USCA1 Opinion
August 24, 1992 ____________________
August 24, 1992 ____________________
No. 92-1733
No. 92-1733
DELORES GONSALVES, ADMINISTRATRIX OF
DELORES GONSALVES, ADMINISTRATRIX OF
THE ESTATE OF MORRIS PINA, JR., AS
THE ESTATE OF MORRIS PINA, JR., AS
ADMINISTRATRIX, AND ON HER OWN BEHALF,
ADMINISTRATRIX, AND ON HER OWN BEHALF,
Plaintiff, Appellant,
Plaintiff, Appellant,
v.
v.
THE CITY OF NEW BEDFORD, MASSACHUSETTS, ET AL.,
THE CITY OF NEW BEDFORD, MASSACHUSETTS, ET AL.,
Defendants, Appellees.
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, Senior U.S. District Judge]
[Hon. Andrew A. Caffrey, Senior U.S. District Judge]
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Before
Before
Cyr and Boudin, Circuit Judges,
Cyr and Boudin, Circuit Judges,
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and Hornby,* District Judge.
and Hornby,* District Judge.
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Harvey A. Schwartz with whom Robert A. Griffith and Schwartz,
Harvey A. Schwartz with whom Robert A. Griffith and Schwartz,
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Shaw & Griffith were on brief for appellant.
Shaw & Griffith were on brief for appellant.
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Armand Fernandes, Jr. with whom Fernandes, Fraze & Finnerty were
Armand Fernandes, Jr. with whom Fernandes, Fraze & Finnerty were
_____________________ ____________________________
on brief for appellees.
on brief for appellees.
Robert A. Bertsche, Hill & Barlow and John Reinstein on brief for
Robert A. Bertsche, Hill & Barlow and John Reinstein on brief for
__________________ _____________ ______________
the Civil Liberties Union of Massachusetts and the New Bedford Minori-
the Civil Liberties Union of Massachusetts and the New Bedford Minori-
ty Action Committee as amici curiae.
ty Action Committee as amici curiae.
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*Of the District of Maine, sitting by designation.
*Of the District of Maine, sitting by designation.
Per Curiam. The present appeal requires us to deter-
Per Curiam.
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mine the constitutionality of a district court order enjoining
plaintiff's counsel, Robert A. Griffith, Esquire, from appearing
on television for any purpose during the pendency of plaintiff's
civil rights action. For the reasons which follow, we vacate the
order.
BACKGROUND
BACKGROUND
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The underlying action, asserting claims under 42 U.S.C.
1983 and Massachusetts law, includes allegations of wrongful
death, police brutality and race discrimination by the New
Bedford police department and certain individual police officers,
pursuant to a policy and practice tolerated by the city and
various city and police officials. The parties currently are
engaged in pretrial discovery.
On May 15, 1992, defendant Police Chief Benoit filed a
motion under Local Rules 83.2A and 83.2B, D. Mass. L. R. 83.2A,
83.2B, for (1) an order limiting out-of-court statements by all
parties and their attorneys, (2) an order prohibiting public
dissemination of discovery materials, and (3) any "special"
orders the court might deem necessary. The motion alleged in
conclusory fashion that plaintiff's attorney had cultivated
widespread publicity about the case by releasing discovery
materials to the media, holding a public rally and appearing on a
local cable television talk show. During the television show,
Attorney Griffith is alleged to have requested public support for
2
alleged victims of New Bedford police brutality, and to have
urged anyone who had suffered brutality or discrimination in the
past to come forward to help establish the "policy and practice"
allegations in plaintiff's complaint. See Elliott v. Cheshire
___ _______ ________
County, N.H., 940 F.2d 7, 12 (1st Cir. 1991) (citing Monell v.
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New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978)).
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At a scheduling conference on June 1, the district
court acceded to Benoit's request to be heard on the motion.
Benoit's counsel summarized the relief requested, emphasizing
Benoit's concern that, absent the requested relief, certain
discovery materials currently sought by plaintiff might be
disclosed publicly. In response, plaintiff's counsel, Mr.
Griffith, alluded to the allegations about his television appear-
ance. Griffith informed the court that the pending legal action
had not been the subject of the television show, but that his
remarks were made in response to a question the moderator asked
about the case. Griffith defended his statements as "entirely
legitimate" and not prejudicial to defendants. The district
court orally directed Attorney Griffith not to appear on televi-
sion for any purpose during the pendency of the case.
Following the district court's denial of a motion to
stay its order, Griffith filed a motion with this court for an
emergency stay. See Fed. R. App. P. 8. We issued two partial
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stays pending receipt of "particularized findings" from the
district court, which were received on June 22. The district
court's particularized findings were as follows:
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1) The nature of the harm posed by Attorney
Griffith's conduct is that it amounts to a
poisoning of the jury pool to the prejudice
of the defendant police officers. Given the
fact that the defendants presented evidence
of the proclivity of Attorney Griffith to
garner publicity for his client in this ac-
tion, the potential harm posed by Attorney
Griffith's inclination to publicize the case
could be extensive if left unchecked.
