Opinion issued October 30,=20
2007.
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-07-00866-CV
IN RE =
HEARST=20
NEWSPAPERS PARTNERSHIP, L.P. AND GALVESTON COUNTY DAILY NEWS,=20
Relators
Original=20
Proceeding on Petition for Writ of =
Mandamus
O P I =
N I O=20
N
&=
nbsp;By=20
petition for writ of mandamus, relators, Hearst Newspapers =
Partnership,=20
L.P. (=E2=80=9CHearst News=E2=80=9D) and Galveston County Daily =
News, challenge the trial=20
court=E2=80=99s ![3DFootnote](3D"")
order prohibiting discharged jurors from =
speaking=20
to the press, media, or others about the evidence and what their =
votes=20
would have been after the trial ended in a settlement. The =
relators=20
contend the order is an unconstitutional prior restraint on their =
right to=20
gather news under both the Texas Constitution and the First=20
Amendment. =
We=20
conditionally grant the petition for writ of =
mandamus.
Background
&=
nbsp;After=20
an explosion at BP=E2=80=99s Texas City plant in March 2005, about =
4,000=20
individuals filed cases against BP and others.
The explosion and the cases received =
much=20
publicity on the local and national levels. Among other things, =
this=20
publicity included news reports, television interviews, mailings =
sent to=20
local residents, town hall meetings with BP employees, and Chamber =
of=20
Commerce meetings.
&=
nbsp;In=20
August 2007, a group of plaintiffs was called to trial. Due to the =
pretrial publicity, the trial court called over 1200 people to =
report to=20
jury duty to ensure that a jury and several alternates could be =
empaneled.=20
This jury heard ten days=E2=80=99 evidence from the plaintiffs =
before the trial=20
court announced that the parties had reached a settlement. After =
the trial=20
ended, the trial court permitted the lawyers for each side to meet =
with=20
the jurors, who had some positive things to tell each =
side=E2=80=99s lawyers.=20
However, with approximately 1200 cases still pending, the trial =
court was=20
concerned about additional pretrial publicity interfering with the =
parties=E2=80=99 rights to a fair trial by making the task of =
selecting future=20
juries even more difficult, particularly because the jurors had =
not heard=20
all the evidence. Therefore, the trial court admonished the =
jurors, =E2=80=9CI am=20
going to forbid you from speaking to anybody in the media or =
anybody other=20
than myself or the lawyers or their employees until after all =
cases have=20
settled.=E2=80=9D
&=
nbsp;Two=20
days later, Hearst News, on behalf of the Houston =
Chronicle,=20
intervened, requesting the trial court to reconsider and rescind =
the gag=20
order on the jurors. Soon thereafter, the Galveston County Daily =
News also=20
intervened. Hearst News argued that the order was an =
unconstitutional=20
prior restraint under both article I, section 8 of the Texas =
Constitution=20
and the First Amendment. The trial court promptly held a hearing,=20
affording all parties and the newspapers an opportunity to be =
heard. No=20
evidence was adduced at this hearing. However, the trial court =
described=20
the unusual nature of the litigation, including the large number =
of=20
parties and the extensive pretrial publicity.
In addition to the newspaper media, we =
have had to=20
deal with the web site issue, the internet issue, mailing things =
to=20
jurors, word on the street, talks being given at Chamber of =
Commerce. We=20
have had hours and hours of hearings about how much is out there . =
. .=20
[We] have talked to hundreds and hundreds and hundreds of jurors =
in these=20
past two voir dire panels to try to find out how many people were =
affected=20
by the publicity. The first time we called in a panel we called in =
I think=20
12 or 13 hundred to get the 12, and the second time we realized =
that. . .=20
.
It costs a tremendous amount of money to =
the=20
taxpayer to bring in the kind of panel you have to get down to =
just twelve=20
impartial people in this case.
The trial court declined to rescind the =
gag order,=20
but instead signed a written order limiting the time period of the =
restriction on the jurors=E2=80=99 speech.
