Meet the Press: Dealing with the Media in High Profile Cases

MEET THE PRESS: DEALING WITH THE MEDIA IN HIGH PROFILE CASES

David L. Raybin

Raybin & Weissman, P.C. Suite 2120 424 Church Street Nashville, Tennessee 37219 Telephone: 615-256-6666 ext 220

David Raybin has practiced criminal and federal civil rights law in Nashville for forty years. He serves as local counsel for Children’s Rights, a non-profit involved in foster care litigation. For over twenty-five years David has represented Nashville police officers through the Fraternal Order of Police. David Raybin served on the Tennessee Sentencing Commission for nine years. He was twice awarded the Justice Joe Henry Award for outstanding legal writing by the Tennessee Bar Association and received the Norman Award from the Nashville Bar Association. He is also the author of the three-volume treatise Tennessee Criminal Practice and Procedure. David Raybin is a 1973 Order of the Coif graduate of the University of Tennessee College of Law. After graduation he served as an Assistant State Attorney General for three years. Then he was hired by Tom Shriver to serve as an Assistant District Attorney for seven years. After his service with the government, David joined what was then Hollins Wagster and Yarbrough. Following the reorganization of the firm, David is now the senior partner of Hollins Raybin and Weissman.

MEET THE PRESS: DEALING WITH THE MEDIA IN HIGH PROFILE CASES

“In the context of judicial proceedings, an attorney's First Amendment rights are not without limits. Although litigants and lawyers do not check their First Amendment rights at the courthouse door, those rights are often subordinated to other interests inherent in the judicial setting.”

Bd. of Prof'l Responsibility of Supreme Court of Tennessee v. Slavin, 145 S.W.3d 538, 549 (Tenn. 2004)

ii City of Brentwood Social Media Policy

PURPOSE: The City of Brentwood’s use of social media platforms is intended to expand and enhance communication to a growing number of citizens who rely on social media for news and updates about Brentwood. The goal of our use of social networking is to communicate and promote information about the business of the City and how we serve our citizens. The City must ensure that use of social networking maintains our identity, integrity and reputation while minimizing actual or potential risks. The main goals of our social media communications are:  To provide communications in a timely manner about City news, emergencies, road closures and construction, parks and recreational programs, job opportunities, government services, holiday closings, weather alerts, educational information, and other matters of interest to social media users  To engage residents and businesses in Brentwood in dialogue about the City

PLATFORMS: This policy applies to all social media outlets used by the City of Brentwood, which at the time of adoption of this policy included Facebook, Twitter, YouTube, Vimeo, Instagram, Nextdoor and Nixle. More outlets may be added as social media opportunities continue to expand.

POLICY COMPONENTS: This policy is divided into two components:  An external policy establishing standards for use of the City’s social media outlets by the public.  An internal policy establishing standards for City employees who are authorized to post and manage content on official City of Brentwood social media pages.

SOCIAL MEDIA POLICY, CITY OF BRENTWOOD | December 2016 Page 1 City of Brentwood Social Media Policy

External: Public Use of Social Media

APPLICABILITY: This policy establishes standards for use of the City’s social media outlets by the public. .

CONTENT STANDARDS: The City of Brentwood invites and encourages people to discuss issues affecting the City on its social media sites, which serve as limited public forums. However, the City of Brentwood will not allow posts to remain that include:

 Nudity/pornography or messages/depictions with sexual, obscene or indecent content  Language or information that is foul, vulgar, scurrilous or scatological  Promotion of the use of alcohol or tobacco  Threats, attacks, harassment, unlawful discrimination or hate language  Advocation of illegal or inappropriate use of firearms or drugs, or any illegal activity  Depictions or promotions of animal cruelty  Promotion or endorsement of a political campaign or candidate  Programs and events not officially sponsored by the City of Brentwood or a City board.  Solicitations for donations, except for official City-sponsored activities.

The City of Brentwood reserves the right to close a conversation if comments stray from the context of the original post.

Personal Information The confidentiality and privacy of individuals should be considered high priority. Social media users should not include individual addresses, phone or email information in social media postings without permission.

City’s Rights to Posted Information All messages, images and information posted on the City’s social media or sent to the City by electronic means will be considered public information. The City may repost or disseminate such messages, images and information as it deems appropriate.

Privacy Policy Use of the City of Brentwood’s social media is subject to the privacy policy and disclaimers found on the City’s website www.brentwoodtn.gov

SOCIAL MEDIA POLICY, CITY OF BRENTWOOD | December 2016 Page 2 City of Brentwood Social Media Policy

Public Records Law The City of Brentwood’s official social media sites are subject to applicable public records laws. Any content maintained in a social media format related to City business, including communication posted by the City and communication received from citizens, is a public record. The City is responsible for responding completely and accurately to any public records request for social media content.

If you have any questions concerning the City of Brentwood’s Social Media Policy, please contact the City of Brentwood Community Relations Director, Deanna Lambert at (615) 371-2259 or [email protected]

SOCIAL MEDIA POLICY, CITY OF BRENTWOOD | December 2016 Page 3 City of Brentwood Social Media Policy

Internal: Administration of City Social Media

APPLICABILITY: This policy establishes standards to ensure timely, accurate and appropriate use of social media outlets by City employees who are authorized to post and manage content on official City of Brentwood social media pages.

MANAGING CONTENT

 The City of Brentwood will use a distributed control model for managing social media content. This means that control is distributed to several groups within one government, but with one gatekeeper per site. The Community Relations Director will serve as the one gatekeeper for all official City of Brentwood social media sites.

 The Community Relations Department is responsible for the development of the City of Brentwood social media strategy and oversight of the policies and procedures pertaining to the social media outlets used by the City. The Community Relations Department will establish social media sites when needed and distribute access to user names, passwords and instructions on how to access the different social media sites. Any department wishing to create a new social media outlet must first consult with the Community Relations Director. The Community Relations Director will approve all social media sites used by the City and serve as an administrator on each authorized City social media page.

 Each department will designate authorized individuals to serve as Page Administrators, who will be responsible for posting, monitoring, and/or updating social media information. A list of Page Administrators will be maintained by the Community Relations Department.

 Department directors and each department’s Page Administrator(s) are responsible for the content of their department’s social media information and are authorized to post information on official City of Brentwood social media outlets. No other departmental employees are to post information on behalf of the City without prior authorization. To ensure that messages adhere to the City’s social media policy and strategy, all departmental information to be provided to the public shall be reviewed and authorized by the department director and the Community Relations Director.

SOCIAL MEDIA POLICY, CITY OF BRENTWOOD | December 2016 Page 4 City of Brentwood Social Media Policy

 Posts by the public on the City’s social media pages are to be monitored by Page Administrators, and any posts that violate the content standards established in the City’s External Policy for Public Use of Social Media are to be deleted. However, Page Administrators must consult with the department director and the Community Relations Director before deleting a comment. Criticism and irritating comments are not acceptable reasons for deleting comments. Whenever any content is determined to meet criteria for deletion from a page, the content shall be retained, and a record shall be kept of the reason for the deletion. Unless the speech clearly falls into an unprotected category, First Amendment challenges can be anticipated. The following measures are to be observed for all deleted content:

a. Take a screen shot of the deleted message. b. Document why the message was removed and the policy the message violated. c. Save a copy of this documentation for your files and send this information in an email to your department director and the Community Relations Director. d. To facilitate fulfillment of future public records requests, please use the following protocol for the subject line of said email: Comment Deletion – [social media platform name] – [date]. For example: Comment Deletion – Facebook – 11-1-2016.

 Page Administrators should avoid engaging in online debates with commenters but should instead react positively and provide factual information, if appropriate. Please consult with the Community Relations Director for assistance if needed.

 Page Administrators for the Police and Fire Departments, working in conjunction with the Chiefs of their Departments, are responsible for the content and usage of Nixle, a social media application specific to public safety operations. To ensure that Nixle is used appropriately, the Police and Fire Departments will develop and follow guidelines that define the circumstances under which Nixle should be used and when other social media outlets should be used.

 The Information Technology and Community Relations Departments will explore the best practices for providing an archive of social media information which is to be kept in accordance with the City’s Records Retention Schedule and applicable law.

SOCIAL MEDIA POLICY, CITY OF BRENTWOOD | December 2016 Page 5 City of Brentwood Social Media Policy

POLICY UPDATES

The Community Relations and Legal Departments will routinely review and propose updates to the social media policy to comply with applicable federal and state laws and regulations.

SOCIAL MEDIA POLICY, CITY OF BRENTWOOD | December 2016 Page 6 The Honorable Mark Norris, Tenn. Op. Atty. Gen. No. 16-47 (2016)

Tenn. Op. Atty. Gen. No. 16-47 (Tenn.A.G.), 2016 WL 8224372

Office of the Attorney General

State of Tennessee Opinion No. 16-47 December 22, 2016

Application of Tennessee Public Records Act to Municipal Social Media Accounts

*1 The Honorable Mark Norris Senate Majority Leader 9A Legislative Plaza Nashville, Tennessee 37243

Question 1

Are the social media accounts created and maintained by a municipality a matter of public record?

Opinion 1

To the extent a municipal social media account is made “pursuant to law or ordinance or in connection with the transaction of official business,” that account and any comments posted on the account constitute public records subject to inspection under the Tennessee Public Records Act.

Question 2

Are the comments on social media accounts created and maintained by a municipality subject to removal or censorship by the municipality's social media administrator?

Opinion 2

The Tennessee Public Records Act does not address whether comments posted on a municipal social media account are subject to removal or censorship. The Tennessee Public Records Act only provides a statutory right of inspection of public records to Tennessee citizens.

Question 3

Is the appointment process and identity of a social media administrator for a municipal social media account a matter of public record?

Opinion 3

To the extent a municipality has any “public records,” as defined under Tenn. Code Ann. § 10-7-503(a)(1)(A), with respect to the appointment and identity of an administrator of a social media account established by that municipality, those records are subject to inspection under the Tennessee Public Records Act.

Question 4

Are comments regarding official business made by officials of a municipality on the municipality's social media website a matter of public record?

Opinion 4

To the extent a municipal social media account is made “pursuant to law or ordinance or in connection with the transaction of official business,” any comments posted on the account constitute public records subject to inspection under the Tennessee Public Records Act.

Question 5

What is a municipality's duty to respond to inquiries, regarding official business, by a citizen?

Opinion 5

A records custodian of municipal public records is required to respond to a public records request in accordance with the procedures set forth in Tenn. Code Ann. § 10-7-503(a)(2)(B).

Question 6

What is the process available to a citizen who believes that public documents are not being produced as required in response to a request?

Opinion 6

If a records custodian denies a request for public records or otherwise fails to timely respond to the request in accordance with the procedures set forth in Tenn. Code Ann. § 10-7-503(a)(2), the Tennessee citizen making the request may bring an action pursuant to Tenn. Code Ann. § 10-7-505 in chancery or circuit court for the county in which the records are situated for judicial review of the denial of access to the requested records. Tenn. Code Ann. § 10-7-503(b). A member of the public may also consult with the Office of Open Records Counsel, who has the authority to answer questions, to issue informal advisory opinions, and to informally mediate and assist with the resolution of issues concerning the open records laws.

ANALYSIS

1. Municipal Social Media Accounts Constituting Public Records

*2 Tennessee's Public Records Act (“TPRA”) provides that “[a]ll state, county and municipal records shall, at all times during business hours, ... be open for inspection by any citizen of this state, and those in charge of the records shall not refuse such right of inspection to any citizen, unless otherwise provided by state law.” Tenn. Code Ann. § 10-7-503(a)(2)(A). For purposes of the TPRA, a “public record” is defined as “all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound records, or other material regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of official business by any government entity.” Tenn. Code Ann. § 10-7-503(a)(1)(A).

To the extent a municipal social media account or website is made “pursuant to law or ordinance or in connection with the transaction of official business,” then that municipal social media account, including any comments regarding official business posted by municipal officials on the account, are public records subject to inspection under the TPRA.

2. Comments on Municipal Social Media Accounts Subject to Censorship

The TPRA does not address whether comments posted on a municipal social media account are subject to removal or censorship. The TPRA only provides a statutory right of inspection of public records to Tennessee citizens.

3. Appointment of Administrator of Municipal Social Media Account

To the extent a municipality has any “public records,” as that term is defined under Tenn. Code Ann. § 10-7-503(a) (1)(A), with respect to the appointment or identity of an administrator of a social media account established by that municipality, such records are public records subject to inspection under the TPRA.

4. Comments on Municipal Social Media Website as Public Records

See analysis section 1, above.

5. Municipal Response to Public Records Request

The TPRA provides that a custodian of a public record, or the custodian's designee, shall promptly make available for inspection any public records not specifically exempt from disclosure. Tenn. Code Ann. § 10-7-503(a)(2)(B). If, however, it is not practicable for the record to be promptly made available for inspection, the custodian is required to respond within seven business days by: (1) making the record available to the requestor, (2) denying the request in writing and including the basis for the denial, or (3) providing a “completed records request response form developed by the office of open records counsel stating the time reasonably necessary to produce the record or information.” Id.

6. Remedy for Denial of Request or Failure to Respond

If a records custodian denies a request for public records or otherwise fails to timely respond in accordance with the procedures set forth in Tenn. Code Ann. § 10-7-503(a)(2), the Tennessee citizen making the request may bring an action pursuant to Tenn. Code Ann. § 10-7-505 in chancery or circuit court for the county in which the records are situated for judicial review of the denial of access to the requested records. Tenn. Code Ann. § 10-7-503(b). Additionally, a person requesting municipal public records may consult with the Office of Open Records Counsel, who has the authority to answer questions and issues advisory opinions to local government officials, members of the public and the media, as well as the authority to informally mediate and assist with the resolution of issues concerning the open records laws. Tenn. Code Ann. § 8-4-601.

*3 Herbert H. Slatery III Attorney General and Reporter Andrée Sophia Blumstein Solicitor General Janet M. Kleinfelter Deputy Attorney General

Tenn. Op. Atty. Gen. No. 16-47 (Tenn.A.G.), 2016 WL 8224372

Basic Rules Get your client off Facebook Get your client’s family to refrain from social media. Be prepared for the Perpetrator Walk ( don’t duck and cover !) Instead of “No Comment,” your client can advise that “my lawyer may be in a position to answer your questions.” When you speak to the media do it in sound bites. Know what you are going to say. Be accurate. Be careful about “off the record” comments

If you cannot speak to an issue, refer the media to a colleague who might be able to.

Raybin, Meet the Press Seminar Page 1 of 144 A. Tennessee Rule of Professional Conduct for Attorneys

Raybin, Meet the Press Seminar Page 2 of 144 Rule 3.6. Trial Publicity, TN R S CT Rule 8, RPC 3.6

West's Tennessee Code Annotated State and Local Rules Selected from West's Tennessee Rules of Court Rules of the Supreme Court of the State of Tennessee Rule 8. Rules of Professional Conduct (Refs & Annos) Chapter 3. Advocate

Sup.Ct.Rules, Rule 8, RPC 3.6

Rule 3.6. Trial Publicity

Currentness

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) the identity, residence, occupation, and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time, and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).

Credits [Adopted September 29, 2010, effective January 1, 2011.]

Editors' Notes

COMMENT [1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.

[2] Special rules of confidentiality may validly govern proceedings involving juveniles, domestic relations, mental disabilities, and perhaps other types of litigation. RPC 3.4(c) requires compliance with such rules.

[3] The Rule sets forth a basic general prohibition against a lawyer's making statements that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the Rule applies only to lawyers who are, or who have been, involved in the investigation or litigation of a case, and their associates.

[4] Paragraph (b) identifies specific matters about which a lawyer's statements would not ordinarily be considered to present a substantial likelihood of material prejudice, and should not in any event be considered prohibited by the general prohibition of paragraph (a). Paragraph (b) is not intended to be an exhaustive listing of the subjects upon which a lawyer may make a statement, but statements on other matters may be subject to paragraph (a).

[5] There are, on the other hand, certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:

(1) the character, credibility, reputation, or criminal record of a party, suspect in a criminal investigation, or witness; or the identity of a witness; or the expected testimony of a party or witness;

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect, or that person's refusal or failure to make a statement;

(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or

(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial.

[6] Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Non-jury hearings and arbitration proceedings may be even less affected. The Rule will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice may be different depending on the type of proceeding.

[7] Finally, extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client. When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate substantial undue prejudice created by the statements made by others.

[8] See RPC 3.8(f) for additional duties of prosecutors in connection with extrajudicial statements about criminal proceedings.

DEFINITIONAL CROSS-REFERENCES “Firm” See RPC 1.0(c)

“Knows” See RPC 1.0(f)

“Materially” See RPC 1.0(o)

“Reasonable” See RPC 1.0(h)

“Reasonably should know” See RPC 1.00)

“Substantial” See RPC 1.0(1)

Sup. Ct. Rules, Rule 8, RPC 3.6, TN R S CT Rule 8, RPC 3.6 The state court rules are current with amendments received through July 15, 2015.

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 5 of 144 3 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

during the press conference violated Nevada Supreme Court Rule 177, which prohibits a lawyer from making extrajudicial 111 S.Ct. 2720 statements to the press that he knows or reasonably should Supreme Court of the United States know will have a “substantial likelihood of materially Dominic P. GENTILE, Petitioner prejudicing” an adjudicative proceeding, 177(1), which lists a v. number of statements that are “ordinarily ... likely” to result in material prejudice, 177(2), and which provides that a lawyer STATE BAR OF NEVADA. “may state without elaboration ... the general nature of the ... No. 89-1836. | Argued April defense” “[n]otwithstanding subsection 1 and 2(a-f),” 177(3). 15, 1991. | Decided June 27, 1991. The Disciplinary Board found that Gentile violated the Rule and recommended that he be privately reprimanded. The State In disciplinary proceeding, the Nevada Supreme Court, 106 Supreme Court affirmed, rejecting his contention that the Nev. 60, 787 P.2d 386, found that attorney who held press Rule violated his right to free speech. conference after client was indicted on criminal charges violated Nevada Supreme Court rule prohibiting lawyer Held: The judgment is reversed. from making extrajudicial statements to press that he knows or reasonably should know have “substantial likelihood of **2722 106 Nev. 60, 787 P.2d 386 (1990), reversed. materially prejudicing” adjudicative proceeding. Certiorari was granted. The Supreme Court, per Justice Kennedy, held Justice KENNEDY delivered the opinion of the Court with that: (1) as interpreted by Nevada Supreme Court, rule was respect to Parts III and VI, concluding that, as interpreted by void for vagueness, and per Chief Justice Rehnquist, that (2) the Nevada Supreme Court, Rule 177 is void for vagueness. “substantial likelihood of material prejudice” test applied by Its safe harbor provision, Rule 177(3), misled Gentile into Nevada satisfied First Amendment. thinking that he could give his press conference without fear of discipline. Given the Rule's grammatical structure Reversed. and the absence of a clarifying interpretation by the state court, the Rule fails to provide fair notice to those to Justices Marshall, Blackmun and Stevens joined in Justice whom it is directed and is so imprecise that discriminatory Kennedy's opinion. enforcement is a real possibility. By necessary operation of the word “notwithstanding,” the Rule contemplates that Chief Justice Rehnquist delivered opinion dissenting in part a lawyer describing the “general” nature of the defense in which Justices White, Scalia and Souter joined. without “elaboration” need fear no discipline even if he knows or reasonably should know that his statement will Justice O'Connor filed opinion concurring in Justice have a substantial likelihood of materially prejudicing an Kennedy's opinion in part and in Chief Justice Rehnquist's adjudicative proceeding. Both “general” and “elaboration” opinion in part. are classic terms of degree which, in this context, have no settled usage or tradition of interpretation in law, and thus a lawyer has no principle for determining when his remarks pass from the permissible to the forbidden. A review of the **2721 *1030 Syllabus * press conference-where Gentile made only a brief opening * statement and declined to answer reporters' *1031 questions The syllabus constitutes no part of the opinion of the seeking more detailed comments-supports his claim that he Court but has been prepared by the Reporter of Decisions thought his statements were protected. That he was found for the convenience of the reader. See United States v. in violation of the Rules after studying them and making a Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. conscious effort at compliance shows that Rule 177 creates a trap for the wary as well as the unwary. Pp. 2731-2732. Petitioner Gentile, an attorney, held a press conference the day after his client, Sanders, was indicted on criminal THE CHIEF JUSTICE delivered the opinion of the Court charges under Nevada law. Six months later, a jury acquitted with respect to Parts I and II, concluding that the “substantial Sanders. Subsequently, respondent State Bar of Nevada filed likelihood of material prejudice” test applied by Nevada a complaint against Gentile, alleging that statements he made

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 6 of 144 1 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858 and most other States satisfies the First Amendment. Pp. only to speech that is substantially likely to have a materially 2740-2745. prejudicial effect, is neutral to points of view, and merely postpones the lawyer's comments until after the trial. Pp. (a) The speech of lawyers representing clients in pending 2745. cases may be regulated under a less demanding standard than the “clear and present danger” of actual prejudice or KENNEDY, J., announced the judgment of the Court and imminent threat standard established for regulation of the delivered the opinion of the Court with respect to Parts III press during pending proceedings. See, e.g., Nebraska Press and VI, in which MARSHALL, BLACKMUN, STEVENS, Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683. and O'CONNOR, JJ., joined, and an opinion with respect to A lawyer's right to free speech is extremely circumscribed in Parts I, II, IV, and V, in which MARSHALL, BLACKMUN, the courtroom, see, e.g., Sacher v. United States, 343 U.S. 1, and STEVENS, JJ., joined. REHNQUIST, C.J., delivered the 8, 72 S.Ct. 451, 454, 96 L.Ed. 717, and, in a pending case, opinion of the Court with respect to Parts I and II, in which is limited outside the courtroom as well, see, e.g., Sheppard WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined, v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 and a dissenting opinion with respect to Part III, in which L.Ed.2d 600. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. WHITE, SCALIA, and SOUTER, JJ., joined, post, p. 2738. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17. Moreover, this Court's O'CONNOR, J., filed a concurring opinion, post, p. 2748. decisions dealing with a lawyer's First Amendment right to solicit business and advertise have not suggested that lawyers are protected to the same extent as those engaged in other Attorneys and Law Firms businesses, but have balanced the State's interest in regulating Michael E. Tigar argued the cause for petitioner. With him a specialized profession against a lawyer's First Amendment on the briefs were Samuel J. Buffone, Terrance G. Reed, and interest in the kind of speech at issue. See, e.g., Bates v. State Neil G. Galatz. Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810. Pp. 2740-2745. Robert H. Klonoff argued the cause for respondent. With him on the brief were Donald B. Ayer and John E. Howe.* (b) The “substantial likelihood of material prejudice” standard is a constitutionally permissible balance between *Briefs of amici curiae urging reversal were filed for the the First Amendment rights of attorneys in pending cases American Civil Liberties Union et al. by Leon Friedman, and the State's interest in fair trials. Lawyers in such Steven R. Shapiro, John A. Powell, and Elliot Mincberg; and cases are key participants in the criminal justice system, for the American Newspaper Publishers Association et al. and the State may demand some adherence to that by Alice Neff Lucan, Harold W. Fuson, Jr., Jane E. Kirtley, system's precepts in regulating their speech and conduct. David M. Olive, Deborah R. Linfield, W. Terry Maguire, René Their extrajudicial statements pose a threat to a pending P. Milam, Bruce W. Sanford, J. Laurent Scharff, Richard M. proceeding's fairness, since they have special access to Schmidt, Jr., and Barbara Wartelle Wall. information through discovery and client communication, and since their statements are likely to be received as Solicitor General Starr, Assistant Attorney General Mueller, especially authoritative. The standard is designed to protect Deputy Solicitor General Bryson, and Stephen J. Marzen the integrity and fairness of a State's judicial system and filed a brief for the United States as amicus curiae urging imposes only narrow and necessary limitations on lawyers' affirmance. speech. Those limitations are aimed at comments that are Briefs of amici curiae were filed for the American Bar likely to influence a trial's outcome or prejudice the jury Association by John J. Curtin, Jr., and George A. Kuhlman; venire, even if an untainted panel is **2723 ultimately for the National Association of Criminal Defense Lawyers by found. Few interests under the Constitution are more William J. Genego; and for Nevada Attorneys for Criminal fundamental than the right to a fair trial by impartial jurors, Justice by Kevin M. Kelly. and the State has a substantial interest in preventing officers of the court from imposing costs on the judicial system and Opinion litigants arising from measures, such as a change of venue, to ensure *1032 a fair trial. The restraint on speech is Justice KENNEDY announced the judgment of the Court and narrowly tailored to achieve these objectives, since it applies delivered the opinion of the Court with respect to Parts III

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 7 of 144 2 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858 and VI, and an opinion with respect to Parts I, II, IV, and V in which Justice MARSHALL, Justice BLACKMUN, and I Justice STEVENS join. The matter before us does not call into question the *1033 Hours after his client was indicted on criminal constitutionality of other States' prohibitions upon an charges, petitioner Gentile, who is a member of the Bar of the attorney's speech that will have a “substantial likelihood of State of Nevada, held a press conference. He made a prepared materially prejudicing an adjudicative proceeding,” but is statement, which we set forth in Appendix A to this opinion, limited to Nevada's interpretation of that standard. On the and then he responded to questions. We refer to most of those other hand, one central point must dominate the analysis: questions and responses in the course of our opinion. this case involves classic political speech. The State Bar of Nevada reprimanded petitioner for his assertion, supported Some six months later, the criminal case was tried to a by a brief sketch of his client's defense, that the State sought jury and the client was acquitted on all counts. The State the indictment and conviction of an innocent man as a Bar of Nevada then filed a complaint against petitioner, “scapegoat” and had not “been honest enough to indict the alleging a violation of Nevada Supreme Court Rule 177, a rule people who did it; the police department, crooked cops.” See governing pretrial publicity almost identical to ABA Model infra, Appendix A. At issue here is the constitutionality of Rule of Professional Conduct 3.6. We set forth the full text a ban on political speech critical of the government and its of Rule 177 in Appendix B. Rule 177(1) prohibits an attorney officials. from making “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially A prejudicing an adjudicative proceeding.” Rule 177(2) lists a number of statements that are “ordinarily ... likely” to result Unlike other First Amendment cases this Term in which in material prejudice. Rule 177(3) provides a safe harbor for speech is not the direct target of the regulation or statute in the attorney, listing a number of statements that can be made question, see, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. without fear of discipline notwithstanding the other parts of 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (ban on nude the Rule. barroom dancing); Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991) (sales tax on cable Following a hearing, the Southern Nevada Disciplinary Board and satellite television), this case involves punishment of of the State Bar found that Gentile had made the statements in pure speech in the political forum. Petitioner engaged not in question and concluded that he violated Rule 177. The board solicitation of clients or advertising for his practice, as in our recommended a private reprimand. Petitioner appealed to the precedents from which some of our colleagues would discern Nevada Supreme Court, waiving the confidentiality of the a standard of diminished First Amendment protection. His disciplinary proceeding, and the Nevada court affirmed the words were directed at public officials and their conduct in decision of the board. office.

There is no question that speech critical of the exercise Nevada's application of Rule 177 in this case violates the First of the State's power lies at the very center of the First Amendment. Petitioner spoke at a time and in a manner that Amendment. Nevada seeks to punish the dissemination neither in law nor in fact created any threat of real prejudice of information *1035 relating to alleged governmental to his client's right to a fair trial or to the State's interest in misconduct, which only last Term we described as “speech the enforcement of its criminal laws. Furthermore, the Rule's which has traditionally been recognized as lying at the core of safe harbor provision, Rule 177(3), appears *1034 to permit the First Amendment.” Butterworth v. Smith, 494 U.S. 624, the speech in question, and Nevada's decision to discipline 632, 110 S.Ct. 1376, 1381, 108 L.Ed.2d 572 (1990) petitioner **2724 in spite of that provision raises concerns . of vagueness and selective enforcement. The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations. See, e.g., Landmark Communications, Inc. v. Virginia, 435 U.S. 829,

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 8 of 144 3 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

838-839, 98 S.Ct. 1535, 1541-1542, 56 L.Ed.2d 1 (1978). only Rule 177 as it has been interpreted and applied by the “[I]t would be difficult to single out any aspect of government State of Nevada. Model Rule 3.6's requirement of substantial of higher concern and importance to the people than the likelihood of material prejudice is not necessarily flawed. manner in which criminal trials are conducted.” Richmond Interpreted in a proper and narrow manner, for instance, Newspapers, Inc. v. Virginia, 448 U.S. 555, 575, 100 S.Ct. to prevent an attorney of record from releasing information 2814, 2826, 65 L.Ed.2d 973 (1980). Public vigilance serves of grave prejudice on the eve of jury selection, the phrase us well, for “[t]he knowledge that every criminal trial is substantial likelihood of material prejudice might punish only subject to contemporaneous review in the forum of public speech that creates a danger of imminent and substantial opinion is an effective restraint on possible abuse of judicial harm. A rule governing speech, even speech entitled to full power.... Without publicity, all other checks are insufficient: constitutional protection, need not use the words “clear and in comparison of publicity, all other checks are of small present danger” in order to pass constitutional muster. account.” In re Oliver, 333 U.S. 257, 270-271, 68 S.Ct. 499, 506-507, 92 L.Ed. 682 (1948). As we said in Bridges v. “Mr. Justice Holmes' test was never intended ‘to express California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), a technical legal doctrine or to convey a formula for limits upon public comment about pending cases are adjudicating cases.’ Pennekamp v. Florida, 328 U.S. 331, 353 [66 S.Ct. 1029, 1040, 90 L.Ed. 1295] (1946) “likely to fall not only at a crucial time but upon the most (Frankfurter, J., concurring). Properly applied, the test important topics of discussion.... requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the “No suggestion can be found in the Constitution that the particular utterance and then to balance the character of the freedom there guaranteed for speech and the press bears an evil, as well as its likelihood, against the need for free and inverse ratio to the timeliness and importance of the ideas unfettered expression. The possibility that other measures seeking expression.” Id., at 268-269, 62 S.Ct., at 196-197. will serve the State's interests should also be weighed.” Landmark Communications, Inc. v. Virginia, supra, 435 In Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, U.S., at 842-843, 98 S.Ct., at 1543-1544. 1515, 16 L.Ed.2d 600 (1966), we reminded that “[t]he press ... guards against the miscarriage of justice by subjecting *1037 The drafters of Model Rule 3.6 apparently thought the police, prosecutors, and judicial processes **2725 to the substantial likelihood of material prejudice formulation extensive public scrutiny and criticism.” approximated the clear and present danger test. See ABA Annotated Model Rules of Professional Conduct 243 (1984) Public awareness and criticism have even greater importance (“formulation in Model Rule 3.6 incorporates a standard where, as here, they concern allegations of police corruption, approximating clear and present danger by focusing on the see Nebraska Press Assn. v. Stuart, 427 U.S. 539, 606, likelihood of injury and its substantiality”; citing Landmark 96 S.Ct. 2791, 2825, 49 L.Ed.2d 683 (1976) (Brennan, J., Communications, supra, at 844, 98 S.Ct., at 1544; Wood concurring in judgment) (“[C]ommentary *1036 on the fact v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 that there is strong evidence implicating a government official (1962); and Bridges v. California, supra, 314 U.S., at 273, 62 in criminal activity goes to the very core of matters of public S.Ct., at 198, for guidance in determining whether statement concern”), or where, as is also the present circumstance, “poses a sufficiently serious and imminent threat to the the criticism questions the judgment of an elected public fair administration of justice”); G. Hazard & W. Hodes, prosecutor. Our system grants prosecutors vast discretion at The Law of Lawyering: A Handbook on the Model Rules all stages of the criminal process, see Morrison v. Olson, of Professional Conduct 397 (1985) (“To use traditional 487 U.S. 654, 727-728, 108 S.Ct. 2597, 2637-2638, 101 terminology, the danger of prejudice to a proceeding must L.Ed.2d 569 (1988) (SCALIA, J., dissenting). The public has be both clear (material) and present (substantially likely)”); an interest in its responsible exercise. In re Hinds, 90 N.J. 604, 622, 449 A.2d 483, 493 (1982) (substantial likelihood of material prejudice standard is a linguistic equivalent of clear and present danger). B The difference between the requirement of serious and We are not called upon to determine the constitutionality of imminent threat found in the disciplinary rules of some States the ABA Model Rule of Professional Conduct 3.6 (1981), but and the more common formulation of substantial likelihood

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 9 of 144 4 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858 of material prejudice could prove mere semantics. Each First Amendment, as adopted by the Due Process Clause standard requires an assessment of proximity and degree of the Fourteenth Amendment, protect.” Pennekamp v. of harm. Each may be capable of valid application. Under Florida, 328 U.S. 331, 335, 66 S.Ct. 1029, 1031, 90 L.Ed. those principles, nothing inherent in Nevada's formulation 1295 (1946). fails First Amendment review; but as this case demonstrates, **2726 Rule 177 has not been interpreted in conformance “ ‘Whenever the fundamental rights of free speech ... are with those principles by the Nevada Supreme Court. alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually *1039 did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the II evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.’ ” Even if one were to accept respondent's argument that lawyers Landmark Communications, Inc. v. Virginia, 435 U.S., at participating in judicial proceedings may be subjected, 844, 98 S.Ct., at 1544 (quoting Whitney v. California, 274 consistent with the First Amendment, to speech restrictions U.S. 357, 378-379, 47 S.Ct. 641, 649-650, 71 L.Ed. 1095 that could not be imposed on the press or general public, (1927) (Brandeis, J., concurring)). the judgment should not be upheld. The record does *1038 not support the conclusion that petitioner knew Whether one applies the standard set out in Landmark or reasonably should have known his remarks created a Communications or the lower standard our colleagues find substantial likelihood of material prejudice, if the Rule's terms permissible, an examination of the record reveals no basis are given any meaningful content. for the Nevada court's conclusion that the speech presented a substantial likelihood of material prejudice. We have held that “in cases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent Our decision earlier this Term in Mu'Min v. Virginia, 500 examination of the whole record’ in order to make sure that U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991), provides ‘the judgment does not constitute a forbidden intrusion on the a pointed contrast to respondent's contention in this case. field of free expression.’ ” Bose Corp. v. Consumers Union There, the community had been subjected to a barrage of of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, publicity prior to Mu'Min's trial for capital murder. News 1958, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. stories appeared over a course of several months and included, v. Sullivan, 376 U.S. 254, 284-286, 84 S.Ct. 710, 728-729, 11 in addition to details of the crime itself, numerous items L.Ed.2d 686 (1964)). of prejudicial information inadmissible at trial. Eight of the twelve individuals seated on Mu'Min's jury admitted some Neither the disciplinary board nor the reviewing court exposure to pretrial publicity. We held that the publicity did explains any sense in which petitioner's statements had a not rise even to a level requiring questioning of individual substantial likelihood of causing material prejudice. The only jurors about the content of publicity. In light of that holding, evidence against Gentile was the videotape of his statements the Nevada court's conclusion **2727 that petitioner's and his own testimony at the disciplinary hearing. The Bar's abbreviated, general comments six months before trial created whole case rests on the fact of the statements, the time they a “substantial likelihood of materially prejudicing” the were made, and petitioner's own justifications. Full deference proceeding is, to say the least, most unconvincing. to these factual findings does not justify abdication of our responsibility to determine whether petitioner's statements can be punished consistent with First Amendment standards. A. Rather, this Court is Pre-Indictment Publicity. On January 31, 1987, undercover “compelled to examine for [itself] the statements in issue police officers with the Las Vegas Metropolitan Police and the circumstances under which they were made to see Department (Metro) reported large amounts of cocaine (four whether or not they do carry a threat of clear and present kilograms) and travelers' checks (almost $300,000) missing danger to the impartiality and good order of the courts or from a safety deposit vault at Western Vault Corporation. The whether they are of a character which the principles of the drugs and money had been used as part of an undercover *1040 operation conducted by Metro's Intelligence Bureau.

