### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 J udges, and LEMELLE, District Judge. * HAYNES, Circuit Judge: Several current and f

ormer officers in the Lafayette Police D epartment (“Officers”) appeal the d istrict c ourt’s grant of a p rotective o r d e r requiring, among other things, that a particular website they operate be “taken down” in its entirety, which was issued at the r e quest of Appellees, officials and entities U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 30, 2013 Ly l e W . Cay ce Clerk

* D is trict Jud ge of

the Eas tern D is trict of Louis iana, s itting by d es ignation. Case: 13-30332 Document: 00512391600 Page: 1 Date Filed: 09/30/2013No. 13-30332

within the C ity of Lafayette Police Department (col l e ctively, “Lafayette PD Defendants”). We VACATE in part and REMAND for further proceedings. I. Jurisdiction A prior motions panel o f this court denied the Lafayette PD Defendants’ motion t o dismiss this interlocutory appeal fo r want of jurisdiction. Although t h e L a f ayette PD Defendants do not renew their jurisdictional arguments i n their merits brief, we may consider whether w e have appellate jurisdiction sua sponte at any time. See Save the Bay, Inc. v. U.S. A rmy , 6 39 F.2 d 1 100, 1102 (5th Cir. 1981) (“Because we may not proceed without requisite j urisdiction, it is incumbent upon federal courts trial and appellate to constantly examinethe basis of j u r i s d i ction, d oing so on our own motion i f necessary.” (emphasis added)). We agree with the motions panel, concluding that we have jurisdi c t i on pursuant to the collateral order doctrine, which p rovides appellate j urisdiction to review “a small set of prejudgment orders

. . . [ 1] that are conclusive, [2] that resolve important questions separate from the m erit s , a n d [ 3 ] t hat are effectively unreviewable on appeal f rom the final judgment in the underlying action.” Mohawk Indus., Inc. v. C arpenter , 558 U.S. 100 , 1 0 3

– 0 6 (2009) (citation and internal quotation m arks omitted). We h ave repeatedly found the doctrine applies in cases in w hich pre-trial orders arguably infringe on First Amendment rights. See In re Hearst Newspapers, L .L.C. , 6 41 F.3d 168, 174 (5th Cir. 2011); Davis v. E. Bato n R o uge P arish Sch. Bd. , 78 F .3d 920, 926 (5th Cir. 1996). In United States v. B rown , 2 18 F.3d 415, 420–21 (5th Cir. 2000), we concluded that we had jurisdiction to c onsider a criminal defendant’s pre-trial appeal of a gag order imposed by the district court on litigants in the c a s e
. W e s imilarly conclude that we have appellate jurisdiction over the Officers’ challenge here.

2 Case: 13-30332 Document: 00512391600 Page: 2 Date Filed: 09/30/2013No. 13-30332 II. Facts and Background The Officers sued u nder 42 U .S.C. §§ 1983, 1988, alleging, inter alia , that the Lafayette PD Defendants imposed a “ c o d e of silence” to p revent police officers from reporting certain civil rights abuses a nd corr u p t ion within the Lafayette Police Department and that the Lafayette PD Defendants retaliated against them for objecting to t hese practices

. Relevant h ere, the Officers

commun i c a ted with the media concerning the case and maintained a website, www.realcopsvcraft

. c o m (the “Website”), which contained: an image of the Lafayette P olice Chief, a party in this suit; excerpts of critical statements made in the media concerning the L afayette PD Defendants; certain v oice recordings of conversations between t he Officers a nd members o f t h e Lafayette Police Department; and other acco u n t s o f the Lafayette PD D efendants’ alleged failings. The Officers’ attorneys eventu a lly 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 t o l i m it the trial participants’ communication with the media a nd public. The magistrate judge then entered a written order accompanied by a memorandum ruling. The magistrate j u d g e o pined from the bench that “[t]he [W]ebsite

. . . is patently offensive on its face as a means of p roducing information rather than being an objective s ource of information supposedly created for the protection of the litigants.” In the subsequent written order, the magistrate judge ordered that the p arties’ and their attorneys’ contact a nd
c ommunication with a nd through t he media shall be limited to (a) information contained in the p ub lic record; (b) i dentification of parties a nd claims/defenses asserted in this matter; (c) t h e scheduling or result of any step in this litigation; (d) r eferences that

