In this mandamus proceeding, we address three issues: (1) the ability of a judge to suppress speech with a "gag order;" (2) whether Relator was impermissibly denied access to court records; and (3) the appropriate standard for emoval of a guardian ad litem. Applying our state constitutional
A guardian ad litem was appointed to represent two hundred and thirteen children among numerous persons who brought suit concerning toxic chemical exposure at the Brio Dump site in Harris County. In a 1987 settlement the adults released all claims to future medical benefits for their children, and in 1989 the ad litem withdrew. In February 1990 Judge Alice Trevathan, then the presiding judge, appointed Valorie Davenport, Relator herein, as guardian ad litem.
After eighteen months of work, Davenport submitted a bill for her services on August 21, 1991. At a hearing two days later, Judge Carolyn Garcia, who had become the presiding trial judge, on her own motion, questioned the continued need for a guardian ad litem. Additionally, the court entered an oral injunction, described as a "gag order," instructing the ad litem, parties and counsel to "cease and desist any discussion of this case outside the court hearing" and prohibiting any "communications with any other lawyer or discussion at all about the matters that have transpired in this case."
On September 10 the trial court dismissed Davenport, concluding that because the parents were no longer seeking either individual recovery or expense reimbursement, no conflict of interest existed to justify continuation of the ad litem. The court also found unnecessary ad litem oversight of a medical monitoring program proposed by defendants as part of a settlement. While noting that the parents' counsel had "competently handled [this] litigation" in "securpng] a generous settlement proposal for the minor children," Judge Garcia did not specify any change in circumstances following Judge Trevathan's appointment of Davenport. The next day, again on its own motion, the court entered a protective order requiring that:
I. The Gag Order
The trial court correctly characterized as a "gag order" its oral injunction of August 23, which prohibited all discussion of the Brio case outside the courtroom. Personally informed by the judge that she was "relieved of responsibility," and that she had "been ordered by the Court not to discuss the case with anyone," Relator risked contempt should she speak either in public or even in private to any of the children whose interests she had represented. Nor did the order permit any party to discuss the case or the pending settlement with a family physician, medical expert, or another attorney.
These limitations were reiterated in the written protective order of September 12, which prohibited any public comment or discussion of the litigation with anyone not involved in the "necessary course of business of this case." Counsel were also directed to inform their clients of the order's applicability to each of them. The sole reason given for this sweeping injunction was the finding that "conflicts between counsel and the parents of the minor children were resulting in miscommunications
We consider whether the court's gag orders violate the guarantee of free expression contained in article I, section 8 of the Texas Constitution, which provides in pertinent part:
The history of this provision is a rich one, and its language demonstrates Texas' strong and longstanding commitment to free speech. By the plain language of our constitution, this fundamental liberty "shall forever remain inviolate." Tex. Const, art. I, § 29.
From the outset of this state's history, freedom of expression was a priority. As rural communities developed from the wilderness in the young region, Mexico passed the Constitutive Act of 1824, uniting Coahuila and Texas into one Mexican state. Already integrated into the government and with nine times the population of Texas, Coahuila predominated. After unsuccessful efforts to have the new state government forward their written complaints or remonstrances to the central government,
Proposed Constitution for the State of Texas (1833) art. 16, reprinted in Documents of Texas History, at 80 (Ernest Wallace ed. 1963). As an early advocate of a strong state constitution,
Although the 1836 Texas Independence Constitution in general closely tracked the wording of the United States Constitution, different language was chosen to protect speech:
Constitution of the Republic of Texas, Declaration of Rights § 4 (1836).
At the 1845 constitutional convention, after renewed deliberation concerning the terms of the free speech provision,
The drafters of the 1876 Constitution began their convention with a heightened sensitivity of the need for a strong state constitution.
Consistent with this history, we have recognized that in some aspects our free speech provision is broader than the First Amendment. O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex.1988) (noting that "Texas' free speech right [has been characterized] as being broader than its federal equivalent," the court concluded that "it is quite obvious that the Texas
Under our broader guarantee, it has been and remains the preference of this court to sanction a speaker after, rather than before, the speech occurs. This comports with article one, section eight of the Texas Constitution, which both grants an affirmative right to "speak ... on any subject," but also holds the speaker "responsible for the abuse of that privilege." The presumption in all cases under section eight is that pre-speech sanctions or "prior restraints" are unconstitutional. Ex Parte Price, 741 S.W.2d 366, 369 (Tex.1987) (Gonzalez, J., concurring) ("Prior restraints ... are subject to judicial scrutiny with a heavy presumption against their constitutional validity."); Amalgamated Meat Cutters v. Carl's Meat and Provision Co., 475 S.W.2d 300 (Tex.Civ.App.—Beaumont 1971, writ dism'd).
In Ex Parte Tucker, 110 Tex. 335, 220 S.W. 75 (1920), this court applied section eight to safeguard speech which may not otherwise have been guaranteed under the First Amendment as interpreted in that era. That case involved an injunction prohibiting union members from "vilifying, abusing, or using ... epithets" against the employees of a particular company. While such "fighting words" may not have been federally protected,
220 S.W. at 76. In two early prior restraint cases, the Court of Criminal Appeals also relied on the state constitution to void injunctions prohibiting publication of trial testimony. Ex Parte McCormick, 129 Tex.Cr.R. 457, 88 S.W.2d 104 (App.1935) (orig. proceeding); Ex Parte Foster, 44 Tex.Cr.R. 423, 71 S.W. 593 (App.1903).
This court previously indicated that a prior restraint would be permissible only when essential to the avoidance of an impending danger. Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex. 1983) (striking down an injunction because the language at issue "evoked no threat of danger to anyone and, therefore, may not be subject to the prior restraint of a temporary injunction."). See also Dallas General Drivers, Warehousemen and Helpers v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873, 879 (1956); Ex Parte Tucker, 220 S.W. at 76 (speech is properly restrained only when involving an actionable and immediate threat); Pirmantgen v. Feminelli, 745 S.W.2d 576, 579 (Tex.App.— Corpus Christi 1988, no writ) (restriction
Since the dimensions of our constitutionally guaranteed liberties are continually evolving, today we build on our prior decisions by affirming that a prior restraint on expression is presumptively unconstitutional. With this concept in mind, we adopt the following test: a gag order in civil judicial proceedings will withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm. Assisting our analysis are federal cases that have addressed prior restraints. The standard enunciated in Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 563-64, 96 S.Ct. 2791, 2804-05, 49 L.Ed.2d 683 (1976), does not, however, sufficiently protect the rights of free expression that we believe that the fundamental law of our state secures. Today we adopt a test recognizing that article one, section eight of the Texas Constitution provides greater rights of free expression than its federal equivalent.
We are fully aware that a prior restraint will withstand scrutiny under this test only under the most extraordinary circumstances. That result is consistent with the mandate of our constitution recognizing our broad right to freedom of expression in Texas. An individual's rights under the state constitution do not end at the courthouse door; rather, the courthouse is properly the fortress of those rights.
The first requirement of our standard advances from the prior holdings of Texas courts that only an imminent, severe harm can justify prior restraint, and in the context of gag orders, that harm must be to the judicial process. Ex Parte McCormick, 88 S.W.2d 104; Ex Parte Foster, 71 S.W. at 595. The mandate that findings of irreparable harm be made is based on our state constitutional preference for post-speech remedies. Only when no such meaningful remedies exist will prior restraints be tolerated in this context.
The second part of the test is intended to ensure that no alternative exists to treat the specific threat to the judicial process which would be less restrictive of state speech rights. While this element is shared in common with the ruling in Nebraska Press, 427 U.S. at 563-64, 96 S.Ct. at 2804-05,
Applying this test to the facts of this case, there can be no doubt but that the gag orders violated article one, section eight of the Texas Constitution. The orders fail to identify any miscommunication that the trial court may have perceived, does not indicate any specific, imminent harm to the litigation, and offers no explanation of why such harm could not be sufficiently cured by remedial action. For instance, had any miscommunication stemmed from improper statements by Relator, as implied by the court, the proper response may have been to sanction her conduct. By stopping not only the purported miscommunications but any communications, the broadly worded injunction certainly fails the second part of our test.
While a gag order may be expeditious in producing a settlement, decisions to terminate litigation based on lack of information can facilitate injustice. Additionally, "the argument of convenience can have no weight as against those safeguards of the constitution which were intended by our fathers for the preservation of the rights and liberties of the citizen. Ex Parte McCormick, 88 S.W.2d at 107. These liberties are central to the Texas Constitution. We have before announced:
Ex Parte Tucker, 220 S.W. at 76 (emphasis added). We conclude today, as we did over seventy years ago, that the judicially imposed gag orders in question are void.
II. The Role of the State Constitution
Having found that the trial court's gag orders violate article I, section 8 of the Texas Constitution, this court need not consider whether the United States Constitution has also been violated. Today we reaffirm our prior pronouncement that "[o]ur constitution has independent vitality, and this court has the power and duty to protect the additional state guaranteed rights of all Texans." LeCroy v. Hanlon, 713 S.W.2d 335, 339 (Tex.1986). We decline to
Over the past twenty years, state courts have increasingly looked to tneir own constitutions, rather than the Federal Constitution, in examining the extent of their citizens' liberties.
