An attorney's Web site advertised her success in two cases raising issues similar to those she was about to try here. The trial court admonished the jury not to "Google" the attorneys or to read any articles about the case or anyone involved in it. Concerned that a juror might ignore these admonitions, the court ordered the attorney to remove for the duration of trial two pages from her Web site discussing the similar cases. We conclude this was an unlawful prior restraint on the attorney's free speech rights under the First Amendment. Whether analyzed under the strict scrutiny standard or the lesser standard for commercial speech, the order was more extensive than necessary to advance the competing public interest in assuring a fair trial. Juror admonitions and instructions, such as those given here, were the presumptively adequate means of addressing the threat of jury contamination in this case.
Although the order was improper, it is no longer in effect and thus no relief can be granted. We deny the petition for writ of mandate.
FACTS AND PROCEDURAL BACKGROUND
Richard and Christie Steiner filed this personal injury action after Richard Steiner contracted lung cancer. They alleged his cancer was caused by
The Steiners argued that the request infringed upon counsel's constitutional right of free speech and that the more appropriate remedy was to admonish the jury not to search the Internet for information about the attorneys. The trial court, however, granted the motion at a hearing on August 22, 2011. After the parties expressed confusion over the scope of the order, the court clarified: "I had intended the decision here to be surgical. I was [not] directing [Ms. Farrise to] take down her whole website by any stretch of the imagination. It was the items that the Defense had pointed to that I was directing my thoughts to. [¶] Maybe I wasn't as clear as I should have been, but that's all. I wasn't asking you to do anything more than just take [down] the comments that the Defense pointed to in their motion, which was, I thought, very specific."
The trial court admonished the jurors not to Google the attorneys. It also gave the standard admonishments prior to opening statements. Those admonishments are not part of the record, but at the time they were given, CACI No. 100 stated: "During the trial, do not read, listen to, or watch any news reports about this case.... This prohibition extends to the use of the Internet in any way, including reading any blog about the case or about anyone involved with it or using Internet maps or mapping programs or any other program or device to search for or to view any place discussed in the testimony."
The Steiners, Farrise and her law firm (collectively petitioners) sought a writ of mandate in this court seeking to reverse the trial court's order requiring Farrise "to take down part of her firm's website during the
Thereafter, petitioners sought review of our denial in the California Supreme Court. In their petition for review, they changed the basis for their claim and represented to the Supreme Court that the trial court had ordered Farrise "to take down her firm's entire website during the trial of this case in order to assure that the jurors do not view it." (Original italics.) The petition for review stated that "[e]ven if the order were limited to the website's discussion of other cases, it would be an unreasonable and unnecessary prior restraint and would violate [counsel's] free speech rights. But the order is not so limited: It requires that [counsel] take down her entire website, even with respect to speech wholly unrelated to any other asbestos litigation." (Original italics.) This claim contradicts the claim made to this court and is unsupported by the record. A few days later, the Supreme Court granted review and transferred the matter to this court with instructions to issue an order to show cause. We complied. We also asked petitioners to explain the discrepancies in the petitions regarding the scope of the trial court's order.
Petitioners conceded the trial court did not order Farrise to take down the entire Web site and that only the two pages specified in the motion were removed. The petition for review improperly and erroneously stated otherwise. The trial court resolved any supposed ambiguity in its order when, before the matter came to this court, it stated: "I was only directing, not to have [Ms. Farrise] take down her whole website by any stretch of the imagination. It was the items that the Defense had pointed to that I was directing my thoughts to."
Farrise restored the two pages to her firm Web site when the trial ended in October 2011. Volkswagen moved to discharge the order to show cause as moot. We deferred resolution of the motion until the show cause hearing.
A. Public Interest Exception for Mootness
Petitioners concede the writ petition is moot, but contend this matter falls within the public interest exception to the doctrine of mootness. (See MHC, supra, 106 Cal.App.4th at pp. 214-215; In re William M. (1970) 3 Cal.3d 16, 23 [89 Cal.Rptr. 33, 473 P.2d 737] ["[I]f a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot."].) Petitioners assert that by granting review, the Supreme Court ordered us to decide "whether a court can or should order an attorney to remove any website postings that do not relate to the case pending before the court." This point is debatable given that the petition for review represented that the trial court ordered removal of Farrise's entire law firm Web site during trial. An order of that magnitude would have exceeded the scope of requested relief, among other things.