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investigation(s) is in progress, without d isclosure of investi g a t i o n details; ( e) requests for assistance in obtaini n g evidence or information; (f) warnings of danger concerning t he behavior of persons who are p arties in this c ase when there is reason t o believe, based on a reasonable f actual inquiry, that there exists a likelihood of substantial harm to an individual or the public interest. The magistrate judge “further ordered that the website w ww.realcopsvcraft.com shall be closed and removed immediatel y , c e a s i ng a ll operations a nd publication, and that the recordings shall not be p ublicly disclosed outside the confines of this

case and any other pending legal proceeding, absent leave of court.” The restrictions on c ommunicati o n s w i t h t h e media were expressly modeled on Louisiana Rul e o f P r o f

e s s i o n a l C o n du ct 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 woul d v i o l a te [Louisiana Rule of Professional Conduct] 4.4, it is and has been used as a vehicle by which to disseminate i nappropriate information to the media and the public.” The primary rationale for the o r d e r was to a llow for a fair trial by avoiding a taint on t he 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 c ourt’s gran t o f a protective o rder for abuse of discretion. Leatherman v. Tarrant Cnty. Narcotics I ntelligence & Coordination Unit , 28 F.3d 1388, 1394 (5th Cir. 1994). The district court’s legal c onclusions should b e reviewed de novo , and its factual findings should not b e disturbed unless they are c learly erroneous. See U nited 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 n ovo
. Specific factual findings of the district court o n the issue

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are, of cour s e , e ntitled t o review under the clearly erroneous standard.” (citations a nd internal quotation marks omitted)). Impo r tantly, however, “in cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination o f the w hole record’ in order to make sure that ‘the judgment d oes not constitute a forbidden intrusion on t he field of free expression.’” Bose Corp. v. Consumers Union of U.S., Inc. , 4 6 6 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 t o b e i mposed on l itigants after litigation is filed, a district court must balance a litigant’s First Amendment rights against other i mportant, competing considerations. Se e Brown , 218 F.3d at 424 (“‘[A]lthough l itigants do not surrende r t heir First Amendment rights at the courthouse door, those rights may be subordinated to other i nterests that arise’ in the c o n text o f both civil and c riminal trials.” (quoting Seattle Times Co. v. Rhinehart , 467 U.S. 20, 3 2 n
. 18 (1984))). Court orders restricting trial participants’ speech are evaluated under the prior restr a i n t doctrine, which requires that the record e stablish that the speech creates a po t e n tial for prejudice sufficient to justify the restriction. See Brown , 2 18 F.3d at 424–25. In

a d dition, the restriction must be narrowly tailored a nd employ the l e a s t restric t i v e means of preventing the prejudice. Id. at 425. W e n ote that the Officers represent that they are willing to acc e p t t h e application to them of L o u i s iana Rules o f P rofessional Responsibility 3.6 and 4.4 in this context, although those rules ordinarily would not apply to c lients who are n ot lawyers. They object to the terms of the court’s order only as they s upport o r a pply to the portion of the order m andating that the W ebsite be remo v e d i n its entirety. Thus, we focus o ur analysis only o n the portion of the order a ddressing removal of the entire Website.

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We b egin by addressing the necessity of deferrin g to district courts in matters affecting the daily functioning of t h e i r c o u rts. See, e.g., United States

v. Gurney , 558 F

. 2 d 1 2 0 2 , 1 209 (5th Cir. 1977) (“The trial judge is

. . . granted broad discretion in ordering the d aily a ctivities o f his court.”). I n a b r o a d er sense, considerable discretion is vested in district courts in e nsuring fair trials and avoiding a “circus a t m osphere” or “chaos” t hat can be o ccasioned by unfettered aggression o n 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, b ased on t h e law and on [their] common experience,” to ensure a fair and o r d erly trial). We respect and a ffirm the district court’s central role in this important process of securing a just and dignified trial proceeding. We dis a g r ee, however, with the Lafayette P D Defendants’ implicit suggestion in their briefs ( m ade explicit a t o ral argument) that the Officers have

