Marceaux v. Lafayette City-Parish Consolidated Government
731 F.3d 488
| 5th Cir. | 2013Background
- Several current and former Lafayette police officers sued under 42 U.S.C. §§ 1983, 1988 alleging a departmental “code of silence” and retaliation; they communicated with media and operated a website (realcopsvcraft.com) publishing recordings, images, and critical commentary about Lafayette PD officials.
- Lafayette PD Defendants sought a protective order limiting trial participants’ communications and demanding removal of the Website to avoid prejudicial pretrial publicity.
- A magistrate judge issued a written protective order (adopted by the district court) restricting media communications and ordering the Website taken down and recordings removed from public disclosure.
- Officers appealed, arguing the Website takedown was an unconstitutional prior restraint on speech; this court exercised interlocutory jurisdiction under the collateral order doctrine.
- The Fifth Circuit reviewed the order under prior-restraint and gag-order precedents, applying the “substantial likelihood of prejudice” standard from United States v. Brown to civil litigants.
- The Court concluded the record did not show the entirety of the Website was substantially likely to prejudice the jury venire; it vacated the takedown portion and remanded for a narrowly tailored, content-specific review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate jurisdiction exists over appeal of protective order | Appellants asserted interlocutory appeal proper because order is a prior restraint affecting First Amendment rights | Lafayette PD argued lack of jurisdiction (motions panel rejected that) | Court found jurisdiction under the collateral order doctrine (appealable) |
| Proper standard for restraining litigants’ speech in civil case | Officers argued protections must be narrowly tailored and not permit wholesale takedown of Website | Lafayette PD argued broad restraint (entire Website) necessary to prevent jury prejudice | Applied Brown’s “substantial likelihood of prejudice” standard to civil litigants; whole-site takedown was overbroad |
| Whether entire Website creation/publication could be enjoined as prior restraint | Officers urged that only specific, prejudicial materials could be restricted | Lafayette PD argued Website as a whole tainted venire and justified removal | Court held record did not establish nexus between whole-site content and likely jury prejudice; takedown vacated |
| Whether recordings on Website were per se unethical/subject to removal | Officers noted recordings were made by a lay party and lawful under one-party consent (Louisiana) | Lafayette PD argued recordings were unethical and should be removed (relying on older ABA opinion) | Court rejected claim recordings were per se unethical given ABA repeal of Formal Op. 337 and Louisiana one-party consent; left open limited, narrowly tailored removal if justified on other grounds |
Key Cases Cited
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (collateral-order doctrine permits immediate appeal of small set of prejudgment orders)
- United States v. Brown, 218 F.3d 415 (5th Cir.) (applies “substantial likelihood of prejudice” standard to gag orders restricting trial participants)
- Levine v. U.S. District Court, 764 F.2d 590 (9th Cir. 1985) (gag orders as prior restraints; limits on extrajudicial statements)
- Bose Corp. v. Consumers Union, 466 U.S. 485 (appellate courts must independently review records when First Amendment rights implicated)
- N.Y. Times Co. v. Sullivan, 376 U.S. 254 (First Amendment protections and standards for reviewing speech restrictions)
- Alexander v. United States, 509 U.S. 544 (prior restraints are classic examples requiring heavy presumption against constitutionality)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (litigant speech limitations may be appropriate to protect integrity of judicial process)
- Gentile v. State Bar of Nevada, 501 U.S. 1030 (standards for attorney gag orders; timing and prejudice considerations)