&=
nbsp;In=20
the order, the trial court found that (1) no final judgment or =
nonsuit was=20
reached in the subject trial and that numerous other claims in the =
consolidated litigation remained outstanding; (2) media coverage =
of the=20
discharged jurors=E2=80=99 impressions about the evidence, trial, =
or disclosure of=20
what their votes would have been, based upon the incomplete trial =
record,=20
posed a threat to the administration of justice in the remaining, =
pending=20
cases; and (3) the temporary restriction on discharged =
jurors=E2=80=99 speech was=20
the least restrictive means available to prevent the potential =
harm. The=20
trial court, therefore, ordered that =E2=80=9Cdischarged jurors =
are under an=20
instruction not to speak or disclose to the press, media, or =
others about=20
their views of the evidence and/or their impressions of what their =
vote=20
would have been if the evidence had concluded on the day that the =
jurors=20
were discharged until on or after January 2, 2008 unless such =
order is=20
extended upon motion of any party for good cause =
shown.=E2=80=9D
Standard of=20
Review
&=
nbsp;Mandamus relief is =
available=20
only to correct a =E2=80=9Cclear abuse of discretion=E2=80=9D when =
there is no adequate=20
remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 =
(Tex. 1992)=20
(orig. proceeding). =E2=80=9CA trial court clearly abuses =
its discretion if=20
=E2=80=98it reaches a decision so arbitrary and unreasonable as to =
amount to a=20
clear and prejudicial error of law.=E2=80=99=E2=80=9D Id. =
at 839 (citing Johnson=20
v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) =
(orig.=20
proceeding)). Mandamus may be used to challenge a prior restraint =
on the=20
media. Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 55 =
(Tex.=20
1992).
Prior=20
Restraints
&=
nbsp;The=20
Texas Constitution affirmatively grants the rights to freedom of =
speech=20
and of the press: =E2=80=9CEvery person shall be at liberty to =
speak, write or=20
publish his opinions on any subject, being responsible for the =
abuse of=20
that privilege . . . .=E2=80=9D Tex.=20
Const. art. I, =C2=A78. In Texas, pre-speech sanctions or =
=E2=80=9Cprior=20
restraints=E2=80=9D are presumptively =
unconstitutional.
Davenport v. Garcia, 834 S.W.2d =
4, 9 (Tex.=20
1992). A prior restraint in a civil case =E2=80=9Cwill withstand =
constitutional=20
scrutiny only where there are specific findings supported by =
evidence that=20
(1) an imminent and irreparable harm to the judicial process will =
deprive=20
litigants of a just resolution of their dispute, and (2) the =
judicial=20
action represents the least restrictive means to prevent that =
harm.=E2=80=9D=20
Id. at 10.
&=
nbsp;In=20
Davenport, the supreme court struck down the trial =
court=E2=80=99s gag=20
order prohibiting the parties, attorneys, and witnesses from =
discussing=20
the case except as necessary with each other or in court. =
Id. at 6.=20
The supreme court noted that, =E2=80=9Ca prior restraint will =
withstand scrutiny=20
under this test only under the most extraordinary =
circumstances.=E2=80=9D=20
Id. at 10. The supreme court explained that (1) the harm =
must be to=20
the judicial process, (2) the harm must be imminent and severe, =
and (3)=20
there must be no alternative available to address the threat to =
the=20
judicial process that is less restrictive of state speech rights.=20
Id. at 10=E2=80=9311. In addition, the supreme court =
observed that=20
convenience will never justify the imposition of a gag order. =
Id.=20
at 11 (citing Ex parte McCormick, 129 Tex. Crim. 457, =
462, 88=20
S.W.2d 104, 107 (1935)).
The =
Right to=20
Gather News
&=
nbsp;The=20
First Amendment=20
provides, =E2=80=9CCongress shall make no law . . . abridging the =
freedom of=20
speech, or of the press . . . .=E2=80=9D U.=20
S. Const. amend. I. Similarly, article I, section 8, =
provides that =E2=80=9Cno law shall ever be passed curtailing the =
liberty of=20
speech or of the press.=E2=80=9D Tex.=20
Const. art. I, =C2=A7 8. The parties have not argued that =
the right to=20
gather news under the Texas constitution is broader than that =
afforded by=20
the United States constitution. In fact, at oral argument they =
directed=20
our attention to federal precedent. In light of the nearly =
identical=20
language in the two charters, we find that the right to gather =
news under=20
the Texas constitution is coextensive with that right under the =
United=20
States constitution. See Operation Rescue-Nat=E2=80=99l v. =
Planned Parenthood=20
of Houston and Se. Tex., Inc., 975 S.W.2d 546, 559 (Tex. 1998) =
(=E2=80=9CIt is=20
possible that Article I, Section 8 may be more protective of =
speech in=20
some instances than the First Amendment, but if it is, it must be =
because=20
of the text, history, and purpose of the provision, not just =
simply=20
because.=E2=80=9D).