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 10 of 144 5 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

Petitioner's client, Grady Sanders, owned Western Vault. by one Ray Slaughter. But later, the Federal Bureau of John Moran, the Las Vegas sheriff, reported the theft at a Investigation (FBI) arrested Slaughter for distributing cocaine press conference on February 2, 1987, naming the police and to an FBI informant, Belinda Antal. It was also reported Western Vault employees as suspects. that the $264,900 seized from the unrented safety deposit box at Western Vault had been stored there in a suitcase Although two police officers, Detective Steve Scholl and owned by one Tammy Sue Markham. Markham was “facing a Sargeant Ed Schaub, enjoyed free access to the deposit number of federal drug-related charges” in Tucson, Arizona. box throughout the period of the theft, and no log reported Markham reported items missing from three boxes she comings and goings at the vault, a series of press reports rented at Western Vault, as did one Beatrice Connick, who, over the following year indicated that investigators did not according to press reports, was a Colombian national living consider these officers responsible. Instead, investigators in San Diego and “not facing any drug related charges.” (As focused upon Western Vault and its owner. Newspaper it turned out, petitioner impeached Connick's credibility at reports quoted the sheriff and other high police officials trial with the existence of a money laundering conviction.) as saying that they had not lost confidence in the “elite” Connick also was reported to have taken and passed a Intelligence Bureau. From the beginning, Sheriff Moran had lie detector **2728 test to substantiate her charges. Id., “complete faith and trust” in his officers. App. 85. at 94-97. Finally, press reports indicated that Sanders had refused to take a police polygraph examination. Id., at 41. The media reported that, following announcement of the The press suggested that the FBI suspected Metro officers cocaine theft, others with deposit boxes at Western Vault were responsible for the theft, and reported that the theft had had come forward to claim missing items. One man claimed severely damaged relations between the FBI and Metro. the theft of his life savings of $90,000. Id., at 89. Western Vault suffered heavy losses as customers terminated their box rentals, and the company soon went out of business. The B. police opened other boxes in search of the missing items, and it was reported they seized $264,900 in United States The Press Conference. Petitioner is a Las Vegas criminal currency from a box listed as unrented. defense attorney, an author of articles about criminal law and procedure, and a former associate dean of the National Initial press reports stated that Sanders and Western Vault College for Criminal Defense Lawyers and Public Defenders. were being cooperative; but as time went on, the press noted Id., at 36-38. Through leaks from the police department, he that the police investigation had failed to identify the culprit *1042 had some advance notice of the date an indictment and through a process of elimination was beginning to point would be returned and the nature of the charges against toward Sanders. Reports quoted the affidavit of a detective Sanders. Petitioner had monitored the publicity surrounding that the theft was part of an effort to discredit the undercover the case, and, prior to the indictment, was personally aware operation and that business records suggested the existence of at least 17 articles in the major local newspapers, the Las of a business relation between Sanders and the targets of a Vegas Sun and Las Vegas Review-Journal, and numerous Metro undercover probe. Id., at 85. local television news stories which reported on the Western Vault theft and ensuing investigation. Id., at 38-39; see The deputy police chief announced the two detectives with Respondent's Exhibit A, before Disciplinary Board. Petitioner access to the vault had been “cleared” as possible suspects. determined, for the first time in his career, that he would call *1041 According to an unnamed “source close to the a formal press conference. He did not blunder into a press investigation,” the police shifted from the idea that the thief conference, but acted with considerable deliberation. had planned to discredit the undercover operation to the theory that the thief had unwittingly stolen from the police. The stories noted that Sanders “could not be reached for comment.” Id., at 93. 1. Petitioner's Motivation. As petitioner explained to the The story took a more sensational turn with reports that the disciplinary board, his primary motivation was the concern two police suspects had been cleared by police investigators that, unless some of the weaknesses in the State's case were after passing lie detector tests. The tests were administered made public, a potential jury venire would be poisoned

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 11 of 144 6 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858 by repetition in the press of information being released by or reduction of charges, including an attempt to demonstrate the police and prosecutors, in particular the repeated press in the court of public opinion that the client does not deserve reports about polygraph tests and the fact that the two police to be tried. officers were no longer suspects. App. 40-42. Respondent distorts Rule 177 when it suggests this explanation admits a purpose to prejudice the venire and so proves a violation *1044 2. of the Rule. Rule 177 only prohibits the dissemination of information that one knows or reasonably should know Petitioner's Investigation of Rule 177. Rule 177 is phrased has a “substantial likelihood of materially prejudicing an in terms of what an attorney “knows or reasonably should adjudicative proceeding.” Petitioner did not indicate he know.” On the evening before the press conference, petitioner thought he could sway the pool of potential jurors to form and two colleagues spent several hours researching the extent an opinion in advance of the trial, nor did he seek to of an attorney's obligations under Rule 177. He decided, as discuss evidence that would be inadmissible at trial. He we have held, see Patton v. Yount, 467 U.S. 1025, 104 S.Ct. sought only to counter publicity already deemed prejudicial. 2885, 81 L.Ed.2d 847 (1984), that the timing of a statement The Southern Nevada Disciplinary Board so found. It said was crucial in the assessment of possible prejudice and the petitioner attempted Rule's application, accord, Stroble v. California, 343 U.S. 181, 191-194, 72 S.Ct. 599, 604-606, 96 L.Ed. 872 (1952). *1043 “(i) to counter public opinion which he perceived App. 44. as adverse to Mr. Sanders, (ii) ... to refute certain matters regarding his client which had appeared in the media, Upon return of the indictment, the court set a trial date (iii) to fight back against the perceived efforts of the for August 1988, some six months in the future. Petitioner prosecution to poison the prospective juror pool, and (iv) knew, at the time of his statement, that a jury would not be to publicly present Sanders' side of the case.” App. 3-4. empaneled for six months at the earliest, if ever. He recalled Far from an admission that he sought to “materially reported cases finding no prejudice resulting from juror prejudic[e] an adjudicative proceeding,” petitioner sought exposure to “far worse” information two and four months only to stop a wave of publicity he perceived as prejudicing before trial, and concluded that his proposed statement was potential jurors against his client and injuring his client's not substantially likely to result in material prejudice. Ibid. reputation in the community. A statement which reaches the attention of the venire on Petitioner gave a second reason for holding the press the eve of voir dire might require a continuance or cause conference, which demonstrates the additional value of his difficulties in securing an impartial jury, and at the very speech. Petitioner acted in part because the investigation had least could complicate the jury selection process. See ABA taken a serious toll on his client. Sanders was “not a man in Annotated Model Rules of Professional Conduct 243 (1984) good health,” having suffered multiple open-heart surgeries (timing of statement a significant factor in determining prior to these events. Id., at 41. And prior to indictment, seriousness and imminence of threat). As turned out to be the the mere suspicion of wrongdoing had caused the closure of case here, exposure to the same statement six months prior Western Vault and the loss of Sanders' ground lease on an to trial would not result in prejudice, the content fading from Atlantic City, New Jersey, property. Ibid. memory long before the trial date.

An attorney's duties do not begin inside the courtroom door. In 1988, Clark County, Nevada, had population in excess He or she cannot ignore the practical implications of a legal of 600,000 persons. Given the size of the community from proceeding for the client. Just as an attorney may recommend which any potential jury venire would be drawn and the length a plea bargain or civil settlement to avoid the adverse of time before trial, only the most damaging of information consequences of a possible loss after trial, so too an attorney could give rise to any likelihood of prejudice. The innocuous may take reasonable steps to defend a client's reputation and content of petitioner's statements reinforces my conclusion. reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced **2729 with improper motives. A defense attorney may *1045 3. pursue lawful strategies to obtain dismissal of an indictment

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 12 of 144 7 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

The Content of Petitioner's Statements. Petitioner was DEALERS, AND THAT OTHER AGENCIES disciplined for statements to the effect that (1) the evidence HAVE OPERATED OUT OF W. VAULT demonstrated his client's innocence, (2) the likely thief was a WITHOUT HAVING SIMILAR PROBLEMS. police detective, Steve Scholl, and (3) the other victims were “2-5-88: METRO NEWS CONFERENCE IN not credible, as most were drug dealers or convicted money WHICH CHIEF SULLIVAN EXPLAINS THAT THE OFFICERS INVOLVED HAVE BEEN launderers, all but one of whom had only accused Sanders CLEARED BY POLYGRAPH TESTS. STORY in response to police pressure, in the process of “trying to MENTIONS THAT THE POLYGRAPHER WAS work themselves out of something.” Appendix A, infra, at RAY SLAUGHTER, UNUSUAL BECAUSE 2736. App. 2-3 (Findings and Recommendation of the State SLAUGHTER IS A PRIVATE EXAMINER, NOT Bar of Nevada, Southern Nevada Disciplinary Board). He A METRO EXAMINER. REPORTER DETAILS also strongly implied that Steve Scholl could be observed SLAUGHTER'S BACKGROUND, INCLUDING in a videotape suffering from symptoms of cocaine use. Of HIS TEST OF JOHN MORAN REGARDING course, only a small fraction of petitioner's remarks were SPILOTRO CONTRIBUTIONS. ALSO MENTIONS disseminated to the public, in two newspaper stories and two SLAUGHTER'S DRUG BUST, SPECULATES television news broadcasts. ABOUT WHETHER IT WAS A SETUP BY THE FBI. QUOTES GENTILE AS SAYING THE The stories mentioned not only Gentile's press conference TWO CASES ARE DEFINITELY RELATED.” App. but also a prosecution response and police press conference. 131-132 (emphasis added). See App. 127-129, 131-132; Respondent's Exhibit A, before Much of the information provided by petitioner had been Disciplinary Board. 1 The chief **2730 deputy district published in one form or another, obviating any potential for attorney was *1046 quoted as saying that this was a prejudice. See ABA Annotated Model Rules of Professional legitimate indictment, and that prosecutors cannot bring an Conduct 243 (1984) (extent to which information already indictment to court unless they can prove the charges in it circulated significant factor in determining likelihood of beyond a reasonable doubt. App. 128-129. Deputy Police prejudice). The remainder, and details petitioner refused to Chief Sullivan stated for the police department: “ ‘We in provide, were available to any journalist willing to do a little Metro are very satisfied our officers (Scholl and Sgt. Ed bit of investigative work. Schaub) had nothing to do with this theft or any other. They are both above reproach. Both are veteran police officers Petitioner's statements lack any of the more obvious bases who are dedicated to honest law enforcement.’ ” Id., at for a finding of prejudice. Unlike the police, he refused to 129. In the context of general public awareness, these police comment on polygraph tests except to confirm earlier reports and prosecution statements were no more likely to result that Sanders had not submitted to the police polygraph; he in prejudice than were petitioner's statements, but given the mentioned no confessions and no evidence from searches or repetitive publicity from the police investigation, it is difficult test results; he refused to elaborate upon his charge that the to come to any conclusion but that the balance remained in other so-called victims were not credible, except to explain favor of the prosecution. his general theory that they were pressured to testify in an attempt to avoid drug-related legal trouble, and that some of *1047 them may have asserted claims in an attempt to 1 The sole summary of television reports of the press collect insurance money. conference contained in the record is as follows: “2-5-88: “GENTILE NEWS CONFERENCE STORY. GENTILE COMPARES THE W. VAULT C. BURGLARY TO THE FRENCH CONNECTION CASE IN WHICH THE BAD GUYS WERE Events Following the Press Conference. Petitioner's COPS. GENTILE SAYS THE EVIDENCE IS judgment that no likelihood of material prejudice would CIRCUMSTANTIAL AND THAT THE COPS result from his comments was vindicated by events at trial. SEEM THE MORE LIKELY CULPRITS, THAT While it is true that Rule 177's standard for controlling DET. SCHOLL HAS SHOWN SIGNS OF DRUG pretrial publicity must be judged at the time a statement is USE, THAT THE OTHER CUSTOMERS WERE made, ex post evidence can have probative value in some PRESSURED INTO COMPLAINING BY METRO, cases. Here, where the Rule purports to demand, and the THAT THOSE CUSTOMERS ARE KNOWN DRUG

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 13 of 144 8 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

Constitution requires, consideration of the character of the 1 and 2(a-f).” By necessary operation of the word harm and its heightened likelihood of occurrence, the record “notwithstanding,” the Rule contemplates that a lawyer is altogether devoid of facts one would expect to follow describing the “general nature of the ... defense” “without upon any statement that created a real likelihood of material elaboration” need fear no discipline, even if he comments on prejudice to a criminal jury trial. “[t]he character, credibility, reputation or criminal record of a ... witness,” and even if he “knows or reasonably should The trial took place on schedule in August 1988, with no know that [the statement] will have a substantial likelihood of request by either party for a venue change or continuance. materially prejudicing an adjudicative proceeding.” The jury was empaneled with no apparent difficulty. The trial judge questioned the jury venire about publicity. Although Given this grammatical structure, and absent any clarifying many had vague recollections of reports that cocaine stored interpretation by the state court, the Rule fails to provide at Western Vault had been stolen from a police undercover “ ‘fair notice to those to whom [it] is directed.’ ” Grayned operation, and, as petitioner had feared, one remembered v. City of Rockford, 408 U.S. 104, 112, 92 S.Ct. 2294, that the police had been cleared of suspicion, not a single 2301, 33 L.Ed.2d 222 (1972). A lawyer seeking to avail juror indicated any recollection of petitioner or his press himself of Rule 177(3)'s protection must guess at its contours. conference. App. 48-49; Respondent's Exhibit B, before The right to explain the “general” nature of the defense Disciplinary Board. without “elaboration” provides insufficient guidance because “general” and “elaboration” are both classic *1049 terms of At trial, all material information disseminated during degree. In the context before us, these terms have no settled petitioner's press conference was admitted in evidence before usage or tradition of interpretation in law. The lawyer has no the jury, including information questioning the motives and principle for determining when his remarks pass from the safe credibility of supposed victims who testified against Sanders, harbor of the general to the forbidden sea of the elaborated. and Detective Scholl's ingestion of drugs in the course of **2731 undercover operations (in order, he testified, to Petitioner testified he thought his statements were protected gain the confidence of suspects). App. 47. The jury acquitted by Rule 177(3), App. 59. A review of the press conference petitioner's client, and, as petitioner explained before the supports that claim. He gave only a brief opening statement, disciplinary board, see Appendix A, infra, p. 2736-2737, and on numerous occasions declined to answer reporters' questions seeking *1048 “when the trial was over with and the man was more detailed comments. One illustrative exchange shows acquitted the next week the foreman of the jury phoned petitioner's attempt to obey the rule: me and said to me that if they would have had a verdict form before them with respect to the guilt of Steve Scholl “QUESTION FROM THE FLOOR: Dominick, you they would have found the man proven guilty beyond a mention you question the credibility of some of the reasonable doubt.” Id., at 47-48. witnesses, some of the people named as victims in the government indictment. There is no support for the conclusion that petitioner's statements created a likelihood of material prejudice, or “Can we go through it and elaborate on their backgrounds, indeed of any harm of sufficient magnitude or imminence to interests- support a punishment for speech. “MR. GENTILE: I can't because ethics prohibit me from doing so.

III “Last night before I decided I was going to make a statement, I took a good close look at the rules of [1] As interpreted by the Nevada Supreme Court, the Rule is professional responsibility. There are things that I can say void for vagueness, in any event, for its safe harbor provision, and there are things that I can't. Okay? Rule 177(3), misled petitioner into thinking that he could give his press conference without fear of discipline. Rule 177(3) “I can't name which of the people have the drug (a) provides that a lawyer “may state without elaboration ... backgrounds. I'm sure you guys can find that by doing just the general nature of the ... defense.” Statements under this provision are protected “[n]otwithstanding subsection

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 14 of 144 9 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

a little bit of investigative work.” App. to Pet. for Cert. 11a “Number one, again, Ray Slaughter is coming up for (emphasis added). 2 trial and it wouldn't be right to call him a liar if I didn't think that it were true. “But, secondly, I don't have much faith in polygraph 2 Other occasions are as follows: tests. “QUESTION FROM THE FLOOR: Do you believe “QUESTION FROM THE FLOOR: Did [Sanders] any other police officers other than Scholl were ever take one? involved in the disappearance of the dope and- “MR. GENTILE: The police polygraph? “MR. GENTILE: Let me say this: What I believe and “QUESTION FROM THE FLOOR: Yes. what the proof is are two different things. Okay? I'm “MR. GENTILE: No, he didn't take a police reluctant to discuss what I believe because I don't want polygraph. to slander somebody, but I can tell you that the proof “QUESTION FROM THE FLOOR: Did he take one shows that Scholl is the guy that is most likely to have with you? taken the cocaine and the American Express traveler's “MR. GENTILE: I'm not going to disclose that now.” checks. Id., at 12a-13a. “QUESTION FROM THE FLOOR: What is that? **2732 *1050 Nevertheless, the disciplinary board said What is that proof? “MR. GENTILE: It'll come out; it'll come out.” App. only that petitioner's comments “went beyond the scope of to Pet. for Cert. 9a. the statements permitted by SCR 177(3),” App. 5, and the “QUESTION FROM THE FLOOR: I have seen Nevada Supreme *1051 Court's rejection of petitioner's reports that the FBI seems to think sort of along the defense based on Rule 177(3) was just as terse, App. to Pet. lines that you do. for Cert. 4a. The fact that Gentile was found in violation of “MR. GENTILE: Well, I couldn't agree with them the Rules after studying them and making a conscious effort more. at compliance demonstrates that Rule 177 creates a trap for “QUESTION FROM THE FLOOR: Do you know the wary as well as the unwary. anything about it? “MR. GENTILE: Yes, I do; but again, Dan, I'm not in [2] The prohibition against vague regulations of speech is a position to be able to discuss that now. based in part on the need to eliminate the impermissible “All I can tell you is that you're in for a very interesting risk of discriminatory enforcement, Kolender v. Lawson, 461 six months to a year as this case develops.” Id., at 10a. U.S. 352, 357-358, 361, 103 S.Ct. 1855, 1858-1859, 1860, “QUESTION FROM THE FLOOR: Did the cops pass the polygraph? 75 L.Ed.2d 903 (1983); Smith v. Goguen, 415 U.S. 566, “MR. GENTILE: Well, I would like to give you a 572-573, 94 S.Ct. 1242, 1246-1247, 39 L.Ed.2d 605 (1974), comment on that, except that Ray Slaughter's trial for history shows that speech is suppressed when either the is coming up and I don't want to get in the way of speaker or the message is critical of those who enforce the anybody being able to defend themselves. law. The question is not whether discriminatory enforcement “QUESTION FROM THE FLOOR: Do you think the occurred here, and we assume it did not, but whether the Slaughter case-that there's a connection? Rule is so imprecise that discriminatory enforcement is a real “MR. GENTILE: Absolutely. I don't think there is any possibility. The inquiry is of particular relevance when one question about it, and- of the classes most affected by the regulation is the criminal “QUESTION FROM THE FLOOR: What is that? defense bar, which has the professional mission to challenge “MR. GENTILE: Well, it's intertwined to a great deal, actions of the State. Petitioner, for instance, succeeded in I think. preventing the conviction of his client, and the speech in issue “I know that what I think the connection is, again, is involved criticism of the government. something I believe to be true. I can't point to it being true and until I can I'm not going to say anything. “QUESTION FROM THE FLOOR: Do you think the police involved in this passed legitimate-legitimately IV passed lie detector tests? “MR. GENTILE: I don't want to comment on that for The analysis to this point resolves the case, and in the usual two reasons: order of things the discussion should end here. Five Members of the Court, however, endorse an extended discussion which concludes that Nevada may interpret its requirement of

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 15 of 144 10 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858 substantial likelihood of material prejudice under a standard more deferential than is the usual rule where speech is This case involves no speech subject to a restriction under the concerned. It appears necessary, therefore, to set forth my rationale of Seattle Times. Much of the information in *1053 objections to that conclusion and to the reasoning which petitioner's remarks was included by explicit reference or fair underlies it. inference in earlier press reports. Petitioner could not have learned what he revealed at the press conference through Respondent argues that speech by an attorney is subject the discovery process or other special access afforded to to greater regulation than **2733 speech by others, and attorneys, for he spoke to the press on the day of indictment, restrictions on an attorney's speech should be assessed under a at the outset of his formal participation in the criminal balancing test that weighs the State's interest in the regulation proceeding. We have before us no complaint from the of a *1052 specialized profession against the lawyer's First prosecutors, police, or presiding judge that petitioner misused Amendment interest in the kind of speech that was at issue. information to which he had special access. And there is no The cases cited by our colleagues to support this balancing, claim that petitioner revealed client confidences, which may Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, be waived in any event. Rule 177, on its face and as applied 53 L.Ed.2d 810 (1977); Peel v. Attorney Registration and here, is neither limited to nor even directed at preventing Disciplinary Comm'n of Ill., 496 U.S. 91, 110 S.Ct. 2281, 110 release of information received through court proceedings or L.Ed.2d 83 (1990); Ohralik v. Ohio State Bar Assn., 436 U.S. special access afforded attorneys. Cf. Butterworth v. Smith, 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978); and Seattle Times 494 U.S., at 632-634, 110 S.Ct., at 1381-1382. It goes far Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d beyond this. 17 (1984), involved either commercial speech by attorneys or restrictions upon release of information that the attorney could gain only by use of the court's discovery process. B Neither of those categories, nor the underlying interests which justified their creation, were implicated here. Petitioner was Respondent relies upon obiter dicta from In re Sawyer, 360 disciplined because he proclaimed to the community what he U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959), Sheppard thought to be a misuse of the prosecutorial and police powers. v. Maxwell, 384 U.S. 333 (1966), and Nebraska Press Assn. Wide-open balancing of interests is not appropriate in this v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 context. (1976), for the proposition that an attorney's speech about ongoing proceedings must be subject to pervasive regulation in order to ensure the impartial adjudication of criminal A proceedings. In re Sawyer involved general comments about Smith Act prosecutions rather than the particular proceeding Respondent would justify a substantial limitation on speech in which the attorney was involved, conduct which we by attorneys because “lawyers have special access to held not sanctionable under the applicable ABA Canon of information, including confidential statements from clients Professional Ethics, quite apart from any resort to First and information obtained through pretrial discovery or plea Amendment principles. Nebraska Press Assn. considered a negotiations,” and so lawyers' statements “are likely to be challenge to a court **2734 order barring the press from received as especially authoritative.” Brief for Respondent reporting matters most prejudicial to the defendant's Sixth 22. Rule 177, however, does not reflect concern for the Amendment trial right, not information released by defense attorney's special access to client confidences, material counsel. In Sheppard v. Maxwell, we overturned a conviction gained through discovery, or other proprietary or confidential after a trial that can only be described as a circus, with information. We have upheld restrictions upon the release the courtroom taken over by the press and jurors turned of information gained “only by virtue of the trial court's into media stars. The prejudice to Dr. Sheppard's fair trial discovery processes.” Seattle Times Co. v. Rhinehart, supra, right can be traced in principal *1054 part to police and 467 U.S., at 32, 104 S.Ct., at 2207. And Seattle Times would prosecutorial irresponsibility and the trial court's failure to prohibit release of discovery information by the attorney control the proceedings and the courthouse environment. as well as the client. Similar rules require an attorney to Each case suggests restrictions upon information release, but maintain client confidences. See, e.g., ABA Model Rule of none confronted their permitted scope. Professional Conduct 1.6 (1981).

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 16 of 144 11 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

At the very least, our cases recognize that disciplinary proceedings our traditional First Amendment protections. rules governing the legal profession cannot punish activity Our colleagues' historical survey notwithstanding, respondent protected by the First Amendment, and that First Amendment has not demonstrated any sufficient state interest in restricting protection survives even when the attorney violates a the speech of attorneys to justify a lower standard of First disciplinary rule he swore to obey when admitted to the Amendment scrutiny. practice of law. See, e.g., In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978); Bates v. State Bar of Still less justification exists for a lower standard of scrutiny Arizona, supra. We have not in recent years accepted our here, as this speech involved not the prosecutor or police, colleagues' apparent theory that the practice of law brings but a criminal defense attorney. Respondent and its amici with it comprehensive restrictions, or that we will defer to present not a single example where a defense attorney has professional bodies when those restrictions impinge upon managed by public statements to prejudice the prosecution First Amendment freedoms. And none of the justifications put of the State's case. Even discounting the obvious reason forward by respondent suffice to sanction abandonment of our for a lack of appellate decisions on the topic-the difficulty normal First Amendment principles in the case of speech by of appealing a verdict of acquittal-the absence of anecdotal an attorney regarding pending cases. or survey evidence in a much-studied area of the law is remarkable.

**2735 The various bar association and advisory V commission reports which resulted in promulgation of Even if respondent is correct, and as in Seattle Times we ABA Model Rule of Professional Conduct 3.6 (1981), must balance “whether the ‘practice in question [furthers] an and other regulations of attorney speech, and sources important or substantial governmental interest unrelated to they cite, present no convincing case for restrictions upon the suppression of expression’ and whether ‘the limitation of the speech of defense attorneys. See Swift, Model Rule First Amendment freedoms [is] no greater than is necessary 3.6: An Unconstitutional Regulation of Defense Attorney or essential to the protection of the particular governmental Trial Publicity, 64 B.U.L.Rev. 1003, 1031-1049 (1984) interest involved,’ ” Seattle Times, supra, 467 U.S., at 32, 104 (summarizing studies and concluding there is no empirical S.Ct., at 2207 (quoting Procunier v. Martinez, 416 U.S. 396, or anecdotal evidence of a need for restrictions on defense 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974)), the Rule publicity); see also Drechsel, supra, at 35 (“[D]ata *1056 as interpreted by Nevada fails the searching inquiry required showing the heavy reliance of journalists on law enforcement by those precedents. sources and prosecutors confirms the appropriateness of focusing attention on those sources when attempting to control pre-trial publicity”). The police, the prosecution, other government officials, and the community at large hold A innumerable avenues for the dissemination of information Only the occasional case presents a danger of prejudice from adverse to a criminal defendant, many of which are not within pretrial publicity. Empirical research suggests that in the few the scope of Rule 177 or any other regulation. By contrast, instances when jurors have been exposed to extensive and a defendant cannot speak without fear of incriminating prejudicial publicity, they are able to disregard it *1055 himself and prejudicing his defense, and most criminal and base their verdict upon the evidence presented in court. defendants have insufficient means to retain a public relations See generally Simon, Does the Court's Decision in Nebraska team apart from defense counsel for the sole purpose of countering prosecution statements. These factors underscore Press Association Fit the Research Evidence on the Impact my conclusion that blanket rules restricting speech of defense on Jurors of News Coverage?, 29 Stan.L.Rev. 515 (1977); attorneys should not be accepted without careful First Drechsel, An Alternative View of Media-Judiciary Relations: Amendment scrutiny. What the Non-Legal Evidence Suggests About the Fair Trial-Free Press Issue, 18 Hofstra L.Rev. 1 (1989). Voir dire can play an important role in reminding jurors to set aside out-of-court information and to decide the case upon B the evidence presented at trial. All of these factors weigh in favor of affording an attorney's speech about ongoing

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 17 of 144 12 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

Respondent uses the “officer of the court” label to imply speech so innocuous, and an application of Rule 177(3)'s that attorney contact with the press somehow is inimical safe harbor provision so begrudging, that it is difficult to to the attorney's proper role. Rule 177 posits no such determine the force these arguments would carry in a different inconsistency between an attorney's role and discussions setting. The instant case is a poor vehicle for defining with with the press. It permits all comment to the press precision the outer limits under the Constitution of a court's absent “a substantial likelihood of materially prejudicing an ability to regulate an attorney's statements about ongoing adjudicative proceeding.” Respondent does not articulate the adjudicative proceedings. At the very least, however, we principle that contact with the press cannot be reconciled with can say that the Rule which punished petitioner's statements the attorney's role or explain how this might be so. represents a limitation of First Amendment freedoms greater than is necessary *1058 or essential to the protection of the Because attorneys participate in the criminal justice system particular governmental interest, and does not protect against and are trained in its complexities, they hold unique a danger of the necessary gravity, imminence, or likelihood. qualifications as a source of information about pending cases. “Since lawyers are considered credible in regard to pending The vigorous advocacy we demand of the legal profession litigation in which they are engaged and are in one of the is accepted because it takes place under the neutral, most knowledgeable positions, they are a crucial source of dispassionate control of the judicial system. Though cost and information and opinion.” Chicago Council of Lawyers v. delays undermine it in all too many cases, the American Bauer, 522 F.2d 242, 250 (CA7 1975). To the extent the judicial trial remains one of the purest, most rational forums press and public rely upon attorneys for information because for the lawful determination of disputes. A profession which attorneys are well informed, this may prove the value to the takes just pride in these traditions may consider them *1057 public of speech by members of the bar. If the dangers disserved if lawyers use their skills and insight to make of their speech arise from its persuasiveness, from their ability untested allegations in the press instead of in the courtroom. to explain judicial proceedings, or from the likelihood the But constraints of professional responsibility and societal speech will be believed, these are not the sort of dangers disapproval will act as sufficient safeguards in most cases. that can validate restrictions. The First Amendment does And in some circumstances press comment is necessary to not permit suppression of speech because of its power to protect the rights of the client and prevent abuse of the courts. command assent. It cannot be said that petitioner's conduct demonstrated any real or specific threat to the legal process, and his statements One may concede the proposition that an attorney's speech have the full protection of the First Amendment. 3 about pending cases may present dangers that could not arise from statements by a nonparticipant, and that an attorney's 3 Petitioner argues that Rule 177(2) is a categorical duty to cooperate in the judicial process may prevent him or speech prohibition which fails First Amendment her from taking actions with an intent to frustrate that process. analysis because of overbreadth. Petitioner interprets The role of attorneys in the criminal justice system subjects this subsection as providing that particular statements them to fiduciary obligations to the court and the parties. are “presumptively prohibited regardless of the An attorney's position may result in some added ability to circumstances surrounding the speech.” Brief for obstruct the proceedings through well-timed statements to Petitioner 48. Respondent does not read Rule 177(2)'s the press, though one can debate the extent of an attorney's list of statements “ordinarily likely” to create material ability to do so without violating other established duties. A prejudice as establishing an evidentiary presumption, but court can require an attorney's cooperation to an extent not rather as intended to “assist a lawyer” in compliance. possible of nonparticipants. A proper weighing of dangers Brief for Respondent 28, n. 27. The opinions of the might consider the harm that occurs when speech about Disciplinary Board and the Nevada Supreme Court do ongoing proceedings forces the court to take burdensome not address this point, though petitioner's reading is plausible, and at least one treatise supports petitioner's steps such as sequestration, continuance, or change of venue. reading. See G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules **2736 If as a regular matter speech by an attorney of Professional Conduct 398-399 (1985) (analogous about pending cases raised real dangers of this kind, then subsection (b) of ABA Model Rule 3.6 creates a a substantial governmental interest might support additional presumption of prejudice). Given the lack of any regulation of speech. But this case involves the sanction of

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 18 of 144 13 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

discussion in the lower court opinion, and the other whom didn't say a word about anything until after they were difficulties we find, we do not address these arguments. approached by Metro and after they were already in trouble and are trying to work themselves out of something.

VI *1060 “Now, up until the moment, of course, that they The judgment of the Supreme Court of Nevada is started going along with what detectives from Metro wanted them to say, these people were being held out as being Reversed. incredible and liars by the very same people who are going to say now that you can believe them.

*1059 APPENDIX TO OPINION OF KENNEDY, J. “Another problem that you are going to see develop here is the fact that of these other counts, at least four of them said nothing about any of this, about anything being missing Appendix A until after the Las Vegas Metropolitan Police Department announced publicly last year their claim that drugs and Petitioner's Opening Remarks at the Press Conference American Express Travelers' c[h]ecks were missing. of February 5, 1988. App. to Pet. for Cert. 8a-9a. “Many of the contracts that these people had show on the “MR. GENTILE: I want to start this off by saying in clear face of the contract that there is $100,000 in insurance for the terms that I think that this indictment is a significant event in contents of the box. the history of the evolution of the sophistication of the City of Las Vegas, because things of this nature, of exactly this nature “If you look at the indictment very closely, you're going to have happened in New York with the French connection see that these claims fall under $100,000. case and in Miami with cases-at least two cases there-have happened in Chicago as well, but all three of those cities have “Finally, there were only two claims on the face of the been honest enough to indict the people who did it; the police indictment that came to our attention prior to the events of department, crooked cops. January 31 of '87, that being the date that Metro said that there was something missing from their box. “When this case goes to trial, and as it develops, you're going to see that the evidence will prove not only that Grady Sanders “And both of these claims were dealt with by Mr. Sanders and is an innocent person and had nothing to do with any of we're dealing here essentially with people that we're not sure the charges that are being leveled against him, but that the if they ever had anything in the box. person that was in the most direct position to have stolen the drugs and money, the American Express Travelers' checks, is “That's about all that I have to say.” Detective Steve Scholl. [Questions from the floor followed.] **2737 “There is far more evidence that will establish that Detective Scholl took these drugs and took these American Express Travelers' checks than any other living human being. Appendix B “And I have to say that I feel that Grady Sanders is being used as a scapegoat to try to cover up for what has to be obvious to Nevada Supreme Court Rule 177, as people at the Las Vegas Metropolitan Police Department and in effect prior to January 5, 1991. at the District Attorney's office. “Trial Publicity “Now, with respect to these other charges that are contained in “1. A lawyer shall not make an extrajudicial statement that a this indictment, the so-called other victims, as I sit here today I reasonable person would expect to be disseminated by means can tell you that one, two-four of them are known drug dealers of public communication if the lawyer knows or reasonably and convicted money launderers and drug dealers; three of should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 19 of 144 14 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

*1061 “2. A statement referred to in subsection 1 ordinarily “(e) a request for assistance in obtaining evidence and is likely to have such an effect when it refers to a civil matter information necessary thereto; triable to a jury, a criminal matter, or any other proceeding “(f) a warning of danger concerning the behavior of a that could result in incarceration, and the statement relates to: person involved, when there is reason to believe that “(a) the character, credibility, reputation or criminal record there exists the likelihood of substantial harm to an of a party, suspect in a criminal investigation or witness, individual or to the public interest; and or the identity of a witness, or the expected testimony of “(g) in a criminal case: a party or witness; “(i) the identity, residence, occupation and family status “(b) in a criminal case or proceeding that could result in of the accused; incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, “(ii) if the accused has not been apprehended, admission, or statement given by a defendant or suspect information necessary to aid in apprehension of that or that person's refusal or failure to make a statement; person;

“(c) the performance or results of any examination or test or “(iii) the fact, time and place of arrest; and the refusal or failure **2738 of a person to submit to an examination or test, or the identity or nature of physical “(iv) the identity of investigating and arresting officers evidence expected to be presented; or agencies and the length of the investigation.”

