dissenting:
This prior restraint on freedom of speech, which is ambiguous and overbroad, is not necessary to insure the object sought to be attained, namely, a fair trial. Such restraints on speech are always suspect. (Near v. Minnesota (1931), 283 U.S. 697, 75 L. Ed. 1357, 51 S. Ct. 625.) The press release, or news release, however characterized, that occasioned the injunctive order does not appear likely to reoccur, considering the profuse apology and assurances given the court by counsel for the defendant. The injunction was issued solely because of this one letter sent to the news media in the St. Louis metropolitan area.
While Monsanto is assured that it is free to engage in the national debate on dioxin so long as no mention of this case or “intimation” of its existence or the trial is made, one can understand its reluctance to do so while this injunctive order is in effect. The Supreme Court has stated that “[a]ny prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity. [Citations.] Respondent thus carries a heavy burden of showing justification for the imposition of such a restraint.” (Organization for a Better Austin v. Keefe (1971), 402 U.S. 415, 419, 29 L. Ed. 2d 1, 5-6, 91 S. Ct. 1575, 1578.) The mere presence of this order has a “chilling” effect on protected speech and certainly would discourage conversation or communication with the news media about any aspect of dioxin inasmuch as the words used might be perceived to “intimate” the existence of “this case” or “its trial.”
The permissible limits of speech under the court’s order present problems similar to those addressed by the court in Chicago Council of Lawyers v. Bauer (7th Cir. 1975), 522 F.2d 242, where the “no-comment” rules of the District Court for the Northern District of Illinois were scrutinized under the free speech guarantees of the first amendment and were found to an impermissible, overbroad prior restraint on freedom of speech.
Furthermore, this injunctive restraint on speech is not necessary. Any attempt by a party in a pending action to influence the outcome of the litigation by communicating with the jury or in any manner attempting to influence the jury is a contemptuous act and may be punished by the court by the imposition of appropriate punishment and sanctions. It is also a crime under the Criminal Code of 1961. Ill. Rev. Stat. 1983, ch. 38, par. 32 — 4.
In short, if this injunctive order prohibits what is clearly proscribed by well established rules of conduct which prevent litigants and counsel from communicating with jurors, it is unnecessary. (CBS, Inc. v. Young (6th Cir. 1975), 522 F.2d 234; 87 Ill. 2d R. 7-108.) If it does more, it is an impermissible prior restraint on freedom of speech.