a complete “either or” choice between filing a lawsuit and exercising their First A m e n d m ent rights. This a rea, as the district c ourt recognized, demands a nuanced approach to t h e d e l icate balance between the necessity of a voiding a tainted jury pool and the rights of parties t o freely a ir their views a nd o pinions in the “market square” now t a k i n g t he form of the electronic square known as the I n t e r n et. The district c ourt faithfully and carefully addressed numerous precedents surrounding the use of “gag orders” and applied a careful and

nuanc e d a p p r o a c h in much of the challenged order. When i t came to the Website, however, the nuanced approach gave w ay t o a m ore wholesale striking of its entire content—indeed, the very website itself. For the reasons set forth below, we conclude that t his w holesale striking cannot stand in its current form.

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We analyze this issue u nder t h e p r i o r r estraint doctrine. 1 Court orders aimed a t preventing or forbi d d i n g s peech “are classic e xamples of prior restraints.” Alexander v. United S tates , 509 U.S. 544, 550 (1993). Indeed, this court h as recognized that “[d]espite the fact that litigants ’ F irst Amendment freedoms may be limited in order to ensure a fa i r t r i a l , g ag o rders

. . . still exhibit the characteristics of prior restraints.” Brown , 218 F.3d a t 424; see also Levine , 764 F.2d at 595 (holding that a court’s order prohibiting trial participants from speaking t o the media constituted a prior r e s t raint). The order here explicitly restricts the expression of attorneys and p arties in this l itigation

a s i t r elates to the media and prevents the Officers from expression in t h e Website. As a result, the protective order qualifies as a prior restraint. Prior restraints “face a well-established p r e sumption against their constitutionality.” B rown , 218 F .3d at 424–25 (citing Bernard v. Gulf Oil Co. , 619 F.2d 459, 467 ( 5th Cir. 1 980) (en banc) (citations omitted)); see a lso Org. for

a B etter Austin v. Keefe , 402 U.S. 415, 419 (1971) (“Any prior restr a i n t o n expression c omes
. . . with a ‘heavy presumption’ against its constitutional validi t y . ” ). W e must t herefore balance the First Amendment rights of trial participants with our “‘affirmative constitutional duty t o minimize the effects of prejudicial pretrial publicity.’” Brown , 218 F.3d at 4 23 (quoting Gannett Co. v. DePasquale , 443 U.S. 368, 378 (1979)); see also Sheppard v. Maxwell , 384 U.S. 333, 363 (1966) (“The courts m ust take such steps b y r u l e and r egulation that will protect their processes from prejudicial outside interferences.”). The first step in assessing the constitutionality of a prior r estraint requires considering whether the harm the court seeks to prevent justifies the

1 In s o d oing, w e note the Laf ayette PD Def

end ants ’ as s ertion that this is a “s anction” f or “bad behavior. ” O ur review of the ord er reveals that it has little of the characteris tics of
a “s anctions ” ord er and all of the characteris tics of a “p rior res traint. ” Thus , w e d o not ad d res s w hat d if f erence it w ouldm ak e if the challenged ord er w ere a sanctions ord er. 7 Case: 13-30332 Document: 00512391600 Page: 7 Date Filed: 09/30/2013No. 13-30332

restraint on speech. Brown , 218 F .3d at 425. In assessing restrictions on speech, courts have required that t he record establish d ifferent levels o f harm, including a “ clear and present danger,” “substantial likelihood,” or “reasonable likelihood” of p rejudice. 2 We have not clearly delineated which standard applies to the parties (rather than the media) in civil litigation. In Brown , we applied a s u b stantial likelihood of prejudice test to both attorneys and parties in the context of a gag order a pplied in a criminal matter. 218 F.3d at 426 ( noting that the Court in Gentile v. State Bar of N e vada , 501 U.S. 1030 (1991), “approved [a] ‘substantial l i kelihood’ standard when a pplied to gag orders imposed on attor n e y s , but did n ot mandate it as a constitutional minimum necessary to justify a judicially-imposed res t r i ction 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 t r o u b l i n g i n the non-criminal context,” we conclude that Brown represents the right b alance for this civil case. See B ailey v. Sys. Innovation, Inc. , 852 F.2d 93, 97 (3d Cir. 1988); s ee also Brown , 218 F.3d at 424 (providing that an individual’s First Amendment rights may be limit e d b y a court order “in the c o ntext of both civil and criminal trials ” (emphasis added)). A s in criminal matters, c ivil cases also require avoiding “the potential t hat pre t r i a l publicity may taint the jury venire, resulting in a jury that is biased toward one party or a nother,” Brown , 218 F.3d at 423, and preventing the “creat[ion] [of] “a ‘carnival at m o s p h ere,’ which threatens the