“(d) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; Chief Justice REHNQUIST delivered the opinion of the Court with respect to Parts I and II, and delivered a dissenting “(e) information the lawyer knows or reasonably should opinion with respect to Part III, in which Justice WHITE, know is likely to be inadmissible as evidence in a Justice SCALIA, and Justice SOUTER join. trial and would if disclosed create a substantial risk of Petitioner was disciplined for making statements to the press prejudicing an impartial trial; or about a pending case in which he represented a criminal defendant. The state bar, and the Supreme Court of Nevada “(f) the fact that a defendant has been charged with a crime, on review, found that petitioner knew or should have known unless there is included therein a statement explaining that there was a substantial likelihood that his statements that the charge is merely an accusation and that the would materially prejudice the trial of his client. Nonetheless, defendant is presumed innocent until and unless proven petitioner contends that the First Amendment to the United guilty. States Constitution requires a stricter standard to be met before such speech by an attorney may be disciplined: *1063 “3. Notwithstanding subsection 1 and 2(a-f), a lawyer there must be a finding of “actual prejudice or a substantial involved in the investigation or litigation of a matter may state and imminent threat to fair trial.” Brief for Petitioner 15. without elaboration: We conclude that the “substantial likelihood of material prejudice” standard applied by Nevada and most other States “(a) the general nature of the claim or defense; satisfies the First Amendment. *1062 “(b) the information contained in a public record;

“(c) that an investigation of the matter is in progress, I including the general scope of the investigation, the offense or claim or defense involved and, except when Petitioner's client was the subject of a highly publicized case, prohibited by law, the identity of the persons involved; and in response to adverse publicity about his client, Gentile held a press conference on the day after **2739 Sanders “(d) the scheduling or result of any step in litigation; was indicted. At the press conference, petitioner made, among others, the following statements:

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 20 of 144 15 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

approximately six months later, and although the trial court “When this case goes to trial, and as it develops, you're succeeded in empaneling a jury that had not been affected by going to see that the evidence will prove not only that the media coverage and Sanders was acquitted on all charges, Grady Sanders is an innocent person and had nothing to do the state bar disciplined petitioner for his statements. with any of the charges that are being leveled against him, but that the person that was in the most direct position to The Southern Nevada Disciplinary Board found that have stolen the drugs and the money, the American Express petitioner knew the detective he accused of perpetrating Travelers' checks, is Detective Steve Scholl. the crime and abusing drugs would be a witness for the prosecution. It also found that petitioner believed others “There is far more evidence that will establish that whom he characterized as money launderers and drug Detective Scholl took these drugs and took these American dealers would be called as prosecution witnesses. Petitioner's Express Travelers' checks than any other living human admitted purpose for calling the press conference was to being. counter public opinion which he perceived as adverse to his client, to fight back against the perceived efforts of . . . . . the prosecution to poison the prospective juror pool, and “... the so-called other victims, as I sit here today I can to publicly present his client's side of the case. The board tell you that one, two-four of them are known drug dealers found that in light of the *1065 statements, their timing, and and convicted money launderers and drug dealers; three of petitioner's purpose, petitioner knew or should have known whom didn't say a word about anything until after they were that there was a substantial likelihood that the statements approached by Metro and after they were already in trouble would materially prejudice the Sanders trial. and are trying to work themselves out of something. The Nevada Supreme Court affirmed the board's decision, “Now, up until the moment, of course, that they started finding by clear and convincing evidence that petitioner going along with what detectives from Metro wanted them “knew or reasonably should have known that his comments to say, these people were being held out as being incredible had a substantial likelihood of materially prejudicing the and liars by the very same people who *1064 are going to adjudication of his client's case.” 106 Nev. 60, 62, 787 say now that you can believe them.” App. to Pet. for Cert. P.2d 386, 387 (1990). The court noted that the case was 8a-9a. “highly publicized”; that the press conference, held the day after the indictment and the same day as the arraignment, The following statements were in response to questions from was “timed to have maximum impact”; and that **2740 members of the press: petitioner's comments “related to the character, credibility, reputation or criminal record of the police detective and “... because of the stigma that attaches to merely being other potential witnesses.” Ibid. The court concluded that the accused-okay-I know I represent an innocent man.... The “absence of actual prejudice does not establish that there was last time I had a conference with you, was with a client and no substantial likelihood of material prejudice.” Ibid. I let him talk to you and I told you that that case would be dismissed and it was. Okay?

“I don't take cheap shots like this. I represent an innocent II guy. All right? Gentile asserts that the same stringent standard applied in . . . . . Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), to restraints on press publication “[The police] were playing very fast and loose.... We've got during the pendency of a criminal trial should be applied to some video tapes that if you take a look at them, I'll tell you speech by a lawyer whose client is a defendant in a criminal what, [Detective Scholl] either had a hell of a cold or he proceeding. In that case, we held that in order to suppress should have seen a better doctor.” Id., at 12a, 14a. press commentary on evidentiary matters, the State would have to show that “further publicity, unchecked, would so Articles appeared in the local newspapers describing the press distort the views of potential jurors that 12 could not be found conference and petitioner's statements. The trial took place who would, under proper instructions, fulfill their sworn duty

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 21 of 144 16 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858 to render a just verdict exclusively on the evidence presented to the facts should not go beyond in open court.” Id., at 569, 96 S.Ct., at 2807. Respondent, on quotation from the records and papers the other hand, relies on statements in cases such as Sheppard on file in the court; but even in extreme v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 cases it is better to avoid any ex parte (1966), which sharply distinguished between restraints on the statement.” press and restraints on lawyers whose clients are parties to the proceeding: *1067 In the last quarter century, the legal profession has reviewed its ethical limitations on extrajudicial statements *1066 “Collaboration between counsel and the press as by lawyers in the context of this Court's cases interpreting to information affecting the fairness of a criminal trial is the First Amendment. ABA Model Rule of Professional not only subject to regulation, but is highly censurable and Responsibility 3.6 resulted from the recommendations of the worthy of disciplinary measures.” Id., at 363, 86 S.Ct., at Advisory Committee on Fair Trial and Free Press (Advisory 1522. Committee), created in 1964 upon the recommendation of the To evaluate these opposing contentions, some reference must Warren Commission. The Warren Commission's report on be made to the history of the regulation of the practice of law the assassination **2741 of President Kennedy included the by the courts. recommendation that “representatives of the bar, law [3] In the United States, the courts have historically enforcement associations, and the regulated admission to the practice of law before them and news media work together to exercised the authority to discipline and ultimately to disbar establish ethical standards concerning lawyers whose conduct departed from prescribed standards. the collection and presentation of “Membership in the bar is a privilege burdened with information to the public so that conditions,” to use the oft-repeated statement of Cardozo, J., there will be no interference with in In re Rouss, 221 N.Y. 81, 84, 116 N.E. 782, 783 (1917), pending criminal investigations, court quoted in Theard v. United States, 354 U.S. 278, 281, 77 S.Ct. proceedings, or the right of individuals 1274, 1276, 1 L.Ed.2d 1342 (1957). to a fair trial.”

More than a century ago, the first official code of legal Report of the President's Commission on the Assassination of ethics promulgated in this country, the Alabama Code of President Kennedy (1964), quoted in Ainsworth, “Fair Trial- 1887, warned attorneys to “Avoid Newspaper Discussion of Free Press,” 45 F.R.D. 417 (1968). The Advisory Committee Legal Matters,” and stated that “[n]ewspaper publications developed the ABA Standards Relating to Fair Trial and by an attorney as to the merits of pending or anticipated Free Press, comprehensive guidelines relating to disclosure litigation ... tend to prevent a fair trial in the courts, and of information concerning criminal proceedings, which were otherwise prejudice the due administration of justice.” H. relied upon by the ABA in 1968 in formulating Rule 3.6. Drinker, Legal Ethics 23, 356 (1953). In 1908, the American The need for, and appropriateness of, such a rule had been Bar Association promulgated its own code, entitled “Canons identified by this Court two years earlier in Sheppard v. of Professional Ethics.” Many States thereafter adopted the Maxwell, supra, 384 U.S., at 362-363, 86 S.Ct. at 1522-1523. ABA Canons for their own jurisdictions. Canon 20 stated: In 1966, the Judicial Conference of the United States authorized a “Special Subcommittee to Implement Sheppard “Newspaper publications by a lawyer v. Maxwell ” to proceed with a study of the necessity of as to pending or anticipated litigation promulgating guidelines or taking other corrective action to may interfere with a fair trial in shield federal juries from prejudicial publicity. See Report of the Courts and otherwise prejudice the Committee on the Operation of the Jury System on the the due administration of justice. “Free Press-Fair Trial” Issue, 45 F.R.D. 391, 404-407 (1968). Generally they are to be condemned. Courts, responding to the recommendations in this report, If the extreme circumstances of a proceeded to enact local rules incorporating these standards, particular case justify a statement to and thus the “reasonable likelihood of prejudicing a fair trial” the public, it is unprofessional to make test was used by a majority of courts, *1068 state and it anonymously. An ex parte reference federal, in the years following Sheppard. Ten years later, the

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 22 of 144 17 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

ABA amended its guidelines, and the “reasonable likelihood” 3.6 (1990) (“serious and imminent threat of materially test was changed to a “clear and present danger” test. ABA prejudicing an adjudicative proceeding”); Oregon DR Standards for Criminal Justice 8-1.1 (as amended 1978) (2d 7-107 (1991) (“serious and imminent threat to the ed. 1980, Supp.1986). fact-finding process in an adjudicative proceeding and acts with indifference to that effect”); and the District of Columbia DR 7-101 (Supp.1991) (“serious and When the Model Rules of Professional Conduct were drafted imminent threat to the impartiality of the judge or jury”). in the early 1980's, the drafters did not go as far as the revised fair trial-free press standards in giving precedence to the **2742 *1069 Petitioner maintains, however, that the First lawyer's right to make extrajudicial statements when fair trial Amendment to the United States Constitution requires a State, rights are implicated, and instead adopted the “substantial such as Nevada in this case, to demonstrate a “clear and likelihood of material prejudice” test. Currently, 31 States present danger” of “actual prejudice or an imminent threat” in addition to Nevada have adopted-either verbatim or with before any discipline may be imposed on a lawyer who 4 insignificant variations-Rule 3.6 of the ABA's Model Rules. 1 initiates a press conference such as occurred here. He relies Eleven States have adopted Disciplinary Rule 7-107 of the on decisions such as Nebraska Press Assn. v. Stuart, 427 ABA's Code of Professional Responsibility, which is less U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), Bridges protective of lawyer speech than Model Rule 3.6, in that v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941), Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, it applies a “reasonable likelihood of prejudice” standard. 2 90 L.Ed. 1295 (1946), and Craig v. Harney, 331 U.S. 367, 67 Only one State, Virginia, has explicitly adopted a clear and S.Ct. 1249, 91 L.Ed. 1546 (1947), to support his position. In present danger standard, while four States and the District of those cases we held that trial courts might not constitutionally Columbia have adopted standards that arguably approximate punish, through use of the contempt power, newspapers and 3 “clear and present danger.” others for publishing editorials, cartoons, and other items critical of judges in particular cases. We held that such 1 Arizona, Arkansas, Connecticut, Idaho, Indiana, Kansas, punishments could be imposed only if there were a clear and Kentucky, Maryland, Mississippi, Missouri, New present danger of “some serious substantive evil which they Mexico, Pennsylvania, Rhode Island, South Carolina, are designed to avert.” Bridges v. California, supra, 314 U.S., West Virginia, and Wyoming have adopted Model Rule at 270, 62 S.Ct., at 197. Petitioner also relies on *1070 3.6 verbatim. Delaware, Florida, Louisiana, Montana, Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 New Hampshire, New Jersey, New York, Oklahoma, (1962), which held that a court might not punish a sheriff for South Dakota, Texas, and Wisconsin have adopted publicly criticizing a judge's charges to a grand jury. Model Rule 3.6 with minor modifications that are irrelevant to the issues presented in this case. Michigan and Washington have adopted only subsection (a) of 4 We disagree with Justice KENNEDY's statement that Model Rule 3.6, and Minnesota has adopted only this case “does not call into question the constitutionality subsection (a) and limits its application to “pending of other States' prohibitions upon an attorney's speech criminal jury trial [s].” Utah adopted a version of that will have a ‘substantial likelihood of materially Model Rule 3.6 employing a “substantial likelihood of prejudicing an adjudicative proceeding,’ but is limited to materially influencing” test. Nevada's interpretation of that standard.” Ante, at 2724. Petitioner challenged Rule 177 as being unconstitutional 2 Alaska, Colorado, Georgia, Hawaii, Iowa, on its face in addition to as applied, contending that Massachusetts, Nebraska, Ohio, Tennessee, and the “substantial likelihood of material prejudice” test Vermont have adopted Disciplinary Rule 7-107 was unconstitutional, and that lawyer speech should be verbatim. North Carolina also uses the “reasonable punished only if it violates the standard for clear and likelihood of ... prejudic[e]” test. Rule of Professional present danger set forth in Nebraska Press Assn. v. Conduct 7.7 (1991). Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). See Brief for Petitioner 27-31. The validity of 3 Illinois Rule of Professional Conduct 3.6 (1990) the rules in the many States applying the “substantial (“serious and imminent threat to the fairness of likelihood of material prejudice” test has, therefore, been an adjudicative proceeding”); Maine Bar Rule of called into question in this case. Professional Responsibility 3.7(j) (1990) (“substantial danger of interference with the administration of Respondent State Bar of Nevada points out, on the other hand, justice”); North Dakota Rule of Professional Conduct that none of these cases involved lawyers who represented

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 23 of 144 18 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858 parties to a pending proceeding in court. It points to the [4] [5] It is unquestionable that in the courtroom itself, statement of Holmes, J., in Patterson v. Colorado ex rel. during a judicial proceeding, whatever right to “free speech” Attorney General of Colorado, 205 U.S. 454, 463, 27 S.Ct. an attorney has is extremely circumscribed. An attorney may 556, 558, 51 L.Ed. 879 (1907), that “[w]hen a case is finished, not, by speech or other conduct, resist a ruling of the trial court courts are subject to the same criticism as other people, but beyond the point necessary to preserve a claim for appeal. the propriety and necessity of preventing interference with Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 454, the course of justice by premature statement, argument or 96 L.Ed. 717 (1952) (criminal trial); Fisher v. Pace, 336 intimidation hardly can be denied.” Respondent also points U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569 (1949) (civil trial). to a similar statement in Bridges, supra, 314 U.S., at 271, 62 Even outside the courtroom, a majority of the Court in two S.Ct., at 197: separate opinions in the case of In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d 1473 (1959), observed that lawyers in “The very word ‘trial’ connotes pending cases were subject to ethical restrictions on speech to decisions on the evidence and which an ordinary citizen would not be. There, the Court had arguments properly advanced in open before it an order affirming the suspension of an attorney from court. Legal trials are not like practice because of her attack on the fairness and impartiality elections, to be won through the use of a judge. The plurality opinion, which found the discipline of the meeting-hall, the radio, and the improper, concluded that the comments had not in fact newspaper.” impugned the judge's integrity. Justice Stewart, who provided the fifth vote for reversal of the sanction, said in his separate These opposing positions illustrate one of the many dilemmas opinion that he could not join any possible “intimation that which arise in the course of constitutional adjudication. The a lawyer can invoke the constitutional right of free speech above quotes from Patterson and Bridges epitomize the to immunize himself from even-handed discipline for proven theory upon which our criminal justice system is founded: unethical conduct.” Id., at 646, 79 S.Ct., at 1388. He said The outcome of a criminal trial is to be decided by impartial that “[o]bedience to ethical precepts may require abstention jurors, who know as little as possible of the case, based from what in other circumstances might be constitutionally on material admitted into evidence before them in a court protected speech.” Id., at 646-647, 79 S.Ct., at 1388-1389. proceeding. Extrajudicial comments on, or discussion of, The four dissenting Justices who would have sustained the evidence which might never be admitted at trial and ex discipline said: parte statements by counsel giving their version of the facts obviously threaten to undermine this basic tenet. *1072 “Of course, a lawyer is a person and he too has a constitutional freedom of utterance and may exercise it At the same time, however, the criminal justice system to castigate courts and their administration of justice. But exists in a larger context of a government ultimately of a lawyer actively participating in a trial, particularly an the people, who wish to be informed about happenings in emotionally charged criminal prosecution, is not merely a the criminal justice system, and, if sufficiently informed person and not even merely a lawyer. about those happenings, might wish to make changes in the system. The way most of them acquire information is from . . . . . the media. The First Amendment protections of speech and “He is an intimate and trusted and essential part of the press have been held, in the cases cited above, to require a machinery of justice, an ‘officer of the court’ in the most showing of **2743 *1071 “clear and present danger” that compelling sense.” Id., at 666, 668, 79 S.Ct., at 1398, 1399 a malfunction in the criminal justice system will be caused (Frankfurter, J., dissenting, joined by Clark, Harlan, and before a State may prohibit media speech or publication about Whittaker, JJ.). a particular pending trial. The question we must answer in this case is whether a lawyer who represents a defendant involved Likewise, in Sheppard v. Maxwell, where the defendant's with the criminal justice system may insist on the same conviction was overturned because extensive prejudicial standard before he is disciplined for public pronouncements pretrial publicity had denied the defendant a fair trial, we held about the case, or whether the State instead may penalize that that a new trial was a remedy for such publicity, but sort of speech upon a lesser showing.

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 24 of 144 19 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

involved a nonthird party was Wood v. Georgia, 370 U.S. “we must remember that reversals are 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), where a county but palliatives; the cure lies in those sheriff was held in contempt for publicly criticizing remedial measures that will prevent instructions given by a judge to a grand jury. Although the prejudice at its inception. The the sheriff was technically an “officer of the court” by courts must take such steps by rule virtue of his position, the Court determined that his and regulation that will protect their statements were made in his capacity as a private citizen, processes from prejudicial outside with no connection to his official duties. Id., at 393, 82 interferences. Neither prosecutors, S.Ct., at 1374. The same cannot be said about petitioner, whose statements were made in the course of, and in counsel for defense, the accused, furtherance of, his role as defense counsel. witnesses, court staff nor enforcement officers coming under the jurisdiction Even in an area far from the courtroom and the pendency of of the court should be permitted to a case, our decisions dealing with a lawyer's right under the frustrate its function. Collaboration First Amendment to solicit business and advertise, contrary to between counsel and the press as to promulgated rules of ethics, have not suggested that lawyers information affecting the fairness of are protected by the First Amendment to the same extent as a criminal trial is not only subject to those engaged in other businesses. See, e.g., Bates v. State regulation, but is highly censurable Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d and worthy of disciplinary measures.” 810 (1977); Peel v. Attorney Registration and Disciplinary 384 U.S., at 363, 86 S.Ct., at 1522 Comm'n of Ill., 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d (emphasis added). 83 (1990); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). In each of these We expressly contemplated that the speech of those cases, we engaged in a balancing process, weighing the State's participating before the courts could be limited. 5 This interest in the regulation of a specialized profession against distinction *1073 between **2744 participants in the a lawyer's First Amendment interest in the kind of speech litigation and strangers to it is brought into sharp relief by our that was at issue. These cases *1074 recognize the long- holding in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 established principle stated in In re Cohen, 7 N.Y.2d 488, 495, S.Ct. 2199, 81 L.Ed.2d 17 (1984). There, we unanimously 199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 675 (1960): held that a newspaper, which was itself a defendant in a “Appellant as a citizen could not be denied any of the libel action, could be restrained from publishing material common rights of citizens. But he stood before the inquiry about the plaintiffs and their supporters to which it had and before the Appellate Division in another quite different gained access through court-ordered discovery. In that case capacity, also. As a lawyer he was ‘an officer of the court, we said that “[a]lthough litigants do not ‘surrender their and, like the court itself, an instrument ... of justice....’ First Amendment rights at the courthouse door,’ those rights ” (quoted in Cohen v. Hurley, 366 U.S. 117, 126, 81 S.Ct. may be subordinated to other interests that arise in this 954, 959, 6 L.Ed.2d 156 (1961)). setting,” id., at 32-33, n. 18, 104 S.Ct., at 2207-2208, n. 18 (citation omitted), and noted that “on several occasions [6] We think that the quoted statements from our opinions [we have] approved restriction on the communications of in In re Sawyer, 360 U.S. 622, 79 S.Ct. 1376, 3 L.Ed.2d trial participants where necessary to ensure a fair trial for a 1473 (1959), and Sheppard v. Maxwell, supra, rather plainly criminal defendant.” Ibid. indicate that the speech of lawyers representing clients in pending cases may be regulated under a less demanding 5 The Nevada Supreme Court has consistently read all standard than that established for regulation of the press parts of Rule 177 as applying only to lawyers in in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. pending cases, and not to other lawyers or nonlawyers. 2791, 49 L.Ed.2d 683 (1976), and the cases which preceded We express no opinion on the constitutionality of a it. Lawyers representing clients in pending cases are key rule regulating the statements of a lawyer who is participants in the criminal justice system, and the State may not participating in the pending case about which the statements are made. We note that of all the cases demand some adherence to the precepts of that system in petitioner cites as supporting the use of the clear and regulating their speech as well as their conduct. As noted by present danger standard, the only one that even arguably Justice Brennan in his concurring opinion in Nebraska Press,

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 25 of 144 20 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858 which was joined by Justices Stewart and MARSHALL, media coverage of criminal trials, a change of venue may not “[a]s officers of the court, court personnel and attorneys suffice to undo the effects of statements such as those made have a fiduciary responsibility not to engage in public debate by petitioner. The State has a substantial interest in preventing that will redound to the detriment of the accused or that officers of the court, such as lawyers, from imposing such will obstruct the fair administration of justice.” Id., at 601, costs on the judicial system and on the litigants. n. 27, 96 S.Ct., at 2823, n. 27. Because lawyers have special access to information **2745 through discovery *1076 The restraint on speech is narrowly tailored to and client communications, their extrajudicial statements achieve those objectives. The regulation of attorneys' speech pose a threat to the fairness of a pending proceeding since is limited-it applies only to speech that is substantially lawyers' statements are likely to be received as especially likely to have a materially prejudicial effect; it is neutral authoritative. See, e.g., In re Hinds, 90 N.J. 604, 627, as to points of view, applying equally to all attorneys 449 A.2d 483, 496 (1982) (statements by attorneys of participating in a pending case; and it merely postpones the record relating to the case “are likely to be considered attorneys' comments until after the trial. While supported by knowledgeable, reliable and true” because of attorneys' the substantial state interest in preventing prejudice to an unique access to information); In re Rachmiel, 90 N.J. adjudicative proceeding by those who have a duty to protect 646, 656, 449 A.2d 505, 511 (N.J.1982) (attorneys' role its integrity, the Rule is limited on its face to preventing as advocates *1075 gives them “extraordinary power to only speech having a substantial likelihood of materially undermine or destroy the efficacy of the criminal justice prejudicing that proceeding. system”). We agree with the majority of the States that the “substantial likelihood of material prejudice” standard constitutes a constitutionally permissible balance between the III First Amendment rights of attorneys in pending cases and the State's interest in fair trials. To assist a lawyer in deciding whether an extrajudicial statement is problematic, Rule 177 sets out statements [7] [8] [9] When a state regulation implicates First that are likely to cause material prejudice. Contrary to Amendment rights, the Court must balance those interests petitioner's contention, these are not improper evidentiary against the State's legitimate interest in regulating the activity presumptions. Model Rule 3.6, from which Rule 177 was in question. See, e.g., Seattle Times, supra, 467 U.S. at 32, derived, was specifically designed to avoid the categorical 104 S.Ct., at 2207. The “substantial likelihood” test embodied prohibitions of attorney speech contained in ABA Model in Rule 177 is constitutional under this analysis, for it is Code of Professional Responsibility Disciplinary Rule 7-107 designed to protect the integrity and fairness of a State's (1981). See ABA Commission on Evaluation of Professional judicial system, and it imposes only narrow and necessary Standards, Model Rules of Professional Conduct, Notes and limitations on lawyers' speech. The limitations are aimed at Comments 143-144 (Proposed **2746 Final Draft, May 30, two principal evils: (1) comments that are likely to influence 1981) (Proposed Final Draft). The statements listed as likely the actual outcome of the trial, and (2) comments that are to cause material prejudice closely track a similar list outlined likely to prejudice the jury venire, even if an untainted by this Court in Sheppard: panel can ultimately be found. Few, if any, interests under the Constitution are more fundamental than the right to a “The fact that many of the prejudicial news items can be fair trial by “impartial” jurors, and an outcome affected traced to the prosecution, as well as the defense, aggravates by extrajudicial statements would violate that fundamental the judge's failure to take any action.... Effective control right. See, e.g., Sheppard, 384 U.S., at 350-351, 86 S.Ct., at of these sources-concededly within the court's power- 1515-1516; Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. might well have prevented the divulgence of inaccurate 546, 550, 13 L.Ed.2d 424 (1965) (evidence in criminal trial information, rumors, and accusations that made up much must come solely from witness stand in public courtroom with of the inflammatory publicity.... full evidentiary protections). Even if a fair trial can ultimately be ensured through voir dire, change of venue, or some other “More specifically, the trial court might well have device, these measures entail serious costs to the system. proscribed extrajudicial statements by any lawyer, party, Extensive voir dire may not be able to filter out all of the *1077 witness, or court official which divulged effects of pretrial publicity, and with increasingly widespread prejudicial matters, such as the refusal of Sheppard to submit to interrogation or take any lie detector tests; any

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 26 of 144 21 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

statement made by Sheppard to officials; the identity of upcoming trial by influencing potential jurors. Petitioner was prospective witnesses or their probable testimony; any clearly given notice that such conduct was forbidden, and the belief in guilt or innocence; or like statements concerning list of conduct likely to cause prejudice, while only advisory, the merits of the case. See State v. Van Duyne, 43 N.J. certainly gave notice that the statements made would violate 369, 389, 204 A.2d 841, 852 (1964), in which the court the Rule if they had the intended effect. interpreted Canon 20 of the American Bar Association's Canons of Professional Ethics to prohibit such statements.” The majority agrees with petitioner that he was the victim 384 U.S., at 361, 86 S.Ct., at 1521. of unconstitutional vagueness in the regulations because of the relationship between subsection 3 and subsections Gentile claims that Rule 177 is overbroad, and thus **2747 1 and 2 of Rule 177 (see ante, at 2724-2725). unconstitutional on its face, because it applies to more speech Subsection 3 allows an attorney to state “the general nature than is necessary to serve the State's goals. The “overbreadth” of the claim or defense” notwithstanding the prohibition doctrine applies if an enactment “prohibits constitutionally contained in subsection 1 and the examples contained in protected conduct.” Grayned v. City of Rockford, 408 U.S. subsection 2. It is of course true, as the majority points 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972). out, that the word “general” and the word “elaboration” To be unconstitutional, overbreadth must be “substantial.” are both terms of degree. But combined as they are in the Board of Trustees of State University of N.Y. v. Fox, 492 first sentence of subsection 3, they convey the very definite U.S. 469, 485, 109 S.Ct. 3028, 3037, 106 L.Ed.2d 388 proposition that the authorized statements must not contain (1989). Rule 177 is no broader than necessary to protect the the sort of detailed allegations that petitioner made at his State's interests. It applies only to lawyers involved in the press conference. No sensible person could think that the pending case at issue, and even those lawyers involved in following were “general” statements of a claim or defense pending cases can make extrajudicial statements as long as made “without elaboration”: “the person that was in the most such statements do not present a substantial risk of material direct position to have stolen the drugs and the money ... is prejudice to an adjudicative proceeding. The fact that Rule Detective Steve Scholl”; “there is far more evidence that will 177 applies to bench trials does not make it overbroad, for establish that Detective Scholl took these drugs and took these a substantial likelihood of prejudice is still required before American Express Travelers' checks than any other living the Rule is violated. That test will rarely be met where the human being”; “[Detective *1079 Scholl] either had a hell judge is the trier of fact, since trial judges often have access of a cold, or he should have seen a better doctor”; and “the to inadmissible and highly prejudicial information and are so-called other victims ... one, two-four of them are known presumed to be able to discount or disregard it. For these drug dealers and convicted money launderers.” Section 3, as reasons Rule 177 is constitutional on its face. an exception to the provisions of subsections 1 and 2, must be read in the light of the prohibitions and examples contained Gentile also argues that Rule 177 is void for vagueness in the first two sections. It was obviously not intended to because it did not provide adequate notice that his comments negate the prohibitions or the examples wholesale, but simply were subject to discipline. The void-for-vagueness doctrine intended to provide a “safe harbor” where there might be is concerned with a defendant's right to fair notice and doubt as to whether one of the examples covered proposed adequate *1078 warning that his conduct runs afoul of the conduct. These provisions were not vague as to the conduct law. See, e.g., Smith v. Goguen, 415 U.S. 566, 572-573, for which petitioner was disciplined; “[i]n determining the 94 S.Ct. 1242, 1246-1247, 39 L.Ed.2d 605 (1974); Colten sufficiency of the notice a statute must of necessity be v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 examined in the light of the conduct with which a defendant L.Ed.2d 584 (1972). Rule 177 was drafted with the intent to is charged.” United States v. National Dairy Products Corp., provide “an illustrative compilation that gives fair notice of 372 U.S. 29, 33, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 (1963). conduct ordinarily posing unacceptable dangers to the fair administration of justice.” Proposed Final Draft 143. The Petitioner's strongest arguments are that the statements were Rule provides sufficient notice of the nature of the prohibited made well in advance of trial, and that the statements did conduct. Under the circumstances of his case, petitioner not in fact taint the jury panel. But the Supreme Court of cannot complain about lack of notice, as he has admitted that Nevada pointed out that petitioner's statements were not only his primary objective in holding the press conference was highly inflammatory-they portrayed prospective government the violation of Rule 177's core prohibition-to prejudice the witnesses as drug users and dealers, and as money launderers-

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 27 of 144 22 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858 but the statements were timed to have maximum impact, prosecution is not rendered fit for service by being when public interest in the case was at its height immediately bombarded by publicity favorable to the defendant. The after Sanders was indicted. Reviewing independently the basic premise of our legal system is that law suits should entire record, see Pennekamp v. Florida, 328 U.S., at 335, 66 be tried in court, not in the media. See, e.g., Bridges S.Ct., at 1031, we are convinced that petitioner's statements v. California, 314 U.S. 252, 271, 62 S.Ct. 190, 197, 86 L.Ed.2d 192 (1941); Patterson v. Colorado ex rel. were “substantially likely to cause material prejudice” to Attorney General of Colorado, 205 U.S. 454, 462, 27 the proceedings. While there is evidence pro and con on S.Ct. 556, 558, 51 L.Ed. 879 (1907). A defendant may that point, we find it persuasive that, by his own admission, be protected from publicity by, or in favor of, the police petitioner called the press conference for the express purpose and prosecution through voir dire, change of venue, of influencing the venire. It is difficult to believe that he jury instructions and, in extreme cases, reversal on due went to such trouble, and took such a risk, if there was no process grounds. The remedy for prosecutorial abuses substantial likelihood that he would succeed. that violate the rule lies not in self-help in the form of similarly prejudicial comments by defense counsel, but While in a case such as this we must review the record for in disciplining the prosecutor. ourselves, when the highest court of a State has reached *1081 Several amici argue that the First Amendment a determination “we give most respectful attention to its requires the State to show actual prejudice to a judicial reasoning *1080 and conclusion.” Ibid. The State Bar proceeding before an attorney may be disciplined for of Nevada, which made its own factual findings, and the extrajudicial statements, and since the board and the Nevada Supreme Court of Nevada, which upheld those findings, were Supreme Court found no actual prejudice, petitioner should in a far better position than we are to appreciate the likely not have been disciplined. But this is simply another way of effect of petitioner's statements on potential members of a stating that the stringent standard of Nebraska Press should jury panel in a highly publicized case such as this. The board be applied to the speech of a lawyer in a pending case, and the Nevada Supreme Court did not apply the list of and for the reasons heretofore given we decline to adopt it. statements likely to cause material prejudice as presumptions, An added objection to the stricter standard when applied to but specifically found that petitioner had intended to prejudice lawyer participants is that if it were adopted, even comments the trial, 6 and that based upon the nature of the statements more flagrant than those made by petitioner could not serve and their **2748 timing, they were in fact substantially as the basis for disciplinary action if, for wholly independent likely to cause material prejudice. We cannot, upon our reasons, they had no effect on the proceedings. An attorney review of the record, conclude that they were mistaken. See who made prejudicial comments would be insulated from United States v. United States Gypsum Co., 333 U.S. 364, discipline if the government, for reasons unrelated to the 394-396, 68 S.Ct. 525, 541-542, 92 L.Ed. 746 (1948). comments, decided to dismiss the charges, or if a plea bargain were reached. An equally culpable attorney whose 6 Justice KENNEDY appears to contend that there can be client's case went to trial would be subject to discipline. The no material prejudice when the lawyer's publicity is in United States Constitution does not mandate such a fortuitous response to publicity favorable to the other side. Ante, at difference. 2727-2729. Justice KENNEDY would find that publicity designed to counter prejudicial publicity cannot be itself When petitioner was admitted to practice law before the prejudicial, despite its likelihood of influencing potential Nevada courts, the oath which he took recited that “I will jurors, unless it actually would go so far as to cause support, abide by and follow the Rules of Professional jurors to be affirmatively biased in favor of the lawyer's Conduct as are now or may hereafter be adopted by the client. In the first place, such a test would be difficult, Supreme Court ....” Rule 73, Nevada Supreme Court Rules if not impossible, to apply. But more fundamentally, (1991). The First Amendment does not excuse him from that it misconceives the constitutional test for an impartial obligation, nor should it forbid the discipline imposed upon juror-whether the “ ‘juror can lay aside his impression or him by the Supreme Court of Nevada. opinion and render a verdict on the evidence presented in court.’ ” Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975) (quoting Irvin v. I would affirm the decision of the Supreme Court of Nevada. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961)). A juror who may have been initially swayed from open-mindedness by publicity favorable to the Justice O'CONNOR, concurring.

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 28 of 144 23 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW 4858

[3] [4] [5] [6] [7] [8] [9] I agree with muchof this “safe harbor.” In his brief press conference, Gentile of THE CHIEF JUSTICE's opinion. In particular, I agree gave only a rough sketch of the defense that he intended to that a State may regulate speech by lawyers representing present at trial-i.e., that Detective Scholl, not Grady Sanders, clients in pending cases more readily than it may regulate stole the cocaine and traveler's checks. When asked to provide the press. Lawyers are officers of the court *1082 and, more details, he declined, stating explicitly that the ethical as such, may legitimately be subject to ethical precepts rules compelled him to do so. Ante, at 2731. Nevertheless, that keep them from engaging in what otherwise might be the disciplinary board sanctioned Gentile because, in its view, constitutionally protected speech. See In re Sawyer, 360 U.S. his remarks went beyond the scope of what was permitted 622, 646-647, 79 S.Ct. 1376, 1388-1389, 3 L.Ed.2d 1473 by the Rule. Both Gentile and the disciplinary board have (1959) (Stewart, J., concurring in result). This does not mean, valid arguments on their side, but this serves to support the of course, that lawyers forfeit their First Amendment rights, view that the Rule provides insufficient guidance. As Justice only that a less demanding standard applies. I agree with KENNEDY correctly points out, a vague law offends the THE CHIEF JUSTICE that the “substantial likelihood of Constitution because it fails to give fair notice to those it is material prejudice” standard articulated in Rule 177 passes intended to deter and creates the possibility of discriminatory constitutional muster. Accordingly, I join Parts I and II of enforcement. See Pacific Mut. Life Ins. Co. v. Haslip, 499 THE CHIEF JUSTICE's opinion. U.S. 1, 42, 111 S.Ct. 1032, 1056, 113 L.Ed.2d 1 (1991) (O'CONNOR, J., dissenting). I join Parts III and VI of Justice **2749 [1] [2] For the reasons set out in Part III of Justice KENNEDY's opinion reversing the judgment of the Nevada KENNEDY's opinion, however, I believe that Nevada's Supreme Court on that basis. Rule is void for vagueness. Section (3) of Rule 177 is a “safe harbor” provision. It states that “notwithstanding” the prohibitory language located elsewhere in the Rule, “a lawyer All Citations involved in the investigation or litigation may state without elaboration ... [t]he general nature of the claim or defense.” 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888, 59 USLW Gentile made a conscious effort to stay within the boundaries 4858

B. Tennessee Rule of Professional Conduct for Prosecutors

Raybin, Meet the Press Seminar Page 30 of 144 Rule 3.8. Special Responsibilities of a Prosecutor, TN R S CT Rule 8, RPC 3.8

Sup.Ct.Rules, Rule 8, RPC 3.8

Rule 3.8. Special Responsibilities of a Prosecutor

Currentness

The prosecutor in a criminal case:

(a) shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) shall make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(d) shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

(e) shall not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, shall refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent employees of the prosecutor's office from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6 or this Rule; and discourage investigators, law enforcement personnel, and other persons assisting or associated with the prosecutor in a criminal matter from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6 or this Rule.

