UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-30756
UNITED STATES OF AMERICA,
Plaintiff,
VERSUS
CARL W. CLEVELAND, ET AL,
Defendants,
TIMES PICAYUNE PUBLISHING CORPORATION;
MICHAEL PERLSTEIN; CAPITAL CITY PRESS; JOE GYAN,
Intervenors-Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
October 29, 1997
Before GARWOOD, DUHÉ, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
The Times-Picayune Publishing Corporation (publisher of the
New Orleans Times-Picayune), Capital City Press (publisher of the
Baton Rouge Advocate), Michael Perlstein (a Times-Picayune
reporter), and Joe Gyan (an Advocate reporter) (collectively, “the
newspapers”) complain that an order entered in the United States
District Court for the Eastern District of Louisiana
unconstitutionally restricts their ability to pursue post-verdict
interviews with jurors in a high-profile criminal trial. Finding
no error, we affirm.
I.
This appeal arises from a federal criminal trial of six
defendants for racketeering and related offenses. The alleged
crimes arose from attempts to influence legislation affecting the
video poker industry in Louisiana. The defendants included two
former Louisiana state senators, and the witnesses included an
archbishop and a former governor. The trial attracted close
attention from the Louisiana press. On June 27, 1997, after a six-
week trial and eight days of jury deliberation, four defendants
were convicted on some counts and acquitted on others; two
defendants were acquitted of all charges.
After the jury rendered its verdict, United States District
Judge Sarah S. Vance addressed the jury. During a monologue in
which she thanked the jurors for their service, she issued the
following order:
I now instruct you that you have no obligation to
speak to any person about this case. I also
instruct you that, absent a special order by me, no
juror may be interviewed by anyone concerning the
deliberations of the jury. I also instruct you
that the lawyers and the parties are not to attempt
to question you without an order from me.
(Emphasis supplied.)
Eighteen days later, on July 15, 1997, the newspapers appeared
before the court. They filed a motion to modify the above-
-2-
described order, contending that the italicized portion thereof
violates their right to gather news and that it is
unconstitutionally vague. On July 22, 1997, Judge Vance issued an
opinion declining to modify her order.
On July 31, 1997, the newspapers filed an emergency motion
with this Court for an expedited appeal from the decision of the
district court. That motion was granted.
II.
The newspapers claim that their First Amendment “right to
gather news” has been compromised by Judge Vance’s order and rely
principally on In re The Express-News Corp., 695 F.2d 807 (5th Cir.
1982). In Express-News this Court held that a “court rule cannot
. . . restrict the journalistic right to gather news unless it is
narrowly tailored to prevent a substantial threat to the
administration of justice.” Express-News, 695 F.2d at 810. The
order entered by Judge Vance in this case is sufficiently narrow to
satisfy the requirement of Express-News.
In Express-News, the district court had applied its local rule
which provided “that no person shall ‘interview . . . any juror,
relative, friend or associate thereof . . . with respect to the
deliberations or verdict of the jury in any action, except on leave
of court granted upon good cause shown.’” Id. at 808 (omissions in
original). In striking down the rule, this Court identified a
number of factors which made it offensive:
The rule is unlimited in time and in scope,
applying equally to jurors willing and anxious to
-3-
speak and to jurors desiring privacy, forbidding
both courteous as well as uncivil communications,
and foreclosing questions about a juror’s general
reactions as well as specific questions about other
jurors’ votes that might, under at least some
circumstances, be inappropriate.
Id. at 810. Express-News also expressed concern that the order in
that case “implicitly sanction[ed] juror[s’] conversations with
their relatives, friends, and associates.” Id. The order entered
by Judge Vance shares very little with the unconstitutional order
entered in Express-News.
First, although unlimited in time, the scope of Judge Vance’s
order is more limited than that in Express-News. It applies only
to interviews with the jurors themselves and not those with jurors’
relatives, friends, or associates. Also, it applies only to
“deliberations of the jury” and not to the verdict itself. The
fact that the order was unlimited in time is not, in itself,
dispositive, as we approved the use of restrictions without time
limitations in United States v. Harrelson, 713 F.2d 1114 (5th Cir.
1983), cert. denied, 465 U.S. 1041 (1984).
Furthermore, though Judge Vance’s order “appl[ies] equally to
jurors willing and anxious to speak and to jurors desiring privacy,
forbidding both courteous as well as uncivil communications,” the
presence of these factors is not dispositive of our inquiry.
Express-News suggests that in some cases instructions meeting this
description will be unconstitutional because they are broader than
necessary to justify the restriction of newsgathering rights in
light of some other countervailing consideration. However, the
present case is distinguishable from the run-of-the-mill criminal
-4-
trial in this regard because there was a great amount of media
coverage of the trial from start to finish. See, e.g., Harrelson,
713 F.2d at 1117; United States v. Antar, 38 F.3d 1348, 1364 (3d
Cir. 1994). This factor justifies the imposition of the order
entered in this case without regard to the willingness of the
jurors to be interviewed or the civility of the reporters seeking
to conduct interviews.
