IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30332

KANE MARCEAUX; GREG CORMIER; SCOTT POIENCOT; GABRIEL

THOMPSON; NORBERT MYERS; NOVEY STELLY; ULETOM P. HEWITT;

REGINA BRISCOE; ALEETA M. HARDING; GUS SANCHEZ; ROBERT

POLANCO; KENCIL D. JOSEPH; DONALD CEASAR; PAUL TAYLOR, JR.;

RACHEL ROBERTS,

Plaintiffs - Appellants

v.

LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT; CITY

POLICE OF LAFAYETTE; LESTER JOSEPH DUREL, JR., in his capacity as

President of the Lafayette City-Parish Consolidated Government; DEE

EDWARD STANLEY; JAMES P. CRAFT; GEORGE JACKIE ALFRED,

Defendants - Appellees

Appeal from the United States District Court 

for the Western District of Louisiana 

Before OWEN and HAYNES, Circuit Judges, and LEMELLE, District Judge.*

HAYNES, Circuit Judge:

Several current and former officers in the Lafayette Police Department

(“Officers”) appeal the district court’s grant of a protective order requiring,

among other things, that a particular website they operate be “taken down” in

its entirety, which was issued at the request of Appellees, officials and entities

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2013

Lyle W. Cayce

Clerk

* District Judge of the Eastern District of Louisiana, sitting by designation.

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within the City of Lafayette Police Department (collectively, “Lafayette PD

Defendants”). We VACATE in part and REMAND for further proceedings.

I. Jurisdiction

A prior motions panel of this court denied the Lafayette PD Defendants’

motion to dismiss this interlocutory appeal for want of jurisdiction. Although

the Lafayette PD Defendants do not renew their jurisdictional arguments in

their merits brief, we may consider whether we have appellate jurisdiction sua

sponte at any time. See Save the Bay, Inc. v. U.S. Army, 639 F.2d 1100, 1102

(5th Cir. 1981) (“Because we may not proceed without requisite jurisdiction, it

is incumbent upon federal courts trial and appellate to constantly examine the

basis of jurisdiction, doing so on our own motion if necessary.” (emphasis

added)).

We agree with the motions panel, concluding that we have jurisdiction

pursuant to the collateral order doctrine, which provides appellate jurisdiction

to review “a small set of prejudgment orders . . . [1] that are conclusive, [2] that

resolve important questions separate from the merits, and [3]that are effectively

unreviewable on appeal from the final judgment in the underlying action.” 

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 103–06 (2009) (citation and

internal quotation marks omitted). We have repeatedly found the doctrine

applies in cases in which pre-trial orders arguably infringe on First Amendment

rights. See In re Hearst Newspapers, L.L.C., 641 F.3d 168, 174 (5th Cir. 2011);

Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 926 (5th Cir. 1996). In

United States v. Brown, 218 F.3d 415, 420–21 (5th Cir. 2000), we concluded that

we had jurisdiction to consider a criminal defendant’s pre-trial appeal of a gag

order imposed by the district court on litigants in the case. We similarly

conclude that we have appellate jurisdiction over the Officers’ challenge here. 

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II. Facts and Background

The Officers sued under 42 U.S.C. §§ 1983, 1988, alleging, inter alia, that

the Lafayette PD Defendants imposed a “code of silence” to prevent police

officers from reporting certain civil rights abuses and corruption within the

Lafayette Police Department and that the Lafayette PD Defendants retaliated

against them for objecting to these practices. Relevant here, the Officers

communicated with the media concerning the case and maintained a website,

www.realcopsvcraft.com (the “Website”), which contained: an image of the

Lafayette Police Chief, a party in this suit; excerpts of critical statements made

in the media concerning the Lafayette PD Defendants; certain voice recordings

of conversations between the Officers and members of the Lafayette Police

Department; and other accounts of the Lafayette PD Defendants’ alleged

failings. The Officers’ attorneys eventually transferred ownership of the website

to one of the Officers. 

