CHRISTIE STEINER et al., Petitioners, v. THE SUPERIOR COURT OF SANTA BARBARA COUNTY, Respondent; VOLKSWAGEN GROUP OF AMERICA et al., Real Parties in Interest.
No. B235347
Second Dist., Div. Six.
Oct. 30, 2013.
220 Cal. App. 4th 1479
Farrise Firm, Simona A. Farrise, Carla V. Minnard; The Arkin Law Firm and Sharon J. Arkin for Petitioners.
No appearance for Respondent.
Herzfeld & Rubin, Craig L. Winterman, Tara-Jane Flynn; Carroll, Burdick & McDonough, Laurie J. Hepler and Nathaniel K. Fisher for Real Party in Interest Volkswagen Group of America, Inc.
Yukevich Cavanaugh, Steven Douglas Smelser; Dykema Gossett and John M. Thomas for Real Party in Interest Ford Motor Co.
McKenna Long & Aldridge and Kelvin Timothy Wyles for Real Party in Interest Pneumo Abex.
OPINION
PERREN, J.—An attorney‘s Web site advertised her success in two cases raising issues similar to those she was about to try here. The trial court admonishеd the jury not to “Google” the attorneys or to read any articles about the case or anyone involved in it. Concerned that a juror might ignore these admonitions, the court ordered the attorney to remove for the duration of trial two pages from her Web site discussing the similar cases. We conclude this was an unlawful prior restraint on the attorney‘s free speech rights under the First Amendment. Whether analyzed under the strict scrutiny standard or the lesser standard for commercial speech, the order was more extensive than necessary to advance thе competing public interest in assuring a fair trial. Juror admonitions and instructions, such as those given here, were the presumptively adequate means of addressing the threat of jury contamination in this case.
Although the order was improper, it is no longer in effect and thus no relief can be granted. We deny the petition for writ of mandate.1
FACTS AND PROCEDURAL BACKGROUND
Richard and Christie Steiner filed this personal injury action after Richard Steiner contracted lung cancer. They alleged his cancer was caused by
The Steiners argued that the request infringed upon counsel‘s constitutional right of free speech and that the more appropriate remedy was to admonish the jury not tо search the Internet for information about the attorneys. The trial court, however, granted the motion at a hearing on August 22, 2011. After the parties expressed confusion over the scope of the order, the court clarified: “I had intended the decision here to be surgical. I was [not] directing [Ms. Farrise to] take down her whole website by any stretch of the imagination. It was the items that the Defense had pointed to that I was directing my thoughts to. [][] Maybe I wasn‘t as clear as I should have been, but that‘s all. I wasn‘t asking you to do anything more than just take [down] the comments that the Defense pointed to in their motion, which was, I thought, very specific.”
The trial court admonished the jurors not to Google the attorneys. It also gave the standard admonishments prior to opening statements. Those admonishments are not part of the record, but at the time they were given, CACI No. 100 stated: “During the trial, do not read, listen to, or watch any news reports about this case. . . . This prohibition extends to the use of the Internet in any way, including reading any blog about the case or about anyone involved with it or using Internet maps or mapping programs or any other program оr device to search for or to view any place discussed in the testimony.”2 (CACI No. 100 (2011 ed.).)
The Steiners, Farrise and her law firm (collectively petitioners) sought a writ of mandate in this court seeking to reverse the trial court‘s order requiring Farrise “to take down part of her firm‘s website during the
Thereafter, petitioners sought review of our denial in the California Supreme Court. In their petition for review, they changed the basis for their claim and represented to the Supreme Court that the trial court had ordered Farrise ”to take down her firm‘s entire website during the trial of this case in order to assure that the jurors do not view it.” (Original italics.) The petition for review stated that “[e]ven if the order were limited to the website‘s discussion of other cases, it would be an unreasonable and unnecessary priоr restraint and would violate [counsel‘s] free speech rights. But the order is not so limited: It requires that [counsel] take down her entire website, even with respect to speech wholly unrelated to any other asbestos litigation.” (Original italics.) This claim contradicts the claim made to this court and is unsupported by the record. Five days later, the Supreme Court granted review and transferred the matter to this court with instructions to issue an order to show cause. We complied. We also asked petitioners to explain the discrepancies in the petitions regаrding the scope of the trial court‘s order.