Our courts recognized the importance of our state constitution long before "new federalism" even had a name. A ceoturylong line of Texas cases support applying our state's constitution,
In Traveler's Insurance Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007, 1010 (1934), this court struck down a state statute solely under the Texas Constitution, dismissing relevant caselaw interpreting a similar federal constitutional provision regarding the state's police power because "it can have no application to the Constitution of Texas." The court explained that "[i]t is quite oDvious the same rule ot interpretation cannot be applied to the contract clause in our State Constitution...." Id., 76 S.W.2d at 1011.
In Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983), we invalidated a statute of limitations under the Texas Constitution's open courts provision. While expressly recognizing that the appeal was brought under both federal and state law, id. at 663, the court concluded that because article I, section 13 "does accord Texas citizens additional rights, we choose not to decide this case on the basis of the United States Constitution." Id. at 664.
This approach has also been embraced by our sister court, the Texas Court of Criminal Appeals. We give thoughtful consideration to that court's analysis in part to avoid conflicting methods of constitutional interpretation in our unusual system of bifurcated highest courts of appeal. See Commissioners' Court of Nolan County v. Beall, 98 Tex. 104, 81 S.W. 526, 528 (1904). As noted above, in two early prior restraint cases, the Court of Criminal Appeals applied the state constitution to strike down orders that the press not publish testimony until after a trial was completed. In Ex Parte Foster, 71 S.W. 593, the court looked both to Texas' free speech clause and also our guarantee of public trials. Id. at 595. A year after this court decided Traveler's Insurance Co. v. Marshall, the Court of Criminal Appeals again relied on the state constitution in deciding Ex Parte McCormick, 88 S.W.2d 104, an equally notable case.
This commitment of Texas to its own constitution is consistent with the principle of federalism embodied in the United States Constitution. Its authors intended that "[i]n the compound republic of America, the power surrendered by the people is divided between two distinct governments____ Hence a double security arises to the rights of the people." The Federalist No. 51, at 323 (James Madison) (Clinton Rossiter ed., 1961) (emphasis added). The United States Supreme Court has long recognized that "[i]t is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions." Minnesota v. National Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 679, 84 L.Ed. 920 (1940). It has reiterated its unwillingness to "limit the authority of the State ... to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980). Noting that the language of the Texas Constitution's due process and equal protection clauses is broader than the federal, it has concluded that:
The only limit on the states is that, in relying on their constitutions, they may not deny individuals the minimum level of protection mandated by the Federal Constitution. See Sax, 648 S.W.2d at 664 ("While it is true that state constitutional protections cannot subtract from those rights guaranteed by the United States Constitution, there certainly is no prohibition against a state providing additional rights for its citizens."); LeCroy v. Hanlon, 713 S.W.2d at 338. This approach has been referred to as a "federal safety net," ensuring that individuals receive all available guarantees of their rights. Shirley S. Abrahamson, Reincarnation of State Courts, 36 Sw.LJ. 951, 959 (1982).
The involvement or state courts is particularly appropriate in the protection of free speech rights. Both state and federal courts have recognized such rights "as involving community standards and local trends." Judith S. Kaye, A Midpoint Perspective on Directions in State Constitutional Law, 1 Emerging Issues in St. ConstL. 17, 23 (1988). Particularly in the context of judicial proceedings, state courts have long been involved with the protection of speech rights.
Our Texas charter bears the distinction of being one of the few state constitutions that were derived from its own independent, national constitution. See M.P. Duncan III, Terminating the Guardianship: A New Role for State Courts, 19 St. Mary's L.J. 809, 839 (1988) (hereinafter Duncan, State Courts).
Our state had a unique opportunity to address issues of state constitutionalism and federalism in the 1875 constitutional convention. Though some Texans feared that convening such a gathering so soon after Reconstruction would indicate too much independence from the federal government,
Just as our history is distinctive in its insistence that our constitution is of independent force, so is the very letter of that fundamental document. The Texas Constitution begins with the declaration that: "Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States." Tex.Const. art. I, § 1. Citing this article as a reason for ratifying the 1876 Constitution, Governor Coke explained that:
Address of Governor Coke, in Ratify, Galveston Daily News, Dec. 19, 1875 at 2, col. 4 (emphasis added) (hereinafter Coke Address).
Basing decisions on the state constitution whenever possible avoids unnecessary federal review. This not only lessens federal interference into state issues, but also results in "efficient judicial management."
Subsequently, several state courts on remand relied on state law to reach the same result originally reached under their reading
Once the state court turns to its own constitution, it both enables a local voice in the judicial process and ensures its role as a national leader. "State constitutions allow the people of each state to choose their own theory of government and of law, within what the nation requires, to take responsibility for their own liberties, not only in courts but in the daily practice of government."
While reflecting local concerns and assuring local accountability, reliance by this court on our own constitution allows Texas to have a meaningful voice in developing this nation's jurisprudence. What Justice Brandeis wrote sixty years ago regarding state legislatures is now particularly applicable to state judicial action: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 811, 52 S.Ct. 371, 386-87, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting).
As a state court, sitting in Texas, our expertise is in Texas law, our judges are Texas citizens and members of the Texas Bar, and our concerns are Texas concerns. If we simply apply federal law in all cases, why have a Texas Constitution, and why have a Texas Supreme Court? We agree that "it is fundamentally illogical for a state court to skip past guarantees provided in the state's own law, for which the court itself is responsible, and then to conclude that its state falls short of the national standards...." Linde, New Federalism, at 256.
Having concluded that there are numerous reasons why the state constitution should be applied, we are left to consider how to apply it. Today's opinion has centered on a historical review to understand the origins of our liberties as Texans and the intentions of our forebears. This focus should not, however, be misconstrued to suggest any deviation from our traditional method of constitutional interpretation. In Edgewood Indep. Sch. Dist. v. Kirby, 111 S.W.2d 391 (Tex.1989), we outlined an appropriate approach:
Our rich history demonstrates a longstanding commitment in Texas to freedom of expression as well as a determination that state constitutional guarantees be given full meaning to protect our citizens. But historical analysis is only a starting point. The constitution of our state is an organic document. Edgewood, 111 S.W.2d at 394. In no way must our understanding of its guarantees be frozen in the past; rather, our concept of freedom of expression continues to evolve over time. See id. Forms of expression not widely approved in 1875 may well demand state constitutional protection today, just as new methods of infringing on speech may require new methods of protection tomorrow.
Our consideration of state constitutional issues is encumbered when they are not
Rejecting our careful and detailed analysis of the development and interpretation of article one, section eight, the concurrence advances an alternative—Texas judges should follow, but never lead, federal jurisprudence. Whenever both federal and state constitutional provisions "overlap or correspond," 834 S.W.2d at 40, the Texas judge should never diverge from the path taken by the federal judiciary. No aspect of Texas history, no series of Texas decisions such as that present here should obscure the obligation of adherence to federal authority.
Texans, we are told, must journey along the "well-traveled road of [federal constitutional] jurisprudence." Id. at 29. "[I]t is inefficient to blaze a trail through the wilderness when there is a perfectly good highway there already, built at considerable expense, and well traveled." Id. at 40. A traveller relying upon the concurrence's map will, however, find considerable detail missing—the road is marred with chugholes; unmarked detours appear; new roadblocks arise. The most crucial part of the route is just a dotted line where road construction has not yet even gotten underway. Viewed from this jurisprudential federal interstate charted by the concurrence, the history of the Texas Constitution is a mere farm to market road; the past decisions of this court, only undistinguished country lanes.
The fallacy in the concurrence's roadwork is shown by both the federal law upon which it relies
The concurring justices recite a method for interpretation of our state constitutional guarantees that closely parallels our traditional approach in Edgewood and other cases
Despite the purported need to look to the historical context in which the provision was written, the concurrence trivializes the rather extensive historical discussion which we offer.
Our attempt to give effect to what is indelibly written into our state constitution is dismissed in a series of buzzwords: "chauvinism," "arrogan[ce]" "autonomy," and "liberal agenda." Id. at 41, 43, 39 & 43. Instead, the concurrence urges that we exclude any considerations specific to Texas in favor of conformity to a federal standard. Claiming that Texas was never "unique nor first," id. at 33, the concurrence accuses the court of disrupting the harmony among the states regarding free speech nationwide. Id. at 25. We do not say that the Texas guarantee of free expression inevitably varies in all particulars from the federal, or that of New York or California. Rather, consistent with the very diversity that supplies strength to our union, we build from experience in Texas and elsewhere to enhance individual liberty. The national jurisprudence benefits as states across our country offer similar contributions. As individual voices develop strength and tone, so does the grand chorus improve.
After ignoring all that is unique to Texas, the concurring justices repeatedly accuse the court of disregarding relevant federal law when we quite obviously do not. Id. at 25, 35 & 38-39. Federal decisions are potentially helpful but do not inextricably bind Texas in analyzing our constitution. Failing to differentiate between thoughtful review and unquestioning acceptance of federal rulings, the concurrence also mistakenly assumes that independent interpretation must necessarily yield a different result than that achieved by the federal judiciary. This, of course, is not true. Our investigation may reveal federal authority so complete, so well reasoned, and so consistent with the provisions of the Texas Constitution in protecting individual liberties that we reach the same conclusion. Certainly there may be some "congruence" between state and federal constitutions. Id. at 34. First Amendment jurisprudence is not irrelevant, but rather
The concurrence next suggests that the record in this case does not support extensive writing on our state constitutional, free speech guarantee.