In response to this publicity, the Lafayette PD Defendants sought a

protective order seeking certain limits on communications with the media and

removal of the Website. At the conclusion of the two-day hearing, the magistrate

judge orally granted the Lafayette PD Defendants’ request to limit the trial

participants’ communication with the media and public. The magistrate judge

then entered a written order accompanied by a memorandum ruling.

The magistrate judge opined from the bench that “[t]he [W]ebsite . . . is

patently offensive on its face as a means of producing information rather than

being an objective source of information supposedly created for the protection of

the litigants.” In the subsequent written order, the magistrate judge

ordered that the parties’ and their attorneys’ contact and

communication with and through the media shall be limited to (a)

information contained in the public record; (b) identification of

parties and claims/defenses asserted in this matter; (c) the

scheduling or result of any step in this litigation; (d) references that

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investigation(s) is in progress, without disclosure of investigation

details; (e) requests for assistance in obtaining evidence or

information; (f) warnings of danger concerning the behavior of

persons who are parties in this case when there is reason to believe,

based on a reasonable factual inquiry, that there exists a likelihood

of substantial harm to an individual or the public interest.

The magistrate judge “further ordered that the website www.realcopsvcraft.com

shall be closed and removed immediately, ceasing all operations and publication,

and that the recordings shall not be publicly disclosed outside the confines of this

case and any other pending legal proceeding, absent leave of court.” The

restrictions on communications with the media were expressly modeled on

Louisiana Rule ofProfessional Conduct 3.6 and the language approved in Brown,

218 F.3d at 429–31, and Levine v. U.S. District Court, 764 F.2d 590, 598–99 (9th

Cir. 1985). The magistrate judge also “order[ed] the [W]ebsite be taken down”

because it “not only contain[ed] comments and information that would violate

[Louisiana Rule of Professional Conduct] 4.4, it is and has been used as a vehicle

by which to disseminate inappropriate information to the media and the public.” 

The primary rationale for the order was to allow for a fair trial by avoiding a

taint on the prospective jury pool. Over objection, the district court adopted the

magistrate judge’s order, and this appeal followed.

III. Standard of Review

We review a district court’s grant of a protective order for abuse of

discretion. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination

Unit, 28 F.3d 1388, 1394 (5th Cir. 1994). The district court’s legal conclusions

should be reviewed de novo, and its factual findings should not be disturbed

unless they are clearly erroneous. See United States v. Aldawsari, 683 F.3d 660,

664 (5th Cir. 2012) (explaining that “[b]ecause [evaluating the validity of a gag

order] involves constitutional and other legal questions, we review the district

court’s orders de novo. Specific factual findings of the district court on the issue

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are, of course, entitled to review under the clearly erroneous standard.”

(citations and internal quotation marks omitted)). Importantly, however, “in

cases raising First Amendment issues . . . an appellate court has an obligation

to ‘make an independent examination of the whole record’ in order to make sure

that ‘the judgment does not constitute a forbidden intrusion on the field of free

expression.’” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499

(1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 284–86 (1964)).

IV. Discussion

When restrictions are sought to be imposed on litigants after litigation is

filed, a district court must balance a litigant’s First Amendment rights against

other important, competing considerations. See Brown, 218 F.3d at 424

(“‘[A]lthough litigants do not surrender their First Amendment rights at the

courthouse door, those rights may be subordinated to other interests that arise’

in the context of both civil and criminal trials.” (quoting Seattle Times Co. v.

Rhinehart, 467 U.S. 20, 32 n.18 (1984))). Court orders restricting trial

participants’ speech are evaluated under the prior restraint doctrine, which

requires that the record establish that the speech creates a potential for

prejudice sufficient to justify the restriction. See Brown, 218 F.3d at 424–25. In

addition, the restriction must be narrowly tailored and employ the least

restrictive means of preventing the prejudice. Id. at 425. We note that the

Officers represent that they are willing to accept the application to them of

Louisiana Rules of Professional Responsibility 3.6 and 4.4 in this context,

although those rules ordinarily would not apply to clients who are not lawyers. 

They object to the terms of the court’s order only as they support or apply to the

portion of the order mandating that the Website be removed in its entirety. 

Thus, we focus our analysis only on the portion of the order addressing removal

of the entire Website.