&=
nbsp;As=20
a Texas appellate court construing the constitutionality of a =
Texas=20
district court order restricting the rights of Texas citizens, we =
apply=20
Texas law, i.e., Davenport. However, we also look to =
well-reasoned and persuasive federal authority to inform our =
analysis of=20
the relator=E2=80=99s right to gather news. Davenport, 834 =
S.W.2d at 20=20
(=E2=80=9CWith a strongly independent state judiciary, Texas =
should borrow from=20
well-reasoned and persuasive federal procedural and substantive =
precedent=20
when this is deemed helpful, but should never feel compelled to =
parrot the=20
federal judiciary.=E2=80=9D)
&=
nbsp;News=20
organizations may receive, investigate, and report on public trial =
proceedings, but they generally have no right to information not =
available=20
to the public generally. In re Express-News Corp., 695 F.2d =
807,=20
809 (5th Cir. 1982). In Express-News, the Fifth Circuit =
held a=20
local federal district court rule prohibiting any person from =
interviewing=20
any juror concerning the deliberations or verdict of the jury, =
except by=20
leave of court, to be unconstitutional as applied to the =
interviews=20
sought. Id. at 808. In particular, the court of appeals =
held that=20
the rule violated the newspaper=E2=80=99s constitutional right to =
gather news.=20
Id. The court of appeals noted the relationship between =
freedom of=20
the press and the right to gather news:
The first amendment=E2=80=99s broad =
shield for freedom of=20
speech and of the press is not limited to the right to talk and to =
print.=20
The value of these rights would be circumscribed were those who =
wish to=20
disseminate information denied access to it, for freedom to speak =
is of=20
little value if there is nothing to say. Therefore, the Supreme =
Court=20
recognized in Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. =
Ct.=20
2646, 2656, 33 L.Ed.2d 626, 639 (1972), that news-gathering is =
entitled to=20
first amendment protection, for =E2=80=9Cwithout some protection =
for seeking out=20
the news, freedom of the press could be =
eviscerated.=E2=80=9D
Id. at 808=E2=80=9311. The court =
also noted the=20
relationship between the right to gather news and the =
public=E2=80=99s right to=20
receive the news:
Government-imposed secrecy denies the =
free flow of=20
information and ideas not only to the press but also to the =
public. The=20
public right to receive information has been repeatedly recognized =
and=20
applied to a vast variety of information.
The judiciary, like the legislative and =
judicial=20
branches, is an agency of democratic government. The public has no =
less a=20
right under the first amendment to receive information about the =
operation=20
of the nation=E2=80=99s courts than it has to know how other =
governmental agencies=20
work and to receive other ideas and information.
Id. at 809 (footnote omitted). =
Finally, the=20
court of appeals observed that the right to gather news is not =
absolute,=20
and may sometimes be outweighed by competing interests, like a =
criminal=20
defendant=E2=80=99s Sixth Amendment right to a fair trial, or a discharged =
juror=E2=80=99s right to privacy=20
and protection against harassment. Id. at 809=E2=80=9310. =
But even in these=20
instances, a court rule cannot restrict the journalistic right to =
gather=20
news unless it is narrowly tailored to prevent a substantial =
threat to the=20
administration of justice. Id. at 810. In addition, the =
court of=20
appeals stated that discharged jurors are under no obligation to =
speak.=20
Id. at 811 (=E2=80=9CThe jurors=E2=80=99 freedom of speech =
is also freedom not to=20
speak, and the district court may so instruct the jurors in order =
to avoid=20
the possible misunderstanding that jury service places them under =
some=20
obligation to subject themselves to scrutiny or to submit to=20
interview.=E2=80=9D).Restrictions on=20
Discharged Jurors=E2=80=99 Speech
&=
nbsp;Restrictions=20
on juror speech have rarely been found to be constitutionally =
permissible;=20
the restrictions have been limited to situations, such as =
protecting the=20
secrecy of juror deliberations, protecting the privacy of jurors, =
and=20
preserving a defendant=E2=80=99s sixth amendment right to a fair =
trial in criminal=20
cases. =
See=20
U. S. =
v.=20
Cleveland,=20
128 F.3d 267, 267=E2=80=9371 (5th Cir. =
1997) (upholding =
restriction on=20
juror interviews to protect secrecy of jury =
deliberations); U.S. v. =
Harrelson,=20
713 F.2d 1114, 1116=E2=80=9318 (5th Cir. 1983)=20
(same); Haeberle v. =
Tex. Int=E2=80=99l=20
Airlines, 739 F.2d 1019, 1020=E2=80=9322 (5th Cir. 1984) =
(upholding=20
restriction on juror interviews to protect juror privacy when =
interviews=20
sought by litigant=E2=80=99s attorney); U.S. v. =
Williams,=20
No. H-03-0221-11, 2006 WL 3099631 at *4 (S.D. Tex. October 30, =
2006) (slip=20
copy) (upholding restriction on juror interviews to protect =
secrecy of=20
jury deliberations); State v.=20
Neulander,=20
801 A.2d 255, 271=E2=80=9375 (N.J. 2002) (upholding restriction on =
juror=20
interviews after mistrial in capital murder case to prevent the =
State from=20
gaining unfair advantage on retrial).