(g) When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) if the conviction was obtained outside the prosecutor's jurisdiction, promptly disclose that evidence to an appropriate authority, or

(2) if the conviction was obtained in the prosecutor's jurisdiction, undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted in the prosecutor's jurisdiction of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Credits [Adopted September 29, 2010, effective January 1, 2011.]

Editors' Notes

COMMENT [1] A prosecutor has the responsibility of a minister of justice whose duty is to seek justice rather than merely to advocate for the State's victory at any given cost. See State v. Superior Oil, Inc., 875 S.W.2d 658, 661 (Tenn. 1994). For example, prosecutors are expected “to be impartial in the sense that charging decisions should be based upon the evidence, without discrimination or bias for or against any groups or individuals. Yet, at the same time, they are expected to prosecute criminal offenses with zeal and vigor within the bounds of the law and professional conduct.” State v. Culbreath, 30 S.W.3d 309, 314 (Tenn. 2000). A knowing disregard of obligations or a systematic abuse of prosecutorial discretion could constitute a violation of RPC 8.4.

[2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a valuable opportunity to challenge probable cause. Accordingly, prosecutors should not advise an unrepresented accused to waive the right to a preliminary hearing or other important pretrial rights. Paragraph (c) does not apply, however, to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence.

[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.

[4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship.

[5] Paragraph (f) supplements RPC 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with RPC 3.6(b)

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 32 of 144 2 Rule 3.8. Special Responsibilities of a Prosecutor, TN R S CT Rule 8, RPC 3.8 or 3.6(c). Paragraph (f) is only intended to apply prior to the conclusion of a proceeding. A proceeding has concluded when a final judgment in the proceeding has been affirmed on appeal or the time for appeal has passed.

[6] When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person was convicted outside the prosecutor's jurisdiction of a crime that the person did not commit, paragraph (g) requires prompt disclosure to an appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor's jurisdiction, paragraph (g) requires the prosecutor to examine the evidence and undertake further investigation to determine whether the defendant is in fact innocent or to make reasonable efforts to cause another appropriate authority to undertake the necessary investigation.

[7] Under paragraph (h), once the prosecutor knows of clear and convincing evidence that a defendant was convicted in the prosecutor's jurisdiction of an offense that the defendant did not commit, the prosecutor must seek to remedy the conviction. Necessary steps may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant did not commit the offense of which the defendant was convicted.

[8] A prosecutor's independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of paragraphs (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.

DEFINITIONAL CROSS-REFERENCES “Known” and “knows” See RPC 1.0(f)

“Material” See RPC 1.0(o)

“Reasonable” See RPC 1.0(h)

“Reasonably believes” See RPC 1.0(i)

“Substantial” See RPC 1.0(l)

“Tribunal” See RPC 1.0(m)

Sup. Ct. Rules, Rule 8, RPC 3.8, TN R S CT Rule 8, RPC 3.8 The state court rules are current with amendments received through July 15, 2015.

O'BRIEN, Justice. 764 S.W.2d 757 Supreme Court of Tennessee, There are appeals by each of the parties in this action which at Nashville. derives from a Board of Professional Responsibility petition for discipline against John Zimmermann who is a duly In re John ZIMMERMANN, An Attorney licensed and practicing attorney in the State of Tennessee. Licensed and Admitted to the Practice of At the time these proceedings were initiated the respondent Law in Tennessee, Respondent/Appellant, was a member of the staff of the District Attorney General v. for Davidson County. A complaint was received from BOARD OF PROFESSIONAL the Metropolitan Public Defender charging that respondent RESPONSIBILITY, Appellant. had violated Disciplinary Rule 7–107(B). The petition for discipline requested the Board to appoint a hearing panel Jan. 23, 1989. to hear testimony, receive evidence and make findings of facts and order disciplinary action as deemed appropriate. On appeal from decision of hearing committee imposing The specific charges filed against Zimmermann alleged that disciplinary action against attorney, the Chancery Court, he had violated DR 7–107, (B) and (E), relating to trial Davidson County, Aaron Brown, Chancellor, affirmed. publicity, by talking to the press about pending proceedings. Attorney and Board of Professional Responsibility appealed. The first instance involved a defendant charged with murder. The Supreme Court, O'Brien, J., held that: (1) prosecutor's Immediately after a preliminary hearing he purportedly action in making extrajudicial statements to press concerning engaged in an informal conversation with members of the matters not introduced into evidence at preliminary hearing news media which was reported in the local newspapers and further extrajudicial statements concerning torture on the following day. In the second complaint he allegedly suffered by murder victim prior to sentencing phase had a second discussion with the press after two defendants of separate case, in violation of Code of Professional charged in a six (6) count indictment had been convicted of Responsibility, warrants private reprimand, and (2) strictures the charges, but prior to their sentencing hearing. against trial publicity imposed by Disciplinary Rules are not violative of an attorney's freedom of expression rights. The first statement admittedly made by respondent to the media occurred outside of the courtroom immediately after Affirmed. a preliminary hearing at which the defendant was arraigned. Respondent commented to the assembled reporters that “the Drowota, III, J., concurred and dissented and filed opinion. medical examiner said [the victim] was strangled, stabbed in the chest multiple times and had his throat slashed all the way across. The photographs of the body were pretty bad. We Attorneys and Law Firms are considering asking for the death penalty. The defendant *758 William M. Leech, Jr., Corabel Alexander, Waller, said he stabbed the victim multiple times in the chest before Lansden, Dortch and Davis, Nashville, for respondent/ slashing his throat, almost from ear to ear.” In the second case appellant. in a similar conversation with the press he was reported to have commented on the extreme torture suffered by the victim National Dist. Attys. Ass'n, Tennessee Attys. Gen. at the hands of the defendants. He said, “the verdicts reflected Conference amici curiae, for respondent/appellant. the mind of the jury for the community that such crimes against the elderly would not be tolerated and that he would Joseph L. Mercer, II, Harold Levinson, pro hac vice ask the sentencing judge to impose maximum sentences on Vanderbilt University, Nashville, for appellant. both defendants.” Tennessee Ass'n of Criminal Defense Lawyers, Nashville, amicus curiae, for appellant. The Hearing Committee heard testimony of witnesses, statements of respondent and arguments of counsel. They reviewed the exhibits, the record of the proceedings and briefs of counsel, then reported their conclusions and findings. OPINION They were of the *759 opinion that, in the first case,

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 34 of 144 1 Zimmermann v. Board of Professional Responsibility, 764 S.W.2d 757 (1989) respondent, John Zimmermann, had violated DR 7–107(B) in finding that respondent did not violate the Code of and should receive a private reprimand for his extrajudicial Professional Responsibility. comments made to representatives of the media concerning the examination and report of the medical examiner and The petition of respondent complained that the Hearing photographs of the body, neither of which had been Committee erred in finding him in violation of DR 7–107(B) introduced at the preliminary hearing. They found that the in reference to Complaint No. 1. As an affirmative defense defendant's confession had been introduced at the hearing, he submitted that the Hearing Committee's interpretation of therefore it was a public record and respondent's comments DR 7–107 violated his First Amendment rights in that the in reference to it were permissible. record failed to show that the comments made by him posed a clear and present danger; a serious and imminent threat; or With respect to the other complaint they found that a reasonable likelihood of interfering with a fair trial of the respondent's extrajudicial comments after the trial did not defendant in that case. violate DR 7–107(E) because it was not reasonably likely his remarks would affect the imposition of sentence in that case. At the conclusion of the hearing in Chancery Court the trial judge entered written findings of fact with his conclusions They held that in applying the Rules of Professional that the respondent technically violated Disciplinary Rule 7– Responsibility, there also must be a rule of reason applicable 107(B) and (E) in the first complaint and also technically to their interpretation. There was no intent on the part of violated DR 7–107(E) involving the second complaint. He the respondent to interfere with a fair trial in the first case further found that respondent's insistence was untenable or influence the sentence to be imposed by the trial judge that he was protected by the First Amendment to the in the second. It was their conclusion he was following Constitution in making the statements attributed to him. That the policy of the office of the District Attorney General those statements, as printed, were violations of the Sixth by being accessible to the news media. When respondent and Fourteenth Amendment rights of the first defendant. became aware that his extrajudicial comments in the first In reference to the second case he concluded there was a case had become the subject of a complaint to the Board of technical violation of DR 7–107(E) but that the trial judge in Professional Responsibility he made no further statements to that case was not aware of respondent's remarks and was not the press until after the end of the trial. In the second case he influenced by them in the sentencing proceedings. intentionally did not comment to the media until after the trial was over although the sentencing phase had not been held. It The court was of the opinion that respondent did not act was their conclusion that it was his intent to conduct himself maliciously or with intent to interfere with a fair trial in properly. reference to the first complaint, or to influence the trial judge in imposing sentence in reference to *760 the second. He They further held that as a public prosecutor, respondent concluded that the evidence did not preponderate against the had certain rights and responsibilities concerning the Hearing Committee's judgment in the matter and confirmed dissemination of public information. However, the the findings of that forum in their entirety as to the discipline Disciplinary Rules adopted by the Tennessee Supreme Court imposed. place specific restrictions on all attorneys relative to the dissemination of information concerning pending criminal Each of the parties have, in turn, appealed to this Court. trials, which must be governed by the delicate balance Counsel for the Board of Professional Responsibility between the right to a fair trial on one hand and the right of frames the issue around the appropriate sanctions to be free expression on the other. imposed upon an Assistant District Attorney General who knowingly and intentionally violates the Code of Professional Each of the parties appealed the decision of the Hearing Responsibility, specifically Disciplinary Rule 7–107(B), Committee to the Chancery Court. Disciplinary counsel by making improper statements to the news media after on behalf of the Board of Professional Responsibility preliminary hearing and before trial of a sensational murder complained that the private reprimand of respondent was case. insufficient and inappropriate based upon the facts and the alleged violations on the first complaint. As to the second Respondent, in his brief, inquires whether his extrajudicial they were of the opinion that the Hearing Committee erred statements to the press relating the medical examiner's

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 35 of 144 2 Zimmermann v. Board of Professional Responsibility, 764 S.W.2d 757 (1989) findings violate the Disciplinary Rules. Whether the Professional Responsibility, there also must be a rule of statements found by the Hearing Committee as a violation reason applicable to their interpretation.” The record clearly of the Disciplinary Rules warrant punitive action. (Emphasis supports the findings of the trial judge that respondent was ours). Whether DR 7–107, as it is applied in the present in technical violation of Disciplinary Rule 7–107(B) and (E) case, violates his freedom of expression rights secured by the but that his conduct in discussing trial matters with the news United States and Tennessee Constitutions. media was neither malicious nor with the intent to interfere with the right to a fair trial of any of the defendants. The We point out that under Rule 9, § 1.3 of this Court, the review discipline imposed was adequate and appropriate. We are of the judgment of the Hearing Committee in the trial court of the opinion his comments were not very well considered is on the transcript of the evidence before that committee, its and, in order to avoid the possibility of violating an accused's findings and judgment and upon such other proof as either constitutional rights, that it would be prudent for the District party may desire to introduce. The trial judge is to weigh Attorney to review his “open policy with the media” in *761 the evidence and determine the facts by the preponderance relation to the nature of the comments his staff is encouraged of the proof. The review in this Court is de novo upon the to communicate. transcript of the record from the Circuit or Chancery Court, which shall include the transcript of evidence before the [2] Respondent has raised three issues for review, the first hearing committee. We must presume, however, that the trial two of which we find it necessary to mention only in passing. court was correct unless the preponderance of the evidence We have previously discussed the Hearing Committee's is contrary to his finding. Gillock v. Bd. of Prof. Resp. of the conclusions that respondent's extrajudicial comments to Supreme Court, 656 S.W.2d 365, 367 (Tenn.1983). representatives of the media concerning the examination and report of the medical examiner and photographs of the Disciplinary counsel acting for the Board of Professional victim's body violated DR 7–107(B). The simple answer to Responsibility, ably assisted by counsel pro hac vice, insists his second complaint is that the purpose of sanctions under the that the severity or leniency of the sanction imposed, which Disciplinary Rules is to discipline and not to punish. The third is the basis for their appeal, is not an issue of fact. Therefore, inquiry, requires further amplification and consideration, that this Court is not bound by the decision of the Chancery Court is whether DR 7–107, as applied in the present case, violates on that issue. It is urged that the judgment of that court the freedom of expression rights secured by the United States should be modified to order a suspension from the practice and Tennessee Constitutions. We are of the opinion that it of law against respondent. It is their position that the private does not. reprimand directed by the hearing panel and the Chancery Court is too lenient and does not give sufficient warning to [3] There are two specific, though divergent, reasons respondent and other attorneys of the serious nature of the why the strictures against trial publicity imposed by the misconduct and aggravating circumstances surrounding the Disciplinary Rules are not violative of an attorney's freedom charges made against Mr. Zimmermann. of expression rights. In the case of In Re Rachmiel, 90 N.J. 646, 449 A.2d 505 (1982), under strikingly similar [1] The record before us contains a concurring finding circumstances, the New Jersey Supreme Court held that the of fact with the exception that the hearing committee application of a disciplinary rule which proscribed attorneys found respondent had violated DR 7–107(B) while the involved in criminal cases from making statements that chancellor concluded there was a technical violation of both relate to “any opinion as to the guilt or innocence of the Sections B and E. Notwithstanding the judgments below, accused, the evidence, or the merits of the case” ... did not upon determining the existence of aggravating or mitigating constitute a violation of the Right to Free Speech under circumstances, this Court may modify the judgment of the the First Amendment. In that case a former prosecutor, trial court. Disciplinary Board v. Banks, 641 S.W.2d 501, after he had returned to private practice, made comments 504 (Tenn.1982). However, we are reluctant to substitute our concerning a criminal case which he had previously handled. judgment for that of two separate triers of fact who have A complaint was filed by the county prosecutor with the reviewed the proof and heard the evidence in personam. See District Ethics Committee. The committee issued a formal Disciplinary Counsel v. Fitzgerald, 607 S.W.2d 232, 234 complaint against Rachmiel and held hearings. A presentment (Tenn.1980). We adopt the statement made by the Hearing was filed charging him, inter alia, with violation of DR 7– Committee in their judgment. “In applying the Rules of

107(B) and (E). 1 The New Jersey Court, citing appropriate “Lawyers, as guardians of the law, play a vital rule in the authorities, held: preservation of society. The fulfillment of this rule requires an understanding by lawyers of their relationship with 1 The New Jersey rule is identical to Tennessee Supreme and function in our legal system. A consequent obligation Court Rule 9. of lawyers is to maintain the highest standard of ethical conduct. “In determining the validity of restrictions upon free speech, the constitutional analysis calls for the application In fulfilling his professional responsibilities, a lawyer of two demanding tests. The first is whether a substantial necessarily assumes various roles that require the governmental interest is furthered by the restriction performance of many difficult tasks. Not every situation upon speech. (Citation omitted). The second requires which he may encounter can be foreseen, but fundamental that the restriction be no greater than is necessary or ethical principles are always present to guide him. Within essential to protect the governmental interest involved. the framework of these principles, a lawyer must with The application of these tests involves a balancing of the courage and foresight be able and ready to shape the body gravity and likelihood of the harm that would result from of the law to the everchanging relationships of society. unfettered speech against the degree to which free speech would be inhibited if the restriction is applied. (Citations The Code of Professional Responsibility points the way omitted).... [T]he restriction upon free speech imposed by to the aspiring and provides standards by which to judge the Disciplinary Rule addresses a substantial governmental the transgressor. Each lawyer must find within his own interest. That interest relates to the fairness and integrity conscience the touchstone against which to test the extent of the administration of justice and becomes particularly to which his actions should rise above minimum standards. compelling in the administration of the criminal justice But in the last analysis it is the desire for the respect system. (Citations omitted).... The rule in question furthers and confidence of the members of his profession and the a substantial governmental interest in that it attempts to society which he serves that should provide to a lawyer the restrict speech that would be prejudicial or deleterious to incentive for the highest possible degree of ethical conduct. the administration of criminal justice. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided The ethical rule at issue in this case imposes restraints by these principles, the law will continue to be a noble upon a limited class of persons—attorneys for the profession. This is its greatness and its strength, which prosecution or defense in a pending criminal matter. permit of no compromise.” These persons have a unique role and responsibility in the administration of criminal justice and, therefore, Because it is occasionally necessary to remind ourselves of have an extraordinary power to undermine or destroy the rigorous standards each of us must maintain as a member the efficacy of the criminal justice system. (Citations of the legal profession, Sections 3.1 and 3.2 of Rule 9 of the omitted).... [S]uch attorneys are appropriately subject to Rules of this Court also bear repetition: carefully tailored restraints upon their free speech.” The court ruled that the prohibition applied only to that speech 3.1. The license to practice law in this State is a continuing which is “reasonably likely” to interfere with or affect a fair proclamation by the Court that the holder is fit to be trial. We adopt the reasoning of the New Jersey court on this entrusted with professional and judicial matters, and to issue. aid in the administration of justice as an attorney and as an officer of the Court. It is the duty of every recipient There is a further reason why in this State there is no of that privilege to conduct himself at all times, both unreasonable restraint placed on the freedom of speech rights professionally and personally, in conformity with the of an attorney admitted to practice law in *762 accordance standards imposed upon members of the bar as conditions with the rules governing such matters. for the privilege to practice law. 3.2. Acts or omissions by an attorney, individually or in The preamble to the Code of Professional Responsibility concert with any other person or persons, which violate states in pertinent part: the Attorney's Oath of Office, the Code of Professional Responsibility of the State of Tennessee, or T.C.A. § 23–

3–201, shall constitute misconduct and shall be grounds for danger;” or (3) “a reasonable discipline, whether or not the act or omission occurred in likelihood,” ... of interfering with the the course of an attorney-client relationship. fair trial of a defendant.

In Petition for Tennessee Bar Association, 539 S.W.2d We are of the opinion that the above differences are more 805 (Tenn.1976), at p. 809 Justice Harbison has traced the semantical than real. We have no difficulty in finding disciplinary rules promulgated by this Court from their origin. adequate guidelines within the framework of the rule itself. Rule 40 of the Court, providing for the appointment of Throughout the text constant reference is made to the members of the bar to investigate grievances or complaints statements a “reasonable person” might make, “reasonably against lawyers charged with misconduct was published at likely” to interfere with a fair trial. The rule is explicit. There 192 Tenn. 827 and subsequently readopted as Rule 42. By is no reason to complicate it by the addition of abstruse court order dated July 19, 1965, this Court, acting upon a Petition inculcated definitions. of the Tennessee Bar Association, set up commissioners for the purpose of investigating complaints of unethical We have been greatly benefited in reaching the conclusions conduct and professional misconduct on the part of attorneys. announced here by the briefs of amici curiae, National District To implement enforcement of the standards of professional Attorneys Association, the Tennessee District Attorneys ethics and responsibility, the order of July 19, 1965 directly General Conference and the Tennessee Association of involved the Board of Governors of the Tennessee Bar Criminal Defense Lawyers. We express our appreciation for Association and local bar associations, in the manner set out their assistance. in detail in that rule. The use of investigative committee reports under Rule 42 has received express sanction by the Respondent's challenge to the constitutionality of General Assembly, now encoded in T.C.A. § 23–3–202. In Disciplinary Rule 7–107 is found to be without merit. The 1974 Rule 42 was revised at the behest of the Tennessee judgment of the Chancery Court for Davidson County finding Bar Association. Instead of relying upon the voluntary efforts respondent to be in technical violation of Disciplinary Rule 7– of the Bar Association, local bar associations and individual 107(B) and (E) and sustaining the hearing committee's verdict lawyers, the Court chose a method by which the financing is affirmed by this Court. The costs of these proceedings will of grievance investigations and enforcement of professional be paid equally by the Board of Professional Responsibility *763 standards would be shifted to the entire membership and respondent. of the State's legal profession and upon all persons holding a license to practice law in this State, with the exceptions set out in the Rule. New rules of the Court were adopted in 1981 and Rule 42 was replaced by current Rule 9. HARBISON, C.J., and FONES and COOPER, JJ., concur. DROWOTA, J., concurring in part, dissenting in part. Although this Court exercises the role of prescribing and seeking to enforce and uphold the standards of professional responsibility in this State, Petition of Tennessee Bar Assoc., DROWOTA, Justice, concurring and dissenting. supra, p. 810, the Court has extended to any member of the I concur in part and dissent in part. I agree with the majority profession the right to file a petition, at any reasonable time, opinion that DR 7–107 does not violate the freedom of to ask the Court to reconsider or modify its actions. expression rights secured by the United States and Tennessee Constitutions as applied in the present case. I disagree with The Hearing Committee as well as the trial judge in this the majority's finding that Respondent, John Zimmerman, case have indicated a need for more precise guidelines for was in technical violation of DR 7–107 and that “the interpreting the applicability of DR 7–107 to extrajudicial discipline imposed [private reprimand] was adequate and statements in criminal cases. The Hearing Committee in its appropriate.” I further disagree with the majority when it findings made note of the three tests adopted severally by states: “We are of the opinion his [Zimmerman's] comments courts in various jurisdictions to be used in such cases, that were not very well considered and, in order to avoid the is, whether comments of counsel posed: possibility of violating an accused's constitutional rights, that it would be prudent for the District Attorney to review his (1) “[A] serious and imminent threat;” (2) “a clear and present

‘open policy with the media’ in relation to the nature of the The Board of Professional Responsibility filed charges comments his staff is encouraged to communicate.” against John Zimmerman, an Assistant District Attorney General in Davidson County, alleging that he made improper DR 7–107 is entitled “Trial Publicity.” Section (A) deals extrajudicial statements to the news media about two pending with extrajudicial statements made during the investigation criminal cases, which I shall refer to as the Sheffield case and of a criminal matter, Section (B) deals with extrajudicial the Emmitt and Haynes case. The Sheffield case involved the statements made prior to trial, Section (D) deals with murder of a quadriplegic veteran in a Nashville cemetery by extrajudicial statements made during trial and Section (E) Sheffield. At his preliminary hearing Sheffield's confession deals with extrajudicial statements made after trial and prior was introduced, where he admitted stabbing the victim, to the imposition of sentence. In this case we deal only with Campbell. After the preliminary hearing, Zimmerman was Sections (B) and (E). 1 Put in its simplest *764 form, the questioned by reporters from the Nashville Banner and WSM technical violation of DR 7–107(B), as found by the majority radio. TV reporters and cameramen were also present. The in this case, is that a lawyer associated with the prosecution of following article appeared in the Nashville Banner about the a criminal matter, prior to commencement of trial, has made Sheffield case: an extrajudicial statement that relates to: (4) the results of “The medical examiner said (Campbell) was strangled, examinations or the refusal or failure of the accused to submit stabbed in the chest multiple times and had his throat to examinations or tests, and (6) any opinion as to the guilt or slashed all the way across,” Assistant District Attorney innocence of the accused, the evidence, or the merits of the General John Zimmerman said. case. “The photographs of the body were pretty bad. We're 1 (B) A lawyer or law firm associated with the prosecution considering asking for the death penalty,” Zimmerman said or defense of a criminal matter shall not, from the time today. of the filing of a complaint, information, or indictment, the issuance of an arrest warrant, or arrest until the Once at the cemetery, Sheffield allegedly stabbed the commencement of the trial or disposition without trial, victim “multiple times in the chest and slashed his throat,” make or participate in making an extrajudicial statement, Zimmerman said after Wednesday's preliminary hearing in that a reasonable person would expect to be disseminated General Sessions Court. by means of public communication, and that relates to: (1) The character, reputation, or prior criminal record The following article also appeared in The TENNESSEAN: (including arrests, indictments, or other charges of crime) of the accused. Assistant Attorney General John Zimmerman said outside (2) The possibility of a plea of guilty to the offense the courtroom that Sheffield, 19, told police he attempted charged or to a lesser offense. to strangle Campbell, 52, but the older man “wouldn't die.” (3) The existence or contents of any confession, admission, or statement given by the accused or his Then, according to Zimmerman, Sheffield said he stabbed refusal or failure to make a statement. Campbell “multiple times in the chest” before slashing his (4) The performance or results of any examinations or throat, almost from ear to ear. tests or the refusal or failure of the accused to submit to examinations or tests. With reference to the Sheffield case, the Hearing (5) The identity, testimony, or credibility of a Committee found that Sheffield's confession (which was truly prospective witness. prejudicial) had been introduced at the preliminary hearing, (6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case. therefore it was of public record and Zimmerman's comments (E) After the completion of a trial or disposition concerning the confession were permissible. See DR 7– without trial of a criminal matter and prior to the 107(B)(3). The Committee, however, found Zimmerman's imposition of sentence, a lawyer or law firm associated comments to the media concerning the examination and with the prosecution or defense shall not make or report of the medical examiner and photographs of the body participate in making an extrajudicial statement that a were in violation of DR 7–107(B)(4). reasonable person would expect to be disseminated by public communication and that is reasonably likely to I am of the opinion that Zimmerman's statements regarding affect the imposition of sentence. the medical examiner's findings did not violate DR 7–107(B)

(4). It should be pointed out that in the Sheffield case Zimmerman and was not influenced by anything said or done the cause of death was not a contested issue, nor was the by Zimmerman outside the courtroom. medical examiner's description of the injuries disputed, and the medical report had no bearing on the guilt or innocence Zimmerman's statements to the press were not a staged press of Sheffield. The *765 autopsy report is a public record, conference, he did not initiate the discussion, he responded T.C.A. § 38–7–110(c), and therefore, an attorney may state only to questions propounded to him by the news media the medical examiner's findings. DR 7–107(B)(4) deals with representatives outside the courtroom. The policy of the “results of any examinations or tests or the refusal or failure District Attorney's office was to speak openly and courteously of the accused to submit to examinations or tests” [emphasis with all members of the press consistent with the code of added]. Section (B)(4) is meant to prevent comments about professional responsibility. This John Zimmerman did and he tests or refusal to submit to tests by the accused, not a victim. should not now be reprimanded for his actions. For example, the failure of a defendant to pass or to take a polygraph test cannot be commented upon, but here we have The majority opinion points out that “[t]he hearing committee an examination of a victim, not the defendant. With reference as well as the trial judge in this case has indicated a need to Zimmerman's statement that “the photographs of the body for more precise guidelines for interpreting the applicability were pretty bad,” the photographs were never displayed or of DR 7–107 to extrajudicial statements in criminal cases.” offered to the media by Zimmerman, and they were, therefore, The hearing committee noted three tests or standards adopted not disseminated to the public. The majority opinion fails by courts in other jurisdictions which lend guidance in to cite what specific rule prohibits such a statement by applying DR 7–107. The three tests are, whether extrajudicial Zimmerman and how it threatened the Defendant's fair trial. statements of counsel posed: (1) a serious and imminent threat to the fair trial of a defendant, Chicago Council of Lawyers Emmitt and Haynes were convicted in separate jury trials v. Bauer, 522 F.2d 242, 249 (7th Cir.1975), cert. den., 427 of assault with intent to commit first degree murder, U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976); 2 (2) a aggravated kidnapping, aggravated rape, armed robbery, and clear and present danger to the fair trial of the defendant, first degree burglary. The victim was an 82–year–old senior Markfield v. New York, 49 App.Div.2d 516, 370 N.Y.S.2d citizen volunteer worker. Before the sentencing hearing, the 82 (1975); or (3) a reasonable likelihood of interfering with following statements were attributed to Zimmerman in a local the fair trial of a defendant, Hirschkop v. Snead, 594 F.2d newspaper: 356 (4th Cir.1979). The parties and Amici have asked this Court to give them and the Bar of this State some guidance “I think these verdicts speak the mind of the jury for the for interpreting DR 7–107's applicability to extrajudicial community, in that crimes like this against the elderly are statements. *766 The majority opinion responds to the not going to be tolerated.” request by stating: “We have no difficulty in finding adequate “... will ask Judge Sterling Gray in a guidelines within the context of the rule itself.” This response sentencing hearing ... to impose the by the majority that “[t]he rule is explicit”, begs the question. maximum sentences on both Emmitt To merely say that “[t]hroughout the text constant reference and Haynes and to order those terms is made to the statements a ‘reasonable person’ might make, consecutive.” ‘reasonably likely’ to interfere with a fair trial,” is not an adequate response to the guidance sought by the bench and “This woman suffered torture at the hands of these two men bar. The citation to a “reasonable person” found in DR 7– for about three hours.... As far as I am concerned, there is 107, Sections (A), (B), (D), (E), (G) and (H), has nothing to nothing worse they could have done short of killing her.” do with the extrajudicial statement of counsel but refers to what “a reasonable person would expect to be disseminated With reference to the Emmitt and Haynes case, the Hearing by means of public communication.” In this case there was Committee determined there was no violation of DR 7– an obvious expectation that Zimmerman's statements would 107(E) because it was not reasonably likely that Zimmerman's be disseminated by means of public communication, since the remarks had any effect on the imposition of the sentence media approached Zimmerman after the preliminary hearing in the case. Judge Gray testified at the disciplinary hearing and sought statements from him. The “reasonable person” that he was unaware of any extrajudicial statements made by reference in Section (B) has nothing to do with giving guidance to the bar concerning extrajudicial statements made

prior to trial. The reference to “reasonably likely” in the Court. The majority opinion does what respondent seeks to majority opinion is not found in Section (B), therefore it is avoid—a stifling of the public's right to know by creating a difficult to see how the rule can be said to be explicit. chilling effect on prosecutors with the suggestion to “review his ‘open policy with the media’ ”. There is a delicate balance 2 between a prosecutor's right to speak and the right of the See, Ruggieri v. Johns–Manville Products Corp., 503 public and the press to have access to information, and the F.Supp. 1036 (R.I.1980); Bernard v. Gulf Oil Co., 619 rights of the individual accused of a crime and a defendant's F.2d 459, 476–477 (5th Cir.1980) en banc; Shadid right to a fair trial. I am of the opinion that Zimmerman's v. Jackson, 521 F.Supp. 85 (E.D.Tex.1981); In re: statements should be reviewed by the test of “whether his Lasswell, 296 Or. 121, 673 P.2d 855 (1983); Kemner v. Monsanto Company, 112 Ill.2d 223, 97 Ill.Dec. 454, 464, comments posed a clear and present danger to the fair trial of 492 N.E.2d 1327, 1337 (1986). the defendant.” Under such a test, it is clear that Zimmerman's statements to the media did not pose a clear and present The bench and bar have asked for guidance in interpreting DR danger to the defendant's fair trial and he did not violate 7–107's applicability to extrajudicial statements. I am of the DR 7–107. I would reverse the decision of the Chancery opinion that we should adopt a standard which balances the Court recommending a private reprimand. I would dismiss the rights of the accused to a fair trial with the right of a free press complaint filed by the Board of Professional Responsibility and the public's right to information and knowledge. for I find no violation of DR 7–107.

The majority opinion states “that it would be prudent for the District Attorney to review his ‘open policy with the media’ in All Citations relation to the nature of the comments his staff is encouraged to communicate.” This reasoning by the majority is why I 764 S.W.2d 757 feel guidelines for DR 7–107(B) should be established by this

Raybin, Meet the Press Seminar Page 42 of 144 LOCAL FEDERAL RULES

LR83.03 RELEASE OF INFORMATION CONCERNING CIVIL PROCEEDINGS (a) By Attorneys Concerning Civil Proceedings. (1) An attorney or law firm associated with a civil action shall not during its investigation or litigation make or participate in making any extrajudicial statement, other than a quotation from or reference to public records that a reasonable person would expect to be disseminated by means of public communication if there is a serious and immediate threat that such dissemination will interfere with a fair trial. (2) Comment relating to the following matters is presumed to constitute a serious and immediate threat to a fair trial, and the burden shall be upon one charged with commenting upon such matters to show that his comment did not pose such a threat: a. Evidence regarding the occurrence or transaction involved; b. The character, credibility, or criminal record of a party, witness, or prospective witness; or c. The performance or results of any examinations or tests or the refusal or failure of a party to submit to an examination or test. (b) Provision for Special Orders in Widely Publicized and Sensational Cases. In widely publicized cases the Court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses likely to interfere with the rights of a party to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters that the Court may deem appropriate for inclusion in such an order.

LCrR2.01 - RELEASE OF INFORMATION CONCERNING CRIMINAL PROCEEDINGS (a) By Attorneys Concerning Criminal Proceedings. No attorney or law firm shall release or authorize the release of information or a personal or professional opinion that a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal litigation with which said attorney or law firm is associated, if there is a serious and immediate threat that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice. Any statement specifically prohibited by subsections (1), (2), or (3) of this section shall

Raybin, Meet the Press Seminar Page 43 of 144 be presumed to constitute a serious and immediate threat to the fair administration of justice. An attorney charged with making such a statement may exonerate himself by showing that his statement did not pose such a threat. (1) With respect to a grand jury or other pending investigation of any criminal matter, an attorney for the government participating in or associated with the investigation shall refrain from making any extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication, except such information as is contained in the public records or such statement as is necessary to inform the public that the investigation is underway, to describe the general scope of the investigation, to obtain assistance in the apprehension of a suspect, to warn the public of any dangers, or otherwise to aid in the investigation. (2) From the time of arrest, issuance of an arrest warrant, or the filing of a complaint, information or indictment in any criminal matter, until the commencement of trial or disposition without trial, an attorney or law firm associated with the prosecution or defense shall not release or authorize the release of any extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication, relating to that matter and concerning: a. The prior criminal record (including arrests, indictments, or other charges of crime), or the character or reputation of the accused, except that the attorney or law firm may make a factual statement of the accused’s name, age, residence, occupation, and family status, and if the accused has not been apprehended, an attorney associated with the prosecution may release any information necessary to aid in his apprehension or to warn the public of any dangers he may present; b. The existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make any statement; c. The performance of any examination or tests or the accused’s refusal or failure to submit to an examination or test; d. The identity, testimony, or credibility of prospective witnesses, except that the attorney or law firm may announce the identity of the victim if the announcement is not otherwise prohibited by law; e. The possibility of a plea of guilty to the offense charged or to a lesser offense; or f. Any opinion as to the accused’s guilt or innocence, or as to the evidence in the case.

Raybin, Meet the Press Seminar Page 44 of 144 The foregoing shall not be construed to preclude the attorney or law firm during this period, in the proper discharge of his or its official or professional obligations, from announcing the fact and circumstances of arrest (including time and place of arrest, resistance, pursuit, and use of weapons), the identity of the investigating and arresting officer or agency, and the length of the investigation; from making an announcement, at the time of seizure of any physical evidence other than a confession, admission, or statement, that is limited to a description of the evidence seized; from disclosing the nature, substance, or text of the charge including a brief description of the offense charged; from quoting or referring without comment to public records of the Court in the case; from requesting assistance in obtaining evidence; or from announcing without further comment that the accused denies the charges made against him. (3) During the trial of any criminal matter, including the period of selection of the jury, no attorney or law firm associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or to the parties or issues in the trial, that a reasonable person would expect to be disseminated by means of public communication, except that the attorney or law firm may quote from or refer without comment to public records of the Court in the case. (4) Nothing in this Rule is intended to preclude the formulation or application of more restrictive rules relating to the release of information about juvenile or other offenders, to preclude the holding of hearings, or the lawful issuance of reports by legislative, administrative, or investigative bodies, or to preclude any attorney from replying to charges of misconduct that are publicly made against him. (b) By Courthouse Personnel. All courthouse personnel, including the Marshal, Deputy Marshals, Court Security Officers, the Court Clerk, Deputy Court Clerks, Probation Officers, Court Reporters, Law Clerks, and Secretaries, among others, are prohibited from disclosing to any person, without authorization by the Court, information relating to a pending criminal proceeding that is not part of the public record of the Court. This Rule specifically forbids the divulging of information concerning arguments and hearings held in chambers or otherwise outside the presence of the public.