In response, petitioners concede that the trial court did not order Farrise to take down the entire Web site and that only the two pages specified in the motion were removed. They nonetheless assert the trial court‘s written ruling, issued the day after the court made its clarifying comments on the record, created an “ambiguity” in the scope of the order. That ruling, which was part of a lengthy final pretrial conference order, stated: “Take it down from the time of the trial. The Court will make the same order with rеspect to any of the websites of the defendants upon request.” Petitioners claim the word “it” arguably referred to the entire Web site rather than the two pages referenced in the motion and identified by the trial court. The record reflects, however, that the court drafted the ruling shortly after explaining it “had intended the decision here to be surgical,” and was not “by any stretch of the imagination” directing removel of the entire Web site. It stated: “I‘m going to print [the order], one copy - 20 pages . . . . You‘re going to get it out there, Monday, and I‘m going to say that th[e] motion is granted. [][] And Miss Farrise has a copy of it if she feels that she‘d like to writ it, then it‘s clearly part of my record. [¶] Now, that part‘s done and behind me. I think that‘s being [as] surgical as I can be.”
On the day the petition for review was filed, the trial court issued a separate written order denying the Steiners’ request to require defense counsel
Farrise restored the two pages to her firm Web site when the triаl ended in October 2011. Volkswagen moved to discharge the order to show cause as moot. We deferred resolution of the motion until the show cause hearing.4
DISCUSSION
A. Public Interest Exception for Mootness
Appellate courts generally will neither decide controversies that are moot nor render decisions on abstract propositions. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [63 Cal.Rptr. 21, 432 P.2d 717]; see Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 78 [70 Cal.Rptr.3d 88].) “A case is moot when the decision of the reviewing court ‘can have no practical impact or provide the parties effectual relief. [Citation.]’ [Citation.] ‘When no effective relief can be granted, an appeal is moot and will be dismissed.’ [Citation.]” (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 [130 Cal.Rptr.2d 564] (MHC).)
Petitioners concede the writ petition is moot, but contend this matter falls within the public interest exception to the doctrine of mootness. (See MHC,
The actual order is much narrower, but it does raise questions as to a trial court‘s authority to issue an order restricting an attorney‘s free speech rights during trial to prevent pоtential jury contamination. Because any order restricting such speech during trial is likely to become moot before a writ petition can be heard, we agree it raises an issue of broad public interest that is likely to evade timely review. (See Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 546-547 [49 L.Ed.2d 683, 96 S.Ct. 2791] (Nebraska Press) [prior restraint on speech via pretrial order evades review because of its inherently short duration].) We therefore deny Volkswagen‘s motion to discharge the order to show cause as moot and exercise our discretion to reach the petition‘s merits.
B. Unlawful Prior Restraint on Free Speech
Petitioners correctly assert thе trial court‘s order placed a direct restraint on Farrise‘s right to freedom of speech under the United States and California Constitutions. (
Relying upon Gentile v. State Bar of Nevada (1991) 501 U.S. 1030 [115 L.Ed.2d 888, 111 S.Ct. 2720] (Gentile), Volkswagen contends that
The matter before us does not involve the constitutionality of a state disciplinary rule regulating speech by attorneys in criminal proceedings. It involves the constitutionality of a single court order prohibiting an attorney in a civil proceeding from publishing speech about two other civil cases. Gentile did not discuss a trial court‘s authority to issue an order restricting an аttorney‘s speech during a civil proceeding. (See In re Morrissey (E.D.Va. 1998) 996 F.Supp. 530, 539.) Given these distinctions, Gentile does not assist our review.
1. Standard of Judicial Scrutiny
As a general rule, gag orders on trial participants are subject to strict judicial scrutiny and may not be imposed “unless (1) the speech sought to be restrained poses a clear and present danger or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available.” (Hurvitz, supra, 84 Cal.App.4th at p. 1241, fn. omitted; see Maggi v. Superior Court (2004) 119 Cal.App.4th 1218, 1225 [15 Cal.Rptr.3d 161] (Maggi).) The trial court did not apply this or any other standard because Volkswagen‘s motion did not address First Amendment сoncerns.
With the benefit of hindsight, Volkswagen contends the order is not subject to strict scrutiny, but rather to the less restrictive standard for commercial speech. Typically, “[l]awyer advertising is commercial speech and is accorded an intermediate measure of First Amendment protection.” (Revo v. Disciplinary Bd. of the Supreme Court (10th Cir. 1997) 106 F.3d 929, 932; see Florida Bar v. Went For It, Inc. (1995) 515 U.S. 618, 623
Central Hudson Gas & Elec. v. Public Serv. Comm‘n (1980) 447 U.S. 557 [65 L.Ed.2d 341, 100 S.Ct. 2343] (Central Hudson) considered the constitutionality of a New York regulation banning promotional advertising by an electrical utility. Recognizing thаt commercial speech is accorded less protection, the court developed a four-prong intermediate scrutiny standard to examine whether state regulations on commercial speech are constitutionally valid: First, 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.” (Id. at p. 566; see Larson v. City and County of San Francisco (2011) 192 Cal.App.4th 1263, 1285 & fn. 7 [123 Cal.Rptr.3d 40] (Larson); People ex rel. Brown v. PuriTec (2007) 153 Cal.App.4th 1524, 1537 [64 Cal.Rptr.3d 270] (PuriTec).) The сourt struck down the utility advertising ban under the fourth prong, concluding the public agency had failed to “show[] that more limited speech regulation would be ineffective.” (Central Hudson, at p. 571.)
