Los Angeles, and by Sharon J. Arkin of The Arkin Law Firm, Los Angeles.

Volkswagen Group of America Inc. was represented by Craig L. Winterman and Tara-Jane Flynn of Herzfeld & Rubin, Los Angeles, and by Laurie J. Hepler and Nathaniel K. Fisher of Carroll Burdick& McDonough LLP, San Francisco.

Ford Motor Co. was represented by Steven Douglas Smelser of Yukevich Cavanaugh, Los Angeles, and by John M. Thomas of Dykema Gossett LLP, Los Angeles.

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

Full text at http://www.bloomberglaw.com/public/document/CHRISTIE_STEINER_et_al_Petitioners_v_THE_SUPERIOR_COURT_OF_SANTA_.

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