Raybin, Meet the Press Seminar Page 45 of 144

D. Obligation to be Truthful and Respect Rights of Third Persons.

Raybin, Meet the Press Seminar Page 46 of 144 Rule 4.1. Truthfulness in Statements to Others, TN R S CT Rule 8, RPC 4.1

Sup.Ct.Rules, Rule 8, RPC 4.1

Rule 4.1. Truthfulness in Statements to Others

Currentness

(a) In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.

(b) If, in the course of representing a client in a nonadjudicative matter, a lawyer knows that the client intends to perpetrate a crime or fraud, the lawyer shall promptly advise the client to refrain from doing so and shall discuss with the client the consequences of the client's conduct. If after such discussion, the lawyer knows that the client still intends to engage in the wrongful conduct, the lawyer shall:

(1) withdraw from the representation of the client in the matter; and

(2) give notice of the withdrawal to any person who the lawyer knows is aware of the lawyer's representation of the client in the matter and whose financial or property interests are likely to be injured by the client's criminal or fraudulent conduct. The lawyer shall also give notice to any such person of the lawyer's disaffirmance of any written statements, opinions, or other material prepared by the lawyer on behalf of the client and which the lawyer reasonably believes may be used by the client in furtherance of the crime or fraud.

(c) If a lawyer who is representing or has represented a client in a nonadjudicative matter comes to know, prior to the conclusion of the matter, that the client has, during the course of the lawyer's representation of the client, perpetrated a crime or fraud, the lawyer shall promptly advise the client to rectify the crime or fraud and discuss with the client the consequences of the client's failure to do so. If the client refuses or is unable to rectify the crime or fraud, the lawyer shall:

(1) if currently representing the client in the matter, withdraw from the representation and give notice of the withdrawal to any person whom the lawyer knows is aware of the lawyer's representation of the client in the matter and whose financial or property interests are likely to be injured by the client's criminal or fraudulent conduct; and

(2) give notice to any such person of the lawyer's disaffirmance of any written statements, opinions, or other material prepared by the lawyer on behalf of the client and that the lawyer reasonably believes may be used by the client in furtherance of the crime or fraud.

Credits [Adopted September 29, 2010, effective January 1, 2011.]

Editors' Notes

COMMENT Misrepresentation

[1] A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts or law. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see RPC 8.4.

Statements of Fact

[2] This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim are ordinarily in this category, as is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.

Crime or Fraud by Client

[3] Paragraphs (b) and (c) provide guidance for lawyers who discover that a client intends to or is engaging in criminal or fraudulent conduct, and in some cases may even have used the lawyer's services to assist them commit the crime or fraud. To avoid assisting the client with the crime or fraud, the lawyer must advise the client to refrain from or to rectify the consequences of the criminal or fraudulent act. If the client refuses or is unable to do so, the lawyer must withdraw from the representation of the client in the matter. Additionally, this Rule mandates limited disclosures--notice of withdrawal or disaffirmance of written work product--in circumstances in which such disclosure is necessary for the lawyer to prevent the client from using the lawyer's services in furtherance of the crime or fraud. To this limited extent, then, this Rule overrides the lawyer's duties in RPCs 1.6, 1.8(b), and 1.9(c) prohibiting disclosure or use to the disadvantage of the client of information relating to the representation. Other than the disclosure mandated by this Rule, however, the lawyer must not reveal information relating to the representation unless permitted to do so by RPC 1.6.

[4] If a lawyer learns that a client intends to commit a crime or fraud under circumstances in which the lawyer will not assist the offense by remaining silent, paragraph (b) requires remonstration with the client against the crime or fraud and requires withdrawal if the client does not desist from the course of conduct in question. Although the lawyer is not required to reveal the client's intended or ongoing fraud, the lawyer is required to communicate the fact that he or she has withdrawn from the representation of the client to any person who the lawyer reasonably believes knows of the lawyer's involvement in the matter and whose financial or property interests are likely to be damaged by the client's intended or ongoing misconduct. This communication is necessary to fully distance the lawyer from the client's misconduct. If the client's intended conduct is a crime, full disclosure of the crime is permitted by RPC 1.6(b), but such disclosure is not required by paragraph (b) of this Rule.

[5] In some cases, a lawyer will learn about a client's crime or fraud after he or she has innocently prepared and submitted statements, opinions, or other materials to third parties who will be adversely affected if the client persists with his or her misconduct. If the lawyer was misled by the client, some of these statements, opinions or materials may be false or misleading. Even though accurate, they may be necessary for the accomplishment of the client's crime or fraud. This presents the lawyer with a dilemma. Without the consent of the client, the lawyer may not correct the statements, opinions, or materials. That would violate the prohibition against revealing information related to the representation of the client. Yet to do nothing would allow

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 48 of 144 2 Rule 4.1. Truthfulness in Statements to Others, TN R S CT Rule 8, RPC 4.1 the client to use the lawyer's work in the client's ongoing effort to consummate the fraud. To resolve this dilemma, paragraphs (b) and (c) do not require disclosure of the crime or fraud but only require that the lawyer effectively disengage from the crime or fraud by giving notice to affected persons of the lawyer's disaffirmance of the lawyer's work product that the lawyer reasonably believes may be used by the client in furtherance of the crime or fraud. See RPC 1.6(b)(1) and (2) for the circumstances in which the lawyer is permitted to reveal information for the purposes of preventing the client's crime or fraud, and RPC 1.6(b) (3) for the circumstances in which a lawyer may reveal a client's crime or fraud for the purpose of preventing, rectifying or mitigating its consequences. See RPC 1.6(c)(1) for the circumstances in which the lawyer is required to reveal information for the purpose of preventing reasonably certain death or substantial bodily harm.

[6] This Rule does not apply if the lawyer learns of the client's crime or fraud after the lawyer's representation in the matter is concluded. In such circumstances, the lawyer must comply with RPCs 1.6, 1.8(b), and 1.9(c) and may not make any disclosures concerning the client's crime or fraud, unless permitted or required to do so by those Rules. See, e.g., RPC 1.6(b)(3) (permitting disclosure to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services); RPC 1.6 (b)(4) (permitting disclosures to secure legal advice about compliance with these Rules); RPC 1.6(b)(5) (permitting disclosures to establish a defense to an allegation of misconduct); and RPC 1.6(c)(1) (requiring disclosure to prevent reasonably certain death or substantial bodily harm.

DEFINITIONAL CROSS-REFERENCES “Fraud” and fraudulent” See RPC 1.0(d)

“Knowingly” and “knows” See RPC 1.0(f)

“Material” See RPC 1.0(o)

“Reasonably believes” See RPC 1.0(i)

Sup. Ct. Rules, Rule 8, RPC 4.1, TN R S CT Rule 8, RPC 4.1 The state court rules are current with amendments received through July 15, 2015.

Sup.Ct.Rules, Rule 8, RPC 4.4

Rule 4.4. Respect for the Rights of Third Persons

Currentness

(a) In representing a client, a lawyer shall not:

(1) use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person; or

(2) threaten to present a criminal or lawyer disciplinary charge for the purpose of obtaining an advantage in a civil matter.

(b) A lawyer who receives information relating to the representation of the lawyer's client that the lawyer knows or reasonably should know is protected by RPC 1.6 (including information protected by the attorney-client privilege or the work-product rule) and has been disclosed to the lawyer inadvertently or by a person not authorized to disclose such information to the lawyer, shall:

(1) immediately terminate review or use of the information;

(2) notify the person, or the person's lawyer if communication with the person is prohibited by RPC 4.2, of the inadvertent or unauthorized disclosure; and

(3) abide by that person's or lawyer's instructions with respect to disposition of written information or refrain from using the written information until obtaining a definitive ruling on the proper disposition from a court with appropriate jurisdiction.

Credits [Adopted September 29, 2010, effective January 1, 2011.]

Editors' Notes

COMMENT [1] Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship. For example, a lawyer may not secretly record a conversation or the activities of another person if doing so would violate state or federal law specifically prohibiting such recording. Otherwise, this

Rule does not prohibit secret recording so long as the lawyer has a substantial purpose other than to embarrass or burden the persons being recorded. It would be a violation of RPC 4.1 or RPC 8.4(c), however, if the lawyer stated falsely or affirmatively misled another to believe that a conversation or an activity was not being recorded. By itself, however, secret taping does not violate either RPC 8.4(c) (prohibition against dishonest or deceitful conduct) or RPC 8.4(d) (prohibition against conduct prejudicial to the administration of justice.)

[2] The duties imposed by paragraph (b) on lawyers who know or who reasonably should know that they have received information protected by RPC 1.6 that was disclosed to them inadvertently or by a person not authorized to disclose the information to them reflect the importance of client-lawyer confidentiality in the jurisprudence of this state and the judgment that lawyers in their dealings with other lawyers and their clients should take the steps that are required by this Rule in the interest of protecting client-lawyer confidentiality even if it would be to the advantage of their clients to do otherwise.

[3] This Rule, however, does not prohibit the receiving lawyer from seeking a definitive court ruling as to the proper disposition of such information, including a ruling regarding whether the disclosure effects a waiver of the attorney-client privilege or work- product rule. In making any disclosure to a court to obtain a ruling regarding disposition of the information, any disclosure of the information should be made in a manner that limits access to the information to the tribunal, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.

DEFINITIONAL CROSS-REFERENCES “Knows” and “knowingly” See RPC 1.0(f)

“Reasonably should know” See RPC 1.0(j)

“Substantial” See RPC 1.0(l)

“Written” See RPC 1.0(n)

Sup. Ct. Rules, Rule 8, RPC 4.4, TN R S CT Rule 8, RPC 4.4 The state court rules are current with amendments received through July 15, 2015.

Raybin, Meet the Press Seminar Page 52 of 144 Tennessean v. Metropolitan Government of Nashville, Slip Copy (2014)

RICHARD H. DINKINS, J., delivered the opinion of the 2014 WL 4923162 court, in which FRANK G. CLEMENT, JR., P. J., M. S., Only the Westlaw citation is currently available. joined. W. NEAL McBRAYER, J., filed a dissenting opinion. SEE COURT OF APPEALS RULES 11 AND 12

Court of Appeals of Tennessee. OPINION

The TENNESSEAN, et al. RICHARD H. DINKINS, J. v. *1 Various media outlets made request under the Tennessee METROPOLITAN GOVERNMENT OF Public Records Act for access to records accumulated and NASHVILLE and Davidson County, et al. maintained by the Metropolitan Nashville Police Department in the course of its investigation and prosecution of an No. M2014–00524–COA–R3–CV. | June alleged rape in a campus dormitory. When the request 09, 2014 Session. | Sept. 30, 2014. was refused, the outlets a filed petition in Chancery Court | Application for Permission to Appeal in accordance with Tennessee Code Annotated § 10–7– Granted by Supreme Court Jan. 15, 2015. 505; the State of Tennessee, District Attorney General Appeal from the Chancery Court for Davidson County, No. and alleged victim were permitted to intervene. The court 14156IV; Russell T. Perkins, Chancellor. held the required show cause hearing and, following an in camera inspection, granted petitioners access to four Attorneys and Law Firms categories of records and documents. Petitioners, as well as the Metropolitan Government and Intervenors appeal, raising Robb S. Harvey and Lauran M. Sturm, Nashville, Tennessee, numerous and various statutory and constitutional issues. We for the appellants, The Tennessean, Associated Press, have determined that the records sought are currently exempt Chattanooga Times Free Press, Knoxville News Sentinel, from disclosure due to the continuing police investigation and Tennessean Coalition for Open Government, Inc., Tennessee pending prosecution; accordingly, we reverse the judgment of Associated Press Broadcasters, WZTV Fox 17, WBIR–TV the Chancery Court and dismiss the petition. Channel Ten, WTVF–TV Channel Five, The Commercial Appeal, and WSMV–TV Channel Four. I. FACTUAL & PROCEDURAL HISTORY Saul Solomon, Director of Law; James L. Charles, Associate On August 9, 2013, four former members of the Vanderbilt Director, Lora Barkenbus Fox, Emily Herring Lamb, R. University football team were indicted on five counts of Alex Dickerson, Jennifer Cavanaugh, Assistant Metropolitan aggravated rape and two counts of aggravated sexual battery Attorneys, Nashville, Tennessee, for the appellee, The of a student at an on-campus dormitory. On October 13, Department of Law of the Metropolitan Government of a reporter for the Tennessean newspaper made a request Nashville and Davidson County. of the Metropolitan Police Department under the Tennessee Public Records Act (“TPRA”), Tenn.Code Ann. § 10–7– Edward Yarbrough and J. Alex Little, Nashville, Tennessee, 503 et seq., for “any records (as that term is broadly for the intervenor, Jane Doe. defined in the Act) regarding the alleged rape on the Robert E. Cooper, Jr., Attorney General and Reporter; Joseph Vanderbilt campus and in which Vandenburg, Banks, Batey F. Whalen, Acting Solicitor General; Janet M. Kleinfelter, and McKenzie are charged” and “any records regarding the Deputy Attorney General, for the intervenors-appellees, case recently concluded against Boyd by his plea bargain.” 1 District Attorney General, Victor S. Johnson, III, and the State The request was denied and, after unsuccessfully seeking of Tennessee. recourse through the Metropolitan Director of Law and Mayor, on February 4, 2014, the Tennessean and various Douglas R. Pierce, Nashville, Tennessee, for the Amicus other media outlets (“Petitioners”) filed a Complaint and Curiae, Tennessee Association of Broadcasters. Petition for Access to Public Records in Davidson County Chancery Court naming the Metropolitan Government of Nashville and Davidson County as Respondent; the State and

District Attorneys General were permitted to intervene, as a) police reports and supplements; was the victim (Ms. Doe). 2 b) search warrants; c) crime scene photographs; d) Pano-scan data relating to Vanderbilt University 1 Another student had previously entered a conditional premises; guilty plea to a charge of trying to cover up the alleged e) background checks and other personal information rape. regarding Ms. Doe, defendants, and witnesses; f) cell phone information obtained through several 2 The State Attorney General and District Attorney search warrants; General, Victor Johnson, III, moved to intervene in order g) photographic images and text messages recovered to protect the interest of the State in the ongoing criminal from the cell phones of five individuals who prosecution; in addition, as more fully discussed herein, were charged with criminal offenses, except any the court in which the prosecution was pending had photographs or video depicting Ms. Doe or the issued a protective order prohibiting disclosure of certain alleged sexual assault; material produced by the State to the defendants. h) statements of Ms. Doe, defendants and witnesses; The court held a show cause hearing in accordance with the and TPRA and conducted an in camera inspection of the records i) video recovered from a student witness's computer, in question 3 ; in a Memorandum and Final Order entered except any photographs or videotapes depicting Ms. Doe or the alleged sexual assault. March 12, the court ordered that Petitioners be granted access to (1) text messages and emails the police department The parties each raise issues on appeal. received from third parties in the course of its investigation; (2) Vanderbilt access card information; (3) reports and II. DISCUSSION emails provided to the Metropolitan police department by The TPRA provides that: Vanderbilt; (4) pano scan data of the Vanderbilt premises. All state, county and municipal 3 The court categorized the records as follows: records 4 shall, at all times during 1. All of the building surveillance tapes in business hours, which for public the investigative file from three locations on hospitals shall be during the business the Vanderbilt University campus, including the hours of their administrative offices, Vanderbilt University dormitory where the alleged assault occurred-all with the image of Ms. Doe be open for personal inspection by redacted; any citizen of this state, and those 2. All of the videos and photographs in the in charge of the records shall not investigative file, except that Plaintiffs are not refuse such right of inspection to any seeking photos or videotapes of the alleged assault citizen, unless otherwise provided by or any photos or videotapes of Ms. Doe; state law. 3. All of the text messages and e-mails that the Metropolitan Police Department received from 4 third parties in the course of its investigation; The TPRA defines “public records” to include: “All 4. Written statements of the defendants and witnesses documents, papers, letters, maps, books, photographs, provided to the Metropolitan Police Department by microfilms, electronic data processing files and output, Vanderbilt University; films, sound recordings or other material, regardless 5. Vanderbilt access card information; of physical form or characteristics, made or received 6. Reports and e-mails provided to the Metropolitan pursuant to law or ordinance or in connection with the Police Department by Vanderbilt University; transaction of official business by any governmental 7. Metropolitan Police Department forensic tests agency.” Tenn.Code Ann. § 10–7–503(a)(1)(A). performed on telephones and computers; *2 Tenn.Code Ann. § 10–7–503(a)(2)(A). The parties have 8. T.B.I. DNA reports; raised a plethora of issues relative to the interpretation and 9. Forensic reports prepared by private laboratories application of this statute, specifically the “unless otherwise hired by the Metropolitan Police Department; and provided by state law” provision. We have determined that 10. The following items made or collected by the a common thread in these issues, which we must first Metropolitan Police Department:

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 54 of 144 2 Tennessean v. Metropolitan Government of Nashville, Slip Copy (2014) address, is the extent to which the records sought are exempt were exempt from inspection pursuant to Tenn. R.Crim. P. from disclosure given the present posture of the criminal 16; the Court of Appeals reversed, holding that Rule 16 only proceeding. This is a question of law which we review de applied to the rights and duties of the parties to the criminal novo, with no presumption of correctness of the trial court's prosecution and not the rights of access of citizens to public decision. See Memphis Publishing Co. v. Cherokee Children records as provided by the TPRA. Id. On further appeal, and Family Svcs., Inc., 87 S.W.3d 67, 74 (Tenn.2002). our Supreme Court reversed the Court of Appeals' decision, holding: The Metropolitan Government as well as the State and District Attorneys General assert that the records are exempt Rule 16 provides for the disclosure and inspection of pursuant to Rule 16 of the Tennessee Rules of Criminal categories of evidence in the possession of the state or in Procedure, which governs discovery and inspection of the possession of the defendant. However, the disclosure information in a criminal proceeding. Section (a)(1) of the and inspection granted by the rule “does not authorize the rule sets forth specific information which must be disclosed discovery and inspection of reports, memoranda, or other by the State; of pertinence to the issues we address, section internal state documents made by ... state agents or law (a)(2) provides as follows: enforcement officers in connection with the investigation or prosecution of the case, ...” Rule 16(a)(2) of the Except as otherwise provided in Rules of Criminal Procedure. This exception to disclosure paragraphs (A), (B), (E), and (G) and inspection does not apply to investigative files in of subsection (a)(1) [ 5 ] , this rule possession of state agents or law enforcement officers, does not authorize the discovery or where the files have been closed and are not relevant to any inspection of reports, memoranda, pending or contemplated criminal action, but does apply or other internal state documents where the files are open and are relevant to pending or made by the district attorney general contemplated criminal action. or other state agents or law *3 Appman, 746 S.W.2d at 166. The Supreme Court enforcement officers in connection then noted that the materials sought were the result of the with investigating or prosecuting the investigation into a murder for which several individuals case. Nor does this rule authorize were indicted for the murder and another was indicted as an discovery of statements made by accessory after the fact. Id. at 166–67. The court also stated state witnesses or prospective state that the materials were relevant to the prosecution of the witnesses. persons charged with the offenses arising out of the murder and that the prosecutions had not been terminated. Id. at 5 These exceptions are not at issue in this appeal. 167. Applying the Rule 16(a)(2) exception to the disclosure Tenn. R.Crim. P. 16(a)(2). Our review of cases which have and inspection of categories of evidence where the files considered the interaction between Tenn. R.Crim. P. 16 and are open and relevant to pending or contemplated criminal the TPRA leads us to conclude that, in light of the pending action, which was the case in Appman, the court held that investigation and prosecution arising out of the events for the materials were not subject to inspection under the Public which the records were complied, access under the TPRA is Records Act. Id. not required at this time. In Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn.2007), The question of whether records maintained by a state members of the media filed a petition under the TPRA seeking correctional facility in the course of its investigation into the access to, inter alia, cards memorializing field interviews murder of an inmate were available for inspection under the conducted by City of Jackson police officers. The request TPRA was before the court in Appman v. Worthington, 746 had been denied on the basis of an asserted common law S.W.2d 165 (Tenn.1987). In that case, attorneys representing law enforcement privilege; the Supreme Court held that such the defendants who had been indicted for the inmate's murder privilege had not been adopted in Tennessee and, therefore, subpoenaed records of the facility's investigation from the was not a “state law” exception to the TPRA. Id. at 338, 342. appropriate prison official; the request was refused and The court also considered whether the cards were exempt counsel filed a petition seeking judicial review pursuant to from disclosure under Tenn. R.Crim. P. 16. Id. at 344. The the TPRA. Id. at 166. The trial court held that the records court noted that the cards “would clearly have been exempt

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 55 of 144 3 Tennessean v. Metropolitan Government of Nashville, Slip Copy (2014) from disclosure under Rule 16(a)(2) and this Court's decision in Appman ” and remanded the case to allow the City to *4 12. The MNPD's investigative file is the product submit to the court for in camera review the cards or portions of the education and investigative experience utilized by of cards which the City maintained were involved in a law enforcement officers to gather relevant documents and items related to this crime. MNPD considers the pending criminal investigation. 6 Id. at 345–46. 7 creation of this kind of file to be an internal report created in preparation for the prosecution of a case by 6 The court ordered that the petitioners be granted the District Attorney's office. MNPD routinely consults immediate access to those cards which were not with the District Attorney's office during the course of an submitted to the court for review. investigation about its course and the evidence gathered to 7 The holding of Appman and Schneider that Tenn. R. date. Crim P. 16(a)(2) is included in the “otherwise provided In like fashion the State submitted the affidavit of District by state law” language of Tenn.Code Ann. § 10–7– 503(a)(2)(A), thereby exempting records relating to Attorney General Johnson, stating in pertinent part: ongoing criminal investigations or prosecutions from 2. In late June 2013, the Metropolitan Nashville Police the access requirement, has been applied in other cases as well. See e.g., Capital Case Resource Center of Department (MNPD) began investigating and gathering Tennessee, Inc. v. Woodall, No. 01–A019104CH00150, information relating to crimes that allegedly occurred 1992 WL 12217 (Tenn.Ct.App. Jan.29, 1992); Freeman on the Vanderbilt University campus for the purpose of v. Jeffcoat, No. 01–A019103CV00086, 1991 WL prosecuting the perpetrators of the alleged crimes. Shortly 165802 (Tenn.Ct.App. May 18, 1992); Swift v. thereafter, MNPD contacted my office for advice and Campbell, 159 S.W.3d 565 (Tenn.Ct.App.2004); Waller assistance with their investigation. v. Bryan, 16 S.W.3d 770 (Tenn.Ct.App.1990). 3. In August, 2013, MNPD presented this case to the In response to the show cause order, Metro submitted, inter Grand Jury and the Grand Jury returned an indictment alia, the affidavit of Steve Anderson, Chief of Police, which against four individuals charging each with five counts stated in pertinent part: of aggravated rape and two counts of aggravated sexual 6. MNPD officers have been investigating and gathering battery. Additionally, one of the four individuals was information relating to crimes that allegedly occurred on charged with one count of unlawful photography and one the Vanderbilt University campus around June 23, 2013, count of tampering with evidence. and the following days thereafter, for the purposes of 4. An arraignment was subsequently held at which time all prosecuting the perpetrators of the crimes. four individuals pled not guilty. Currently, trial is set for 7. The MNPD investigation into the matter is still an two of the defendants in August; a trial date has not been active, ongoing and open matter. The investigation is not set for the other two defendants. complete. Investigators are still working to gather and 5. Before this case was presented to the Grand Jury, analyze evidence in the case. MNPD's investigative file was reviewed by attorneys in my 8. Much of the information that the MNPD has gathered office. Once the indictment was issued by the Grand Jury in this investigation has been through subpoenas and against the four individuals, that investigative file became search warrants—from defendants, potential witnesses, part of the prosecutorial file that was assigned to Deputy Vanderbilt University, Vanderbilt Police, Vanderbilt District Attorney Tom Thurman, who is handling this case University Medical Center, and cell phone providers. for my office.

9. The grand jury has indicted four individuals in this 6. MNPD's investigation into this case is still active case, on five counts of aggravated rape and aggravated and ongoing and any additional information that MNPD sexual battery. One of the individuals is also charged collects or gathers during their investigation is provided to with tampering with evidence and one count of unlawful Deputy District Attorney Thurman and becomes part of his photography (T.C.A. § 39–13–605). The trial for two of the prosecutorial file. individuals is scheduled for August 11, 2014.

It is apparent from the affidavits that the material that is Jackson, 226 S.W.3d 332, 340 (Tenn.2007) (citing State the subject of the request is “relevant to a pending or v. Cawood, 134 S.W.3d 159, 165 (Tenn.2004); Tennessean contemplated criminal action” and therefore not subject to v. Elec. Power Bd., 979 S.W.2d 297, 305 (Tenn.1998); disclosure. See Appman, 746 S.W.2d at 166. Accordingly, the Arnold v. City of Chattanooga, 19 S.W.3d 779, 785 petition should be dismissed. (Tenn.Ct.App.1999)). Absent an applicable exception, this mandate requires disclosure of public records “even in the The fact that the police investigation and criminal prosecution face of serious countervailing considerations.” Id. (quoting are ongoing is a significant factor in our disposition of this Memphis Publ'g Co. v. City of Memphis, 871 S.W.2d 681, 684 case; this pretermits our consideration of the other issues (Tenn.1994)). raised. The Tennessee Supreme Court has utilized the Tennessee Rules of Criminal Procedure, and Rule 16(a)(2) in particular, IV. CONCLUSION as a basis for excepting materials from disclosure under the For the foregoing reasons, the judgment of the trial court is Public Records Act. Appman v. Worthington, 746 S.W.2d reversed and the petition dismissed. 165, 166 (Tenn.1987). 1 In Schneider v. City of Jackson, 226 S.W.3d 332 (Tenn.2007), the Supreme Court extended the Rule 16(a)(2) exception to public records requests made W. NEAL McBRAYER, J., dissenting. by citizens other than criminal defendants or their counsel. *4 The Court's decision in this case excepts materials that 226 S.W.3d at 341. The majority reads Schneider as also are “relevant to a pending or contemplated criminal action” extending the Rule 16(a)(2) exception to materials that are from disclosure under the Public Records Act based upon “relevant to a pending or contemplated criminal action.” In Tennessee Rule of Criminal Procedure 16(a)(2). I find such my view, such an extension of the Rule 16(a)(2) exception is a conclusion inconsistent with a fair reading of Rule 16(a) not warranted by Schneider. (2) and, therefore, respectfully dissent. However, because the trial court should have considered the victim's rights, 1 In Memphis Publishing Co. v. Holt, 710 S.W.2d 513 the criminal defendants' Sixth Amendment rights under the (Tenn.1986), the Supreme Court declined to apply United States Constitution, and the State's interests in a fair Tennessee Rule of Criminal Procedure 16(a)(2) as an trial before determining what materials were subject to public exception to the Public Records Act where the records inspection, I would vacate the trial court's ruling and remand in question were part of a closed investigative file. 710 for further proceedings. S.W.2d at 517. The Supreme Court also noted that Rule 16(a)(2)'s “limitation on access to records applies only *5 The Public Records Act has been described as an “all to discovery in criminal cases.” Id. At the time Holt was encompassing legislative attempt to cover all printed material decided, public records were open to inspection “unless created or received by government in its official capacity.” otherwise provided by state statute.” Id. at 515. In 1991, the Legislature replaced the phrase “state statute” with Griffin v. City of Knoxville, 821 S.W.2d 921, 923 (Tenn.1991) “state law.” 1991 Tenn. Pub. Acts 598. (quoting Bd. of Educ. of Memphis City Sch. v. Memphis Publ'g Co., 585 S.W.2d 629, 630 (Tenn.Ct.App.1979)). The Act Although in Schneider the Court granted the City of Jackson provides that “[a]ll state, county, and municipal records shall, an opportunity to review the field interview cards or portions at all times during business hours ... be open for personal of the cards to determine whether any of the information inspection by any citizen of this state, and those in charge of was “involved in an ongoing criminal investigation,” the the records shall not refuse such right of inspection to any Court only directed such a review after finding that the citizen, unless otherwise provided by state law.” Tenn.Code “cards would clearly have been exempt from disclosure under Ann. § 10–7–503(a)(2)(A) (Supp.2014). The Legislature Rule 16(a)(2)” and Appman v. Worthington, 746 S.W.2d 165 has further directed that the Act “be broadly construed (Tenn.1987). Id. at 345–36. Field interview cards seemingly so as to give the fullest possible public access to public would fall within the ambit of Rule 16(a)(2) either as a records.” Tenn.Code Ann. § 10–7–505(d) (Supp.2014). Our “report, memorandum, or other internal state document made Supreme Court has interpreted these provisions to create a by ... law enforcement officers” or as including “statements legislatively-mandated presumption favoring openness and made by state witnesses or prospective state witnesses.” See disclosure of government records. Schneider v. City of Tenn. R.Crim. P. 16(a)(2). Witnesses described the field

interview cards as the police officers' “work product.” 226 the accused in a criminal case, and the Victims' Bill of Rights. S.W.3d at 337. As the court of appeals has previously However, having identified three potential exceptions, the explained, Tennessee Rule of Criminal Procedure 16(a) trial court addressed only one, the agreed protective order. (2) “embodies the work product doctrine as it applies to The trial court properly concluded that materials covered by criminal cases .” Swift v. Campbell, 159 S.W.3d 565, 572 the agreed protective order were excepted from disclosure (Tenn.Ct.App.2004). under the Public Records Act. See Ballard v. Herzke, 924 S.W.2d 652, 662 (Tenn.1996). As for the other two potential *6 In this case, the Metropolitan Government of Nashville exceptions, the trial court deferred to the criminal court. and Davidson County (“Metro”) conceded in both its brief 2 Having been presented with the question of whether the and at oral argument that the materials sought by the public records were excepted from disclosure under state law, Petitioners had been provided to the criminal defendants, the trial court should have addressed all potential exceptions placing the materials outside the scope of materials described 3 in Rule 16(a)(2). Certainly, the materials making up Metro's brought to its attention by Metro and the victim. Deferring records regarding the alleged rape on the Vanderbilt campus, such determinations to the criminal court for consideration as described by the trial court, would not all fall within the at a later date presents the unacceptable potential for public description of documents found in Rule 16(a)(2). As a result, release of materials adversely impacting the victim's rights I conclude, as did the trial court, that the materials sought under Article 1, § 35 of the Tennessee Constitution and through 506, by Petitioners were not completely excepted from disclosure Tennessee Code Annotated sections 40–38–101 the criminal defendants' rights to a fair trial under the Sixth under the Public Records Act by virtue of Rule 16(a)(2). Amendment to the United States Constitution, and Metro's 2 general fair trial interests. I would find that these rights In its brief, Metro states “[t]he Petitioners request access and interests constitute “state law” exceptions to the Public to the same information that is provided to a criminal Records Act. defendant in a prosecution.” Metro then states that “The criminal defendant is entitled to this information 3 pursuant to Tennessee Rule of Criminal Procedure 16 I reject the notion, argued by the Petitioners, that only and under the supervision of the Criminal Court.” criminal defendants could raise Sixth Amendment rights to a “fair trial” as an exception to the Public Records Act Although Tennessee Rule of Criminal Procedure 16(a)(2) in an action authorized by Tennessee Code Annotated does not except from disclosure all of the public records section 10–7–505. Metro's general fair trial interests requested by the Petitioners, this determination does not are sufficient to assert exceptions to public disclosure end the inquiry. As the court of appeals has previously based on rights that typically belong only to criminal noted, by excepting from disclosure public records made defendants. confidential “by state law,” statutes, the Constitution of *7 While these exceptions might well lead to the same result Tennessee, the common law, and administrative rules and reached by the majority in this case, the place for application regulations all became potential sources of exceptions to the of these exceptions in the first instance is the trial court. Public Records Act. Swift, 159 S.W.3d at 571–72. Exceptions Therefore, I would vacate the trial court's ruling and remand may be either explicit or implicit. See id. at 572 (the for further proceedings. court's role in interpreting and applying the Public Records Act “is to determine whether state law either explicitly or implicitly excepts particular records or a class of records from All Citations disclosure....”). The trial court here identified three potential exceptions in addition to Rule 16(a)(2): the agreed protective Slip Copy, 2014 WL 4923162 order entered by the criminal court, the constitutional rights of

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 58 of 144 6 IN THE CRIMINAL COURT FOR DAVIDSON COUNTY, TENNESSEE AT NASHVILLE DIVISION IV STATE OF TENNESSEE § § vs. § Docket No: 2015-C-1800 § SAM JONES § § ______

NOTICE OF REQUEST FOR DEFENSE DISCOVERY ______

This document is the Defendant’s request for discovery to the District Attorney for the listed, numbered items. Rule 16, Tennessee Rules of Criminal Procedure provides that discovery is by “defense request” rather than a motion. It is the intention of this request that all supporting documents which are the subject of discovery should not be filed with the clerk of court. Instead, all discovery content should be provided directly to the undersigned defense counsel. The District Attorney may file a response with the clerk listing what is provided but supporting documents such as police reports, statements and other documentary evidence should be provided only to defense counsel.

The reason that the discovery content should not be filed with the clerk is so that it does not become a matter of public record. There may be information in the discovery which relates to information or documents or evidence which is not admissible but may find itself in the public domain by public disclosure to the clerk. Consequently, this request contemplates that discovery content will be disclosed only to the defense attorney and that no discovery be filed with the clerk except for a response listing what will be provided. All defense reciprocal discovery content will be provided to the State but not filed with the clerk.

For the purposes of this request, the "State of Tennessee" includes the District Attorney General, the municipal police department, the county sheriff, the Tennessee Highway Patrol, the Tennessee Bureau of Investigation, any agents or employees of those offices, any other law enforcement officer, and any other person acting in conjunction with, or on behalf of, any law enforcement agency. The defendant defines the requests to include items currently within the actual or constructive possession, custody, control or knowledge of the State of Tennessee, and items which may become known, identified or available through the exercise of due diligence by the State of Tennessee. See generally, Tennessee Rules of Criminal Procedure (hereinafter cited as "Rule") 16; State v. Brown, 552 S.W.2d 383 (Tenn. 1977); ABA Standards, Discovery  2.4, 2.1(d) and 2.2(a).

Raybin, Meet the Press Seminar Page 59 of 144 1. To receive a list of names and current addresses of all witnesses who the State intends to call to testify, whether or not they are listed upon the indictment. Tenn. Code Ann.  40-13-107; Tenn. Code Ann.  40-17-106; McBee v. State, 213 Tenn. 15, 372 S.W.2d 173, (1963); ABA Standards, Discovery  2.1(a)(I).

2. To be provided with the criminal records of the all State's witnesses either before or at the latest after direct examination of said witnesses.

3. To be provided with any police reports and witness statements to the extent that they contain the defendant's prior record, statement, or statements of co-defendants, if any, or the results of any tests or examinations. State v. Robinson, 618 S.W.2d 754 (Tenn. Cr. App. 1981).

4. To be provided with the statements and reports of any witness after the witness testifies. Said production to be made outside the presence of the jury. Rule 26.2.

5. To be advised of the exact date, time and place of the offense alleged in each count of the indictment. Rule 7(c). Given the similarity of the charges it is most important to have some specifics as to what acts are alleged.

6. To inspect and copy any written or recorded statement, confession or admission against interest made by the defendant. Rule 16(a)(1)(A); ABA Standards, Discovery  2.1(a)(ii).

7. To be advised of the substance of any oral statement, confession or admission against interest made by the defendant, whether before or after arrest, in response to any person known to the defendant to be a law enforcement officer. Rule 16(1)(1)(A); ABA Standards, Discovery  2.1(a)(iii).