2) Less restrictive alternatives seem inade-
quate to protect the interests threatened.
As noted above, Griffith has repeatedly pub-
licized information about the pending case in
various mediums. Thus, a less restrictive
protective order, such as one allowing him to
be on television but ordering him not to
discuss the case, would not be adequate in
this instance. Furthermore, as indicated, in
this instance, Griffith did not initiate the
discussion of this pending case on the tele-
vision show; he merely responded to a ques-
tion posed to him. To allow him to appear on
television, on the condition that he not
initiate discussion on this matter, would not
prevent this circumstance from happening
again. Given the publicity in this case, his
mere presence on television would tend to
stimulate further discussion and publicity
regarding this case, even if he himself
refused to discuss it.
3) The proposed protective order will be
effective in preventing the harm of poisoning
the jury pool. To the extent that publicity
in this case can be discouraged, the police
officers stand a better chance of a fair
trial on this matter.
We expedited the appeal and stayed the district court order
pending appeal.
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DISCUSSION
DISCUSSION
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A. Presumption Against Prior Restraint
A. Presumption Against Prior Restraint
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We are met at the outset with a disagreement among the
parties as to the appropriate criteria to be applied in balancing
the right to free speech against the right to trial by an impar-
tial jury. In particular, the parties urge divergent interpreta-
tions of the recent Supreme Court decision in Gentile v. State
_______ _____
Bar of Nevada, 501 U.S. ___, 111 S. Ct. 2720 (1991).
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Plaintiff, joined by amici curiae, the Massachusetts
Civil Liberties Union and the New Bedford Minority Action Commit-
tee, characterizes the challenged order as a prior restraint on
the exercise of Griffith's First Amendment right to engage in
political speech. A prior restraint on First Amendment rights
traditionally carries a "heavy presumption" against its validity,
especially if it chills comment on governmental proceedings.
Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558-59 (1976).
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Advance censorship, it is reasoned, entails an irreversible
sanction and strikes at the stability of our democratic system
when it restrains political comment. Id. at 559-60. For these
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reasons, plaintiff and the amici insist that the stringent test
applicable to prior restraints upon the press should be applied
to the prior restraint imposed on plaintiff's counsel in this
case; that is, the order is to be overturned in the absence of a
"clear and present danger" or a "serious and imminent threat" to
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the orderly and fair administration of justice. Bridges v.
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California, 314 U.S. 252, 263, 270 (1941).
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Amici curiae distinguish Gentile on its facts. There
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the Court upheld against a First Amendment challenge the standard
in a Nevada disciplinary rule prohibiting attorneys from comment-
ing on pending cases in circumstances presenting a "substantial
likelihood of material prejudice" to the proceedings. As Gentile
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involved subsequent sanctions against an attorney for commenting
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about a pending case, amici curiae reason that Gentile does not
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diminish the First Amendment protection from prior restraints
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upon comment by counsel in a case of political importance to the
public. Amici further argue that the "substantial likelihood"
standard approved in Gentile represents the minimum constitu-
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tional requirement for prior restraints on attorney speech.
Accordingly, amici contend that Local Rules 83.2A and 83.2B are
unconstitutional insofar as their "reasonable likelihood" stan-
dard is less stringent than the "substantial likelihood" test
adopted in Gentile.
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Appellee Benoit, on the other hand, argues that the
constitutional right to a fair trial before an impartial jury is
entitled to no less, if not greater, protection than an attorn-
ey's First Amendment right to free speech on matters involved in
a pending judicial proceeding. Cf. Nebraska Press, 427 U.S. at
___ ______________
561 (Bill of Rights did not assign priorities to First and Sixth
Amendment rights, ranking one as superior to the other). Preju-
dicial publicity, Benoit points out, might divert the trial from
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its primary purpose "to adjudicate controversies, both crimi-
nal and civil, in the calmness and solemnity of the courtroom . .
. ." Sheppard v. Maxwell, 384 U.S. 333, 350 (1966) (citation
________ _______
omitted). As the Supreme Court reasoned in Gentile, 501 U.S. at
_______
___-___, 111 S. Ct. at 2743-45, the threat of prejudicial public-
ity is greatest when it is generated by an attorney involved in
the proceedings. An attorney, moreover, unlike the press, has a
fiduciary professional obligation to preserve the integrity and
fairness of judicial proceedings. Thus, Benoit urges that it is
not improper to restrain extrajudicial comment by counsel if
there is a "reasonable likelihood" that the fairness of the
judicial proceeding would be prejudiced absent the restraint.