The actual order is much narrower, but it does raise questions as to a trial court's authority to issue an order restricting an attorney's free speech rights during trial to prevent potential jury contamination. Because any order restricting such speech during trial is likely to become moot before a writ petition can be heard, we agree it raises an issue of broad public interest that is likely to evade timely review. (See Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 546-547 [49 L.Ed.2d 683, 96 S.Ct. 2791] (Nebraska Press) [prior restraint on speech via pretrial order evades review because of its inherently short duration].) We therefore deny Volkswagen's motion to discharge the order to show cause as moot and exercise our discretion to reach the petition's merits.
B. Unlawful Prior Restraint on Free Speech
Relying upon Gentile v. State Bar of Nevada (1991) 501 U.S. 1030 [115 L.Ed.2d 888, 111 S.Ct. 2720] (Gentile), Volkswagen contends that whenever an attorney's exercise of free speech potentially conflicts with a party's right to a fair trial, the trial court may reasonably impose a prior restraint on such speech. Gentile reviewed an order holding that a criminal defense attorney, who had made comments to the media concerning his client's innocence, had violated a Nevada disciplinary rule limiting an attorney's extrajudicial statements that have a "`substantial likelihood of materially prejudicing'" the trial. (Id. at p. 1034.) One of the issues was whether a stricter standard, such as the "`clear and present danger'" test, should apply when addressing the speech of attorneys commenting on pending criminal proceedings. (Id. at pp. 1070-1071.) The plurality opinion, authored by Chief Justice Rehnquist, concluded the lesser standard in the Nevada rule passed constitutional muster. (Id. at p. 1075.) It explained that "[l]awyers representing clients in pending cases are key participants in the criminal justice system, and the State may demand some adherence to the precepts of that system in regulating their speech as well as their conduct." (Id. at p. 1074.)
The matter before us does not involve the constitutionality of a state disciplinary rule regulating speech by attorneys in criminal proceedings. It involves the constitutionality of a single court order prohibiting an attorney in a civil proceeding from publishing speech about two other civil cases. Gentile did not discuss a trial court's authority to issue an order restricting an
1. Standard of Judicial Scrutiny
2. Application of Central Hudson
"The party seeking to uphold a restriction on commercial speech carries the burden of justifying it." (Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 71, fn. 20 [77 L.Ed.2d 469, 103 S.Ct. 2875].) Volkswagen asserts the restraint was proper under the first prong of the Central Hudson test because the challenged speech was misleading. (Central Hudson, supra, 447 U.S. at p. 566; Bates v. State Bar of Arizona (1977) 433 U.S. 350, 383 [53 L.Ed.2d 810, 97 S.Ct. 2691] ["[a]dvertising that is false, deceptive, or misleading of course is subject to restraint"].) It claims the two Web pages omitted pertinent information, such as that a settlement in one case resulted in the dismissal of all claims against Ford, and that another defendant secured a defense verdict. Volkswagen ignores, however, that it did not seek removal of the pages to prevent deceptive or misleading advertising. It sought removal to deny the jury access to the pages until the trial was over. Volkswagen presented no evidence or argument demonstrating the pages were subject to restraint as misleading advertising, and the trial court made no such finding. Thus, we have no basis to make that determination here.
Turning to the second prong, the parties agree that a substantial governmental interest exists in assuring the parties receive a fair trial. (See Maggi,
It is well established that "frequent and specific cautionary admonitions and jury instructions ... constitute the accepted, presumptively adequate, and plainly less restrictive means of dealing with the threat of jury contamination." (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1221 [86 Cal.Rptr.2d 778, 980 P.2d 337] (NBC Subsidiary).) In NBC Subsidiary, our high court "stressed [its] adherence to the fundamental premise that, as a general matter, cautionary admonitions and instructions serve to correct and cure myriad improprieties, including the receipt by jurors of information that was kept from them. To paraphrase Justice Holmes, it must be assumed that a jury does its duty, abides by cautionary instructions, and finds facts only because those facts are proved." (Id. at pp. 1223-1224, citing Aikens v. Wisconsin (1904) 195 U.S. 194, 206 [49 L.Ed. 154, 25 S.Ct. 3].)