8. Upon a determination by the State to place co-defendants, if any, on trial jointly with this defendant, to inspect and copy any oral, written or recorded statements, including testimony before a Grand Jury relating to the offense charged, made by any alleged co-defendant, aider, abettor or accomplice, whether made before or after arrest. Rule 16(a)(1)(A); Rule 14(c)(1); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L. Ed. 2d 476 (1968); ABA Standards, Discovery  2.1(a)(ii).

9. To receive a copy of the defendant's prior criminal record, if any. Rule 16(a)(1)(B).

10. That the defendant, through counsel, be allowed to inspect and/or copy all books, papers, photographs, documents tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the State and which are material to the preparation of a defense in this matter, Rule 16(a)(1)(C), or which the State intends to use in evidence. Rule 12(d)(2).

Raybin, Meet the Press Seminar Page 60 of 144 11. That the defendant, through counsel, be allowed to inspect and/or copy all books, papers, photographs, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the State and which were obtained from or belonged to the defendant. Rule 16(a)(1)(C).

12. That the defendant, through counsel, be allowed to inspect and/or copy any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the State, the existence of which is known, or by the exercise of due diligence may become known, to the District Attorney, and which are material to the preparation of the defense. (Rule 16(a)(1)(D).

13. That the defendant, through counsel, be allowed to inspect and/or copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the State, the existence of which is known, or by the exercise of due diligence may become known, or by the exercise of due diligence may become known, to the District Attorney General and which are intended for use by the State as evidence in chief at the trial. Rule 16(a)(1)(D).

14. Copies of any writings executed or audio or video tapes recorded by any police official or other interested party dealing with the incident under which the defendant stands charged, including but not limited to:

a. police reports, b. police logs and jail logs, c. booking sheets, d. "mug" shots or photographs, e. witness statements, and f. notes made by police officials to be used at trial.

15. Names and addresses of any witnesses who may have information regarding the guilt or innocence of the defendant.

16. Any other evidence obtained by observation of police witnesses intended to be used against the defendant at trial that is not part of a written police report furnished to defense counsel.

17. Any available evidence known to the prosecutor that tends to negate the guilt of the defendant, mitigate the degree of the offense, or reduce the punishment, regardless of whether it will damage the state's case.

18. That the defendant, through counsel, be notified as to whether there has been any electronic surveillance of any type, including wiretapping, conducted in connection

Raybin, Meet the Press Seminar Page 61 of 144 with investigation of this case; in the event of any such electronic surveillance, the defendant further requests an inventory of all telephonic, radio and/or recorded information which has been intercepted and/or recorded by law enforcement or any other person acting on behalf of or in conjunction with any law enforcement officers during the investigation of this case. Rules 16(a)(1)(A), 16(a)(a)(C), and 12(d)(2); 18 U.S.C.A.  25.18(8) and (9); ABA Standards, Discovery  2.1.

19. That in the event there has been any electronic surveillance, see 18 U.S.C.A.  25.10 et seq, the defendant, through counsel, be provided with the contents of all such intercepted communications.

20. That the defendant, through counsel, be furnished the names and addresses of all persons known to the District Attorney General or other law enforcement officers to have been present at the time and place of the alleged offense. See, Roberts v. State, 489 S.W.2d 263 (Tenn. Cr. App. 1972).

21. Pursuant to Brady v. Maryland. 373 U.S. 83, 83 S. Ct. 1194 , 10 L. Ed. 2d 215 (1963) and United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), the defendant requests any and all evidence in possession of the State or in the possession of any governmental agency that might fairly be termed "favorable", whether that evidence either be completely exculpatory in nature or simply tends to reduce the degree of the offense or punishment therefor, or whether that evidence might be termed "favorable" in the sense that it might be fairly used by the defendant to impeach the credibility of any witness the government intends to call in this matter. See generally, Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968) and U.S. v. Bagley, 105 S.Ct. 3375 (1985), (impeachment evidence as well as exculpatory evidence falls within the Brady rule). Specifically, the defendant seeks, but does not limit, this request to the following:

(a) The nature and substance of any agreement, immunity promise or understanding between the government or any agent thereof, and any witness, relating to that witness's expected testimony, including but not limited to, understandings or agreements, relating to pending or potential prosecutions. Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), Graves v. State, 489 S.W.2d 74 (Tenn. Cr. App. 1972).

(b) The nature and substance of any preferential treatment given at any time by and State agent, whether or not in connection with this case, to any potential witness, including, but not limited to, letters from State attorneys or other law enforcement personnel to governmental agencies, state agencies, creditors, etc., setting out that witness's cooperation or status with the State, and which letter or communication might fairly be said to have been an attempt to provide some benefit or help to the witness.

Raybin, Meet the Press Seminar Page 62 of 144 (c) Any money or other remuneration paid to any witness by the State, including, but not limited to, rewards, subsistence payments, expenses or other payments made for specific information supplied to the State.

(d) Any and all information in the possession of the State regarding the mental condition of the State's witnesses which would reflect or bring into the question the witnesses' credibility. State v. Brown, 552 S.W.2d 383 (Tenn. 1977.

(e) The original statement and any amendment thereto, of any individuals who have provided the government with a statement inculpating the defendant, who later retracted all or any portions of that statement where such retraction would raise a conflict in the evidence which the State intends to introduce. See United States v. Enright, 579 F.2d 980 (6th Cir. 1978).

(f) Any and all interview memoranda or reports which contain any information, whatever the sources, which might fairly be said to contradict or be inconsistent with any evidence which the government intends to adduce in this matter. See, United States v. Enright, supra.

(g) The names and addresses of any witnesses whom the State believes would give testimony favorable to the defendant in regard to the matters alleged in the indictment, even though the State may not be in possession of a statement of this witness and regardless of whether the State intends to call this witness. See, United States v. Eley, 335 F. Supp. 353 (N.D. Ga. 1972).

(h) The results of any scientific tests or analysis done in person or object in connection with this case where the result of that test or analysis did not implicate, or was neutral to the defendant. See, Barbee v. Warden of Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964); Norris v. Slayton, 540 F.2d 1241 (4th Cir. 1976).

(I) Any documentary evidence in the possession of the State which contradicts or is inconsistent with any testimony the State intends to introduce in this case.

(j) The statement of any individual involved in the perpetration of the charged offense, which person the State alleges to be the defendant, where such description might fairly be said not to match the defendant in characteristics such as height, weight, body build, color of hair, etc. See, Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968).

Raybin, Meet the Press Seminar Page 63 of 144 (k) The name and address of any individual who has been requested to make an identification of the defendant in connection with this case, and failed to make such identification. Grant v. Aldredge, 498 F.2d 376 (2nd Cir. 1974).

22. That in the event the State intends to offer any "eye-witness identification testimony", the defendant, through counsel, be informed as to whether any such witness has at any time been asked to make any pretrial, extrajudicial identification of the defendant, whether by means of a live lineup, a photographic spread, or other type of confrontation; in the event such an extrajudicial identification has taken place, the defendant further requests that date of such identifications, and the names of all persons present at the identification. If such identification occurred as a result of a lineup, show up or photographic identification, the defendant requests the names and addresses of all persons attending and all persons who may have appeared in such lineup or photo spread with the defendant, as well as any written memoranda or documentation of such, including, but not limited to, the photographs taken or used in the identification process. Rules 12(d)(2) and 16(a)(1)(C).

23. That the District Attorney disclose its intention to use, in the State's case-in- chief at trial, all materials subject to discovery by this request. Rule 12(d)(2).

24. Advance written notice of any evidence which might be introduced pursuant to Rule 404(b), Tennessee Rules of Evidence, so that I might have an opportunity to object to same. See generally, State v. Rounsavile, 701 S.W.2d 817 (Tennessee 1985).

25. Pursuant to Rule 608(b)(3), Tennessee Rules of Evidence, advance written notice of any conduct which could in any way be construed as impeachment evidence.

26. That counsel have expert access to computers and other electronic media or devices such as cell phones so the defense expert can forensically copy same.

I would appreciate a written response within 15 days to the above requests or some idea when the information will be provided.

Respectfully submitted,

David L. Raybin, #3385 Hollins, Raybin & Weissman, P. C. 424 Church Street, Suite 2200 Nashville, TN 37219 (615)256-6666 (615) 254-4254 fax

Raybin, Meet the Press Seminar Page 64 of 144 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been sent via hand-delivery to: Assistant District Attorney Robert Smith , Washington Square, Suite 500, 222 2nd Avenue North, Nashville, TN 37201 on this ______day of October, 2015.

______David L. Raybin Benjamin K. Raybin Hollins, Raybin & Weissman, P. C. 424 Church Street, Suite 2200 Nashville, TN 37219 (615)256-6666 (615) 254-4254 fax

Raybin, Meet the Press Seminar Page 65 of 144 IN THE CRIMINAL COURT OF RUTHERFORD COUNTY, TENNESSEE

STATE OF TENNESSEE ) ) v. ) CASE NO.: 111111 ) C======R======)

MOTION FOR PROTECTIVE AND MODIFYING ORDER REGARDING DISCOVERY

The defense is aware that in this jurisdiction the government files its discovery with the clerk and then the defense lawyer acquires his or her discovery by making a copy of what is in the clerk’s file. Pursuant to Rule 16(b), Tennessee Rules of Criminal

Procedure, the defendant respectfully requests the Court enter an immediate protective order requiring the State to respond to the defendant’s request for discovery by providing a full copy to the defense attorney without filing the discovery response content with the

Clerk of this Court. In short, the State must provide discovery to the defense attorney but may file whatever discovery it desires with the clerk, but the content should be filed under seal if it is filed at all. The defense attorney should not be required to acquire discovery from the clerk but should be provided a copy by the government and, as noted, any discovery filed with the clerk must be filed under seal. Because the State’s current discovery responses do not comport with the Rules of Criminal Procedure, a motion is thus necessary for this Court to direct that the State’s discovery response in this case be provided only to counsel for the defendant and not also with the clerk in a public fashion.

For all these reasons, counsel requests that the Court GRANT this motion.

Raybin, Meet the Press Seminar Page 66 of 144 The defense understands that the State has a strong interest in documenting that discovery has been provided to the defense. However, the defense has a strong interest in the discovery not be a public record. These twin concerns can be accommodated by requiring the content be filed under seal. This request is prompted by the proliferation of sensitive documents filed with the clerk by the District Attorney’s Office in response to defense discovery requests in child sex abuse cases. The filed discovery documents often contain inadmissible information which could prejudice the defense or, perhaps, the

State, in the case of reciprocal discovery. The documents could also promote identity theft by the unintentional disclosure of confidential information such as social security numbers and the like.

Prior to 1963, Tennessee had no discovery procedures in criminal cases. In 1963, the defendant was afforded a statutory right to see his or her own confession. See Public

Acts of 1963, Chapter 96. In 1968, discovery of certain physical evidence held by the prosecution was permitted. See Public Acts of 1968, Chapter 415.

The 1968 statute addressed the limited right of discovery in criminal cases and required that the defendant file a “motion” for discovery, and that the judge was required to issue an “order” granting the discovery motion. Thus began the practice of lawyers filing motions for discovery, getting an order to comply from the judge, and then the district attorney filing a full response with the court showing compliance with the order.

These discovery statutes were repealed by Public Acts of 1979, chapter 399 which was the provision removing those portions of our statutes which were in conflict or had

Raybin, Meet the Press Seminar Page 67 of 144 been altered by the then, recently promulgated Tennessee Rules of Criminal Procedure.1

The new criminal rules became effective in 1978 and replaced the prior requirement that a lawyer had to file a “motion” for discovery with the new procedure that discovery was to be available simply by “request.”

The new rules abolished the archaic practice of discovery “motions.” For example, Rule 16(a)(1) provides the prosecutor is to disclose to the defendant the substance of any of the defendant’s statements “upon a defendant’s request.” Rule

16(a)(1)(E) requires the disclosure of the defendant’s prior record “upon a defendant’s request.” Identical language regarding disclosure “on request” can be found in Rule 16 as it relates to documents and objects, and reports of examinations and tests. There are no requirements that such “requests” be filed with the clerk as under prior law when discovery was by motion.

Compare these provisions with Rule 16(a)(1)(C) which requires disclosure of certain grand jury testimony, “upon a defendant’s motion.” That provision is intentionally distinct requiring a heightened procedural component because the district attorney might oppose the motion and the judge might want some control of what is disclosed.

Rule 16(c) imposes a continuing duty to disclose on both parties. Note that subsection (2) imposes a continuing duty if the party has previously requested the information or if the court has ordered its production. Court ordered production comes about under Rule 16(d) where the court regulates discovery or orders discovery in

1 The unsigned counsel served as the designee of the Attorney General for the first criminal rules commission which drafted the initial set of criminal rules. The unsigned counsel later served as chair of the Tennessee Supreme Court criminal rules commission for six years.

Raybin, Meet the Press Seminar Page 68 of 144 appropriate cases such as motions to compel where there is a discovery dispute or where protective orders are needed.

Other discovery rules do not require that discovery must be filed with the court.

Rule 12.1 addresses notice of alibi. There is nothing in this rule which contemplates the notice or the response be filed with the clerk of court. Indeed, Rule 12.1(a)(1) provides that when the district attorney desires disclosure of potential alibi witnesses then he or she shall, “serve the defendant with a written request to be notified of an intention to offer an alibi defense.” See also 12(d)(2) which provides that the defendant may request notice of the state’s intent to use evidence.

Compare these notice and discovery rules with Rule 12.2 regarding notice of an insanity defense or expert testimony. Rule 12.2(a) provides that notice of insanity requires notice to the opposing party and a requirement that a copy be filed with the clerk of court. Similarly, notice of expert testimony of the defendant’s mental condition must be filed with the district attorney and a copy of the notice with the clerk.

Rule 12.3 provides that notice of intent to seek an increased sentence or the death penalty must be in writing, served on the defense attorney, and “filed with the court clerk.”

As noted in the commission comments to Rule 16, the “rule substantially conforms to the new federal discovery Rule 16… .” The commission comments to the similar federal rule provide that “the rule provides that the parties themselves will accomplish discovery—no motion need be filed and no court order is necessary. The court will intervene only to resolve a dispute as to whether something is discoverable or

Raybin, Meet the Press Seminar Page 69 of 144 to issue a protective order.” There is nothing in the federal rules about filing discovery documents with the clerk.

It can be observed, then, that the Tennessee rules like their federal counterpart are very specific when discovery and discovery-like matters are to be filed with the clerk of court. In other instances, the rules do not require or even contemplate that any discovery need be lodged with the court unless or until there is some discovery dispute.

The State’s notion that discovery is filed with the clerk and the defense attorney acquires the discovery from the clerk is unique. There is no such procedure authorized or contemplated by the criminal rules. Normal and customary practice dictates that the lawyers provide each other with discovery. The defense insists on this.

The proliferation of paper is not the main problem. The primary concern is that the advanced disclosure of evidence can easily become part of the public domain, and work to the prejudice of the defense and occasionally the state. Every discovery response contains various police reports, names, addresses, telephone numbers, and assorted personal information. More modern discovery contains a vast amount of private data, such as bank account records, social security numbers, credit card information, and a host of other information about the defendant and potentially other witnesses. It is, quite literally, a treasure trove of information all of which is publicly accessible. All it takes is some person with a scanner and things will start showing up on Facebook. There is certainly no reason for the current practice other than, “That is the way we have always done it.”

Raybin, Meet the Press Seminar Page 70 of 144 B.

The Rules of Criminal Procedure do not contemplate that discovery responses be filed with the court clerk. The rules are very specific as to what should be filed and the ostensible silence of the rules as to any direct prohibition on filing discovery responses with the clerk does not mean that hundreds of pages of what should be confidential discovery disclosure to only the lawyers who have requested it, should somehow now be made part of the public record long before the trial commences.

In Tennessee discovery is defense triggered. In other words, except for Brady material, the State has no obligation to provide discovery to the defense absent a defense request for discovery. Having made its request for discovery the defense should not be penalized by having the State cast its response into the public domain.

It is in the public interest for the parties to engage in discovery. The rules of discovery exist, in part, to prevent “trial by ambush,” Austin v. City of Memphis, 684

S.W.2d 624, 632 (Tenn.Ct.App.1984), and to rid trials of the element of surprise that often leads to results based not upon the merits but upon unexpected legal maneuvering.

Hood v. Roadtec, Inc., 785 S.W.2d 359, 362 (Tenn.Ct.App.1989); Strickland v.

Strickland, 618 S.W.2d 496, 501 (Tenn.Ct.App.1981).

In State v. Gaddis, 530 S.W.2d 64 (Tenn.1975), Justice Henry wrote for a unanimous Supreme Court that:

We note an emerging trend toward broad and reciprocal discovery in criminal cases. The days of trial by ambush are numbered. Rapidly fading is what Dean Pound described as the “sporting theory of justice”. 530 S.W.2d at 69.

Raybin, Meet the Press Seminar Page 71 of 144 Lawyers have a duty to their clients to seek discovery. It would be manifestly inconsistent with the discovery rules to impose a penalty on a party by suggesting that the party may have his or her discovery but that the other party may cast the discovery into the public domain to the potential prejudice of the requesting party. Such Hobson’s choices are not contemplated by modern discovery rules.

This Court has abundant authority to enter such protective orders so as to safeguard the rights of the various parties to a fair trial. The State can identify no interest whatsoever in its right to a fair trial by the advance public disclosure of these documents.

Filing things with the clerk’s office is not appropriate to demonstrate that the State is acting in a fair manner. This Court can have full access to any and all discovery and supervise the proceedings which are the proper roles of this Court.

Because matters filed with the criminal court clerk become matters of public record, the unnecessary filing of prosecution discovery could be construed as an ethical problem where the disclosure mentions a defendant’s confession, prior record, or some other matter which might not be admissible in evidence. See comment to Tennessee

Supreme Court Rule 3.6:

Raybin, Meet the Press Seminar Page 72 of 144 (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect, or that person's refusal or failure to make a statement;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; or

The defense is well aware that Supreme Court Rule 3.6(b) provides that

“Notwithstanding paragraph (a), a lawyer may state:….(2) information contained in a public record; …” However, it is questionable if this exception applies to that which has been improperly injected into the public record in the first place.

The defense is preserving its objections as early as possible. The failure of the defense to object or take appropriate action for discovery violations could result in waiver of the issues. See State v. Schiefelbein, 230 S.W.3d 88, 111-113 (Tenn.Crim.App. 2007).

Why should the defense have to risk challenging jurors who may have read information which the State has prematurely injected into the public record? Taken it to

Raybin, Meet the Press Seminar Page 73 of 144 its logical conclusion the defense would be left with a bunch of illiterate people who never read anything or watch any news at all. While we might ultimately be able to “seat a jury” the defense does not wish to be left with those who pay no attention to the media at all. “[ With respect to pretrial publicity] [e]ven if a fair trial can ultimately be ensured through [extensive] voir dire, change of venue, or some other device, these measures entail serious costs to the system.” State v. Carruthers, 35 S.W.3d 516, 564 (Tenn.

2000).

It is implicit in the Rules of the Supreme Court that pre-trial publicity or pre-trial disclosure of information about specific testimony, witnesses, and evidence is profoundly prejudicial to the defendant’s right to fair trial. This is not a situation where the Court has to “balance” some public interest with the defendant’s right to a fair trial. There is no

“public interest” in the advance disclosure of the State’s discovery with the clerk of this

Court so that same might be a matter of public record. Simply because the rules do not directly prohibit the practice does not authorize the State to pick and choose what it desires to disclose in the public record.

In general, courts have found no right of public access to pretrial discovery. The

United States Supreme Court has stated that “pretrial depositions and interrogatories are not public components of a civil trial” and “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d

17 (1984).

Raybin, Meet the Press Seminar Page 74 of 144 Numerous courts have reached the same conclusion under the First Amendment, in both civil and criminal cases. E.g., In re Associated Press, 162 F.3d 503, 512–13 (7th

Cir.1998) (criminal case; district court properly excluded the public and press from governor's deposition taken in camera (and thus with the judge present) under rule permitting the taking of a potential witness's testimony by deposition); United States v.

Anderson, 799 F.2d 1438, 1441 (11th Cir.1986) (criminal case; the press does not enjoy any greater right of access than the public and therefore whether the press has a right of access to discovered materials turns on the public's right of access; “[d]iscovery is neither a public process nor typically a matter of public record” and “[h]istorically, discovery materials were not available to the public or press”; documents collected during discovery are not “ ‘judicial records' ”); In re Alexander Grant & Co. Litig., 820 F.2d

352, 355 (11th Cir.1987) (no First Amendment right to discovery; discovery process is not traditionally open to the public); Times Newspapers, Ltd. v. McDonnell Douglas

Corp., 387 F.Supp. 189, 197 (C.D.Cal.1974) (depositions “are not a judicial trial, nor a part of a trial, but a proceeding preliminary to a trial, and neither the public nor representatives of the press have a right to be present” when depositions are taken);

Kimberlin v. Quinlan, 145 F.R.D. 1 (D.D.C.1992) (no right to attend depositions);

Mokhiber v. Davis, 537 A.2d 1100, 1109 (D.C.1988) (“no ... right of access to pretrial depositions, interrogatories, and documents gained through discovery”); Amato v. City of

Richmond, 157 F.R.D. 26 (E.D.Va.1994) (no First Amendment right to be present at deposition); Palm Beach Newspapers, Inc. v. Burk, 504 So.2d 378 (Fla.1987) (press has no First Amendment right to attend a deposition in a criminal trial or to obtain unfiled

Raybin, Meet the Press Seminar Page 75 of 144 depositions); People v. Pelo, 384 Ill.App.3d 776, 780–84, 894 N.E.2d 415, 323 Ill.Dec.

648 (2008) (no public right of access to deposition in criminal case that had not been submitted into evidence or used in open court; deposition taken pursuant to a rule allowing the deposition for preservation of evidence because of a substantial possibility it would be unavailable at the time of trial); State ex rel. Mitsubishi Heavy Indus. Am., Inc. v. Circuit Court, 2000 WI 16, 233 Wis.2d 1, 12–21, 605 N.W.2d 868 (no First

Amendment right or right under court rule to unfiled pretrial discovery materials).

In re NHC--Nashville Fire Litig., 293 S.W.3d 547, 564 (Tenn. Ct. App. 2008) is instructive as to the issues here:

The definition of public or judicial records described in Ballard must be contrasted with unfiled discovery. Unlike filed discovery, pretrial depositions, interrogatories, and other discovery materials not filed with the court “are not public components of a civil trial.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984); see also Ballard, 924 S.W.2d at 661–62. The Rhinehart Court explained:[P]retrial depositions and interrogatories ... were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice. Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information. Rhinehart, 467 U.S. at 33, 104 S.Ct. 2199 (emphasis added; citations omitted). The Court emphasized the private nature of discovery proceedings: Discovery rarely takes place in public. Depositions are scheduled at times and places most convenient to those involved. Interrogatories are answered in private. Rules of Civil Procedure may require parties to file with the clerk of the court interrogatory answers, responses to requests for admissions, and deposition transcripts. Jurisdictions that require filing of discovery materials customarily provide that trial courts may order that the materials not be filed or that they be filed under seal. Federal district courts may adopt local rules providing that the fruits of discovery are not to be filed except on order of the court. Thus, to the extent that courthouse records could serve as a source of public information, access to that source customarily is

Raybin, Meet the Press Seminar Page 76 of 144 subject to the control of the trial court. Id. at n. 19 (citations omitted). Thus, in applying Ballard in this case, we must be cognizant of the distinction between unfiled discovery and the filed discovery that was the subject of the dispute in Ballard. The Ballard court found only that discovery responses that are filed with the court are “public records.” Ballard, 924 S.W.2d at 662. Moreover, the Ballard court repeatedly cited favorably an influential law review article by Professor Arthur Miller on protective orders and public access to the courts, in which Professor Miller draws a clear distinction between documents filed with the court and unfiled discovery. See Ballard, 924 S.W.2d at 658–59 (citing Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Court, 105 Harv. L.Rev.. 427 (Dec. 1991)). We conclude from this that unfiled discovery documents are not considered public or judicial records.

The State cannot circumvent these rules by filing that which should not be filed so as to artificially inject matters into the public domain. The Rules of Criminal Procedure do not contemplate that discovery be filed with the clerk. This Court has vast authority to issue appropriate protective orders. “Protective orders can take innumerable forms, such as limiting the subjects or terms under which discovery may be conducted, limiting the persons in whose presence discovery is conducted, or redacting sensitive information from documents disclosed in the course of litigation.” In re NHC--Nashville Fire Litig.,

293 S.W.3d 547, 561 (Tenn. Ct. App. 2008).

The granting or denying of a protective order relative to discovery procedures rests within the sound discretion of the trial court. Tenn. Dep't of Commerce and Ins. v.

FirstTrust Money Servs., Inc., 931 S.W.2d 226, 230 (Tenn.Ct.App.1996). Such a discretionary decision is reviewed for abuse of discretion. Id. The burden of establishing abuse of discretion is on the party seeking to overturn the trial court's ruling on appeal.

Ballard v. Herzke, 924 S.W.2d 652, 659 (Tenn.1996). “Trial courts, to be sure, have the

Raybin, Meet the Press Seminar Page 77 of 144 discretion to enter orders necessary to insure compliance with Rule 16 [in criminal cases.]”.State v. Brown, 836 S.W.2d 530, 548 (Tenn. 1992).

Indeed, Our Supreme Court has held that until a criminal case is at an end there is

NO right of public access to investigative files under the public records law. In Appman v. Worthington, 746 S.W.2d 165 (Tenn.1987) a lawyer representing prisoners who had been charged with killing a fellow prisoner invoked the public records statutes to obtain the Department of Correction's internal investigative records regarding the killing. The

Court, invoking Tenn. R.Crim. P. 16(a)(2), affirmed the trial court's denial of the lawyer's request for access to the records because the trial of the charges against his clients had not yet occurred. Appman v. Worthington, 746 S.W.2d at 166–67.

It is only when the case is closed are case files open to public inspection. Memphis

Pub. Co. v. Holt, 710 S.W.2d 513 (Tenn. 1986) (Rule prohibiting discovery or inspection of reports, memoranda, or other internal state documents made by state agents or law enforcement officers in connection with investigation or prosecution of the case could not operate to preclude inspection by media and public of a police investigative file which was closed and not relevant to any pending or contemplated criminal action. Rules

Crim.Proc., Rule 16(a)(2) ). Our case has just begun.

The issue in this case is not if these matters will be disclosed but when they will be disclosed. Undoubtedly, the vast majority of the information which the State seeks to put into the public record at this point will be matters that are subject to proof in open court.

At that time, however, all such evidence will be subject to cross-examination and the admissibility of same governed by the rules of evidence. It is then that the public’s right

Raybin, Meet the Press Seminar Page 78 of 144 of free access to the courts will be honored in full but it will be under appropriate evidentiary rules and not shovels full of documents which the state proposes to file which may or may never find their way into the public domain.

The State could suffer no harm in delaying until trial the disclosure of the evidence which it seeks in inject into the public record just weeks after the defendant’s indictment and arraignment. Conversely, the defense will be profoundly prejudiced. Accordingly, this Court should find that all of the discovery which the State seeks to introduce into the public record at this time should be placed under seal so that the fair trial rights of this defendant might be preserved or the Court should direct that the State simply not file it with the clerk at this time.

Because of the practice in this jurisdiction of providing discovery to the defense bar in child sex abuse cases, a motion is necessary for this Court to direct that the State’s discovery response in this case be provided only to counsel for the defendant and not also with the clerk.

For all these reasons, counsel requests that the Court GRANT this motion.

Respectfully submitted,

______David L. Raybin, #3385 Hollins, Raybin & Weissman, P. C. Fifth Third Financial Center, Suite 2200 424 Church Street Nashville, TN 37219 (615)256-6666

Raybin, Meet the Press Seminar Page 79 of 144

F. Slander

Raybin, Meet the Press Seminar Page 80 of 144 § 29-24-103. Newspaper or periodical; notice; retraction, TN ST § 29-24-103

West's Tennessee Code Annotated Title 29. Remedies and Special Proceedings Chapter 24. Libel and Slander (Refs & Annos)

T. C. A. § 29-24-103

§ 29-24-103. Newspaper or periodical; notice; retraction

Effective: July 9, 2012 Currentness

(a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

(b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within ten (10) days after the service of such notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages.

(2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate.

Credits 1955 Pub.Acts, c. 47, § 1.

Formerly § 23-2605.

Notes of Decisions (22)

T. C. A. § 29-24-103, TN ST § 29-24-103 Current through end of the 2015 First Reg. Sess.

West's Tennessee Code Annotated Title 29. Remedies and Special Proceedings Chapter 24. Libel and Slander (Refs & Annos)

T. C. A. § 29-24-104

§ 29-24-104. Radio and television

Currentness

(a) The owner, licensee, or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by one other than such owner, licensee, or operator, or agent or employee thereof, unless it shall be alleged by the complaining party that such owner, licensee, operator, or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.

(b) It shall be the responsibility of the owner, licensee or operator to show that due care was used.

(c) In no event, however, shall any owner, licensee, or operator, or the agents or employees of any such owner, licensee or operator of any such a station or network of stations, be held liable for any damages for any defamatory statement uttered over the facilities of such station or network by any candidate for public office, unless such statement is made by an agent or employee of the owner, licensee, or operator in the course of employment.

Credits 1955 Pub.Acts, c. 12, §§ 1, 2.

Formerly §§ 23-2606, 23-2607.

Notes of Decisions (14)

T. C. A. § 29-24-104, TN ST § 29-24-104 Current through end of the 2015 First Reg. Sess.

G. Insulting the Judge

Raybin, Meet the Press Seminar Page 83 of 144 Board of Professional Responsibility of Supreme Court of..., 145 S.W.3d 538 (2004)

RILEY ANDERSON and JANICE M. HOLDER, JJ., joined. WILLIAM M. BARKER, J., not participating. 145 S.W.3d 538 Supreme Court of Tennessee, at Nashville. Opinion BOARD OF PROFESSIONAL RESPONSIBILITY ADOLPHO A. BIRCH, JR., Justice. OF THE SUPREME COURT OF TENNESSEE v. We have this case on direct appeal pursuant to Tennessee Edward A. SLAVIN, Jr. Supreme Court Rule 9, section 1.3, from an order of the Chancery Court suspending Edward A. Slavin, Jr., Esq., from No. M2003–00845–SC–R3–BP. | the practice of law for three years. Slavin appeals, raising Feb. 11, 2004 Session. | Aug. 27, 2004. the following issues: (1) whether Chancellor Richard E. Ladd erred in refusing to recuse himself; (2) whether Slavin's Synopsis in-court speech is protected by the First Amendment; and Background: In an attorney disciplinary hearing, the (3) whether the sanctions imposed by the Chancellor are hearing committee recommended public censure. Board excessive. of Professional Responsibility (BPR) petitioned for writ of certiorari. The Chancery Court, Knox County, Richard Upon careful review of the record and applicable authority, E. Ladd, Chancellor, suspended attorney for three years. we conclude that Chancellor Ladd did not abuse his discretion Attorney appealed. in refusing to recuse himself and that the speech at issue does not fall within the protective ambit of the First Amendment. After a thorough examination of the sanctions, we impose Holdings: The Supreme Court, Adolpho A. Birch, Jr., J., held a two-year suspension. Slavin may, however, apply for that: reinstatement pursuant to Tennessee Supreme Court Rule 9, section 19.3, at the expiration of one year from date of this [1] recusal of chancellor was not warranted; opinion.