The order entered by Judge Vance does not foreclose “questions
about a juror’s general reactions,” as did the order in Express-
News. The newspapers have argued that the use of the term
“deliberations” is imprecise and might be construed by jurors
wishing to speak as extending to their individual reactions to the
trial proceedings occurring in open court. We disagree. The
restriction of post-verdict interviews concerning “jury
deliberation” was expressly endorsed by this Court in Harrelson.
See Harrelson, 713 F.2d at 1118. As contemplated by Harrelson and
as used in Judge Vance’s order, “deliberations” refers only to the
discussions about the case occurring among jurors within the
sanctity of the jury room. A juror in this case may be interviewed
about his own “general reactions” to the trial proceedings, and he
is only prevented from being interviewed about the private debates
and discussions which took place in the jury room during the time
leading up to the jury’s rendering of its verdict.
The order entered by Judge Vance does not purport to prevent
jurors from speaking out on their own initiative. It thus does not
raise the concern expressed in Express-News that an order limiting
-5-
post-verdict interviews might implicitly sanction jurors’
conversations with their relatives, friends, and associates. A
juror who wishes to do so may make a statement.
Finally, Judge Vance’s order does not require “good cause
shown,” as did the order in Express-News. As the opinion in
Express-News notes, a court may not impose a restriction on post-
verdict interviews and then condition the restriction by requiring
“those who would speak freely to justify special treatment by
carrying the burden of showing good cause.” Express-News, 695 F.2d
at 810. The order imposed by Judge Vance does not purport to shift
to the media “the burden of demonstrating the need for
curtailment,” id., and is in this respect distinguishable from the
order stricken in Express-News.
Our Court’s decision in Express-News articulated a strict
standard for the restriction of post-verdict interviews of jurors
in criminal cases. However, the application of that rule must be
tempered, as it was in Harrelson, by the recognition that “members
of the press, in common with all others, are free to report
whatever takes place in open court but enjoy no special, First
Amendment right of access to matters not available to the public at
large. The particulars of jury deliberation fall in the latter
class . . . .” Harrelson, 713 F.2d at 1118 (emphasis supplied).
We noted in Harrelson, and we reiterate here, the Supreme Court’s
admonition that “[f]reedom of debate might be stifled and
independence of thought checked if jurors were made to feel that
their arguments and ballots were to be freely published to the
-6-
world.” Clark v. United States, 289 U.S. 1, 13 (1933) (Cardozo,
J.).
Judge Vance’s order was an appropriate measure taken to
address the danger, identified in Clark, that compromises of the
secrecy of jury deliberations presents to our criminal justice
system’s reliance on jury determinations. Thus, following our
Court’s precedents, we find that the order entered by Judge Vance
was narrowly tailored to prevent a substantial threat to the
administration of justice -- namely, the threat presented to
freedom of speech within the jury room by the possibility of post-
verdict interviews.
III.
The newspapers contend that the district court’s order is
unconstitutionally vague. As mentioned above, they maintain that
the reference to “deliberations” is unclear, failing to give
adequate notice to jurors, the press, and the public. However, as
noted above, we disagree with this characterization of the order.
The newspapers contend that the reference to jury
“deliberations” is vague because it prompts speculation as to
whether it contemplates “an individual juror’s particular
‘deliberations’ (as distinguished from the ‘jury’ as a whole)” or
“generalized descriptions of the jury’s ‘deliberations’ (as opposed
to descriptions of the specific positions taken by other particular
jurors)” or “virtually all aspects of the jurors’ service as jurors
(for example, an individual juror’s thoughts, impressions and
-7-
feelings (‘deliberations’) formed while listening to evidence
presented during the trial).” Though these semantical gymnastics
presented in the newspapers’ brief are impressive, they are
distinctions that only a lawyer would appreciate.
The term “deliberations of the jury” may not be a paragon of
definiteness and precise meaning. Few terms in our language are.
The term does, however, bring an immediate image to mind: the
members of a jury in the jury room discussing and debating the
evidence, the testimony, and the instructions from the court in
order to reach a verdict. We hold that the term “jury
deliberations” is sufficiently definite to convey the idea the
district court intended and does not realistically threaten First
Amendment protected communication. That is all that the law
requires. See Kolender v. Lawson, 461 U.S. 352, 357 (1983) (void-
for-vagueness doctrine requires definition “with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement”).
IV.
For the aforementioned reasons, the validity of the district
court’s order restricting post-verdict juror interviews is
AFFIRMED.
-8-