III. The Court Records
Relator contends that she and several parents were denied access to the records in this case after the gag order went into effect. She argues that this constitutes an unwritten sealing order, in violation of Rules 76 and 76a of the Texas Rules of Civil Procedure. One such parent whose child was not represented by the principal plaintiffs' attorneys, Akins and Pettiette, was repeatedly told by a court clerk the file was "sealed" and that "the Judge had put a gag order on the file." Affidavit of Cheryl Finley. Another parent swore that he was told by Judge Garcia personally that the record was "closed until after the settlement hearing." Affidavit of Larry Carter. The co-owner of a community newspaper indicates that she and the paper's editor were told by a court clerk that the record was "sealed." Affidavit of Marie Plickinger. The former Official Court Reporter for the 151st District Court in Harris County explained that a local reporter had requested access to the transcript of a hearing which considered whether the firm which would potentially administer a settlement had acted improperly. Affidavit of Jacquelyn Miles. When the Court Reporter told the court about this request, "Judge Garcia informed [her] that the file was sealed to members of the general public until after the settlement had been finalized." Id.
The Real Parties in Interest, Joseph Edward Powell and Farm & Home Savings Association respond that Judge Garcia never ordered the file sealed. They present an affidavit from the Clerk of the 151st District Court which maintains that "there is no order sealing this file by Judge Garcia," and also that "Judge Garcia has not told me that access to this file is restricted, nor, to my knowledge, has she told anyone else that access to this file is restricted." Affidavit of Chris Sarrat. A parent of one of the children represented by Akins and Pettiette also states that Judge Garcia never represented to her that the files were sealed, and that she was never prohibited from looking at the court's file. Affidavit of Janice Villanueva.
Court records "are presumed to be open to the general public." Tex.R.Civ.P.
In this instance, however, we are presented with conflicting affidavits as to whether the court records were made available to the public. These affidavits create a fact issue which this court may not address on mandamus. See Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990, orig. proceeding). Additionally, it is the understanding of this court that with the gag order lifted, there should be no impediment to viewing the court records. If, after this opinion issues, Relator should find her access to the records in any way obstructed, she remains free to pursue appropriate remedies.
IV. Removal of the Guardian ad Litem
Relator also urges that she was improperly dismissed as ad litem. While much has been written about the standards for such appointments, there is little guidance on the standard for removal. Relator contends that the appropriate standard is one based on best interest of the child, and the record reveals that Relator may well have acted in that interest, sometimes bringing issues to the court's attention which might not have otherwise been considered. Under the Probate Code a "best interest of the ward" standard is applied in determining the circumstances under which a guardianship can be moved to another county and a guardian replaced. Tex.Prob. Code § 123. Other states have applied a similar standard to removal of ad litems in general.
Under our current procedural rules, however, the sole circumstance in which a guardian ad litem can be appointed is when a minor "is represented by a next friend or guardian who appears to the courts to have an interest adverse to such minor." Tex. R.Civ.P. 173 (emphasis added). This rule as written seems to contemplate only a conflict of interest standard.
Since the trial court's September 1991 dismissal order specifically determined that there was "no conflict of interest," and since the record reflects no such conflict, we find no abuse of discretion.
We grant Relator's petition in part and hold that the trial court's gag order is in violation of article I, section 8, of the Texas Constitution. Because the existence of an unwritten sealing order raises a fact issue, we do not address that question. Finally, we determine that the trial court did not abuse its discretion in dismissing Relator as ad litem, and deny the remainder of Relator's petition.
Concurring Opinion by HECHT, J., joined by COOK and CORNYN, JJ.
PHILLIPS, C.J., not sitting.
HECHT, Justice, joined by COOK and CORNYN, Justices, concurring in the judgment.
I join in the Court's judgment, but not in its opinion. I agree that mandamus should issue directing the respondent district court to vacate the gag orders of which relator complains, but not to reinstate relator as guardian ad litem. I also agree that we should not direct the district court to allow relator access to court records when relator has failed to establish that her access to those records has been restricted. I differ
Deciding whether the two gag orders which the district court issued in thejjending litigation are invalid is not the principal occupation of the Court's opinion. Those orders have already been ordered vacatedin response to relator's request for emergency relief. 837 S.W.2d 73. Our reasons for granting this relief do not require elaborate explanation. The Court is unanimous in the view that the gag orders are invalid because they are too broad, they are not necessary to protect against an imminent threat to the administration of justice, and they were issued without following procedures to safeguard against suppression of relator's constitutionally protected speech. Issuance of the orders was a clear abuse of discretion from which relator has no adequate remedy by appeal. Thus, relator is entitled to mandamus relief to have the orders set aside.
That is the Court's decision. Most of the Court's opinion is spent defending its efforts to decide relator's free speech claims using only article I, section 8 of the Texas Constitution without recourse to the First Amendment to the United States Constitution. Borrowing from the literature of the "new federalism movement" of the past fifteen years, the Court adopts a method of constitutional analysis by which it examines the Texas Constitution first, and if a right is found to be protected, never reaches the federal constitution question. In theory, the Court's methodology contemplates that federal law construing a federal constitutional provision will be instructive but not controlling in construing a corresponding provision of the state constitution; in actuality, the Court attempts to ignore federal law altogether. Accordingly, it ventures an independent examination and application of article I, section 8, with no argument and little briefing by the parties, and without regard to more fully developed First Amendment law. Then after determining that the language of article I, section 8 is different and highly distinctive, the Court shortly concludes that the test for reviewing gag orders under that provision is one which happens to be identical to the test under the First Amendment. The Court follows this analysis with a lengthy apologia and accolade for its new method.
The Court's approach to this case, it seems to me, is contrived and unnecessarily extreme. The Court goes to great lengths to decide this case on our state constitution alone, even though the result would be the same under the First Amendment, for the same reasons. Although a state constitutional provision should not be ignored simply because it has a federal analogue, I think the converse is equally true: federal constitutional law should not be ignored simply because there exists a related state constitutional provision. Where, as here, the issue raised can be resolved on First Amendment grounds entirely consistent with the Texas Constitution, there is every reason to do so. What reasons the Court may have for avoiding this straightforward course is a question to which I shall return.
The pending litigation involves claims by over 200 children and their parents for injuries due to exposure to toxic chemicals. The parents settled their claims five years ago, and defendants have proposed to settle the children's claims, subject to the district court's approval. Relator, the guardian ad litem for the children, opposes the settlement.
BE IT REMEMBERED THAT ON THE 23RD DAY OF AUGUST, 1991, at a hearing in these consolidated cases, counsel for Plaintiffs, counsel for Defendant, and the then Guardian ad Litem were present.
Upon hearing evidence that conflicts between counsel and the parents of the minor children were resulting in miscommunications with the parents of the children and with the media and general public, this Court, on its own motion, issued a protective order in the best interest of the minor children of this suit. In so doing, the Court found there was a need for such an extraordinary remedy and ORDERED counsel as follows:
Counsel in this case, present and former, are expressly ORDERED to refrain from discussing or publishing in writing or otherwise, any matters of this case with any persons other than their clients, agents, or employees in the necessary course of business in this case.
Counsel is ORDERED to refrain from any public comment, casual or otherwise concerning the facts of this case or the conduct of counsel in this case other than in a court hearing.
Counsel is ORDERED to inform their clients, witnesses, agents and representatives that this ORDER extends to each of them and is subject to a finding of contempt by this court from disobedience, direct or indirect comment intended to violate this ORDER. Counsel was and is directed to communicate with their clients only, and advise each that they are directed to refrain from discussing the case except with counsel.
At that hearing, the Court abated the appointment of the Guardian ad Litem until further Order of this Court, but specifically applied this protective order to the Guardian and that during the abatement, the Guardian was to have no contact with Plaintiffs. On September 11, 1991, the Court dismissed the Guardian Ad Litem from this Cause, but not from this Order.
This Order was rendered in open court on the 23 of August, 1991 and is effective as of that date.
The Court ORDERS the Clerk of this Court to prepare certified copies of this order for counsel and to convey immediately by telecopier the contents of this written order.
This order prohibits relator from discussing the pending litigation with anyone, ever, except in a hearing before the court, even though she has been dismissed as guardian ad litem in the case. The order even prohibits the parties from communicating with each other, although they do not complain of this prohibition here. The order is, in its own words, "an extraordinary remedy".
Relator complains that the gag orders infringe unlawfully upon her right to freedom of speech under the First Amendment to the United States Constitution. The United States Supreme Court has had several occasions to consider the validity of gag orders in criminal cases. Gentile v. State Bar of Nevada,____U.S.____, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959). The principal authority applying the First Amendment to gag orders on the participants in a civil case, however, is Bernard v. Gulf Oil Co., 619 F.2d 459, 467 (5th Cir.1980) (en banc), affd on other grounds, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981), in which the court held that an order restricting the named plaintiffs in a class action and their attorneys from communicating freely with prospective class members violated the First Amendment. The court determined that
Bernard, 619 F.2d at 467. Generally, "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Nebraska Press, 427 U.S. at 559, 96 S.Ct. at 2803 (1976).