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We begin by addressing the necessity of deferring to district courts in

matters affecting the daily functioning of their courts. See, e.g., United States

v. Gurney, 558 F.2d 1202, 1209 (5th Cir. 1977) (“The trial judge is . . . granted

broad discretion in ordering the daily activities of his court.”). In a broader

sense, considerable discretion is vested in district courts in ensuring fair trials

and avoiding a “circus atmosphere” or “chaos” that can be occasioned by

unfettered aggression on the part of one or both sides in litigation. See United

States v. Harrelson, 713 F.2d 1114, 1117 (5th Cir. 1983) (explaining that district

court judges possess “broad discretion, based on the law and on [their] common

experience,” to ensure a fair and orderly trial). We respect and affirm the

district court’s central role in this important process of securing a just and

dignified trial proceeding.

We disagree, however, with the Lafayette PD Defendants’ implicit

suggestion in their briefs (made explicit at oral argument) that the Officers have

a complete “either or” choice between filing a lawsuit and exercising their First

Amendment rights. This area, as the district court recognized, demands a

nuanced approach to the delicate balance between the necessity of avoiding a

tainted jury pool and the rights of parties to freely air their views and opinions

in the “market square” now taking the form of the electronic square known as

the Internet. The district court faithfully and carefully addressed numerous

precedents surrounding the use of “gag orders” and applied a careful and

nuanced approach in much of the challenged order. When it came to the

Website, however, the nuanced approach gave way to a more wholesale striking

of its entire content—indeed, the very website itself. For the reasons set forth

below, we conclude that this wholesale striking cannot stand in its current form.

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We analyze this issue under the prior restraint doctrine.1 Court orders

aimed at preventing or forbidding speech “are classic examples of prior

restraints.” Alexander v. United States, 509 U.S. 544, 550 (1993). Indeed, this

court has recognized that “[d]espite the fact that litigants’ First Amendment

freedoms may be limited in order to ensure a fair trial, gag orders . . . still

exhibit the characteristics of prior restraints.” Brown, 218 F.3d at 424; see also

Levine, 764 F.2d at 595 (holding that a court’s order prohibiting trial

participants from speaking to the media constituted a prior restraint). The order

here explicitly restricts the expression of attorneys and parties in this litigation

as it relates to the media and prevents the Officers from expression in the

Website. As a result, the protective order qualifies as a prior restraint. 

Prior restraints “face a well-established presumption against their

constitutionality.” Brown, 218 F.3d at 424–25 (citing Bernard v. Gulf Oil Co.,

619 F.2d 459, 467 (5th Cir. 1980) (en banc) (citations omitted)); see also Org. for

a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (“Any prior restraint on

expression comes . . . with a ‘heavy presumption’ against its constitutional

validity.”). We must therefore balance the First Amendment rights of trial

participants with our “‘affirmative constitutional duty to minimize the effects of

prejudicial pretrial publicity.’” Brown, 218 F.3d at 423 (quoting Gannett Co. v.

DePasquale, 443 U.S. 368, 378 (1979)); see also Sheppard v. Maxwell, 384 U.S.

333, 363 (1966) (“The courts must take such steps by rule and regulation that

will protect their processes from prejudicial outside interferences.”). 

The first step in assessing the constitutionality of a prior restraint

requires considering whether the harm the court seeks to prevent justifies the

1

In so doing, we note the Lafayette PD Defendants’ assertion that this is a “sanction”

for “bad behavior.” Our review of the order reveals that it has little of the characteristics of

a “sanctions” order and all of the characteristics of a “prior restraint.” Thus, we do not address

what difference it would make if the challenged order were a sanctions order.

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restraint on speech. Brown, 218 F.3d at 425. In assessing restrictions on

speech, courts have required that the record establish different levels of harm,

including a “clear and present danger,” “substantial likelihood,” or “reasonable

likelihood” of prejudice.2 We have not clearly delineated which standard applies

to the parties (rather than the media) in civil litigation. 

In Brown, we applied a substantial likelihood of prejudice test to both

attorneys and parties in the context of a gag order applied in a criminal matter. 