The Supreme Court's approval of a lesser standard than "clear and
present danger," Benoit says, supports the constitutionality of
the lesser standard in Local Rule 83.2A, even though its wording
is not identical to the rule approved in Gentile. Furthermore,
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Benoit says, the reasoning in Gentile supports the district court
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order insofar as it prohibits Attorney Griffith from making
extrajudicial statements about the case.2
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2The parties disagree also as to whether the district court
order, prohibiting Griffith from appearing on television for any
purpose, unconstitutionally interferes with plaintiff's alleged
First Amendment and/or due process right to appeal to the public
at large for evidence supporting her claim that defendants have
engaged in a practice of depriving minority individuals of their
constitutional rights.
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B. Balancing Test
B. Balancing Test
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We need not choose between these competing contentions
at this juncture, as the challenged order fails under either.
First, there was no sufficient showing of an actual threat to
defendants' right to a fair trial. Second, the order provided
ineffective protection from the perceived harm. Third, less
restrictive conventional alternatives were not considered.
1. Threat of Harm
1. Threat of Harm
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As it recognized, the district court is under an
affirmative duty to safeguard the due process rights of the
parties before it by minimizing the adverse effects of prejudi-
cial pretrial publicity in proceedings under its control.
Gannett Co. v. De Pasquale, 443 U.S. 368, 378 (1979) (emphasizing
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district court duty to control the proceedings); Sheppard, 384
________
U.S. at 333. See also Report of the Committee on the Operation
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of the Jury System on the "Free Press-Fair Trial" Issue, 45
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F.R.D. 391, 401 (1969) (revised, 87 F.R.D. 518 (1980)). The
district court enjoys considerable leeway to select from among a
variety of devices for meeting its difficult and important
responsibility. Sheppard, 384 U.S. at 357-62.
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At a minimum, however, a prior restraint can be justi-
fied only if the prohibited speech poses an actual threat to the
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right to a fair trial before an impartial jury. See In re Perry,
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859 F.2d 1043, 1050 (1st Cir. 1988) (a vague threat is not
enough; there must be a "cognizable" compelling interest which
8
could be furthered by the restraint). Thus, no matter which
recommended standard is used to evaluate the appropriateness of a
prior restraint on the exercise of the right of free speech,
there must be a sufficient showing of an actual threat to the
right to a fair trial. United States v. Noriega, 917 F.2d 1543,
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1549 (11th Cir.) ("imminent danger" standard; First Amendment
protections cannot be overcome by "conclusory" assertion that
publicity might hamper fair trial), cert. denied, 111 S. Ct. 451
____ ______
(1990); In re Dow Jones & Co., 842 F.2d 603, 609 (2d Cir.)
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(employing "reasonable likelihood" standard; "gag" order justi-
fied only if the exercise of the right of free speech "actually
tramples upon Sixth Amendment rights"), cert. denied, 488 U.S.
____ ______
946 (1988).
Although we do not doubt that the district court acted
"out of a legitimate concern, in an effort to protect the defen-
dant's right to a fair trial," the record before us reveals no
evidentiary basis for the conclusion that future appearances by
Attorney Griffith would "poison[] the jury pool." Nebraska
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Press, 427 U.S. at 569. There are no findings identifying the
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substance of Griffith's remarks: whether, for example, he dis-
paraged defendants or witnesses, mischaracterized evidence or in
any way tended to prejudice the public perception. Moreover,
were there proof, which we are unable to discern from the record,
that Griffith "repeatedly publicized . . . the pending case in
various mediums," it would provide an insufficient basis for the
breadth of the present order. "Pretrial publicity even
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pervasive, adverse publicity does not inevitably lead to an
unfair trial." Id. at 554. A jury need not be entirely ignorant
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of the case; all that the Constitution requires is a jury that is
impartial. See Sheppard, 384 U.S. at 351; Dow Jones, 842 F.2d at
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603.
We perceive scant basis in the record for concluding
that Griffith's appearance on a local cable television station
threatened pervasive impact on the attitudes of those who might
be called as jurors. We note that a trial date has not yet been
set. The jury pool in this case normally would be drawn from the
nine counties comprising populous eastern Massachusetts. See
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United States District Court, District of Massachusetts, Amended
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Jury Plan (Sept. 6, 1989). On the present record, given the
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remoteness of any trial date, the size of the available jury pool
and the geographic diversity of the jury pool drawing area, a
prediction that all publication of information about the case
would poison the jury pool seems speculative at best.3
The Benoit motion included vague allegations of poten-
tial harm to other pretrial interests which arguably might
warrant protection (e.g., possible privacy interests, or privi-
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lege against public disclosure, on the part of defendants and
third persons; and undefined harm from plaintiff's counsel's
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3The only other publicity about the case which was brought to the
district court's attention by Benoit's motion was contained in
five articles appearing in New Bedford and Boston newspapers.