For a prior restraint to violate the First Amendment, it must prohibit protected activity. "The First Amendment is not absolute, and `the protection even as to previous restraint is not absolutely unlimited.'" Bernard, 619 F.2d at 471 (quoting Near, 283 U.S. at 716, 51 S.Ct. at 631); accord Nebraska Press, 427 U.S. at 570, 96 S.Ct. at 2808; Times Film Corp. v. Chicago, 365 U.S. 43, 47, 81 S.Ct. 391, 393, 5 L.Ed.2d 403 (1961); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441, 77 S.Ct. 1325, 1327-28, 1 L.Ed.2d 1469 (1957). Exceptions include speech that is obscene, seditious or extremely provocative. Nebraska Press, 427 U.S. at 590, 96 S.Ct. at 2817 (Brennan, J., concurring). It is unnecessary to decide whether there is some activity prohibited by the gag orders in this case which is not protected by the First Amendment, such as, perhaps, intimidation of the minor plaintiffs. These orders sweep far more broadly, prohibiting relator from speaking at all on any matter concerning the litigation. Beyond question, her First Amendment rights are affected.
According to Bernard, a gag order is permitted by the First Amendment only if it meets three conditions. First, "`before a prior restraint may be imposed by a judge, even in the interest of assuring a fair trial, there must be "an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil." `" Bernard, 619 F.2d at 474 (quoting United States v. Columbia Broadcasting System, Inc., 497 F.2d 102, 104 (5th Cir. 1974) (quoting Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947))). "In general, a prior restraint may be justified only if the expression sought to be restrained `surely [will] result in direct, immediate, and irreparable damage.'" Bernard, 619 F.2d at 473 (quoting International Soc'y for Krishna Consciousness v. Eaves, 601 F.2d 809, 833 (5th Cir.1979) (quoting New York Times Co. v. United States, 403 U.S. 713, 730, 91 S.Ct. 2140, 2149, 29 L.Ed.2d 822 (1971) (Stewart, J., joined by White, J., concurring))). Even "`the interest of the judiciary in the proper administration of justice does not authorize any blanket exception to the first amendment.' " Bernard, 619 F.2d at 467 n. 8 (quoting Rodgers, 508 F.2d at 163); see Wood v. Georgia, 370 U.S. 375, 395, 82 S.Ct. 1364, 1375, 8 L.Ed.2d 569 (1962); Craig, 331 U.S. at 378, 67 S.Ct. at 1256; Pennekamp v. Florida, 328 U.S. 331, 347, 349-50, 66 S.Ct. 1029, 1037, 1038-39, 90 L.Ed. 1295 (1946); Bridges v. California, 314 U.S. 252, 272-73, 62 S.Ct. 190, 198-99, 86 L.Ed. 192 (1941). Second, a valid prior restraint "must not sweep too broadly. Rather it `must be narrowly drawn and
The district court's gag orders do not meet First Amendment standards. The orders were not necessitated by any imminent threat imperiling the administration of justice. The meager record before us shows that the district court was concerned that conflicts among the various participants in this litigation were resulting in misstatements and misunderstandings, jeopardizing a proposed settlement and what the court considered to be the best interests of the minor plaintiffs. The existence of those conflicts was apparent from oral argument before this Court. Relator stated quite clearly that as former guardian ad litem she had and still has very strong views about the children's interests. The district court clearly believed that the plaintiffs needed to be protected from relator's insistence on expressing her views, and the other parties appear to share the court's view, joining in defense of the gag orders which they are themselves subject to. As far removed from the conduct of the litigation as we are, it is difficult to evaluate the district court's concerns. Assuming, however, that relator was every bit the threat to her previous wards that the district court considered her to be, that threat did not impinge so imminently upon the administration of justice as to satisfy the first condition of Bernard.
Moreover, the orders were overly broad and were not the only reasonable alternative for addressing the problems the district court confronted. The district court prohibited relator from talking with anyone about the case under any circumstances except in the course of proceedings. This order is far more expansive than the order struck down in Bernard; it does not merely limit relator's communications about the case, it prohibits them altogether outside the courtroom. Although the district court in this case met with the parties in an effort to dispel confusion, and although it cautioned relator against causing further conflicts and misunderstandings, it did not reasonably exhaust these efforts or explore the use of disciplinary measures
Finally, the district court did not follow procedures that would safeguard against an unwarranted infringement of relator's First Amendment rights. The district court acted on its own, without motion or argument from the parties. Although the district court conducted an evidentiary hearing at some point prior to issuing its first order, the record does not reflect whether any of that evidence pertained to the necessity and scope of a gag order.
Bernard does not hold that participants in civil court proceedings have a boundless constitutional right to speak extrajudicially about the litigation, or that a court is powerless to limit such speech in all circumstances. It does, however, set a high standard for any such limitation in recognition of the importance of free speech rights of attorneys and litigants. The issuance of gag orders in these circumstances did not meet this standard and therefore was an unlawful infringement upon relator's constitutionally protected freedom of speech and a clear abuse of discretion. Relator has no right to appeal these interlocutory orders until final judgment is rendered and meanwhile must suffer their irreversible and irrecompensable effects. She is therefore entitled to mandamus relief, which we have already granted, directing the district court to vacate the gag orders.
The Court reaches this result but not by the well-traveled road of First Amendment jurisprudence. It insists instead on traversing the largely uncharted terrain of article I, section 8 of the Texas Constitution.
I say "insists" because the idea that this case should be decided on state constitutional grounds alone did not originate with the parties but with one Member of this Court. Article I, section 8 was not even mentioned in this case until relator's counsel alluded to it in passing in oral argument, after which the following colloquy occurred:
JUSTICE DOGGETT: Are you asserting— you made reference to the Texas Constitution earlier—are you asserting free speech rights under the Texas Constitution as well as the U.S. Constitution?
RELATOR'S COUNSEL: That is correct, Your Honor. I read article I, section 8 of the Texas Constitution as going beyond the First Amendment.
JUSTICE DOGGETT: Have you briefed that and cited us any authority on the broader protections afforded by the Texas Constitution?
RELATOR'S COUNSEL: No, we haven't, Your Honor. I entered this case after the briefing was terminated.
JUSTICE DOGGETT: Are you interested in filing any supplemental briefing on that issue?
RELATOR'S COUNSEL: We would welcome the opportunity to file supplemental briefing with this Court on the First Amendment issues.
There was no further discussion of article I, section 8 during oral argument. Relator subsequently filed a supplemental brief arguing that the gag orders were not permitted by the First Amendment, and secondarily, that article I, section 8 provides an independent basis for overturning them. Respondent never replied to this brief.
Article I, section 8 of the Texas Constitution states in pertinent part:
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.
This provision in our state Bill of Rights, like the First Amendment to the United States Constitution and similar provisions in the constitutions of other states, enshrines and protects a fundamental right long treasured by the people of this nation, the right of free speech. That right, however, is not absolute, as we long ago learned in our thinking about the First Amendment. Justice Holmes' classic example, familiar to lawyers and non-lawyers alike, is that one does not have the right of "falsely shouting fire in a theatre and causing a panic." Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919). Free speech can be abused, as article I, section 8 expressly recognizes, and responsibility for that abuse is not only consistent with protecting the freedom, it is part of the freedom itself.
Freedom and responsibility have a symbiotic relationship: they are part of one another, yet in tension. So here, relator contends that she should be free to communicate with the parties to this litigation, and the district court counters that relator's freedom should be restricted because of her responsibility not to cause misunderstandings which threaten the best interests of the minor plaintiffs. Article I, section 8 provides principles for resolving this dispute, but it does not prescribe the resolution. It falls to the Court to determine how these governing principles apply in specific situations. To make this determination we ordinarily look to such things as the language of the constitutional provision itself, its purpose, the historical context in which it was written, the intentions of the framers, the application in prior judicial decisions, the relation of the provision to the law as a whole, the understanding of other branches of government, the law in other jurisdictions, state and federal, constitutional and legal theory, and fundamental values including justice and social policy. See, e.g., Brown v. Meyer, 787 S.W.2d 42, 45 (Tex.1990); Edgewood Indep. Sch. Dist. v. Kirby, 111 S.W.2d 391, 394 (Tex. 1989); State v. Project Principle, Inc., 124 S.W.2d 387, 390-91 (Tex.1987); Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 559-62 (Tex.1985); City of El Paso v. El Paso Community College Dist, 729 S.W.2d 296, 298 (Tex.1986); Tarrant County v. Ashmore, 635 S.W.2d 417, 42023
In applying article I, section 8 to the gag orders here, the Court attempts to follow this process as it ordinarily would, except that, consistent with its new approach, it expressly refuses to consider whether the orders violate the First Amendment. The Court tries to prove that article I, section 8 can be construed and applied completely independently of the First Amendment. To do this, the Court examines the history of article I, section 8, its text, and caselaw construing it. Its analysis of each of these three areas is seriously deficient, as I shall show before reviewing the Court's conclusions.
The Court recites a little history: that Stephen F. Austin was jailed and Lorenzo de Zavala hunted down for being outspoken; that provisions guaranteeing free speech were included in the first proposed Texas Constitution in 1833 and the constitutions of 1836, 1861, 1866, 1869 and 1876; that framers of these constitutions represented a "heterogenous miscellany of opinions" different from the framers of the U.S. Constitution; and that after debate at times vigorous on topics including secession, these framers rejected the free speech provision of the Tennessee Constitution, as well as a provision regarding speech injurious of female reputation libelous without regard to its truth and a provision conditioning free speech on good motives. The provision proposed for the Texas Constitution in 1833 stated:
Proposed Constitution for the State of Texas (1833) art. 16, reprinted in Documents of Texas History 80 (Ernest Wallace ed. 1963). This earlier proposal was virtually identical to the Tennessee provision rejected in 1876 by the Texas framers, except only that the latter was limited to citizens. Tennessee's Constitution, first adopted in 1796, provides:
Tenn. Const, art. XI, § 19 (1796) (reprinted in Benjamin Perley Poore, The Federal and State Constitutions, Colonial Charters and Other Organic Laws of the United States, Vol. 1 & 2 (2d ed. 1878)). The other two provisions which the Texas framers rejected would have imposed significant limitations on the right of free speech.