[2] First Amendment protection of free speech did not preclude attorney from receiving disciplinary sanction for I. Facts and Procedural History comments about judges and attorney; and Edward A. Slavin, Jr., Esq., (“Slavin”) was licensed to [3] suspension for two years, with right to petition for practice law in Tennessee in 1987, and he has represented reinstatement after the first year, was appropriate disciplinary many “whistle-blower” clients before federal agencies. Three sanction. judicial officers lodged complaints against Slavin with the Board of Professional Responsibility (“BPR”). The complaints, as summarized, are as follows: Dale Workman Affirmed as modified. (“Workman”), Chancellor for the Sixth Judicial District, alleged that Slavin filed a motion for a new trial and for Attorneys and Law Firms recusal. In these pleadings, Workman stated that Slavin accused him of rushing his consideration of the case on a day *541 Edward A. Slavin, Jr., St. Augustine, Florida, and when he appeared to be preoccupied, taking a two-hour lunch David A. Stuart, Clinton, Tennessee, for the appellant, for personal business, unfairly restricting the amount of time Edward A. Slavin, Jr. for cross-examination of the defendant's witness, refusing to allow a rebuttal witness to be called, taking an inadequate Laura L. Chastain, Nashville, Tennessee, for the appellee, amount of time for a rushed reading of portions of the record, Board of Professional Responsibility. mocking and trivializing the medical treatment provided to ADOLPHO A. BIRCH, JR., J., delivered the opinion of the the plaintiff, showing bias and prejudice by making pejorative court, in which FRANK F. DROWOTA, III, C.J., and E. remarks about “press releases,” and being rude. According to

Workman, Slavin stated that Workman “is apparently a chain smoker, who's [sic] smoke filled chambers Mrs. Campbell The complaint of John M. Vittone (“Vittone”), and the parties' counsel were obliged to enter” causing Administrative Law Judge for the United States Department Mrs. Campbell restricted breathing in court. According to of Labor, alleged that Slavin had been unprofessional in Workman, Slavin also stated that “[t]he trial court's lifestyle appearances before the court and had used the peer review choice and personal opinions should not be permitted to deny process to harass the judges. He stated that several judges Ms. Campbell a fair trial.” had invoked their authority to permanently prevent Slavin from representing clients in cases in which they preside. Additionally, Curtis L. Collier (“Collier”), Judge of the Vittone cited instances in which Slavin asserted that the United States District Court (Eastern District, Tennessee), Administrative Review Board (“ARB”) 1 decision in a matter complained to the BPR about Slavin's conduct and speech “ranks with the Dred Scott decision among the injustices in during the trial of Lockheed *542 Martin Energy Systems, American History” and is a “disgrace to the human race.” Inc. v. Slavin, 190 F.R.D. 449 (E.D.Tenn.1999). According He also stated that Slavin left voicemail messages calling to Collier, Lockheed Martin Energy Systems (“Lockheed”) opposing counsel a “red neck peckerwood” and describing brought suit against Slavin to compel him to comply with counsel collectively as “Nazis.” Vittone claimed that Slavin's a Department of Labor order to repay attorney's fees and activities went beyond criticism of the judiciary and were expenses. In that case, Slavin filed a seventeen-page response “transparent attempts to use the legal process to harass and/or “replete with unnecessary, baseless, irrelevant, and frivolous punish judges who issued adverse rulings.” claims, defenses, and legal contentions.” Lockheed's counsel, Wilson Horde, Esq., (“Horde”) filed a petition for sanctions 1 The Administrative Review Board of the United States pursuant to Federal Rule of Civil Procedure 11. In response Department of Labor has the authority of the Secretary of to the Rule 11 petition, Slavin repeated the substance of what Labor and other deciding officials to issue final agency he had included in his previous answer and “added more decisions under a broad range of federal labor laws. irrelevant allegations.” As an attachment to the response, The above complaints provided the basis for a petition filed Slavin included a nine-page “declaration” from District by the BPR against Slavin on August 4, 2000. On May 22, Attorney General James Ramsey executed on April 27, 1994, 2001, the BPR filed a “Supplemental Petition for Discipline” in which Ramsey stated that he believed that his (Ramsey's) based on the complaint of Rudolf L. Jansen (“Jansen”), an law license had been suspended by the Tennessee Supreme Administrative Law Judge for the United States Department Court because of actions taken by Horde. Collier viewed this of Labor. According to the complaint, Jansen issued a assertion as a further attack on Horde and Lockheed. recommended decision and order granting summary *543 judgment in a matter in which Slavin had represented two Collier included in his complaint that on the date of the persons. On March 16, 1999, Slavin appealed to the ARB, scheduled Rule 11 hearing in the Lockheed case, Slavin and his pleading contained comments which Jansen found to requested a continuance. Then, on the date of the rescheduled be offensive. Those comments included: referring to Jansen hearing, Slavin failed to appear. Slavin's attorney offered no as “[p]etty, barbarous and cruel”; “Recommended Decision tenable explanation for Slavin's absence. The court found is a stench in the nostrils of the Nation”; “Shows complete that “[i]t was faced with not just an attorney who has contempt for First Amendment Values”; “Jansen ... is no filed baseless, frivolous and unprofessional pleadings and better than Respondents—he is a retaliator”; and “Disgraces responses to motions, but an attorney who has done so his judicial office.” In its decision, the ARB noted that Slavin repeatedly, flagrantly, and in a manner which reflects a “has again engaged in personal and vitriolic attacks on a callous disregard for the proper and efficient functioning Department of Labor Administrative Law Judge.” Slavin of the Court and also reflects a sense of disrespect for the then requested that the Inspector General investigate Jansen's authority of a judicial system and the obligations of the conduct in the case. legal community.” Also, the court ordered Slavin to provide additional information—an order with which Slavin did not On August 30, 2001, the BPR filed a “Second Supplemental comply. The court stated, “Thus, it appears even in the face Petition for Discipline.” This petition was based on of very serious sanctions and a direct order from the Court, complaints made by four clients Slavin had represented in a Mr. Slavin continues to demonstrate a lack of respect for the suit against their employer, the U.S. Department of Energy. Court and its authority.” The clients alleged that Slavin had been unprepared and had

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 85 of 144 2 Board of Professional Responsibility of Supreme Court of..., 145 S.W.3d 538 (2004) hindered their cases by failing to provide effective assistance The Hearing Committee dismissed the complaints of Vittone, of counsel. In addition, they alleged that Slavin had been Workman, and Jansen in their entireties. Regarding the antagonistic toward the judge in their case to the extent that dismissal of the charges under DR 7– *544 106(C)(6), the judge had barred him from appearing in cases before her. the Hearing Committee found that while Slavin's actions Moreover, they charged that Slavin filed an appeal for one were “undignified and discourteous,” the Board did not carry client even though he had been instructed not to, had given its burden of proving false statements, and thus, Slavin's false information to a judge about a client's health, had failed expressions were protected by the First Amendment. Ramsey to return documents as requested, and had refused to follow v. Bd. of Prof'l Responsibility, 771 S.W.2d 116 (Tenn.1989). the clients' directions regarding settlement. The Hearing Committee also dismissed Thompson's The second supplemental petition included also the complaint complaint in its entirety. Regarding the alleged violation of of Debra Thompson, Esq., (“Thompson”), who stated that DR 7–106(C)(6), the Hearing Committee found that Slavin's Slavin had made disparaging comments about her. She expressions were protected by the First Amendment. alleged that Slavin had called her a “harridan” 2 in the presence of her client and the court reporter. Thompson The Hearing Committee found as a mitigating factor that also alleged that Slavin had called her “condescending, Slavin did not have a record of prior disciplinary action. hierarchical, uncivil, unkind, and uncooperative.” It found as an aggravating factor that his violations of the Disciplinary Rules were multiple. The Hearing Committee concluded: “For violations of the provisions addressed above, 2 A shrewish woman. Webster's II New College Dictionary the Hearing [Committee] finds that Respondent should be 506 (2001). given a public censure.” A hearing pursuant to Tennessee Supreme Court Rule 9, section 8, was conducted on February 12, 2002. The Hearing On May 31, 2002, the BPR filed a “Petition for Writ of Committee sustained the complaint of Collier alleging that Certiorari” in the Chancery Court for Knox County pursuant Slavin had failed to follow orders of the court as violations to Tennessee Supreme Court Rule 9, section 1.3. The Chief of Tennessee Supreme Court Rule 8, Disciplinary Rule 3 Justice of this Court assigned Richard E. Ladd, Chancellor, (“DR”) 1–102(A)(1), DR 1–102(A)(5), DR 7–102(A)(8), DR Second Judicial District, to hear the case as required by 7–106(A), and DR 7–106(C)(6) (2002). Regarding DR 7– Tennessee Supreme Court Rule 9, section 1.5. A hearing 106(C)(6), the Hearing Committee found that Slavin, “by was conducted on December 10, 2002; Slavin did not attend ignoring the Orders of Judge Collier engaged in undignified the hearing but was represented by counsel. After a brief and discourteous conduct which is degrading to a tribunal.” colloquy between Ladd and Slavin's attorney, David Stuart, Esq., (“Stuart”), the remainder of the hearing was consumed 3 The proceedings in this case are governed by the Code of by discussion and the introduction of exhibits. No testimony Professional Responsibility previously set forth in Rule was adduced during this hearing. 8 of the Tennessee Supreme Court Rules (2002). The Code was replaced on March 1, 2003, by the Rules of Following the hearing, Ladd issued a memorandum opinion. Professional Conduct. It appears that although Ladd agreed with the Hearing The Hearing Committee also sustained allegations that Slavin Committee's findings of facts, he disagreed with the Hearing had made false statements regarding a client's illness, had Committee's legal conclusions drawn from those facts. He made false statements during a deposition with regard stated, “I find that the acts of Mr. Slavin are not protected by to a client's identity as an investigator, and had failed the First Amendment in this case.” to communicate with clients and return their records. Consequently, Slavin was found to have violated DR 1– Ladd disagreed with the Hearing Committee also with regard 102(A)(1), DR 1–102(A)(4), DR 1–102(A)(5), DR 7–101(A) to the complaint of Jansen, finding “by a clear preponderance (2), and DR 7–102(A)(8). The Hearing Committee, however, of the evidence, in fact uncontested evidence, a violation of dismissed the charge under DR 7–106(C)(6) because Slavin's Disciplinary Rules.” Ladd stated that in the case underlying expressions were protected by the right to free speech. Jansen's complaint, the opposing side filed a motion for summary decision. Slavin filed nothing in response in that case, and Jansen granted a summary decision. According

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 86 of 144 3 Board of Professional Responsibility of Supreme Court of..., 145 S.W.3d 538 (2004) to Ladd, Slavin then filed “a 27 page document entitled: resulted in getting rid of those judges on hearing any of his, Complainant's Petition for Review, Motion for Summary Mr. Slavin's, cases. Reversal, Motion for Oral Argument, with Motion to File 45 Page Opening Brief; Investigative Request, Disqualification The Court finds that the acts of Mr. Slavin violate Appeal by Today to the Administrative Review Board, with Disciplinary Rule 1–102(A)5, engaging in conduct that is copies to many others, including the Inspector General, the prejudicial to the administration of justice. Secretary of Labor, the Honorable John M. Vittone, Chief Administrative Law Judge.” The ARB concluded that the Ladd found by a preponderance of the evidence that case was frivolous. the Hearing Committee erred in dismissing Workman's complaint. He stated that Slavin's conduct with regard to Ladd referred to the ARB's Final Decision and Order in which Workman violated DR 7–106(C)(6), engaging in undignified the ARB “lists 18 examples of personal insults which Mr. and discourteous conduct which is degrading to a tribunal, Slavin used against Judge Jansen in his motion.” Ladd stated, and is not protected free speech. He noted that Slavin's “Without even considering whether these representations are Corrected Motion for a New Trial in that case “pretty well truthful or not, the so-called motion and brief ... to this Court, speaks for itself on the Court's finding.” is a clear violation of DR 1–102(A)(5), engaging in conduct that is prejudicial to the administration of justice, and DR 7– Regarding Thompson's complaint, Ladd found that Slavin 106(C)(6), engaging in undignified or discourteous conduct violated DR 7–102(A)(1) because “his actions would serve which is degrading to a tribunal.” Thus, Ladd concluded merely to harass another person or a fellow lawyer.” He that “the acts of Mr. Slavin are not protected by the First agreed with the hearing panel's findings regarding Slavin's Amendment in this case.” clients. He found that Slavin's most serious violation was that of DR 7–101(A)(4)(c) which provides that lawyers shall Regarding Vittone's complaint, Chancellor Ladd stated the not prejudice or damage the client during the course of the following: professional relationship. He also referred to DR 1–102(A) (5) which provides that a lawyer shall not engage in conduct *545 Judge Vittone testified that four or five that is prejudicial to the administration of justice. He stated Administrative Law Judges had barred Mr. Slavin from that “by [Slavin's] actions, he is stealing from the client.” appearing before them due to his conduct in various Ladd noted the testimony of Judge Nahum Litt (“Litt”) who cases. Judge Vittone stated that Mr. Slavin in four to “described how Mr. Slavin takes cases with major elements five instances has requested a Peer Review for Judge missing.” He referred to additional testimony by Litt in misconduct, similar to the Tennessee Court of Judiciary. which he stated, “The Peer Review was to cover matters not appealable; however, in his opinion, most of what Mr. Slavin Judge Vittone advised Mr. Slavin twice that the conduct filed in Peer Review were appealable issues.” —that his conduct was impermissible in using the Peer Review procedure to try to get a reversal on a question Ladd ordered that Slavin be suspended from the practice of of law, an appealable issue. This is corroborated by Mr. law for three years and that before he applies to the Supreme Slavin's expert witness and good friend, Retired Judge Court for readmittance, he must “submit some kind of proof Nahum Litt, who testified that he had told Mr. Slavin to the Supreme Court of a knowledge of how to properly that he was improperly using the Peer Review process on represent a client and subordinate his own feelings in the appealable matters. practice of his law.” He stated that Slavin's actions “could be grounds for disbarment,” but he found “a glimmer of hope” And yet being advised by the Chief Judge and his good in Slavin because he is industrious and has a good mind. friend who was a retired Chief Judge, he continued to However, he questioned Slavin's judgment. do so. I find that Mr. Slavin, by using the Peer Review process in the manner in which he did, was systematically harassing and attempting to intimidate judges by his action. And in fact he was successful in that four or five judges II. Standard of Review barred him from appearing before them, which, apparently, Administrative Law Judges have the power to do, which

[1] Slavin is before this Court as a matter of right pursuant to 38 S.W.3d 560, 564 (Tenn.2001). The record in this case Tennessee Supreme Court Rule 9, section 1.3, which provides contains an exchange which occurred at the beginning of the the following: hearing held on December 10, 2002, a hearing at which Slavin was not present. 5 The exchange, between Ladd and Slavin's *546 Either party dissatisfied with attorney, was as follows: the decree of the circuit or chancery court may prosecute an appeal direct 5 to the Supreme Court where the cause This hearing was, apparently, the appeal of right from the shall be heard upon the transcript of judgment of the hearing committee. the record from the circuit or chancery court, which shall include the evidence THE COURT: And you are Mr. Stuart? before the hearing committee. MR. STUART: Yes, Your Honor, David Stuart from the In addition, “our review of this cause is de novo on the record Anderson County Bar. of the trial court, and to the findings of the trial court there THE COURT: All right. Born and raised in Anderson is attached a presumption of correctness unless the evidence County, Mr. Stuart ... I was. preponderates against those findings.” Sneed v. Bd. of Prof'l Responsibility, 37 S.W.3d 886, 890 (Tenn.2000). 4 MR. STUART: Oh, you were. Really? Oh, okay.

THE COURT: Born in Oliver Springs, grew up in 4 As noted in Sneed v. Board of Professional Norris. Responsibility, 37 S.W.3d 886, 890 n. 14 (Tenn.2000), “Tennessee Supreme Court Rule 9, Section 1.3, does not MR. STUART: Is that right? Well, it is very nice to meet explicitly provide for de novo review upon the record of you. the trial court, with a presumption of correctness unless the preponderance of the evidence is contrary to the THE COURT: My father was Purchasing Agent for a findings.” According to Sneed, this standard is inferred period of time. from the following sources: Tenn. R.App. P. 13(d); Murphy v. Bd. of Prof'l Responsibility, 924 S.W.2d 643, MR. STUART: Oh, really? 647 (Tenn.1996); Gillock v. Bd. of Prof'l Responsibility of Supreme Court, 656 S.W.2d 365, 367 (Tenn.1983); THE COURT: In Anderson County. and Scruggs v. Bracy, 619 S.W.2d 101, 103 (Tenn.1981). Essentially, we are reviewing the record of the Hearing MR. STUART: I met him. I was County Attorney for a Committee in that no testimony was adduced in the trial long time, and he testified—He had just left Purchasing court. Agent when I became County Attorney, and he testified. I thought you looked familiar. That must be the reason why. III. Analysis On December 16, 2002, six days after the hearing, Stuart sent Ladd a letter stating that Slavin intended to file a motion In this appeal, Slavin contends the following: (1) that Ladd for Ladd's recusal. The letter suggested that Ladd may have erred by refusing to recuse himself; (2) that Slavin's in-court residual bias because of Stuart's efforts to impeach *547 statements were protected by free speech; and (3) that Ladd 6 erred by increasing the sanction imposed by the Hearing Ladd's father in a case tried in 1983. The suggestion is based Committee. on Stuart's statement that Slavin had supplied documents to Stuart to be used in an effort to impeach Ladd's father, a witness in the case. Additionally, Stuart suggests in his letter that Ladd's impartiality may reasonably be questioned. A. Recusal

[2] [3] Concerning the recusal issue, whether recusal is 6 Clinton Bus Co., et al. v. Anderson County Bd. of Educ., warranted is left to the discretion of the trial judge, and such Anderson County Docket No. E–8362. decision will not be reversed absent a clear abuse of discretion on the face of the record. Davis v. Liberty Mut. Ins. Co.,

On December 30, 2002, Ladd filed an affidavit 7 in which he denied any personal knowledge of Slavin or of Stuart. 8 As stated, this motion was filed after Ladd had heard the Additionally, he stated that he had never heard of the Clinton appeal. Bus Co. case. He said, “In summary, prior to receiving the On appeal, Slavin contends that Ladd erred in refusing to letter of December 16th, I had no knowledge whatsoever of recuse himself. In response, the BPR contends that Slavin's anything mentioned about the case in Mr. Stuart's letter.” failure to seek recusal in a timely manner has foreclosed this Moreover, Ladd explained that his father was eighty-nine issue. Indeed, the BPR suggests that Slavin has attempted to years old and due to a series of strokes and dementia could manipulate the recusal issue to gain procedural advantage. not recall any case in which he may have testified. Finally, he stated that prior to reading the letter of December 16, 2002, [4] “Parties may lose the right to question a judge's he had no knowledge of ever having seen or heard of a local impartiality if they attempt to manipulate the impartiality weekly tabloid entitled the “Appalachian Observer” edited by issue to gain procedural advantage.” Davis v. Tenn. Dep't of Slavin. Employment Sec., 23 S.W.3d 304, 313 (Tenn.Ct.App.1999). “[T]he failure to seek recusal in a timely manner results in a 7 The affidavit stated the following: waiver of a party's right to question a judge's impartiality.” I. I had no personal knowledge of the respondent, Id. Even though there is evidence to support a finding that Edward A. Slavin, Jr., Esquire or his counsel, the recusal issue was waived for failure to *548 raise it in a David A. Stuart, Esquire, until I received the order timely manner, we nevertheless prefer to address the issue. appointing me to hear this case signed by Chief Justice Frank F. Drowota, III, that was entered on [5] [6] “The right to a fair trial before an impartial tribunal the 19th day of July, 2002. is a fundamental constitutional right.” State v. Austin, 87 II. My father, A.B. Ladd, was at one time S.W.3d 447, 470 (Tenn.2002). Moreover, purchasing agent for Anderson County, Tennessee and retired over 25 years ago. I have lived and Article VI, § 11 of the Tennessee Constitution provides practiced law or presided as Chancellor in Sullivan that “no Judge of the Supreme or Inferior Courts shall County since December 1963. I had never heard of preside on the trial of any cause in the event of which the case Clinton Bus Company, et al, v. Anderson County Board of Education, Anderson County he may be interested.” The purpose of this constitutional Chancery Court Docket No. E8352 prior to Mr. provision is to guard against the prejudgment of the rights Stuart's letter to me dated December 16, 2002. I of litigants and to avoid situations in which the litigants have no memory of my father A.B. Ladd ever might have cause to conclude that the court had reached mentioning the case nor the fact that he testified in a prejudged conclusion because of interest, partiality or the case, nor the nature of his testimony, nor the favor. Chumbley v. People's Bank & Trust Co., 165 Tenn. fact that he was cross-examined by Mr. Stuart. In 655, 659, 57 S.W.2d 787, 788. (1933). summary, prior to receiving the letter of December 16th, I had no knowledge whatsoever of anything State v. Benson, 973 S.W.2d 202, 205 (Tenn.1998). mentioned about the case in Mr. Stuart's letter. III. My father, A.B. Ladd is now 89 years of age and [7] [8] [9] Tennessee has also recognized that “the due to a series of strokes and dementia, [he] cannot preservation of the public's confidence in judicial neutrality even tell me what year he retired, let alone recall requires not only that the judge be impartial in fact, but also any case in which he may have testified. that the judge be perceived to be impartial.” Kinard v. Kinard, Thus, I have not been able to determine from him 986 S.W.2d 220, 228 (Tenn.Ct.App.1998). Thus, recusal whether he ever told me about the case. is also appropriate “when a person of ordinary prudence IV. I have no knowledge of ever seeing or hearing in the judge's position, knowing all of the facts known to of a local weekly tabloid entitled the “Appalachian Observer” edited by Mr. Slavin until the letter of the judge, would find a reasonable basis for questioning December 16, 2002. the judge's impartiality.” Davis v. Liberty Mut. Ins. Co., 38 S.W.3d at 564–65 (quoting Alley v. State, 882 S.W.2d 810, On January 3, 2003, Slavin filed a motion requesting that 820 (Tenn.Crim.App.1994)). “Hence, the test is ultimately an 8 Ladd recuse himself in this case. He also filed a motion objective one since the appearance of bias is as injurious to the for a new trial. On February 28, 2003, Ladd entered an order integrity of the judicial system as actual bias.” Id. We note, denying the motion for a new trial and the motion for recusal.

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 89 of 144 6 Board of Professional Responsibility of Supreme Court of..., 145 S.W.3d 538 (2004) however, that the mere fact that a judge has ruled adversely Amendment rights at the courthouse door, those rights are to a party or witness in a prior proceeding is not grounds for often subordinated to other interests inherent in the judicial recusal. Id. setting. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1071, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991); United States Dist. Ladd has included in the record an affidavit outlining the basis Court v. Sandlin, 12 F.3d 861, 866 (9th Cir.1993); Koster v. for his refusal to recuse himself. It is entirely adequate and, Chase Manhattan Bank, 93 F.R.D. 471, 476 (S.D.N.Y.1982); we think, dispositive of the issue. Accordingly, this issue is State v. Carruthers, 35 S.W.3d 516, 560–61 (Tenn.2000). without merit. Thus, while we find that legitimate criticism of judicial officers is tolerable, “an attorney must follow the Rules of Professional Conduct when so doing.” Shortes v. Hill, 860 So.2d 1, 3 (Fla.Dist.Ct.App.2003). A lawyer is not free B. First Amendment to “seek refuge within his own First Amendment right of [10] [11] [12] [13] Slavin next contends that thefree speech to fill a courtroom with a litany of speculative BPR, Department of Labor, and Department of Energy have accusations and insults.” United States v. Cooper, 872 F.2d sought sanctions against him for speech protected by the 1, 3 (1st Cir.1989). First Amendment. The Hearing Committee found that the in-court statements complained of, while “undignified and 9 We note that our Court held in Ramsey v. Board discourteous,” were protected speech under First Amendment of Professional Responsibility, 771 S.W.2d 116, 122 principles. The trial court, however, reached the opposite (Tenn.1989) that an attorney who made out-of-court conclusion, ruling that Slavin's statements were not protected statements to the media regarding judicial proceedings by the First Amendment. was not subject to discipline, and the statements were protected by the First Amendment. That case, however, Specifically, Ladd concluded that Slavin's speech with is distinguishable. In the case under submission, the statements at issue were made during in-court judicial regard to Workman violated DR 7–106(C)(6) by Slavin's proceedings. having engaged in undignified and discourteous conduct degrading to a tribunal. He concluded, as to Slavin's speech The United States Supreme Court stated: toward Jansen, that Slavin had violated DR 1–102(A)(5) and It is unquestionable that in the DR 7–106(C)(6). With regard to Vittone, Ladd concluded courtroom itself, during a judicial that Slavin had manipulated the Peer Review process to proceeding, whatever right to “free “systematically harass[ ] and attempt[ ] to intimidate judges” speech” an attorney has is extremely and by so doing, had violated DR 1–102(A)(5). Finally, Ladd circumscribed. An attorney may not, found that Slavin's conduct toward Thompson constituted by speech or other conduct, resist a a violation of DR 7–102(A)(1) by his having engaged in ruling of the trial court beyond the conduct “when it is obvious that such action would serve point necessary to preserve a claim for merely to harass or maliciously injure another.” appeal.

The free speech clause of the First Amendment to the United Gentile, 501 U.S. at 1071, 111 S.Ct. 2720. States Constitution is applicable to the states through the Fourteenth Amendment and provides that “Congress shall [16] “The First Amendment does not preclude sanctioning make no law ... abridging the freedom of speech.” *549 a lawyer for intemperate speech during a courtroom Article I, section 19, of the Tennessee Constitution similarly proceeding.” Jacobson v. Garaas (In re Garaas), 652 N.W.2d provides that “[t]he free communication of thoughts and 918, 925 (N.D.2002) (emphasis added). Commenting on opinions, is one of the invaluable rights of man, and every Gentile in a disciplinary proceeding, the Supreme Court of citizen may freely speak, write, and print on any subject, Missouri concluded: being responsible for the abuse of that liberty.” An attorney's free speech rights do [14] [15] In the context of judicial proceedings, 9 an not authorize unnecessary resistance attorney's First Amendment rights are not without limits. to an adverse ruling.... Once a judge Although litigants and lawyers do not check their First rules, a zealous advocate complies,

then challenges the ruling on appeal; the advocate has no free-speech right C. Sanctions to reargue the issue, resist the ruling, or insult the judge. [17] For his final issue, Slavin contends that Ladd erred by imposing a three-year suspension from the privilege to In re Coe, 903 S.W.2d 916, 917 (Mo.1995). practice law. Having concluded that the violations found by Ladd were proper, we consider sanctions imposed in similar In Kentucky Bar Association v. Waller, 929 S.W.2d 181, 183 cases. In Farmer v. Board of Professional Responsibility, (Ky.1996), the Supreme Court of Kentucky observed that the 660 S.W.2d 490, 491–93 (Tenn.1983), this Court found that statements need not be false to pursue disciplinary action: the attorney should be disciplined for using “scurrilous and Respondent appears to believe that improper language in briefs which he himself filed.” In that truth or some concept akin to truth, case, we concluded that the attorney “deliberately chose to such as accuracy or correctness, is use language and tactics which cannot be tolerated in the legal a defense to the charge against him. profession” and affirmed the Hearing Committee's decision In this respect he has totally missed to suspend the attorney for sixty days. Id. at 493. the point. There can never be a justification for a lawyer to use such Although this Court concluded that the attorney was not scurrilous language with respect to a subject to sanctions for his out-of-court statements to the judge in pleadings or in open court. media in Ramsey v. Board of Professional Responsibility, 771 The reason is not that the judge is S.W.2d 116, 122–23 (Tenn.1989), we did conclude that the of such delicate sensibilities as to be attorney acted in a manner prejudicial to the administration unable to withstand the comment, but of justice. In that case, the attorney failed to abide by court rather that such language promotes orders, failed to respond to questions from the court while disrespect for the law and for the appearing before the court, and slammed courtroom doors judicial system. Officers of the court during hearings. Id. at 123. Thus, we imposed a sanction of are obligated to uphold the *550 180 days, with all but 45 days suspended. Id. dignity of the Court of Justice and, at a minimum, this requires them to refrain In Galbreath v. Board of Professional Responsibility, 121 from conduct of the type at issue here. S.W.3d 660 (Tenn.2003), we held that a thirty-day suspension was warranted for an attorney's misconduct that included attempts to subvert the legal process. In that case, the Thus, an attorney's speech may be sanctioned if it is highly attorney, dissatisfied with a judge's rulings, began a calculated likely to obstruct or prejudice the administration of justice. campaign through threats and intimidation to force the judge's “These narrow restrictions are justified by the integral role recusal. Id. at 666. that attorneys play in the judicial system, which requires them to refrain from speech or conduct that may obstruct the fair Additionally, we note similar cases in other jurisdictions. administration of justice.” Office of Disciplinary Counsel v. In Kentucky Bar Association v. Waller, 929 S.W.2d 181, Gardner, 99 Ohio St.3d 416, 793 N.E.2d 425, 428–29 (2003). 183 (Ky.1996), the Supreme Court of Kentucky ordered a six-month suspension for an attorney's comments made in a Accordingly, we conclude that Slavin's in-court remarks were written memorandum submitted to a trial court. The Supreme not protected by the First Amendment. By this holding we Court of Kentucky described the memorandum as follows: intend to limit an attorney's criticisms of the judicial system and its officers to those criticisms which are consistent in After the appointment of Judge Harris, Waller filed a every way with the sweep and the spirit of the Rules of motion to set aside the earlier temporary injunction. On Professional Conduct. See Fla. Bar v. Ray, 797 So.2d 556, June 21, 1994, Waller filed a memorandum styled as 560 (Fla.2001). “Legal Authorities Supporting the Motion to Dismiss” which contained the following introductory language: Comes defendant, by counsel, and respectfully moves the Honorable Court, much better than that lying incompetent

ass-hole it replaced if you graduated from the eighth Id. at 429. grade....

Id. at 181. As we continue our de novo consideration of the sanctions imposed, we note a dramatic increase in the punishment The Supreme Court of Ohio, in *551 Office of Disciplinary imposed by the trial court beyond that imposed by the Hearing Counsel v. Gardner, 99 Ohio St.3d 416, 793 N.E.2d 425, 433 Committee. We think this difference is easily explained by (2003), imposed a six-month suspension on an attorney for the fact that the trial court reinstated several violations that comments made in a written motion. The Court described the had been dismissed by the Hearing Committee. motion as follows: Although we are much impressed with Slavin's intellect and In a motion seeking reconsideration or, in the alternative, legal skill, what does not impress us is his apparent defiance certification of the case as a conflict to this court, in refusing to respect the line separating, in the judicial respondent accused the panel that decided his client's context, tolerable criticism from unacceptable speech. He has appeal of being dishonest and ignoring well-established trampled upon that line, and indeed by so doing has propelled law. He declared that the panel had issued an opinion so himself into the quagmire of unacceptable speech. “result driven” that “any fair-minded judge” would have been “ashamed to attach his/her name” to it. He then added Accordingly, we hereby suspend Slavin from the practice that the panel did not give “a damn about how wrong, of law for a period of two years from date of this opinion. disingenuous, and biased its opinion is.” Slavin may petition for reinstatement under Supreme Court Rule 9, section 19.3, at the expiration of one year from date Id. at 427. In upholding the six-month suspension, the of this opinion. It is further ordered that Slavin shall comply Supreme Court of Ohio stated: in all respects with Tennessee Supreme Court Rule 9, and specifically with section 18 regarding the obligations and An attorney's speech may be responsibilities of suspended attorneys. Costs of this review sanctioned if it is highly likely are taxed to the appellant, Edward A. Slavin, Jr., for which to obstruct or prejudice the execution may issue, if necessary. administration of justice.... These narrow restrictions are justified by the integral role that attorneys play in the judicial system, which requires them WILLIAM M. BARKER, J., not participating. to refrain from speech or conduct that may obstruct the fair administration of All Citations justice. 145 S.W.3d 538

INSULTING THE JUDGE

The Preamble to Rule 8 [six] provides in part:

A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process. Rule 8.2(a)(1) provides: “(a) A lawyer shall not make a statement that the lawyer knows to be false or that is made with reckless disregard as to its truth or falsity concerning the qualifications or integrity of the following persons: (1) a judge; ……” Courts in other jurisdictions have found that statements by an attorney that are demeaning to the judiciary and that violate Rule 8.2(a) of the Rules of Professional Conduct may also violate Rule 8.4 which provides: “It is professional misconduct for a lawyer to:… (d) engage in conduct that is prejudicial to the administration of justice….. .” See matter of Westfall, 808 S.W.2d 829, 839 (Mo. 1991) and In re McClellan, 754 N.E.2d 500 (Ind. 2001). (“The respondent violated [Rule 8.4] by engaging conduct that demeaned the judiciary and the legal profession.”).

Generally, “[s]tatements in violation of Rule 8.2(a) must (1) be false, (2) impugn the integrity or qualifications of judges, judicial officers or public legal officers, and (3) be made by the attorney knowing them to be false or with reckless disregard for their truth or falsity.” Attorney Grievance Comm'n of Maryland v. Frost, 69 SEPT.TERM 2012, 2014 WL 726525 (Md. Feb. 26, 2014). Many courts conclude that in attorney disciplinary proceedings “the standard to be applied is whether the attorney had an objectively reasonable factual basis for making the statements.” The Florida Bar v. Ray, 797 S.O.2d 556, 557-60 (Fla. 2001). The attorney “must have a reasonable, objective belief in the truth of the statements.” Statewide Grievance Committee v. Burton, 10 A.3d 507, 512 (Conn. 2011). Courts almost unanimously reject a subjective analysis or subjective standard. An “objective standard applies, under which the finding of a violation depends on what the reasonable attorney, considered in light of all of his professional functions, would do in the same or similar circumstances.” In re Madison, 282 S.W.3d 350, 352-53 (Mo. 2009). See also The Florida Bar v. Ray, 797 So.2d 556, 557-60 (Fla. 2001).

Raybin, Meet the Press Seminar Page 93 of 144 It is important to note that courts also consider the context of the proceeding in determining whether what is objectively reasonable. Further lawyers “should be free to challenge, in appropriate legal proceedings, a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court.” Wendt v. Wendt, 757 A.2d 1225, 1249-50 (Conn. App. 2000). An attorney “may make statements critical of a judge in a pending case which the attorney is a participant. He may even be mistaken. What is required by the rules of professional conduct is that he have a reasonable factual basis for making such statements before he makes them.” In re Cobb, 838 N.E.2d 1197, 1211-16 (Mass. 2005). B. In re Dixon, 994 N.E.2d 1129, 132-40 (Ind. 2013) arose in criminal context the attorney was seeking the disqualification of the judge for actual bias: Rule 8.2 violations often arise in the context of public comments by attorneys outside a legal proceeding. See, e.g., Matter of Reed, 716 N.E.2d 426 (Ind.1999) (prosecutor's statements to press that newly appointed judge was ignorant, was being improperly influenced by politicians, had fabricated a report about liquor being present in court offices, and had no understanding of the cases); Matter of Atanga, (discussed above); Matter of Garringer, 626 N.E.2d 809 (Ind.1994) (lengthy “open statement” charging bankruptcy court officials with misconduct and criminal acts), cert. denied. However, Rule 8.2 violations have sometimes arisen from statements made within a legal proceeding. See, e.g., Matter of Wilkins, (discussed above); Matter of Becker, 620 N.E.2d 691 (Ind.1993) (statement in appellate brief falsely accusing trial court of causing recording of hearing to be turned off during important testimony). In either context, the objective standard we adopt today, standing alone, is sufficient to balance the public interest in candid discussions about judges' qualifications against the competing interest in maintaining public confidence in the administration of justice. Prof. Cond. R. 8.2(a), Comment [1]. But in this case, Respondent's statements were made not just within, but as material allegations of, a judicial proceeding seeking a change of judge on three grounds, each of which affirmatively requires alleging personal bias or prejudice on the part of the judge. …… But even though Rule 8.2 holds attorneys to a higher disciplinary standard than New York Times does in defamation cases, we also recognize that attorneys need wide latitude in engaging robust and effective advocacy on behalf of their clients—particularly on issues, as here, that require criticism

Raybin, Meet the Press Seminar Page 94 of 144 of a judge or a judge's ruling. And as discussed above, in seeking a change of judge under Criminal Procedure Rule 12(B), a party must allege personal bias or prejudice on the part of the judge—and an attorney must therefore be allowed to assist the client in doing what the rule requires. A motion for a change of judge due to personal bias is inherently sensitive, but it implicates the client's fundamental due process right to a neutral decision maker. Counsel's advocacy on such matters must not be chilled by an overly restrictive interpretation of Rule 8.2(a). We will therefore interpret Rule 8.2(a)'s limits to be the least restrictive when an attorney is engaged in good faith professional advocacy in a legal proceeding requiring critical assessment of a judge or a judge's decision. In any other context, counsel's advocacy would be limited only by Professional Conduct Rule 3.1, which requires only “a basis in law and fact ... that is not frivolous,” and Indiana Trial Rule 11(a), under which an attorney's signature “constitutes a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief, there is good ground to support it; and that it is not interposed for delay.” And while criticism of a judge necessarily implicates Rule 8.2(a), even in genuine professional advocacy, any further restrictions of counsel's advocacy on that sensitive subject should be as minimal as possible. In re Dixon, 994 N.E.2d 1129, 1137-38 (Ind. 2013). In re Graham, 453 N.W.2d 313, 322 (Minn. 1190), held that “the standard must be an objective one dependent on what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstance.” What is “reasonable” here must be measured by the legal requirements which (1) compel allegations of bias in the motion to recuse the judge or to assert that issue on appeal, and (2) the standard which governs such a pleading in the context of settled Tennessee law governing motions for new trial and appellate procedure. Relevant is Rule 10b regarding disqualification or recusal of a judge which provides in Section 1.01 that a motion to disqualify a judge “shall state, with specificity, all factual and legal grounds supporting disqualification of the judge… .” See also the relevant comment 1 in Rule 1.3 which says that a lawyer “must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”

Raybin, Meet the Press Seminar Page 95 of 144 Ramsey v. Board of Professional Responsibility of Supreme..., 771 S.W.2d 116 (1989)

(3) constitutional right to free speech, and (4) the sufficiency of the evidence as a matter of law. 771 S.W.2d 116 Supreme Court of Tennessee, Appellant, a native of Oak Ridge, was in 1972 admitted and at Knoxville. licensed by this Court to practice law in Tennessee. In 1978, James Nelson RAMSEY, Petitioner–Appellant, Appellant ran for and was elected District Attorney General. v. Appellant contends that “after his election, he was faced with appearing before two judges who allied in political hostility BOARD OF PROFESSIONAL RESPONSIBILITY against him.” OF the SUPREME COURT OF TENNESSEE, Respondent–Appellee. A complaint was filed against Appellant with the Board of Professional Responsibility on April 18, 1985. A Petition for April 17, 1989. | Rehearing Discipline was filed by the Board on August 29, 1985. A Denied May 22, 1989. three-member Hearing Panel of the Board heard this cause on Disciplinary proceedings were brought against district March 16 and 17, 1987. The Hearing Panel filed its Findings attorney general. The Equity Court, Anderson County, and Judgment on April 8, 1987. The Panel stated: William Inman, Chancellor, imposed sanction, and appeal “[I]t seems appropriate to observe that the issues in this was taken. The Supreme Court, Drowota, C.J., held that case affect or involve many persons; nevertheless, the district attorney who fails to abide by court orders and fails to operative facts are focused primarily on two persons. respond to questions from court while appearing before court, The case presents the lengthy and rather sad saga of and who slams courtroom doors during hearings has degraded the relationship between these two persons. One of these court and acted in manner prejudicial to administration of persons is the [Appellant], James Nelson Ramsey, a justice, thereby, warranting suspension from practice of law licensed attorney and the duly elected District Attorney for 180 days, with 135 days of that sanction suspended. General of Anderson County, Tennessee. The other is Judge James B. Scott who likewise is a licensed attorney Affirmed as modified. and the duly elected Judge of the Circuit and Criminal Court of Anderson County.... Attorneys and Law Firms The relationship between the [Appellant] and Judge Scott *116 James E. Foglesong, Foglesong, Cruz, Shope and Kerr, is complex and it cannot be accurately described with one Knoxville, Roger M. Adelman, *117 Ned I. Miltenberg, or even with a few words. Suffice it to say that the level Kirkpatrick &Lockhart, Washington, D.C., for petitioner- of disaffection between them is exceeded only by the level appellant. of suspicion which each harbors for the other. The panel feels constrained to point out in this submission that the Tennessee Dist. Attys. Conference, Joe Baugh, President, failure of these two elected officials to work cooperatively amicus curiae. is harmful to the administration of the justice in Anderson County and borders on being a public disgrace. William W. Hunt, III, Disciplinary Counsel, Nashville, for respondent-appellee. The Petition for Discipline alleges multiple acts of contemptuous behavior by the [Appellant], multiple public expressions regarding either the court's adjudications of OPINION contempt or the Board of Professional Responsibility's prior adjudication of discipline, and in addition, the DROWOTA, Chief Justice. Petition charges a pattern of behavior which violates the Disciplinary Rules.” Appellant, James Nelson Ramsey, the District Attorney General for Anderson County, has appealed the suspension The Panel first addressed the charges of unethical conduct of his law license for one-hundred and eighty (180) days. He based on the Appellant's public expression to the media. The raises four basic grounds as to why the Order of Suspension Panel found “the right of free speech may not be absolute, should not stand: (1) jurisdiction, (2) denial of due process,

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 96 of 144 1 Ramsey v. Board of Professional Responsibility of Supreme..., 771 S.W.2d 116 (1989) but it does appear to be broad enough to protect these expressions.” I

The Panel next addressed the contempt adjudications in 1983, and 1985, and found Appellant's actions were not only JURISDICTION contemptuous but were also violative of DR 1–102(A)(5) [1] Appellant contends that, as an elected public official, and DR 7–106(C)(6). 1 The Panel further found Appellant's neither Rule 8 nor Rule 9 of this Court's rules can be applied “conduct since 1979, as alleged in the Petition and established 2 by the evidence, shows a pattern of disrespect for the Court. to him. To do so, he submits, would violate both the Every instance is different but they all contain a common Tennessee Constitution and the United States Constitution. thread of indifference toward and disrespect for the Court.” Appellant avers that in suspending him the Disciplinary The Panel adjudged that Appellant “should be suspended Board, and presumably the Chancery Court, exceeded its from the practice of law for a period of one-hundred and statutory jurisdiction and violated the constitutional principle eighty (180) days.” The Panel *118 concluded its findings of separation of powers. and judgment by stating: “All concerned parties should examine their own conscience and strive to put an end to 2 Rule 8, Rules of the Supreme Court, is entitled “Code of the hostilities and suspicion which appears to permeate the Professional Responsibility.” criminal justice system in Anderson County.” Rule 9, Rules of the Supreme Court, is entitled “Disciplinary Enforcement.”