Because Central Hudson addressed “whether a particular commercial speech regulation is constitutionally permissible” (Thompson v. Western States Medical Center (2002) 535 U.S. 357, 367 [152 L.Ed.2d 563, 122 S.Ct. 1497]), the cases applying it similarly involve the review of statutory or administrative regulations.5 Volkswagen cites no cases applying Central Hudson to judicial restraints on commercial speech. In fact, it cites no cases involving such restraints. Without conceding the issue, petitioners contend it is irrelevant which standard we apply because the triаl court‘s order does not pass muster under even the less restrictive Central Hudson test. We agree, and consequently focus our discussion on that standard. In so doing, we do not decide whether Central Hudson extends to judicial restraints on commercial speech. We decide only that since the trial court‘s order “cannot satisfy this intermediate-scrutiny test, it necessarily fails under a strict scrutiny analysis.” (Baba v. Board of Supervisors (2004) 124 Cal.App.4th 504, 518 [21 Cal.Rptr.3d 428].)
“The party seeking to uphold a restriction on commercial speech carries the burden of justifying it.” (Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 71, fn. 20 [77 L.Ed.2d 469, 103 S.Ct. 2875].) Volkswagen asserts the restraint was proper under the first prong of the Central Hudson test because the challenged speech was misleading. (Central Hudson, supra, 447 U.S. at p. 566; Bates v. State Bar of Arizona (1977) 433 U.S. 350, 383 [53 L.Ed.2d 810, 97 S.Ct. 2691] [“[a]dvertising that is false, deceptive, or misleading of course is subject to restraint“].) It claims the two Web pages omitted pertinent information, such as that a settlement in one case resulted in the dismissal of all claims against Ford, and that another defendant secured a defense verdict. Volkswagen ignores, however, that it did not seek removal of the pages to prevent deceptive or misleading advertising. It sought removal to deny the jury access to the pages until the trial was over. Volkswagen presented no evidence or argument demonstrating the pages were subjеct to restraint as misleading advertising, and the trial court made no such finding. Thus, we have no basis to make that determination here.
Turning to the second prong, the parties agree that a substantial governmental interest exists in assuring the parties receive a fair trial. (See Maggi, supra, 119 Cal.App.4th at p. 1225.) Their dispute centers on the third and fourth prongs. (Central Hudson, supra, 447 U.S. at p. 566; Keimer v. Buena Vista Books, Inc. (1999) 75 Cal.App.4th 1220, 1231 [89 Cal.Rptr.2d 781].) Even if we assume the restraint directly advanced the stated governmental interest, it fails to withstand the fourth prong as it was more extensive than necessary to serve that interest. (Larson, supra, 192 Cal.App.4th at pp. 1292-1293.) That prong requires “‘a “fit” between the [government‘s] ends and the means chosen to accomplish those ends, . . . a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is “in proportion to the interest served,” that employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective.‘” (Florida Bar, supra, 515 U.S. at p. 632; see Gerawan Farming, Inc. v. Kawamura (2004) 33 Cal.4th 1, 23-24 [14 Cal.Rptr.3d 14, 90 P.3d 1179] (Gerawan).) No such fit is to be found here.
Volkswagen maintains the restraint was necessary to reduce the chance of “an expensive and time-consuming new trial” if a juror inappropriately accessed Farrise‘s firm‘s Web site during trial. Volkswagen has not demonstrated, however, that “alternative, less-speech-restrictive [measures] would be less efficient or effective in accomplishing the government‘s objective.” (Gerawan, supra, 33 Cal.4th at p. 24; see Thompson v. Western States Medical Center, supra, 535 U.S. at p. 358 [“If the Government can
It is well established that “frequent and specific cautionary admonitions and jury instructions . . . constitute the accepted, presumptively adequate, and plainly less restrictive means of dealing with the threat of jury contamination.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1221 [86 Cal.Rptr.2d 778, 980 P.2d 337] (NBC Subsidiary).) In NBC Subsidiary, our high court “stressed [its] adherence to the fundamental premise that, as a general matter, cautionary admonitions and instructions serve to correct and cure myriad improprieties, including the receipt by jurors of information that was kept from them. To paraphrase Justice Holmes, it must be assumed that a jury does its duty, abides by cautionary instructions, and finds facts only because those facts are proved.” (Id. at pp. 1223-1224, citing Aikens v. Wisconsin (1904) 195 U.S. 194, 206 [49 L.Ed. 154, 25 S.Ct. 3].)