These interesting but casual historical notes, which the Court optimistically calls a "rather extensive historical discussion", ante, at 22, indicate that free speech has always been very important in Texas, something I have never supposed was in dispute, but say nothing about how article I, section 8 applies to gag orders, or why. There is a reason for the Court's shallow approach: it does not intend to be bound to any historical interpretation. Historical analysis is "only a starting point", the Court says; "[i]n no way must our understanding of its guarantees be frozen in the
The Court also examines the text of article I, section 8, pointing out the inescapable facts that the language is not identical to that of the First Amendment, that it is stated partly in the affirmative ("Every person shall be at liberty to speak") rather than entirely in the negative ("Congress shall make no law"), and that it appears toward the front of the constitution rather than at the end. These facts prove conclusively that the language of article I, section 8 is different from the First Amendment, something that is plain as day. The issue, however, is not whether there are differences, but what, if anything, those differences mean, and the Court's observations shed no light on this issue. The Court cannot substantiate its claim that the framers of the Texas Constitution "explicitly rejected" verbatim adoption of the First Amendment of the U.S. Constitution, but even if it could, we would not know what the framers intended in so doing.
The Court's contention that the language of article I, section 8 is "different" and "highly distinct" is misleading. Texas, like most states, appears to have derived its constitutional provision protecting the right to free speech from Blackstone, who articulated that right as follows: "Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity." 4 William Blackstone, Commentaries 152. By 1833, when a constitution was first proposed for Texas, 15 of the 24 states then in the United States had constitutional provisions protecting free speech in words similar to Blackstone's.
The close relationship between the free speech guarantees in the constitutions of Texas and many other states should not be surprising. The idea that freedom of speech is a fundamental right is not unique to Texas or any other state, but one inherent in our political structure and shared generally by the people of this nation. While the right has been described in somewhat different words at different times and places, the basic ideas certainly transcend state lines. Free speech is a national idea, not only a Texas idea. The Court's attempt to distinguish Texas free speech as significantly different from First Amendment free speech—and presumably also from New York free speech or California free speech—is not supported by the texts of the various guarantees.
The only serious effort the Court makes to determine how article I, section 8 should apply to gag orders is by examining our own precedents, and this effort, though flawed, is exhaustive. For it should be noted that in more than 150 years article I, section 8 has been mentioned in this Court's opinions in only 19 cases, and twice the reference was in a separate opinion.
Id. at 76 (emphasis added). Tucker did not ignore the First Amendment in its analysis of article I, section 8, as the Court has, nor did it differentiate the two provisions, as the Court attempts to do today. Rather, it linked them in two respects: they were founded on common experience, that of the English nation and the American colonies, and they were framed in "like words".
The other two cases which utilize article I, section 8 to invalidate prior restraints rely entirely upon Tucker. In Dallas General Drivers v. Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873, 879 (Tex.1956), the Court dissolved an injunction prohibiting striking employees from "uspng] ... insulting, threatening and indecent language" toward non-striking employees "without prejudice to the right of the trial court to reinstate it if future conduct of the [striking employees] should authorize it." Thus, the Court invalidated an injunction as a prior restraint but did not preclude the trial court from reissuing it if the circumstances warranted. This is certainly not a very broad reading of article I, section 8, and may well be narrower than the First Amendment. In Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex.1983) (per curiam), the Court dissolved an injunction prohibiting an owner from driving his car on which he had prominently labeled as a "lemon". Although the Court did not refer to the First Amendment, it also did not state that article I, section 8 afforded broader protection of speech.
Thus, all three of this Court's prior restraint cases have at least assumed a congruence between article I, section 8 and the First Amendment. The other two decisions of this Court in which article I, section 8 is discussed at all are Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989), and O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex.1988). The Court quotes Casso as stating that "our state free speech guarantee may be broader than the corresponding federal guarantee". Ante, at 9. What Casso actually said was:
These provisions must be given effect. While we may on occasion grant protections to defamation defendants beyond those required in the United States Constitution, as we have today in requiring public official and public figure plaintiffs to prove their actions against private defendants under the New York Times [Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)] standard, we have based those decisions on common law, not constitutional grounds.
Casso, 776 S.W.2d at 556 (emphasis added). The Court's quote is somewhat misleading. While Casso admits the "possibility" that article I, section 8 may contain a broader guarantee of free speech than the First Amendment, it also recognizes that the state provision expressly imposes responsibility for abusive speech, something which the First Amendment does not do. On the
These five decisions, Tucker, Dallas General, Hajek, Casso and O'Quinn, constitute the entirety of our article I, section 8 caselaw. As if they were hardly sufficient foundation for a rule governing gag orders, the Court also cites two court of appeals decisions, Amalgamated Meat Cut. v. Carl's Meat & Provision Co., 475 S.W.2d 300, 304 (Tex.Civ.App.—Beaumont 1971, writ dism'd w.o.j.), and Pirmantgen v. Feminelli, 745 S.W.2d 576, 578 (Tex. App.—Corpus Christi 1988, no writ), cases based upon both the federal and state provisions. Contrary to the Court's new approach in this case, both these cases rely in part upon the First Amendment. The last time this Court addressed a prior restraint was in Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202 (Tex.1981), where we invalidated the restraint based solely upon the First Amendment without alluding to article I, section 8. The Court does not cite Iranian. Two court of appeals decisions which the Court also does not cite expressly hold that "Texas constitutional provisions guaranteeing freedom of expression and assembly are coextensive with the corresponding federal guarantees". Puckett v. State, 801 S.W.2d 188, 192 (Tex.App.—Houston [14th Dist.] 1990), cert. denied,____U.S.____, 112 S.Ct. 606, 116 L.Ed.2d 629 (1991); Reed v. State, 762 S.W.2d 640, 644 (Tex.App.—Texarkana 1988, pet. ref'd), cert. denied, 493 U.S. 822, 110 S.Ct. 81, 107 L.Ed.2d 47 (1989). Reed adds, "and we will apply the same analysis and principles of construction in interpreting them." Id.
Finally, the Court refers to two opinions of our Court of Criminal Appeals, both of which held that newspaper publishers could not be held in contempt for publishing criminal trial testimony in violation of a court order. Both decisions were based upon article I, section 8. However, Ex parte Foster, 44 Tex.Cr.R. 423, 71 S.W. 593 (App.1903), disapproved on other grounds in Ex parte Winfree, 153 Tex. 12, 263 S.W.2d 154, 158 (1953), like Tucker, was decided before the First Amendment was applied to the states. And Ex parte McCormick, 129 Tex.Cr.R. 457, 88 S.W.2d 104, 106 (App.1935), relied upon both federal and state caselaw, and observed that the guaranty of article I, section 8 is also embodied in state constitutions and in the First Amendment. Neither case follows the Court's approach in this case of ignoring First Amendment law, and neither distinguishes article I, section 8 from the First Amendment.
The truth of the matter is that all our prior caselaw either assumes a close identity between the First Amendment and article I, section 8, or is silent on the subject. Not before today has this Court insisted that the two provisions are different in substance, and so much so that we should not even consider the former in construing the latter.
It is important to note that the Court does not tie its analysis of the gag orders in this case to the history of article I, section 8, or to its text, or to any prior caselaw. Rather, it states: "Since the dimensions of our constitutionally guaranteed liberties are continually evolving, today we build on our prior decisions by affirming that a prior restraint on expression is presumptively unconstitutional." Ante, at 10. By "continually evolving", the Court means that it is free to construe our constitution unconstrained by its history or any prior construction. "With this concept in mind," the Court adopts a test
Ante, at 10.
In deciding upon this test, the Court states that its analysis has been assisted by federal cases, and it cites two: Nebraska Press and Bernard. The Court criticizes both, although they both struck down the gag orders involved. Nebraska Press, it says, is a "fact specific" and "splintered" decision, ante, at 10, which is "too permissive", ante, at 11, and "does not ... sufficiently protect the rights of free expression that we believe that the fundamental law of our state secures", ante, at 10. The Court does not explain how Nebraska Press is any more fact specific than this case, or how it leaves fundamental rights unguarded. Bernard, the Court says, was decided "in the context of Rule 23(d) of the Federal Rules of Civil Procedure", ante, at 10 n. 16, "on a very splintered vote, and thereafter disregarded by the United States Supreme Court", ante, at 21, showing "[i]f anything, the admittedly unsettled nature of the federal law", ante, at 10 n. 16. The truth is, that while Bernard involved federal rule 23, it was decided on First Amendment grounds; that the "very splintered vote" was thirteen judges for the court's opinion, eight concurring, and one dissenting—not too different from our vote in this case; and that the U.S. Supreme Court affirmed the judgment of the Fifth Circuit without reaching the First Amendment issues. As for whether federal law is "admittedly unsettled", Bernard simply assembles and restates the holdings of a number of U.S. Supreme Court decisions in fashioning a test for gag orders.