&=
nbsp;We=20
conclude that the right to gather news generally includes the =
right of the=20
press to interview willing, discharged jurors, except when =
outweighed by a=20
compelling government interest, such as the need to protect the =
sanctity=20
of jury deliberations, a juror=E2=80=99s right to privacy and to =
be free from=20
harassment, or a defendant=E2=80=99s Sixth Amendment right to a =
fair=20
trial.=20
Cleveland,=20
128 F.3d at 267=E2=80=9371; Haeberle, 739 F.2d at=20
1020=E2=80=9322; Harrelson, 713 F.2d at=20
1116=E2=80=9318;=20
In re Express-News Corp., 695 F.2d at =
808=E2=80=9311; =
Neulander, 801 A.2d at=20
271=E2=80=9375.Difficulty =
Empaneling a=20
Jury
&=
nbsp;The=20
trial court restricted the discharged jurors=E2=80=99 right to =
speak to =E2=80=9Cthe=20
press, media, or others,=E2=80=9D because it concluded that =
the additional,=20
incremental publicity would cause imminent and irreparable harm to =
the=20
judicial process by making it even more difficult to empanel a =
jury. But=20
no findings or evidence show that the additional, incremental =
publicity=20
from juror interviews would cause imminent and irreparable harm to =
the=20
judicial process. Davenport, 834 S.W.2d at 10. To satisfy =
the=20
second prong of Davenport, the prior restraint must be the =
least=20
restrictive means possible to prevent the threatened imminent and=20
irreparable harm to the judicial process. Id. Other than =
voir dire,=20
nothing in the record shows that the trial court considered other =
less=20
restrictive means, such as continuance or change of venue. =
Further, the=20
trial court=E2=80=99s conclusion that voir dire would be =
inconvenient does not=20
satisfy the Davenport standard. Id. at=20
11.
&=
nbsp;Pretrial=20
publicity does not necessarily create such harm to the judicial =
process as=20
to outweigh the media=E2=80=99s right to gather news. See Neb. =
Press Ass=E2=80=99n v.=20
Stuart, 427 U.S. 539, 554=E2=80=9355, 96 S. Ct. 2791, =
2800=E2=80=9301 (1976)=20
(=E2=80=9C[P]retrial publicity even pervasive, adverse publicity =
does not=20
inevitably lead to an unfair trial.=E2=80=9D); see also =
Neulander, 801 A.2d=20
at 272 (=E2=80=9CIn our view, the inhibiting effect of media =
interviews of the=20
first jury on the =E2=80=98free exchange of ideas=E2=80=99 by =
members of the retrial jury=20
simply is too speculative a basis on which to justify restricting =
the=20
media=E2=80=99s right of access to consenting jurors. We also are =
inclined to=20
doubt that such juror interviews would =E2=80=98restrict the jury =
pool=E2=80=99 on=20
retrial.=E2=80=9D); see also Ex parte McCormick, 88 S.W.2d =
at=20
105=E2=80=9307.
&=
nbsp;The=20
record does not show that interviews of the discharged jurors =
would=20
preclude the selection of an impartial jury or that measures less=20
restrictive than a gag order would be ineffective. See =
Davenport,=20
834 S.W.2d at 10. Other than the claimed difficulty in selecting a =
jury,=20
there are no other claimed harms that may result from allowing the =
jurors=20
to talk. The Sixth Amendment is inapplicable because this is a =
civil=20
case. U.S. Const. =
amend. VI (=E2=80=9CIn all =
criminal=20
prosecutions, the accused shall enjoy the right to a speedy =
and=20
public trial, by an impartial jury . . . .=E2=80=9D) (Emphasis=20
added).
The trial court was not concerned about =
the media=20
harassing the jurors. There exists no concern about protecting the =
secrecy=20
of juror deliberations because the trial ended before the =
conclusion of=20
the plaintiffs=E2=80=99 case, without any jury deliberations. We =
conclude that the=20
gag order in this case is unconstitutional under article I, =
section 8 of=20
the Texas Constitution.
Conclusion
&=
nbsp;We=20
conditionally grant the writ of mandamus and direct the trial =
court to=20
vacate the September 18, 2007 and September 24, 2007 orders =
prohibiting=20
the jurors from speaking to the press and others. We are confident =
the=20
trial court will promptly comply and our writ will issue only if =
it does=20
not.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Elsa=20
Alcala
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Chief Justice Radack =
and=20
Justices Alcala and=20
Higley. |