Although it applied strict scrutiny, Freedom Communications, Inc. v. Superior Court (2008) 167 Cal.App.4th 150 [83 Cal.Rptr.3d 861] (Freedom
The court emphasized that less restrictive alternatives were available to protect the plaintiffs' fair trial rights, including admonishing witnesses not to read press accounts of the trial. (Freedom Communications, supra, 167 Cal.App.4th at p. 154.) It remarked that "such an admonishment would go farther in preventing the tainting of witness testimony because the gag order applies only to [the defendant newspaper] and not to other newspapers that cover the trial." (Ibid.) The same is true here. Although the trial court's order required Farrise to remove information from her Web site regarding prior verdicts involving Ford, it did not apply to any other Web sites discussing such verdicts. Thus, the trial court's admonitions not to research the parties or their attorneys did more to prevent potential jury misconduct than the removal of some of the available information on the Internet. (See ibid.)
Volkswagen cites no authority suggesting that a prior restraint of speech, whether commercial or otherwise, is the appropriate means of handling the threat of jury contamination. It maintains that while juror admonishments may have been sufficient to prevent juror misconduct in the past, they are no longer effective in today's world of 24-hour news, Google, Twitter and the Internet. It emphasizes that "jurors' ready access to information ... has vastly increased the risk of prejudice from extrajudicial sources and has seriously weakened courts' ability to filter or control the flow of information." (See, e.g., Russo v. Takata Corp. (S.D. 2009) 2009 SD 83 [774 N.W.2d 441, 452, 454] [juror's brief discussion with fellow jurors about his "Google search" results indicating "there were no other lawsuits against" the defendant seatbelt manufacturer was prejudicial and warranted vacation of defense verdict]; Amey, Social Media and the Legal System: Analyzing Various Responses to using Technology from the Jury Box (2010) 35 J. Legal. Prof. Ill, 130 ["`[I]t is unlikely that judges or lawyers will be able to eliminate juror misuse of the Internet, and they should adjust to a world in which control of information to or from jurors is much less effective than it was before the advent of Google, Facebook and the next emerging technology.'"]; Artigliere, Sequestration for the Twenty-First Century: Disconnecting Jurors from the Internet During Trial (2011) 59 Drake L.Rev. 621 ["Judges and trial lawyers around the country are shocked by court systems' apparent inability to control the behavior of jurors."].)
The first line of defense against juror legal research is "to address the issue in jury instructions." (Morrison, Can the Jury Trial Survive Google? (Winter 2011) 25 Crim. Just. 4, 14.) As one state court observed, "given the simplicity, speed, and scope of Internet searches, allowing a juror to access with ease extraneous information about the law and the facts, trial judges are well advised to reference Internet searches specifically when they instruct jurors not to conduct their own research or investigations." (Commonwealth v. Rodriguez (2005) 63 Mass.App.Ct. 660 [828 N.E.2d 556, 568, fn. 11]; see Comment, Silencing the `Twittering Juror': The Need to Modernize Pattern Cautionary Jury Instructions to Reflect the Realities of the Electronic Age (Fall 2010) 60 DePaul L.Rev. 181, 186 ["The traditional prohibition against external communication and outside research must be rewritten to meet the demands of the twenty-first century."].)
Consistent with this view, our Legislature enacted Statutes 2011, chapter 181, clarifying that jurors may not use social media and the Internet — such as texting, Twitter, Facebook and Internet searches — to research or disseminate information about cases, and can be held in criminal or civil contempt for
Among other things, the law amended Code of Civil Procedure section 611 to require the trial court to admonish the jury "that the prohibition on research, dissemination of information, and conversation applies to all forms of electronic and wireless communication." It also amended Penal Code section 166, subdivision (a)(6) to provide that a juror may be guilty of a misdemeanor for "[w]illful disobedience ... of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research."
The adoption of these amendments underscores that trial courts are appropriately focusing on tougher admonition rules and contempt consequences, rather than on trying to restrain speech on the Internet. This is particularly true where, as here, the speech does not directly concern the case before the court. It also is consistent with the tenet that admonitions are the presumptively reasonable alternative to restricting free speech rights. (NBC Subsidiary, supra, 20 Cal.4th at p. 1221; Freedom Communications, supra, 167 Cal.App.4th at p. 154.)
The trial court's order constituted an unlawful prior restraint on Farrise's constitutional right to free speech. Because the order is no longer in effect, the trial court need not take any action. Having served its purpose, the order to show cause is discharged and the petition for writ of mandate is denied. The parties shall bear their own costs.
GILBERT, P. J., and YEGAN, J., concurred.