As flawed as the Court considers Nebraska Press and Bernard to be, it is difficult to conceive how the Court can state a test for gag orders under article I, section 8 that is identical to Bernard's First Amendment standards. The presumption against the constitutionality of gag orders is the same. The first element of the Court's test—"an imminent and irreparable harm to the judicial process [that] will deprive litigants of a just resolution of their dispute"—is the same as Bernard's—"an imminent, not merely a likely, threat to the administration of justice", 619 F.2d at 474 (quoting U.S. v. Columbia Broadcasting System, Inc., 497 F.2d 102, 104 (5th Cir. 1974)), that "surely [will] result in direct, immediate, and irreparable damage", 619 F.2d at 473 (quoting International Soc'y for Krishna Consciousness, 601 F.2d at 833 (quoting New York Times, 403 U.S. at 730, 91 S.Ct. at 2149)). The second element of the Court's test—"the judicial action represents the least restrictive means to prevent that harm"—is also the same as Bernard`s—the gag order "`must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms' ", 619 F.2d at 476 (quoting CBS, 522 F.2d at 238). The Court's requirement that there be specific findings supported by evidence is the same as Bernard`s third condition that there be "procedural safeguards" including evidence and findings, 619 F.2d at 477 (quoting Southeastern Promotions, 420 U.S. at 559, 95 S.Ct. at 1246).
The identity between First Amendment standards for reviewing gag orders and the Court's new standards under article I, section 8 is a very remarkable result considering that the Court's opinion calls for "an independent standard under the Texas Constitution." Ante, at 11. After all, the two constitutional provisions have different authors, different words, and different histories, and according to the Court, they have been and should be treated separately. Although the Court professes not even to have considered the validity of the gag orders under the First Amendment, the
If the two constitutional provisions are really as different as the Court insists they are, it is a remarkable coincidence that the standards for applying them to gag orders happen to be identical. But if the standards really are the same, then there is no practical difference in the two provisions, contrary to the Court's insistence. Thus, the Court's analysis strains credulity and finally disproves its own thesis.
Without reference to the First Amendment, or to the hundreds of cases construing it, this Court attempts to formulate independent standards for applying the guarantee of free speech in article I, section 8 of the Texas Constitution to one form of prior restraints, gag orders like the ones in this case. The task is daunting, even though the law the Court attempts to create on its own is but a small part of what Americans have come to understand as freedom of speech. And in the end the Court fails in its efforts. Barely managing to cobble together a few fragments of history, obvious truisms about the constitutional language, exaggerated claims about its distinctiveness, and phrases taken out of context from a few of our cases, the Court produces a test that is identical to more fully developed First Amendment standards. The Court achieves the very end it sought to avoid—adoption of First Amendment standards—without admitting it.
Why? If state and federal constitutional law conflicted, or if federal law were undeveloped or nonexistent, an effort to expound state law might be productive. But these circumstances are not present here. The Court's effort in this case is like creating a new language in order to write a novel: it is possible to do it, but unnecessary when author and readers already share a common language. And one cannot help being skeptical of an author who claims to have written a book in a new language when the new language sounds a lot like English and the book reads a lot like Moby Dick.
Most of the Court's opinion today is devoted to a defense of its new method of constitutional analysis which examines the state constitution first, and if a right is found to be protected, never reaches the federal constitutional question. The Court derives this approach from developments in other jurisdictions and our own caselaw. Neither supports the Court's new methodology.
The Court claims that its new method of constitutional analysis is part of a "trend" that "has met with broad approval" and has been endorsed overwhelmingly by state and federal courts as well as commentators throughout the nation. Ante, at 12. These claims are greatly exaggerated. Certainly, there are a number of courts and commentators who have advocated an approach to state courts' decisions of constitutional issues like the one the Court uses today. But the thinking on the subject is not all one way, a fact which the Court attempts to minimize. The truth is that a substantial body of legal commentators disagrees
As the Court notes, many of the authorities I have cited support judicial reliance upon state constitutions. So do I. Contrary to the Court's assertions, I do not argue that state constitutions should be ignored, or that federal law always controls their construction. I contend only
To portray its new methodology in a more favorable light, the Court contrasts it with a misstatement of this opinion:
Rejecting our careful and detailed analysis of the development and interpretation of article one, section eight, the concurrence advances an alternative— Texas judges should follow, but never lead, federal jurisprudence..... [T]he Texas judge should never diverge from the path taken by the federal judiciary.... [Nothing] should obscure the obligation of adherence to federal authority.
Ante, at 21. This, of course, does not even remotely resemble any argument I make here. Federal authority cannot determine state constitutional construction, and I do not argue that it can or should. There may be circumstances in which article I, section 8 applies differently from the First Amendment, but none are present in this case. The Court adopts the same test for gag orders that has already developed in the federal courts, only it refuses to say so. I would simply acknowledge this source of authority and the fact that in this case at least there is no difference in the application of the First Amendment and article I, section 8.
The Court's attempt to focus constitutional analysis on state law to the exclusion of federal law is at odds with itself. If the Court acknowledges that the test for gag orders under federal law is identical to the test it adopts under article I, section 8, it can hardly claim that it has arrived at this test independently. If the Court refuses to acknowledge federal law, then it assumes the difficult task of constructing a state test from almost no precedent, only to arrive at the very conclusion federal law dictates. The Court's approach insists upon looking for differences between the state and federal constitutions when none can be found.
One extensive article surveying the thinking concerning "new federalism" explains some of the deficiencies in the Court's approach:
Several observers of recent state constitutional activism have argued that state constitutions should be regarded as the primary sources of individual rights and liberties and that state courts should interpret state constitutions without reference to "all the old, familiar shorthand" of federal constitutional law. According to this "primacy" model, the state court should consider assertions of federal constitutional rights only after all claims resting on state law have failed to provide the requested protections. The assumption underlying this model is that the states are the primary sovereigns and that state constitutions are the basic charters of individual liberties and of the limits of governmental authority. In this model, federal law, including the fourteenth amendment, provides only limited constraints on state autonomy.
The failing of the primacy model is that this assumption no longer resembles reality. Nor does it reflect the fact that litigants typically present state constitutional issues only when they expect an unfavorable federal constitutional result. Federal assumption of the dominant role in the federal system—and particularly
For state constitutional law to assume a realistic role, state courts must acknowledge the dominance of federal law and focus directly on the gap-filling potential of state constitutions. This interstitial role recognizes federal doctrine as a settled floor of rights and asks whether and how to criticize, amplify, or supplement this doctrine to yield more extensive constitutional protections. The state court's role is not to construct a complete system of fundamental rights from the ground up. [Footnotes omitted.]
Developments in the Law—The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. at 1356-1358; see also Stewart G. Pollack, State Constitutions as Separate Sources of Fundamental Rights, 35 Rutgers L.Rev. 707, 718.
It cannot be denied that there are rights protected by state constitutions that extend beyond those guaranteed by the United States Constitution. Many state constitutional provisions simply have no federal analogue. Three of the most important decisions this Court has ever issued were based upon such provisions. Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist, 826 S.W.2d 489 (Tex.1992); Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex.1991); Edgewood Indep. Sch. Dist. v. Kirby, 111 S.W.2d 391 (Tex.1989). In construing state constitutional provisions which have no federal counterpart, reference to federal law is usually of little utility.
When state and federal provisions overlap or correspond, state law, as well as federal law and the law of other states, may be helpful in analyzing their proper application. To ignore all federal constitutional law in construing state constitutional provisions guaranteeing rights common to both is as wrong as ignoring state constitutional provisions altogether. If nothing else, it is inefficient to blaze a trail through the wilderness when there is a perfectly good highway there already, built at considerable expense, and well traveled. But the problems of the Court's method run even deeper. The Court does not merely ignore federal law; it rejects it. And the rejection has a disturbing tone to it. "ur concerns are Texas concerns," the Court asserts, a viewpoint that cannot be very comforting to out-of-state parties litigating in Texas courts.
The Court's claim that Texas courts have "recognized the importance of our state constitution" for more than a century, ante, at 13, cannot be disputed. Certainly, if state courts have not recognized the importance of our state constitution, they should have. This does not mean, of course, that any Texas court has ever employed the constitutional analysis used by the Court today. If the Court's new analytical method had really been followed in Texas for 100 years, as the Court means to suggest, it would hardly need the major defense the Court attempts to provide in this case. Today's opinion is significant only because the Court's methodology has not previously been the accepted model in Texas. In five of the cases the Court cites, we applied provisions of our constitution which have no federal counterpart: In re Baby McLean, 725 S.W.2d 696, 698 (Tex. 1987) (article I, section 3a, equal rights
The Court's method is especially problematic in a case involving freedom of speech. As one commentator states:
There are good reasons for the state courts to look to federal law for guidance in the first amendment area, an area in which the issues now being addressed are intricate and difficult. The state courts are wrestling with essentially the same questions as the federal courts, and all approach those issues without a clear constitutional mandate. The states would therefore be foolish to ignore the convenient resource presented by the federal experience; an argument is no less persuasive because it relies upon or quotes an argument made elsewhere. Commentators who condemn state judiciaries for referring to federal doctrine when interpreting their own charters would force an irrational chauvinism on the state courts.
Developments in the Law—The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. at 1419 (emphasis added).
One argument the Court makes for its new method—avoidance of "unnecessary" federal review—is more subtle and requires more attention. The Court contends that its approach is more efficient because if a case is decided on state constitutional grounds, the United States Supreme Court cannot review it, and thus that Court's workload is reduced and the parties' dispute more quickly resolved. As evidence of the savings to be achieved using its approach, the Court cites a total of four decisions by state courts in the past seventeen years in which review by the United States Supreme Court could have been avoided. Even if it is assumed that all four cases could have been decided on state constitutional grounds unreviewable by the Supreme Court, reducing that Court's workload by four cases in 17 years would not measurably improve its efficiency. Nor do delays in so few cases over so long a period indicate a problem of any magnitude. Efficiency is not a very compelling basis for the Court's argument.