2 See, e. g. , Brow n , 218 F. 3d at 427 (ap p lying the “s ubs tantial lik elihood ” of p rejud ice
s tand ard in a crim inal cas e involving a gag ord er res tricting trial p articip ants ) ; D ow Jones & Co. v
. S i m on , 84 2 F

. 2 d 6 0 3 , 610 ( 2d Cir. 1988) (ap p lying the “reas onable lik elihood ” of p rejud ice stand ard in a c r i mi n a l c a s e involving gag ord er res tricting trial particip ants ) ; Lev i ne , 764 F. 2d at 595 ( ap p lying the “clear and p res ent d anger” of p rejud ice s tand ard in crim inal cas e involving a gag ord er res tricting trial p articip ants )

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integrity of the p roceeding.” 3 Id. at 423 n.8. Thus, we apply the Brown standard here. In this case, the testimony d uring t h e two-day trial p resents significant evidence that the trial participants made extra-judicial comments to the media and on the Website. For i nstance, P laintiff Marceaux testified t hat he had television interviews with two news stations, but he did not pr o v i d e any newspaper interviews. This testimony, a long with the te s timony of the other

seven witnesses, speaks to the trial participants’ propensity to make extrajudicial statements. It does not, however, establish a nexus between the c o mments and the potential for prejudice t o the jury venire through the entirety of the Website. It is not “narrowly tailored” to excising maters with a sufficient pote n t i a l for prejudice to warrant prior restraint. 4

3 Becaus e the “s ubs tantial lik elihood ” s tand ard eas il y t r a n sf e r s t o c ivil m atters , d is trict courts in this circuit have ap p lied Brow n to the civil context. See, e. g. , U

. S. ex rel

. Stew a rt v
. La

. Cl i ni c , N o. CIV. A. 9 9

- 1 767, 2002 WL 32850, at *1–2 ( E. D

. La. Jan. 10, 2002) ( ap p lying Br o w n ’ s “ s ubs tantial lik elihood of p rejud ice” s tand ard to d eny d ef end ant a gag ord er p rohibiting relators and their attorneys from p ublically d is cus sing the litigation)

. But see Li z Cl a i borne, Inc. v
. Consum er P rod. Recov ery, L. L. C. , No. Civ. 3 : 0 4

- C V

- 8 1 9

- H, 2 0 0 4 WL 1243166, at *1 ( N. D

. Tex. June 7, 2004) ( d enying gag ord er w hen the d ef end ant “ha[ d ] not cited any civil
cas e w here a court has im p os ed a gag ord er, or even d i s cus sed w hether a gag ord er w as ap p rop riate in the civil context; all cas es cited by [the d ef end ant] are crim inal cas es ”) ; Thurm ond v
. Com

p aq Com

p uter Corp

. , N o. 1: 99- C V- 0711, 2000 WL 33795080, at *2 ( E. D

. Tex. Feb. 28, 2000) ( noting that the d ef end ant “f

ails to cite a single p ublis hed op inion f rom a ci v i l
cas e as authority f

or its p rop os ition” that a s tand ard l e s s than “clear and p res ent d anger”
s hould ap ply)

.