218 F.3d at 426 (noting that the Court in Gentile v. State Bar of Nevada, 501

U.S. 1030 (1991), “approved [a] ‘substantial likelihood’ standard when applied

to gag orders imposed on attorneys, but did not mandate it as a constitutional

minimum necessary to justify a judicially-imposed restriction on attorney

speech”). As “[t]he Supreme Court has recognized that conflict between freedom

of speech and the right to a fair trial is no less troubling in the non-criminal

context,” we conclude that Brown represents the right balance for this civil case. 

See Bailey v. Sys. Innovation, Inc., 852 F.2d 93, 97 (3d Cir. 1988); see also Brown,

218 F.3d at 424 (providing that an individual’s First Amendment rights may be

limited by a court order “in the context of both civil and criminal trials”

(emphasis added)). As in criminal matters, civil cases also require avoiding “the

potential that pretrial publicity may taint the jury venire, resulting in a jury

that is biased toward one party or another,” Brown, 218 F.3d at 423, and

preventing the “creat[ion] [of] “a ‘carnival atmosphere,’ which threatens the

2 See, e.g., Brown, 218 F.3d at 427 (applying the “substantial likelihood” of prejudice

standard in a criminal case involving a gag order restricting trial participants); Dow Jones &

Co. v. Simon, 842 F.2d 603, 610 (2d Cir. 1988) (applying the “reasonable likelihood” of

prejudice standard in a criminal case involving gag order restricting trial participants); Levine,

764 F.2d at 595 (applying the “clear and present danger” of prejudice standard in criminal case

involving a gag order restricting trial participants).

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integrity of the proceeding.”3Id. at 423 n.8. Thus, we apply the Brown standard

here.

In this case, the testimony during the two-day trial presents significant

evidence that the trial participants made extra-judicial comments to the media

and on the Website. For instance, Plaintiff Marceaux testified that he had

television interviews with two news stations, but he did not provide any

newspaper interviews. This testimony, along with the testimony of the other

seven witnesses, speaks to the trial participants’ propensity to make extrajudicial statements. 

It does not, however, establish a nexus between the comments and the

potential for prejudice to the jury venire through the entirety of the Website. It

is not “narrowly tailored” to excising maters with a sufficient potential for

prejudice to warrant prior restraint.4

 

3 Because the “substantial likelihood” standard easily transfers to civil matters, district

courts in this circuit have applied Brown to the civil context. See, e.g., U.S. ex rel. Stewart v.

La. Clinic, No. CIV.A.99-1767, 2002 WL 32850, at *1–2 (E.D. La. Jan. 10, 2002) (applying

Brown’s “substantial likelihood of prejudice” standard to deny defendant a gag order

prohibiting relators and their attorneys from publically discussing the litigation). But see Liz

Claiborne, Inc. v. Consumer Prod. Recovery, L.L.C., No. Civ. 3:04-CV-819-H, 2004WL1243166,

at *1 (N.D. Tex. June 7, 2004) (denying gag order when the defendant “ha[d] not cited any civil

case where a court has imposed a gag order, or even discussed whether a gag order was

appropriate in the civil context; all cases cited by [the defendant] are criminal cases”);

Thurmond v. Compaq Computer Corp., No. 1:99-CV-0711, 2000 WL 33795080, at *2 (E.D. Tex.

Feb. 28, 2000) (noting that the defendant “fails to cite a single published opinion from a civil

case as authority for its proposition” that a standard less than “clear and present danger”

should apply).

4 We note that in the past, it could be assumed that everyone would see a news

broadcast or local paper. Nowadays consumers obtain information from dozens of news

sources. As such, the mere presence of extra-judicial comments in some forms of media does

not, by itself, establish the potential for prejudice of the jury venire without a more thorough

examination of that potential. Additionally, a district court should consider the question of

timing of comments relative to the time of trial. See Gentile, 501 U.S. at 1044 (plurality

opinion) (explaining that exposure to information concerning a case six months before trial is

less likely to result in prejudice because it will “fad[e] from memory long before the trial date”).