That autonomy, the Court recognizes, is accomplished not by the state constitution itself, but by the interpretation of the constitution by the state's highest court. And this brings us to what lies at the very heart of the Court's position: the Justices of this Court, and not the United States Supreme Court, should determine the people's fundamental rights, and if our determinations are unsatisfactory, we can be replaced. By way of illustration, the Court cites Ex parte Rodriguez, 39 Tex. 706 (1873), as an unpopular decision resulting in the removal of the Justices of this Court by the Governor. This is the real sense in which federal review is "unnecessary".
There are several difficulties with the Court's position. First, it weakens the validity of constitutionalism and the rule of law. The essence of constitutionalism is that certain principles, endorsed by the people, become fundamental rules of law. How these rules apply in changing circumstances is often disputed, and the judiciary in this country has taken upon itself the ultimate responsibility of resolving those disputes, beginning with Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). The people and the other branches of government have acquiesced in this delegation of responsibility in part, I think, because of their perception that the judiciary is bound in its construction and application of constitutional provisions by definite rules of law which preclude judges from substituting their personal policies for constitutional principles in the guise of construing those principles. Adherence to these rules is essential to the validity and the credibility of constitutionalism. For this reason, constitutional construction must be founded upon a careful construction of each provision's language, purpose, history and intent, as well as upon precedent, theory and fundamental values. If the analytical process is inadequate or flawed, the result may appear to be based primarily on the judge's policy preferences and not the constitutional principle itself. Chief Justice Hughes' observation cannot be avoided altogether: to some extent, at least, the constitution is what the judges say it is. Charles Evans Hughes, The Supreme Court of the United States 120 (1928). The statement continues to be true, not because of the fact that judges construe constitutions, but because of the way in which they do.
The Court decries the prospect that our constitution should "veer in meaning each time the United States Supreme Court issue[s] a new decision", but cites with approval the change in constitutional construction occasioned by the Governor's removal of the justices of this Court following Rodriguez. The problem is the same. If a court's constitutional determinations are not in a very real sense mandated by factors distinct from the personal policy views of the justices, constitutionalism is reduced to judicial tyranny. It is no answer to say that "unsatisfactory" constructions of the constitution can be corrected
The second difficulty with the Court's view that we should define fundamental constitutional rights without interference from outside the state is that it is premised on a one-dimensional view of those rights which is rarely accurate. If relator were constitutionally entitled to say whatever she pleased, this would be an easy case. But her right to speak freely is not absolute, under either the First Amendment or article I, section 8. In this case, relator's right conflicts with the district court's interest in protecting minor litigants, and the issue is whether the district court's interest warrants the restriction imposed on relator's right. This tension among competing rights and interests gives constitutional construction a multi-dimensional aspect. Thus, the Court's view that federal constitutional rights, which states cannot diminish, are a "federal safety net" is overly simplistic. Federal constitutional construction does not merely set minimum standards for protected rights which the states are free to increase; it strikes a balance among competing rights and interests that is itself of constitutional significance. While states may have more latitude in adjusting this balance than they do in reducing guaranteed protections, that latitude is not unlimited. State courts are not free from federal constitutional considerations in determining fundamental rights. The delicate balance among those rights and other interests must also be maintained.
Finally, the we-better-than-they argument evinces an inappropriate chauvinism toward the federal courts and other state courts. The concept of freedom of speech in this country did not originate in any one state, nor does any one court have a monopoly on its application. As it happens, the federal courts have been at construing the First Amendment much longer and far more often than Texas courts have had occasion to consider article I, section 8. The federal courts' experience in defining the contours of freedom of speech ought to be invaluable. To ignore it simply because we can is both imprudent and arrogant.
Having reviewed the Court's decision, the basis offered for it, and the defense of its new analytical method, I return to the question posed at the beginning: why should the Court go so far out of its way to invalidate the gag orders in this case on state constitutional grounds? The answer has nothing to do with the result in this case. We are unanimous in our judgment as to the outcome. The answer is not that relator's state and federal constitutional rights are different. So far as this case is concerned, they are identical. The Court's motives are ulterior. One commentator has observed that "some critics have argued that virtually all New Federalism proponents are motivated by the bare desire to achieve a liberal political agenda". Gardner, supra note 10, at 772. Whether the agenda is "liberal" or "conservative" or something else altogether makes no difference. The vice is that a non-legal influence has been brought to bear on judicial decision making. This is not "new federalism"; it is "new judicialism". The Court by its opinion today is vulnerable to this charge.
Relator complains that she and others have been denied access to court files concerning the pending litigation. She requests that the district court be ordered not to deny her access to these records. There are several affidavits before us, some tending to substantiate relator's position
The Court rightly concludes that we cannot resolve factual disputes in a mandamus proceeding and therefore cannot grant relator's request for relief. The Court is not content to leave the matter at that, however, lest any doubt linger as to the result it intends. Thus, it adds that if the district court did restrict access to its files, it abused its discretion and violated Tex. R.Civ.P. 76a; that "there should be no impediment to viewing the court records"; that the district court should make all its records open and available to the public; and that if "[r]elator should find her access to the records in any way obstructed," she may seek additional relief. Ante, at 24. This last statement assumes that relator's access to court files has been restricted, contrary to the Court's conclusion that it cannot and has not made that determination. This rather obvious flaw aside, the Court's writing strike me as fairly heavyhanded nudging.
Rule 121(a)(2)(C), Tex.R.App.P., requires that a certified or sworn copy of the order complained of be attached to a petition for mandamus. No such order is attached to relator's petition in this case, nor, as noted above, is one alleged to exist. If relator believed that her access to court records had been informally restricted by the district court, she should have moved for access, requested a hearing, and either obtained a ruling from the court or a record reflecting the court's refusal to rule. Without a written order or a court's refusal to issue one, this Court should neither issue mandamus nor comment on the merits of relator's complaint.
I agree with the Court that the district court did not abuse its discretion in removing relator as guardian ad litem of the minor plaintiffs. A guardian ad litem may be appointed for a ward only if the ward's next friend or guardian has an interest adverse to the ward's. Tex.R.Civ.P. 173.
The best interest of a ward is sufficient cause for the trial court to replace one guardian ad litem with another. A particular guardian ad litem must be removed or replaced if the ward's best interest requires. See Barrow v. Durham, 574 S.W.2d 857, 861 (Tex.Civ.App.—Corpus Christi 1978), affd, 600 S.W.2d 756 (Tex. 1980) (if guardian's interests are adverse to those of child, then it is abuse of discretion for trial judge not to appoint a new guardian ad litem); Peters v. Allen, 296 S.W. 929, 932 (Tex.Civ.App.—San Antonio 1927, no writ) ("if the trial court sees that the ward's interest is not properly protected, it
The law presumes that it is not in the ward's best interests for a guardian ad litem to supplant an otherwise qualified parent, next friend or guardian. Even if the guardian ad litem were a more effective representative for the ward, the rights of parents, next friends and guardians cannot be set aside in this manner. Furthermore, the service of a guardian ad litem is a burden on the parties to a case. That burden is necessary when the ward's rights cannot legally be served by a parent, next friend or guardian with conflicting interests. The burden is unjustified, however, when those conflicting interests do not exist.
In the present case, the district court determined that no further conflicts of interest exist among the minor plaintiffs and their parents, next friends or guardians who would otherwise represent them in the litigation. The court explicitly stated in its order removing the guardian that because there was "no apparent conflicting or adverse interests between the Next Friends and minors ... the appointment and retention of a Guardian Ad Litem [was] not necessary." All the parties in this latter category have settled their claims in the litigation; only the minors' claims remain. Not only are the parents and others now qualified to represent the minor children, they are entitled to do so without interference from a guardian ad litem.
* * * * * *
For these reasons, I concur only in the Court's judgment.
Alexander M. Bickel, The Morality of Consent 61 (1975).
In Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.1980), the federal authority upon which the concurrence rests almost its entire analysis, the trial judge prohibited the plaintiffs and their attorneys in a class action from communicating with any potential class members without court approval. The Fifth Circuit held that, in the context of Rule 23(d) of the Federal Rules of Civil Procedure, the order was violative of the First Amendment. Id. at 475-78.
The majority recognized that as to the first prong of its test, "[a]t least three [Supreme Court] justices may have rejected even that standard as overly lenient." Id. at 473. A concurrence characterized the "majority's first amendment analysis [as a] needless excursion into a difficult and little-explored area of constitutional law." Id. at 481 (Tjoflat, J., concurring). If anything, the admittedly unsettled nature of the federal law reflected in these writings supports development of an independent standard under the Texas Constitution. See also infra, text accompanying notes 59-63.