4 W e n ote that in the p as t, it could be as s um ed that everyone w ould s ee a n e w s broad cas t or local p ap er. N ow ad ays cons um ers obtain inf orm ation fr o m d o zens of new s s ources
. As s uch, the m ere p res ence of extra- jud icial com m ents in s om e f orm s of med ia d oes not, by its elf, es tablis h the potential f or p rejud ice of the jury venire w ithout a m ore thorough
exam ination of that p otential. Ad d itionally, a d is trict court s hould cons id e r t h e ques tion of tim ing of com m ents rel a t i v e t o t h e t im e of trial. See G enti l e , 501 U

. S. at 1044 ( p lurality op inion) ( exp laining that exp os ure to inf orm ation concerning a cas e s ix m onths bef ore trial is les s lik ely to res ult in prejud ice becaus e it w ill “f ad [ e] f rom m em ory long bef

ore the trial d ate”)

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In sum, the district court erred in concluding t h a t the entirety of the Website was substantially likely to c a u s e p r ejudice. Accordingly, the court’s determination that the entire Website “demonstrate[s] a substantial likelihood of impacting the jury venire,” is overbroad and c learly erroneous. See Canal Ins. Co. v
. Thornton , 279 F.2d 41, 43 (5th Cir. 1960) (concluding t hat 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 4 00, 4 1 3 ( 5 t h Cir. 2012) (concluding that the state appell a t e court made an erroneous factual determination that a habeas petitioner w aived h is request to represent himself when “the record admit[ted] o f no basis” to support the finding). As a r esult, 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 t he district court was some of the recordings that appeared on the Website. One o bjection to the recordings made by the Lafayette PD Defendants and reurged on appeal

was grounded in a m i sapprehension of the law. Th e y c o ntended that the recordings w ere “unethical,” relying, it a ppears, on cases that, in turn, r elied
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 C ir. 1989) (relying o n ABA Formal Opini o n 3 3 7 to conclude that “clandestine taping of a telephone c onversation” b y an attorney violates t he Model Rules of P rofessional Conduct). In 1974, the ABA issued Formal Opinion 3 37 and c oncluded that a lawyer could not p ermissibly tape record another part y 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 ( 1 9 7 4). In 2001, h owever, the ABA repealed Formal Opinion 337 and issued F orma l O p i n i on 01-422 expressly concluding t hat such s urreptitious t aping 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 Responsibil i t y , Formal Op. 01-422 (2001); see also Midwest Motor Sports v. Arctic Cat Sales, Inc. , 347 F.3d 693, 699 (8th C i r
. 2 0 0 3 ) ( explaining that, based o n the ABA’s Formal O pinion 01-422, “a lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily vi o l a te the M odel Rules o f P rofessional Conduct”). In the absence o f some indication that Louisiana w o u l d 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 l ayperson, not a lawyer) must be removed from the Website because they were “unethically” obtained. 6 Although we vacate whole s ale banning of the Website, we do not intend to tie t he 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 s o me of the content of the Website. Recognizing the fact-bound nature o f t h e inquiry and the limited nature of the record presented here, we express no opinion on that issue but note only th a t a ny such consideration of the Website’s content must be narrowly tailored a nd represent the least restrictive means. B rown , 218 F.3d at 425. In other words, the court must engage in a specific review of any claimed

5 While s om e juris d ictions f orbid record ings o f c o n v e rs ations betw een tw o p eop le
w ithout both p arties ’ cons ent, others only f orbid s uch record ings if neither p arty cons ents , i. e. , if one p arty cons ents (or does the record ing) , the other p arty need not cons ent. The latter is k now n as the “one- p arty cons ent rule. ” Louis iana is a “one- pa r t y cons ent” s tate, and the Laf ayette PD D ef

end ants d o not contes t John C orm ier’s as s ertion that he w as a p arty to the record ings he obtained

. See LA

. R EV

. S TAT

. A N N

. § 15: 1303( C) ( 4) (Wes t 2005) ( p rovid ing that “[ i] t s hall not be unlaw ful

. . . f or a p ers on not acting und er color of law to intercep t a[ n]

. . . oral com m unication w here s uch p ers on is a p arty to the com munication”) ; see a lso 18 U

. S. C

. § 2511( 2) ( d) ( p rovid ing f or a “one- p arty cons ent” rule und er f ed eral law , unles s a state im p os es a s tricter s tand ard )

.

6 While there m ay be other reas ons to rem ove the record ings in w hole or in p art, w e leave this is s ue to the caref ul cons id eration of the d is trict court. We note, how ever, that any ord er bas ed on protecting the rights of th i r d p arties m us t m eet the tes ts dis cus s ed in this op inion.
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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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