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In sum, the district court erred in concluding that the entirety of the

Website was substantially likely to cause prejudice. Accordingly, the court’s

determination that the entire Website “demonstrate[s] a substantial likelihood

of impacting the jury venire,” is overbroad and clearly erroneous. See Canal Ins.

Co. v. Thornton, 279 F.2d 41, 43 (5th Cir. 1960) (concluding that a district court’s

determination was clearly erroneous when “there was no basis [in] the record”

to support its finding); cf. Batchelor v. Cain, 682 F.3d 400, 413 (5th Cir. 2012)

(concluding that the state appellate court made an erroneous factual

determination that a habeas petitioner waived his request to represent himself

when “the record admit[ted] of no basis” to support the finding). As a result, we

must vacate the portion of the order requiring the “takedown” of the Website.

In remanding the case, we note that one particular concern to the district

court was some of the recordings that appeared on the Website. One objection

to the recordings made by the Lafayette PD Defendants and reurged on appeal

was grounded in a misapprehension of the law. They contended that the

recordings were “unethical,” relying, it appears, on cases that, in turn, relied

upon a now-repealed American Bar Association (ABA) Formal Opinion. Cf.

Chapman & Cole v. Itel Container Int’l. B.V., 865 F.2d 676, 686 (5th Cir. 1989)

(relying on ABA Formal Opinion 337 to conclude that “clandestine taping of a

telephone conversation” by an attorney violates the Model Rules of Professional

Conduct).

In 1974, the ABA issued Formal Opinion 337 and concluded that a lawyer

could not permissibly tape record another party without that party’s consent,

even in a location where such a tape recording would be lawful. See ABA Comm.

on Ethics and Prof’l Responsibility, Formal Op. 337 (1974). In 2001, however,

the ABA repealed Formal Opinion 337 and issued Formal Opinion 01-422

expressly concluding that such surreptitious taping is not, by itself, unethical if

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it is otherwise lawful in the particular jurisdiction.5 See ABA Comm. on Ethics

and Prof’l Responsibility, Formal Op. 01-422 (2001); see also Midwest Motor

Sports v. Arctic Cat Sales, Inc., 347 F.3d 693, 699 (8th Cir. 2003) (explaining

that, based on the ABA’s Formal Opinion 01-422, “a lawyer who electronically

records a conversation without the knowledge of the other party or parties to the

conversation does not necessarily violate the Model Rules of Professional

Conduct”). In the absence of some indication that Louisiana would view such

recordings to be “unethical” despite the ABA’s change in position, we decline to

accept the argument that these recordings (made by a layperson, not a lawyer)

must be removed from the Website because they were “unethically” obtained.6

Although we vacate wholesale banning of the Website, we do not intend

to tie the hands of the district court in addressing some of its content, and we

recognize that there may be bases upon which to order removal of some of the

content of the Website. Recognizing the fact-bound nature of the inquiry and the

limited nature of the record presented here, we express no opinion on that issue

but note only that any such consideration of the Website’s content must be

narrowly tailored and represent the least restrictive means. Brown, 218 F.3d at

425. In other words, the court must engage in a specific review of any claimed

5 While some jurisdictions forbid recordings of conversations between two people

without both parties’ consent, others only forbid such recordings if neither party consents, i.e.,

if one party consents (or does the recording), the other party need not consent. The latter is

known as the “one-party consent rule.” Louisiana is a “one-party consent” state, and the

Lafayette PD Defendants do not contest John Cormier’s assertion that he was a party to the

recordings he obtained. See LA. REV. STAT. ANN. § 15:1303(C)(4) (West 2005) (providing that

“[i]t shall not be unlawful . . . for a person not acting under color of law to intercept a[n] . . .

oral communication where such person is a party to the communication”); see also 18 U.S.C.

§ 2511(2)(d) (providing for a “one-party consent” rule under federal law, unless a state imposes

a stricter standard).

6 While there may be other reasons to remove the recordings in whole or in part, we

leave this issue to the careful consideration of the district court. We note, however, that any

order based on protecting the rights of third parties must meet the tests discussed in this

opinion.

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improper material. In this process, the district court has considerable, but not

unfettered, discretion.

VACATED and REMANDED.

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