Many of the articles listed by the concurrence as opposed to this method in fact support judicial reliance on state constitutions. See, e.g., Robert F. Utter, Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds, 63 Tex.L.Rev. 1025, 1050 (1985) (hereinafter Utter, State Court Comment) (while noting the usefulness of "comment" on federal law, concluding that "a state supreme court should ... embark upon the interpretation of its own constitution, relying on it to protect the rights of its citizens"); Donald E. Wilkes, Jr., First Things Last: Amendomania and State Bills of Rights, 54 Miss. L.Rev. 233, 257 (1984) (describing as "alarming" the attempt "to curtail state court protection of individual rights"); Robert F. Williams, State Constitutional Law Process, 24 Wm. & Mary L.Rev. 169, 190 (1983) (urging state courts "to develop truly independent state constitutional jurisprudence"); Developments in the Law—The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1498 (1982) ("It is vital that the [United States] Supreme Court's interpretation of the federal Constitution control federal constitutional law; it is not only unnecessary but also irrational that it control state law as well."); Ronald K.L. Collins, Commentary, Reliance on State Constitutions—Away from a Reactionary Approach, 9 Hastings Const. L.Q. 1, 2 (1981) (the "rediscovery of state constitutions is certainly a good omen for a nation conceived in federalism"); Martha Craig Daughtrey, State Court Activism and Other Symptoms of the New Federalism, 45 Tenn.L.Rev. 731, 736 (1978) (praising the "growing number of high state courts" that have accorded broader protections than are available under the federal Constitution). See also infra, notes 33 & 36.
What the concurrence really urges today is that we overrule the enlightened thinking of LeCroy regarding the "independent vitality" of our constitution and discard an entire series of rulings by this court.
The opposite view taken by the concurrence receives support from Professor Gardner, who argues that "Americans are now a people who are so alike from state to state; and whose identity is so much associated with national values and institutions, that the notion of significant local variations in character and identity is just too implausible to take seriously." James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich.L.Rev. 761, 818 (1992) (hereinafter Gardner, Failed Discourse). He adds his "belief that "few Americans identify themselves with a community purporting to embrace an entire state." Id at 835. When contrasted with the just pride that our citizens feel in being Texans, perhaps this very writing by an Associate Professor at the Western New England College School of Law demonstrates how truly diverse this nation remains. Texans value our institutions and heritage, and our citizens would certainly dispute that their concerns are identical to those of the people of Rhode Island or North Dakota. Unlike the concurrence, we share the view of Woodrow Wilson, who observed that ours is "a singularly various country." Woodrow Wilson, The Political Thought of Woodrow Wilson 130-31 (E. David Cronon, ed. 1965) (hereinafter Woodrow Wilson, Political Thought).
Id. at 819-20 (emphasis added). He continues that "[t]he stories to which [state constitutions] lend themselves are not stories of principle and integrity, but stories of expediency and compromise at best, foolishness and inconstancy at worst." Id at 822. Rather than lending credence to this position with a lengthy response, we let our opinion today stand as an example of the effective role that a carefully crafted and well-grounded state constitution can play. To accept the proposition that our constitution is simply a thing of frivolity is to erase well over a century of history and of law as well as to undermine the very foundation of this court.
[T]he rule is ... imperative that constitutions and statutes are to be liberally and scrupulously construed with reference to that supreme consideration—the free and effective expression of the will of the body of electors. A Principle That Should Govern, Galveston Daily News, Jan. 3, 1874 at 1, col. 1 (emphasis added).
[I]t is an abandonment of the elementary law of State government in this Union to place the right of local self government subject to the national authority.... [T]o declare that the national authority (which means, if anything, the party temporarily in power) shall authorize or inhibit the people of Texas from managing their local affairs is a step toward centralism ... further than the people of any State have ever dreamed of going.
Address of Delegate Flournoy, in Ratify, Galveston Daily News, Dec. 19, 1875, at 2, col. 5.
William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977).
834 S.W.2d at 30 (emphasis added).
At oral argument, Relator contended that "[t]he gag order itself goes far beyond any of the well established principles established by this court under article I, section eight of the Texas Constitution, and the First Amendment." Responding to Justice Hecht (prior to the "colloquy" quoted in the concurrence) counsel again stated that "what the First Amendment teaches us and what the Texas Constitution says even more for us is you let the speaker speak at his or her own peril." (emphasis added).
In truth, the parties presented us with as much—or as little—state constitutional law as they did federal. Indeed, there is no preargument mention of Bernard, upon which near exclusive reliance is now placed by the concurrence.
I do not suggest that relator should be disciplined, only that the rules of professional conduct address the propriety of attorneys' extrajudicial statements during pending litigation. Cf. Gentile v. State Bar of Nevada,____U.S.___, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991).
To evade this fact, the Court states that this opinion's description of the record is a "selective presentation" which "overlooks" that some of the papers relator filed in this proceeding "encompassed" state constitutional claims, and cites three references. Ante, at 23 n. 68. One of them, relator's second request for emergency interim relief, was filed after oral argument. when relator had been urged to raise a state claim. Another, relator's original petition in this Court, states only that the gag orders "violate[ ] her own Constitutional rights", without mentioning the Texas Constitution. The last reference is to relator's brief, which I have quoted above. About the most that can be said is that the contentions relator made in the papers filed before oral argument are not inconsistent with a claim under the Texas Constitution.
Apart from the colloquy quoted, the Texas Constitution was referred to at oral argument exactly three times, twice by relator's counsel, and then once by counsel for some of the real parties in interest, as follows:
"The gag order goes far beyond any of the well established principles established by this Court under article I, section 8 of the Texas Constitution, and the First Amendment, and the decisions of the U.S. Supreme Court implementing it."
"And what the First Amendment teaches us and what the Texas Constitution says even more for us is you let the speaker speak at his or her peril."
"I think that in terms of the Texas Constitution and the U.S. Constitution that there are cases and instances in which a judge in the course of a trial can say, "I don't want y'all talking to the newspapers."
Conn.Const. art. I, § 5 (1818): "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty."
Del.Const. art. I, § 5 (1831): "... any citizen may print on any subject, being responsible for the abuse of that liberty."
IllConst. art. XIII, § 22 (1818): "The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty."
Ind.Const. art. I, § 9 (1816): "The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty."
Ky.Const. art. X, § 7 (1799): "The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely and fully speak, write, and print on any subject, being responsible for the abuse of that liberty."
LaConst. art. VI, § 21 (1812): "The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty."
Me.Const. art. I, § 4 (1820): "Every citizen may freely speak, write, and publish his sentiments on any subject, being responsible for the abuse of this liberty."
Mo.Const. art. XIII, § 16 (1820): `That the free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write, and print on any subject, being responsible for the abuse of that liberty...."
N.Y.Const. art. VII, § 8 (1821): "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right...."
Ohio Const, art. VIII, § 6 (1802): "Every citizen has an indisputable right to speak, write, or print upon any subject as he thinks proper, being liable for the abuse of that liberty."
Pa. Const, art. IX, § 7 (1790): `The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty."
Tenn. Const, art. XI, § 19 (1796): "The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty."
See Benjamin Perley Poore, The Federal and State Constitutions. Colonial Charters and Other Organic Laws of the United States, Vol. 1 & 2 (2d ed. 1878).
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1076-77, 71 L.Ed.2d 152 (1982), does not hold that the Texas Constitution does afford broader protections than the U.S. Constitution, only that it might: "the language of the Texas constitutional provision [guaranteeing due course of law and equal protection] is different from, and arguably significantly broader than, the language of the corresponding federal provisions" (emphasis added).
Several of the cases cited, some only to separate opinions, expressly consider federal as well as state constitutional law: Ravin v. State, 537 P.2d 494, 500, 504 (Alaska 1975); People v. Brisendine, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099 (1975); Burrows v. Superior Court of San Bernardino County, 13 Cal.3d 238, 118 Cal.Rptr. 166, 171, 529 P.2d 590, 595 (1974); People v. Rolfingsmeyer, 101 Ill.2d 137, 77 Ill.Dec. 787, 789, 461 N.E.2d 410, 412 (1984); State v. Hunt, 91 N.J. 338, 450 A.2d 952, 955 (1982); O'Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 2, 523 N.E.2d 277, 278 (1988) ("Our decision is based on an adequate and independent ground under our State Constitution. Nevertheless, we are noting our agreement with the Federal courts that have reached the same result under the Federal Constitution in order that we might express our own view of the federal guarantee of a free press which, of course, we are also bound to uphold. This practice is in accord with our proper role in helping to expound the Federal, as well as our State, Constitution and, as some of the commentators have explained, it contributes to the development of a body of case law of potential use to federal and other state courts____"); City of Hillsboro v. Purcell, 306 Or. 547, 761 P.2d 510, 512-13 (1988); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 892-893 (1991); Farmers New World Life Ins. Co. v. Bountiful City, 803 P.2d 1241, 1247 (Utah 1990); State v. Larocco, 794 P.2d 460, 464-65 (Utah 1990); State v. Jewett, 146 Vt. 221, 500 A.2d 233, 235 (1985) ("It would be a serious mistake for this Court to use its state constitution chiefly to evade the impact of the decisions of the United States Supreme Court. Our decisions must be principled, not result-oriented.").
Three cases involved state constitutional provisions without a federal counterpart. Colorado Civil Rights Comm., 759 P.2d 1358, 1363-65 (Colo. 1988) (equal rights amendment); In re T.W., 551 So.2d 1186, 1190 (Fla.1989) (express constitutional provision guaranteeing an independent right to privacy); State v. Beno, 116 Wis.2d 122, 341 N.W.2d 668, 674-75 (1984) (federal constitutional provision by its express language could not apply to state legislators).
Even Justice Brennan, often credited with founding state constitutionalism theory, does not argue that state courts should ignore the federal constitution. William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U.L.Rev. 535 (1986).
Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Tex.L.Rev. 977 (1985), describes the method the Court uses but does not indorse it.