Although it applied strict scrutiny, Freedom Communications, Inc. v. Superior Court (2008) 167 Cal.App.4th 150 [83 Cal.Rptr.3d 861] (Freedom Communications) is instructive. To prevent witnesses from being influenced by the trial testimony of others, the trial court issued a gag ordеr prohibiting the defendant newspaper from reporting on the witnesses’ testimony. (Id. at pp. 152-153.) The Court of Appeal granted the newspaper‘s petition for writ of mandate, observing the “case law makes clear that the danger the trial court sought to avert by its prior restraint here—the risk that witnesses in a civil trial might be influenced by reading news reports of the testimony of other witnesses—cannot possibly justify the censorship imposed.” (Id. at p. 153.)
The court emphasized that less restrictive alternatives were available to protect the plaintiffs’ fair trial rights, including admonishing witnesses not tо read press accounts of the trial. (Freedom Communications, supra, 167 Cal.App.4th at p. 154.) It remarked that “such an admonishment would go farther in preventing the tainting of witness testimony because the gag order applies only to [the defendant newspaper] and not to other newspapers that cover the trial.” (Ibid.) The same is true here. Although the trial court‘s order required Farrise to remove information from her Web site regarding prior verdicts involving Ford, it did not apply to any other Web sites discussing such verdicts. Thus, the trial court‘s admonitions not to research the parties or their attorneys did more to prevent pоtential jury misconduct than the removal of some of the available information on the Internet. (See ibid.)
Trial courts have grappled with this issue for several 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.”6 These articles discuss various ways courts are coping, including imposing courthouse technology bans, threats of contempt, extensive voir dire, stronger admonitions and pattern cautionary jury instructions reflecting the realities of the electronic age. (See, e.g., St. Eve & Zuckerman, Ensuring An Impartial Jury in the Age of Social Media, supra, 11 Duke L. & Tech. Rev. at pp. 18-20.) While recognizing the imperfections in these solutions, the
Thе first line of defense against juror legal research is “to address the issue in jury instructions.” (Morrison, Can the Jury Trial Survive Google? (Winter 2011) 25 Crim. Just. 4, 14.) As one state court observed, “given the simplicity, speed, and scope of Internet searches, allowing a juror to access with ease extraneous information about the law and the facts, trial judges are well advised to reference Internet searches specifically when they instruct jurors not to conduct their own research or investigations.” (Commonwealth v. Rodriguez (2005) 63 Mass.App.Ct. 660 [828 N.E.2d 556, 568, fn. 11]; see Comment, Silencing the ‘Twittering Juror‘: The Need to Modernize Pattern Cautionary Jury Instructions to Reflect the Realities of the Electronic Age (Fall 2010) 60 DePaul L.Rev. 181, 186 [“The traditional prohibition against external communication and outside research must be rewritten to meet the demands of the twenty-first century.“].)
Consistent with this view, our Legislature enacted Statutes 2011, chapter 181, clarifying that jurors may not use social media and the Internet—such as texting, Twitter, Facebook and Internet searches—to research or disseminate information about cases, and can be held in criminal or civil contempt for violating these restrictions.7 The bill analysis highlighted that “[t]he use of [electronic and wireless] devices by jurors presents an ongoing challenge in preventing mistrials, overturned convictions and chaotic delays in court proceedings. In response, this common sense measure seeks to clarify and codify an informal practice among trial courts to authorize courts to appropriately admonish jurors against the use of electronic and wireless devices to communicate, research, or disseminate information about an ongoing case.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 141 (2011-2012 Reg. Sess.) Mar. 15, 2011, p. 1; see Chow, Chapter 181: The End to Juror Electronic Communications (2012) 43 McGeorge L.Rev. 581, 584-586.)
Among other things, the law amended
The trial court properly admonished the jurors not to Google the attorneys and also instructed them not to conduct independent research. We accept that jurors will obey such admonitions. (NBC Subsidiary, supra, 20 Cal.4th at pp. 1223-1224.) It is a belief necessary to maintain some balance with the greater mandate that speech shall be free and unfettered. If a juror ignored these admonitions, the court had tools at its disposal to address the issue. It did not, however, have authority to impose, as a prophylactic measure, an order requiring Farrise to remove pages from her law firm Web site to ensure they would be inaccessible to a disobedient juror. Notwithstanding the good faith efforts of a concerned jurist, the order went too far.
DISPOSITION
The trial court‘s order constituted an unlawful prior restraint on Farrise‘s constitutional right to free speech. Because the order is no longer in effect, the trial court need not take any action. Having served its purpose, the order to show cause is discharged and the petition for writ of mandate is denied. The parties shall bear their own costs.
Gilbert, P. J., and Yegan, J., concurred.
A petition for a rehearing was denied November 26, 2013, and the opinion was modified to read as printed above. Petitioners’ petition for review by the Supreme Court was denied February 11, 2014, S215023.