Attorney Griffith's name does not appear in the articles and
there is no indication that the order was crafted in reaction to
the articles.
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efforts to drum up support for litigation). Neither the district
court, nor this court, has addressed the discovery-related
matters raised by the Benoit motion. However, in order to
provide an appropriate benchmark for identifying and weighing the
interests involved and the sort of protection needed, the precise
harm must be carefully delineated, Noriega, 917 F.2d at 1550, and
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the restraint must be tailored narrowly to serve the particular
interests warranting protection, see id. at 1549; see also
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Anderson v. Cryovac, Inc., 805 F.2d 1, 8 (1st Cir. 1986) (in case
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involving allegations that city water supply had been poisoned,
district court demonstrated appropriate "sensitivity to First
Amendment concerns by striving to keep the protective order as
narrow as possible," excepting from its scope disclosures to
public health authorities as required in the public interest).
The challenged order does not identify with the requi-
site particularity a pretrial interest warranting the protection
of its broad prior restraint upon First Amendment rights. See,
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e.g., Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984)
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(orders protecting against disclosure of otherwise private
discovery materials may be permitted for "good cause" shown,
where the restriction is carefully limited to discovery materials
and the order does not affect materials obtained from other
sources); Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981) (order
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restricting communication, as a means of protecting absent class
members and potential class members, must be carefully drawn and
based on a clear record and specific findings reflecting a
11
balancing of the need for the restrictions and protection of the
parties' rights); Anderson, 805 F.2d at 6 (protective orders
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prohibiting discovery abuse are subject to First Amendment
scrutiny within framework of "good cause" requirement in Fed. R.
Civ. P. 26(c)).4
2. Ineffectiveness of Order
2. Ineffectiveness of Order
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The order is not tailored to protect against the per-
ceived harm (poisoning the jury pool), as its overbroad prohibi-
tion of any and all television appearances by Griffith facially
restrains speech and other expressive conduct having no connec-
tion with the pending case. In re Perry, 859 F.2d at 1050
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(overbroad order cannot survive constitutional scrutiny); compare
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Levine v. United States Dist. Court, 764 F.2d 590 (9th Cir. 1985)
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(in case applying "clear and present danger" standard, order
prohibiting statements which "bear upon the merits to be resolved
by the jury" is too broad, as it would prohibit statements posing
no danger to the administration of justice), cert. denied, 476
____ ______
U.S. 1158 (1986). "[D]evising the most effective preventive
measure is not the proper goal. Rather, the goal is to craft
measures that ensure an impartial jury without restricting First
Amendment rights any further than absolutely necessary." Dow
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Jones, 842 F.2d at 612 n.1.
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4We note no suggestion that Griffith's statements threatened the
secrecy of grand jury proceedings. Cf. Globe Newspaper Co. v.
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Pokaski, 868 F.2d 497, 509 (1st Cir. 1989) (public has no First
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Amendment right of access to grand jury records, as secrecy is
traditional and essential to system).
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Furthermore, the order is too underinclusive to effect
meaningful protection against the perceived harm. It restrains
access to but one of several public information media on the part
of one attorney in the case, leaving seven other attorneys and
all twelve parties free to discuss the case in any forum. See
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Nebraska Press, 427 U.S. at 565-69 (practical problems involved
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in predicting what information may in fact undermine impartiality
of jurors, and dilemmas encountered in drafting effective orders
which are not overly broad, call for careful advance consider-
ation of alternative measures to counter threat to fair trial).
We do not imply that a more inclusive order (or, indeed, any
order) was indicated, but that the challenged order represented
an inappropriate response in the circumstances presented.
3. Less Restrictive Alternatives
3. Less Restrictive Alternatives
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Finally, the district court did not discuss particular
alternatives to limiting the exercise of Griffith's First Amend-
ment rights. The case law identifies several alternative means
of mitigating pretrial publicity, including change of venue,
searching voir dire, sequestration of the jury, and emphatic jury
instructions. Nebraska Press, 427 U.S. at 563-64; Sheppard, 384
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U.S. at 357-62. We recognize that restrictions directed to
counsel or other trial participants may stand on a different
footing than those directed to the press or public, Gentile, 111
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S. Ct. at 2742-44; Levine, 764 F.2d at 595-96, and that other
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means of mitigating publicity may have costs of their own.
13
Gentile, 111 S. Ct. at 2745. Nevertheless, given the First
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Amendment interests at stake and the breadth of the challenged
order, we think an explicit consideration of alternatives to the
restraint was required. Nebraska Press, 427 U.S. at 563; Dow
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Jones, 842 F.2d at 611; Levine, 764 F.2d at 599-601.
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The district court order of June 1, 1992, is vacated.
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