1 “DR 1–102(A)(5) (A lawyer shall not engage in conduct Appellant argues that under the Tennessee Constitution, that is prejudicial to the administration of justice),” judges and district attorneys are treated identically and Article and “DR 7–106(C)(6) (In appearing in his professional VI, Section 6 ordains a single and exclusive method of capacity before a tribunal, a lawyer shall not engage in removal—impeachment by the Legislature. We agree that undignified or discourteous conduct which is degrading the exclusive method of removal from office for judges to a tribunal).” and district attorneys is by impeachment. However, this On July 1, 1987, the Appellant filed a Petition for Writ does not mean that district attorneys and judges are not of Certiorari in the Chancery Court of Anderson County. subject to discipline. The right of this Court to establish A special judge was designated by this Court on July 29, Rules of practice and procedure for disciplining attorneys to hear this cause. On December 15, 1987, a de novo is clear. Petition of Tennessee Bar Ass'n, 539 S.W.2d 805, review of the Panel's determination was held by Chancellor 810 (Tenn.1976). Rule 9, Section 1.1, Rules of the Supreme William H. Inman. The Chancellor abstained from the Court, states that “any attorney admitted to practice law jurisdiction issue, finding that the Supreme Court “has the in this State ... is subject to the disciplinary jurisdiction exclusive prerogative to determine the constitutionality of of the Supreme Court, the Board, the hearing committees, its Rules.” The Chancellor found no merit in Appellant's hereinafter established, and the Circuit and Chancery Court.” due process argument as it related to the Hearing Panel members allegedly having interests adverse to Appellant. This Court has inherent, original and exclusive jurisdiction With reference to Appellant's argument that his right pertaining to the licensing of attorneys. Belmont v. Board of to free speech guaranteed by the Tennessee and United Law Examiners, 511 S.W.2d 461 (Tenn.1974). Our authority States Constitutions was violated—the Chancellor found “to make rules governing the practice of law is traditional, Appellant's “pronouncements are simply not privileged.” The inherent and statutory. Such power is indispensable to the Chancellor adopted the Hearing Panel's findings of fact and orderly administration of justice.” Barger v. Brock, 535 affirmed the Panel's suspension of Appellant's law license for S.W.2d 337, 342 (Tenn.1976). No person shall engage in the 180 days. practice of law in Tennessee, except pursuant to the authority of this Court. Rule 7, Section 1.01, Rules of the Supreme Pursuant to Rule 9, Section 1.3 Appellant appealed the Court. Chancellor's decision to this Court. The office of District Attorney constitutes no shield or protection to an attorney who violates his oath as an attorney or the disciplinary rules of this Court. Judges and district

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 97 of 144 2 Ramsey v. Board of Professional Responsibility of Supreme..., 771 S.W.2d 116 (1989) attorneys alike are not only subject to the disciplinary rules In response to Appellant's argument that he cannot be of this Court, but are subject to annual registration and disbarred while serving as District Attorney General, the payment of a license fee to support the attorney disciplinary Court, in Schoolfield, specifically found that “[a] lawyer may system. Petition of Tennessee Bar Ass'n, 539 S.W.2d 805, 809 be disbarred for misconduct occurring while he is acting as (Tenn.1976), Rule 9, Section 20.1. 3 a judge....” 209 Tenn. at 313, 353 S.W.2d at 405. It follows that a lawyer may be disbarred for misconduct while acting as a district attorney. 3 Judges and district attorneys alike are also subject to mandatory continuing legal education. Rule 21, Section Appellant avers that the Code of Professional Responsibility, 2.01 et seq., Rules of the Supreme Court. Rule 8, Rules of the Supreme Court, at no point purports to Disciplinary proceedings which result in disbarment or regulate district attorneys. He is in error. Rule 8, DR 7–107 suspension from the practice *119 of law are not equivalent expressly applies to prosecutors. See, In re John Zimmerman to impeachment. A disbarment is a removal of a law license; v. Board of Professional Responsibility, 764 S.W.2d 757 an impeachment is the removal from office. They are not the (Tenn.1989). The Appellant testified that when he ran for same. In In re Murphy, 726 S.W.2d 509 (Tenn.1987), Judge office he promised he would be accountable to the public and Ira Murphy's law license had been suspended based upon Rule he would “speak to the press subject to the rules of pretrial 9, Section 14 of the Disciplinary Rules governing the conduct publicity,” and he pledged to those present at the hearing, “I of attorneys. He was appealing the judgment of the Court of will not talk about pending cases, DR 7–107,....” Although the Judiciary which recommended that the General Assembly Appellant testified that he would follow the mandates of DR remove him from office. He had already had his law license 7–107, he contends he is not subject to disciplinary action suspended by this Court in a different proceeding; however, under the Rules. This position seems somewhat inconsistent. he was continuing to receive his full salary as a judge because We hold that the Disciplinary Board, the hearing committees the sole method of removal from office is impeachment by and this Court have jurisdiction over the Appellant and all 4 the Legislature under Article VI, Section 6. District Attorneys General admitted to practice law in this State. Rule 9, Section 1.1. 4 Judge Murphy was convicted of a felony by a court of competent jurisdiction, and his law license was suspended by this Court pursuant to Rule 9, Section II 14. This same rule applies to any attorney, be he judge, justice or district attorney general. If a district attorney were convicted of a felony and sentenced to DENIAL OF DUE PROCESS imprisonment, his law license would be suspended, although he would still be entitled to his full salary [2] Appellant avers that the manner in which the unless removed from office by impeachment, Article VI, proceedings were conducted before the Hearing Panel and the Section 6, or by the voters of his district at the next Chancellor violated the guarantees of procedural due process general election. afforded by Article I, Section 8 of the Tennessee Constitution The issues of whether Judge Murphy's federal convictions and the due process clause of the Fourteenth Amendment were serious crimes so as to warrant “disbarment” and of the United States Constitution. He first avers that the whether the convictions were grounds for “removal from Hearing Panel and the Chancellor were not neutral, detached, office” were not identical. Id., at 513, 514. Two separate and impartial triers of fact. He alleges that the decision and distinct procedures are involved in disbarment and makers were tainted with the appearance of interest and bias. impeachment. In Schoolfield v. Tennessee Bar Ass'n, 209 Appellant has made allegations of actual and apparent interest Tenn. 304, 353 S.W.2d 401 (Tenn.1961), the Senate “could or bias on the part of the triers of fact, but the record fails not lawfully have passed upon the fitness of the judge to to support these claims. Assuming, arguendo, that Appellant remain a member of the Bar; its powers as a Court of had proved interest or bias existed on the part of the Hearing Impeachment are specifically limited to removal from office Panel, this would have been cured by the de novo hearing in and disqualification.” 209 Tenn. at 312, 353 S.W.2d at 404. the Chancery Court. A de novo *120 review in Chancery Court readjudicates the matter in a neutral forum, completely eliminating any interest or bias on the part of a Hearing Panel. Cf. Cooper v. Williamson County Bd. of Educ., 746

S.W.2d 176, 183 (Tenn.1987); Potts v. Gibson, 225 Tenn. 5 DR 1–102. Misconduct.—(A) A lawyer shall not: 321, 332, 469 S.W.2d 130, 135 (1971). Likewise, any interest (5) Engage in conduct that is prejudicial to the or bias on the part of the Chancellor would be cured by our administration of justice. de novo review “upon the transcript of the record from the DR 8–102. Statements Concerning Judges and Circuit or Chancery Court, which shall include the transcript Other Adjudicatory Officers.—(B) A lawyer shall of evidence before the hearing committee.” Rule 9, Section not knowingly make false accusations against a judge 1.3, Rules of the Supreme Court. See, Scruggs v. Bracy, 619 or other adjudicatory officer. S.W.2d 101, 103 (Tenn.1981). 6 “DR1–102. Misconduct.—(A) A lawyer shall not: ... (1) Violate a Disciplinary Rule.... (5) Engage in conduct that [3] Appellant next asserts that due process requires that is prejudicial to the administration of justice. (6) Engage notice be given both of the charges and the facts which in any other conduct that adversely reflects on his fitness would support an adverse decision against an individual, and to practice law.” that the Petition for Discipline failed to meet the minimal “T.C.A. § 23–3–201. standards of adequate notice. The first three paragraphs in the Grounds for disbarment Petition set out the jurisdiction of the Board to consider this or discipline.—Any attorney, matter and the procedure by which the matter came before solicitor or counselor at law the Board. Paragraphs four through twelve set forth the facts, admitted to practice in the and paragraphs thirteen through fifteen set forth the various courts of the state may be disciplinary rules which Appellant is accused of violating and disbarred or suspended from a brief explanation of the reason for such violations. Counsel the practice of law: ... (5) on direct examination of Appellant went over the allegations Who shall be guilty of any unprofessional conduct, in the Petition paragraph by paragraph, and Appellant's dishonesty, malpractice, or any answers to counsel do not indicate any misunderstanding by conduct which renders him him as to what he was being charged with. We find that the unfit to be a member of the bar.” Petition gave adequate notice to Appellant. 1. On February 23, 1979, Appellant was reported as having Appellant also contends that he was denied a true de novo stated to The Oak Ridger: “My bottom line is that the judge hearing before the Chancellor, and that neither the Hearing is mucking up my cases and I can't stand for that.” Panel nor the Chancellor made a true judicial determination of his case. The record simply fails to support these contentions. 2. On October 24, 1979, Appellant was reported as having said to The Oak Ridger: “I don't have time for this horse manure.”

III 3. On March 30, 1981, Appellant wrote to The Guiness Book of World Records requesting inclusion in same as “The CONSTITUTIONAL RIGHT TO FREE SPEECH District Attorney with most contempt and disciplinary actions filed against him.” The Petition for Discipline charged the Appellant with making four impermissible “remarks to the public” that 4. On December 3, 1981, Appellant was reported by The were “gross, disrespectful, knowingly false, derogatory, and Clinton Courier News as having said of [the November damaging to the legitimacy of, and trust in, the judicial system 1981 recommendation by a hearing panel of the Board of —in violation of DR 1–102(A)(5) and [DR] 8–102(B).” 5 Professional Responsibility that he be *121 suspended for The Petition also charged that Appellant's remarks constituted 90 days]: “When I find that I'm suspended by Almighty God, “conduct adversely reflecting upon [his] fitness to practice I'll know that I'm guilty of wrongdoing, not before.” law, unprofessional conduct, and conduct rendering [him] unfit to be a member of the bar” in violation of DR 1–102(A) The Hearing Panel found that although the “statements are (1)(5) and (6) and T.C.A. § 23–3–201(5). 6 The remarks were crude and unbecoming of any licensed lawyer ... we do not as follows: believe they should be found to be violative of the Rules of Discipline. The right of free speech may not be absolute, but it

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 99 of 144 4 Ramsey v. Board of Professional Responsibility of Supreme..., 771 S.W.2d 116 (1989) does appear to be broad enough to protect these expressions.” court proceedings and the judges and courts of this State after The Chancellor found, however, that the remarks “are simply a case is concluded, so long as the criticisms are made in not privileged” nor constitutionally protected. Disciplinary good faith with no intent or design to willfully or maliciously Counsel candidly points out that the remarks of Appellant misrepresent those persons and institutions or to bring them are more impressive as indications of lack of remorse than into disrepute. As stated by this Court in In re Hickey, 149 as individual violations of the disciplinary rules. Disciplinary Tenn. 344, 386, 258 S.W. 417, 429 (1923), “the members of Counsel contends that “lack of remorse” is an aggravating the bar have the best opportunity to become conversant with factor in determining the type of discipline imposed or the the character and efficiency of our judges. No class is less degree of sanctions to be meted out. likely to abuse the privilege, as no other class has as great an interest in the preservation of an able and upright bench. Appellant admits making the above cited, out of court, public The rule contended for by the prosecution, if adopted in its statements; however, he avers that the quote about “the judge entirety, would close the mouths of all those best able to give is mucking up my cases” was creative journalism on the part advice, who might deem it their duty to speak disparagingly.” of the reporter. He states that “I did not say those words. I do feel that's the case, however.” The remarks made by Appellant Recently, the Oklahoma Supreme Court in addressing the free were disrespectful, ill-advised, and, as the Hearing Panel speech issue stated, “In keeping with the high trust placed stated, they were “crude and unbecoming of any licensed in this Court by the people, we cannot shield the judiciary lawyer.” from the critique of that portion of the public most perfectly situated to advance knowledgeable criticism, while at the Appellant's principal argument is that each of his remarks same time subjecting the balance of government officials to is fully protected under the First Amendment of the United the stringent requirements of New York Times Co. v. Sullivan States Constitution and the Freedom of Speech clause of the [376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ].” State Tennessee Constitution, Article I, Section 19. 7 ex rel. Oklahomama *122 Bar Ass'n v. Porter, 766 P.2d 958, 968–69 (Okla.1988).

7 “The free communication of thoughts and opinions, is Statements made by a lawyer designed to willfully, purposely one of the invaluable rights of man, and every citizen and maliciously misrepresent the judges and courts of this may freely speak, write, and print on any subject, being responsible for the abuse of that liberty....” Article I, State, and to bring those persons and institutions into Section 19. disrespect, will not be tolerated or condoned. There is no First Amendment protection for remarks critical of the judiciary In dealing with First Amendment questions, we must balance when those statements are false. A statement shown to the right of the speaker to communicate and the right of the be false will subject a lawyer to disciplinary sanctions. listener to receive his expressions with the need of the courts False statements with reference to judges and courts can be to enforce attorney discipline to the end that a lawyer will prejudicial to the administration of justice and subject to not engage in conduct that is prejudicial to the administration disciplinary action under DR 1–102(A)(5). of justice, DR 1–102(A)(5), or degrading to a tribunal, DR 7–106(C)(6), and thereby diminishes the confidence of the It is the duty of an attorney to refrain from doing anything public in our courts. There is thus a delicate balance between a which will tend to destroy the confidence of the public in lawyer's right to speak, the right of the public and the press to the courts, or to bring the courts into disrepute.... have access to information, and the need of the bench and bar to insure that the administration of justice is not prejudiced by It is the duty of the lawyer to maintain toward the courts a lawyer's remarks. In balancing these rights, we must ensure a respectful attitude, not for the sake of the temporary that lawyer discipline, as found in Rule 8 of the Rules of this incumbent of the judicial office, but for the maintenance Court, does not create a chilling effect on First Amendment of its supreme importance. Judges not being wholly free rights. to defend themselves, are peculiarly entitled to receive the support of the bar against unjust criticism and clamor. [4] The right of free speech and free discussion as it relates to the institution of the law, the judicial system and its This is a duty which the attorney owes to his profession; operations, is of prime importance under our system and an obligation to which he should subordinate his personal ideals of government. A lawyer has every right to criticize

animus toward the particular individual who happens to be has been guilty of willful and deliberate attacks that attack filling the office. the dignity of the court and show disrespect for the authority of the court.” Judge Nigro ordered the Appellant to pay a In re Hickey, 149 Tenn. at 389, 258 S.W. at 430. $50.00 fine and serve five days in jail. The jail sentence was suspended, and no appeal was taken. [5] The remarks made by Appellant were disrespectful and in bad taste; however, we agree with the Hearing Panel that On October 15, 1979, Roger Ridenour was representing the right of free speech is “broad enough to protect these a criminal defendant named Culbertson. After a phone expressions” made by the Appellant. Use of the Disciplinary conversation *123 with Appellant, Mr. Ridenour believed Rules to sanction the remarks made by General Ramsey in this that a plea-bargain had been agreed upon. The next day, case would be a significant impairment of First Amendment after much confusion, Judge Scott asked Appellant if he rights. had discussed a plea bargain agreement with Mr. Ridenour. Appellant refused to answer the question. Judge Scott again ordered Appellant to answer the question. Appellant again IV refused to answer. Appellant was then held in contempt and placed in jail pending his answer to the question. Appellant filed an appeal. The Court of Criminal Appeals THE SUFFICIENCY OF THE EVIDENCE affirmed Judge Scott's determination that Appellant acted Appellant concludes by arguing that “no evidence was in total disobedience to a lawful order of the Court. The presented and no proof adduced sufficient to find that Court of Criminal Appeals found “the trial judge exercised Appellant had violated any of the disciplinary rules listed patience and restraint necessary before taking action for the in the Petition.” We have before us concurrent findings of administration of his court. Furthermore, the refusal to answer fact that Appellant violated DR1–102(A)(5) (conduct that is the question was in direct contempt.” No further appeal was prejudicial to the administration of justice), and DR 7–106(C) sought by Appellant. (6) (undignified or discourteous conduct which is degrading to a tribunal). On April 25, 1983, the Appellant was asked a direct question by Judge Scott and he refused to answer. Judge Scott found The Hearing Panel made findings of fact which were adopted Appellant in contempt and fined him $50.00. An appeal was by the Chancellor. Our review of the record supports their taken and the Court of Criminal Appeals, in affirming Judge findings. We shall describe some of the incidents in outline Scott, held: “The transcript before us contains sufficient form, for a detailed recitation of the facts is unnecessary. On evidence to justify a rational trier of facts in finding General February 21, 1979, Judge Scott deferred action on a motion Ramsey guilty of contempt beyond a reasonable doubt.” This to suppress in a case involving Sally Davis. Appellant argued Court denied Appellant's Rule 11 Application for Permission that if the confession in question was not suppressed before to Appeal. the trial commenced, jeopardy would attach and he would be unable to build a case without the confession. Appellant then The final incident which we will discuss has been termed stated that he would then file a nolle prosequi. Judge Scott the “capias contempt.” Judge James Witt was appointed by then indicated that he would not allow the State to dismiss this Court to hear this matter, which involved a contempt the action and the Appellant responded that he refused to by Appellant of an order of Judge Scott. On April 15, 1985, prosecute the case. Judge Scott then announced to the jury that Judge Witt found Appellant in contempt of court and fined the State did not wish to prosecute the case. While the court him $50.00 and ordered him to serve 10 days in jail. No appeal was so announcing to the jury, the Appellant rose from his was taken. chair and “in a noisy and hostile fashion” slammed the door as he left the courtroom. Appellant admitted before Chancellor Inman that he did in fact slam the door. The court ordered CONCLUSION the Appellant to appear on February 26, 1979, to show cause why he should not be held in contempt. Judge Joseph Nigro [6] Based upon the above-described incidents, we find was designated to hear the contempt matter. At the hearing, that an attorney who fails to abide by court orders and Judge Nigro found Appellant guilty of contempt “in that he fails to respond to questions from the court while appearing

before the court, and who slams courtroom doors during rules of this Court during the remainder of his term of office hearings has not only degraded that court, but acted in ending August 31, 1990. If Appellant is again found to have a manner prejudicial to the administration of justice. We violated Rule 8 of this Court, then his license to practice law find the evidence sufficient to support the decision of the will be automatically suspended for the remaining 135 days. Hearing Panel and the decision of the Chancellor that Counsel for the parties shall agree upon the beginning date the Appellant violated DR 1–102(A)(5) and DR 7–106(C) for Appellant's 45–day suspension. The suspension shall be (6). The next issue concerns sanctions. Notwithstanding completed on or before September 4, 1989. If the parties are the judgments below, upon determining the existence of unable to agree upon a beginning date, the Court will fix the aggravating or mitigating circumstances, this Court may time of commencement. modify the judgment of the trial court. Disciplinary Bd. of Supreme Court v. Banks, 641 S.W.2d 501, 504 (Tenn.1982). The judgment of the trial court, as modified, is affirmed at the cost of Appellant. We are of the opinion that the foregoing violations are sufficient to justify the imposition of a suspension from the practice of law for 180 days, and the judgment of COOPER, HARBISON and O'BRIEN, JJ., and the Chancery Court is affirmed. However, under all of the McLEMORE, Special Justice, concur. circumstances of this case, we are of the opinion that it would be appropriate to have the Appellant's license suspended for All Citations only 45 of the 180–day period, and the remaining 135 days 771 S.W.2d 116 will be suspended provided the Appellant is not again found in contempt of court and in violation of the disciplinary

H. Closure of Court Proceedings

Raybin, Meet the Press Seminar Page 103 of 144 Rule 30. Media Guidelines, TN R S CT Rule 30

West's Tennessee Code Annotated State and Local Rules Selected from West's Tennessee Rules of Court Rules of the Supreme Court of the State of Tennessee

Sup.Ct.Rules, Rule 30

Rule 30. Media Guidelines

Currentness

A. Media Access.

(1) Coverage Generally. Media coverage of public judicial proceedings in the courts of this State shall be allowed in accordance with the provisions of this rule. The coverage shall be subject, at all times, to the authority of the presiding judge to i) control the conduct of the proceedings before the court; ii) maintain decorum and prevent distractions; iii) guarantee the safety of any party, witness, or juror; and iv) ensure the fair and impartial administration of justice in the pending cause.

(2) Requests for Media Coverage. Requests by representatives of the media for such coverage must be made in writing to the presiding judge not less than two (2) business days before the proceeding is scheduled to begin. The presiding judge may waive the two-day requirement at his or her discretion.

(3) Notification of Request. Notification that the media has requested such coverage shall be provided by the Clerk of the particular court to the attorneys of record in the case. Such notification may be waived by the judge at the clerk's request if the request is made for media coverage of all or part of a docket. If the judge waives notification, the clerk shall post a notice with the docket in a conspicuous place outside the courtroom. The notice must state that the proceedings will be covered by the media, and that any person may request a continuance when the docket is called. Such continuance shall be granted only if the person can show that he or she was prejudiced by the lack of notice, and that there is good cause to refuse, limit, terminate or temporarily suspend media coverage pursuant to section D(2).

B. Definitions.

(1) “Coverage” means any recording or broadcasting of a court proceeding by the media using television, radio, photographic, or recording equipment.

(2) “Media” means legitimate news gathering and reporting agencies and their representatives whose function is to inform the public, or persons engaged in the preparation of educational films or recordings.

(3) “Proceeding” means any trial, hearing, motion, argument on appeal, or other matter held in open court that the public is entitled to attend. For the purposes of section C of this rule, proceeding includes any activity in the building in which the judicial proceeding is being held or any official duty performed in any location as part of the judicial proceeding.

(4) “Presiding Judge” means the judge, justice, master, referee or other judicial officer who is scheduled to preside, or is presiding, over the proceeding.

(5) “Minor” means any person under eighteen (18) years of age.

C. Prohibitions.

(1) Minor Participants. Media coverage of a witness, party, or victim who is a minor is prohibited in any judicial proceeding, except when a minor is being tried for a criminal offense as an adult.

(2) Jury Selection. Media coverage of jury selection is prohibited.

(3) Jurors. Media coverage of jurors during the judicial proceeding is also prohibited.

(4) Closed Proceedings. Media coverage of proceedings which are otherwise closed to the public by law is prohibited.

(5) Juvenile Court Proceedings. In juvenile court proceedings, if the court receives a request for media coverage, the court will notify the parties and their counsel of the request, and prior to the beginning of the proceedings, the court will advise the accused, the parties, and the witnesses of their personal right to object, and that if consent is given, it must be in writing. Objections by a witness will suspend media coverage as to that person only during the proceeding, whereas objections by the accused in a criminal case or any party to a civil action will prohibit media coverage of the entire proceeding.

(6) Conferences of Counsel. There shall be no audio pickup, recording, broadcast, or video closeup of conferences, which occur in a court facility, between attorneys and their clients, between co-counsel of a client, between counsel and the presiding judge held at the bench or in chambers, or between judges in an appellate proceeding.

D. Limitations.

(1) Discretion of Presiding Judge. The presiding judge has the discretion to refuse, limit, terminate, or temporarily suspend, media coverage of an entire case or portions thereof, in order to i) control the conduct of the proceedings before the court; ii) maintain decorum and prevent distractions; iii) guarantee the safety of any party, witness, or juror; and iv) ensure the fair administration of justice in the pending cause. Such exercise of the presiding judge's discretion shall be made following the procedures established in section D(2).

(2) Evidentiary Hearing. Before denying, limiting, suspending, or terminating media coverage, the presiding judge shall hold an evidentiary hearing, if such a hearing will not delay or disrupt the judicial proceeding. In the event that an evidentiary hearing is not possible, affidavits may be used. The burden of proof shall be on the party seeking limits on media coverage. If there is no opposition to media coverage, the presiding judge may consider matters that are properly the subject of judicial notice. Media requesting coverage shall be allowed to present proof, either at the evidentiary hearing or by affidavit. Any finding that media coverage should be denied, limited, suspended or terminated must be supported by substantial evidence that at least one of the four interests in section D(1) is involved, and that such denial, limitation, suspension, or termination is necessary

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 105 of 144 2 Rule 30. Media Guidelines, TN R S CT Rule 30 to adequately reach an accommodation of such interest. The presiding judge shall enter written findings of fact detailing the substantial evidence required to support his or her order.

E. Appellate Review. Appellate review of a presiding judge's decision to terminate, suspend, limit, or exclude media coverage shall be in accordance with Rule 10 of the Tennessee Rules of Appellate Procedure.

F. Equipment and Personnel.

(1) Limitations. At least one, but no more than two television cameras with one operator each, two still photographers using not more than two cameras each, and one audio system for radio broadcast purposes, will be permitted in any judicial proceeding.

(2) Pooling Arrangements. When more than one request for media coverage is made, the media shall select a representative to serve as a liaison and be responsible for arranging “pooling” among the media that may be required by these limitations on equipment and personnel. The identity of the person selected, including name, business address, phone and fax number, shall be filed with the clerk of the court in which the proceeding is to be held. Pooling arrangements shall be reached when the court is not in session and shall be the sole responsibility of the media without calling upon the presiding judge to mediate any dispute as to the appropriate media representative or equipment authorized to cover a particular proceeding. Such pooling arrangements shall include the designation of pool operators, procedures for cost sharing, access to and dissemination of material, and selection of a pool representative if appropriate. In the absence of advance media agreement on disputed equipment or personnel issues, the presiding judge shall exclude all contesting media personnel from a proceeding.

(3) Personal Recorders. Media personnel may use hand-held cassette tape recorders that are no more sensitive than the human ear without complying with section (A)(2) of this rule. Such recorders are to be used for the making of sound recordings as personal notes of the proceedings, and shall not be used for any other purpose, including broadcast. Usage shall not be obtrusive or distracting, and no change of tape shall be made during court sessions.

(4) Print Media. This rule does not govern the coverage of a proceeding by a news reporter or other person who is not using a camera or electronic equipment.

G. Sound and Light Criteria.

(1) Distractions. Only television, photographic and audio equipment which does not produce distracting sound or light shall be employed to cover proceedings in a court facility. Signal lights or devices to show when equipment is operating shall not be visible. Moving lights, flash attachments, or sudden light changes shall not be used.

(2) Courtroom Light Source. If possible, lighting for all purposes shall be accomplished from existing court facility light sources. If no technically suitable lighting exists in the court facility, modifications and additions may be made in light sources existing in the facility, provided such modifications and additions are unobtrusive, located in places designated in advance of any proceeding by the presiding judge, and without public expense.

(3) Audio Pickup. Audio pickup for all purposes shall be accomplished from existing audio systems present in the court facility or from a television camera's built-in microphone. If no technically suitable audio system exists in the court facility, microphones

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 106 of 144 3 Rule 30. Media Guidelines, TN R S CT Rule 30 and related wiring essential for media purposes shall be unobtrusive and shall be located in places designated in advance of any proceeding by the presiding judge.

(4) Technical Difficulties. Court proceedings shall not be interrupted by media personnel because of a technical or equipment problem. If any problem occurs, that piece of equipment shall be turned off while the proceeding is in session. No attempt shall be made to correct the technical or equipment problem until the proceeding is in recess or has concluded.

H. Location of Equipment and Conduct of Media Personnel.

(1) Location of Equipment and Personnel. The presiding judge shall designate the location in the courtroom for media equipment and operators to permit reasonable coverage without disruption of proceedings.

(2) Alterations. No permanent installation shall be made nor shall any court facility be altered, unless approved in advance by the presiding judge. Expenses for alterations shall be borne by the media.

(3) Movement During Proceedings. During proceedings, operating personnel shall not move about nor make any adjustment or change of any equipment which disrupts or distracts from the proceeding. Media broadcast, photographic or audio equipment shall not be placed in or removed from the court facility except prior to commencement or after adjournment of proceedings each day, or during a recess in the proceeding.

(4) Conduct of Media Personnel. Media personnel assigned to cover a judicial proceeding shall attire and deport themselves in such a way that will not detract from the proceeding.

I. Impermissible Use of Media Material. None of the film, videotape, still photographs, or audio recordings of proceedings under this Rule shall be admissible as evidence in the proceeding out of which it arose, any proceedings subsequent and collateral thereto, or upon any retrial or appeal of such proceeding.

J. Ceremonial Proceedings. This Rule shall not limit media coverage of investiture, ceremonial, or non-judicial proceedings conducted in court facilities under such terms and conditions as may be established by prior consent of the presiding judge.

K. Compliance. Media personnel who fail to comply with this rule shall be subject to an appropriate sanction as determined by the presiding judge.

Credits [Adopted for a one-year period beginning on January 1, 1996 and ending on December 31, 1996. Amended and made permanent by order filed December 30, 1996; amended December 6, 1999.]

Notes of Decisions (3)

Sup. Ct. Rules, Rule 30, TN R S CT Rule 30 The state court rules are current with amendments received through July 15, 2015.

We granted the application for permission to appeal filed 1 12 S.W.3d 410 by Memphis Publishing Company, doing business as The Supreme Court of Tennessee, Commercial Appeal (“MPC”), to consider whether the trial at Jackson. court had authority to deny MPC access to jury selection in a trial ongoing in the Circuit Court of Shelby County. For the Coretta Scott KING, Martin Luther reasons discussed, we *411 find that the trial court did not King, III, Bernice King, Dexter Scott have authority to deny the newspaper access to voir dire, and King, and Yolanda King, Plaintiffs, we therefore vacate the order of the trial court denying MPC v. access to the voir dire and to the transcript of the voir dire Loyd JOWERS, and other unknown proceedings. co-conspirators, Defendants, 1 and Memphis Publishing Company publishes The Commercial Appeal, a daily newspaper of general Memphis Publishing Company, Intervenor. circulation in Memphis, Tennessee and the surrounding Dec. 13, 1999. area. The plaintiffs, Coretta Scott King, Martin Luther King, III, Family of assassinated civil rights activist brought wrongful Bernice King, Dexter Scott King, and Yolanda King, the death suit against alleged conspirator in assassination. family of Dr. Martin Luther King Jr., have brought a wrongful Newspaper publisher intervened after trial court sua sponte death suit against the defendant Loyd Jowers, one of a closed jury selection to the press. The Circuit Court, Shelby number of alleged conspirators in the assassination of Dr. County, James Swearingen, J., denied publisher's requests King. The trial of the case began on November 15, 1999, for access to voir dire and for release of transcript of voir in the Circuit Court of Shelby County. On that date, the dire. Publisher filed application for permission to appeal, trial court, apparently acting sua sponte, closed jury selection and the Court of Appeals denied application. Publisher filed proceedings to the press. MPC intervened in the proceedings application to appeal to Supreme Court. The Supreme Court on that date to object to the closure. The trial court refused to held that: (1) rule prohibiting media coverage of jury selection allow access to voir dire, stating: and providing that presiding judge has discretion to refuse, limit, terminate, or temporarily suspend media coverage of This case is such that I feel that the case did not apply to newspaper's request that did not seek jurors should be protected from public to record, photograph, or broadcast proceedings, and (2) no scrutiny and that the public shall not justification existed for closing of jury selection proceedings. be aware of who they are. I don't want —and I'm going to assure them when Reversed, and trial court order vacated. we voir dire them that they will remain anonymous. And for that reason they will feel free to participate in the trial Attorneys and Law Firms process. That's my ruling. *410 William F. Pepper, Juliet Hill Akines, Memphis, TN, for Plaintiffs. The next morning, MPC again appeared to present for entry an order denying its request for access and reflecting the Lucian T. Pera, Kathy Laughter Laizure, Memphis, TN, for court's granting of permission to file an interlocutory appeal. Intervenor. Because voir dire had been completed the preceding day, MPC requested that the trial court release the transcript of the Lewis K. Garrison, Sr., Memphis, TN, for Defendants. proceedings, but the motion was denied.

MPC thereafter filed an application for permission to O P I N I O N appeal pursuant to Tenn. R.App. P. 9 and 10, alternatively. On November 19, 1999, the Court of Appeals denied PER CURIAM. the application. On November 22, 1999, MPC filed an application for permission to appeal pursuant to Tenn. R.App.

10 or 11, alternatively, in this Court. MPC also sought coverage. Because the request for access did not seek to expedited review of the application. On November 24, 1999, record, photograph, or broadcast the proceedings, Rule 30 this Court granted the application. We now reverse and vacate was inapplicable. the trial court's order refusing MPC access to voir dire and the transcript of the voir dire proceedings. [3] We have reviewed the appendix filed with the application for permission to appeal and can find no [1] The trial court relied upon Tennessee Supreme Court justification for the closing of jury selection proceedings in this trial proceeding. See State v. James, Rule 30 (Media Guidelines) to close the jury selection 902 S.W.2d 911, 914 proceedings. It cited Rule 30(C)(2) which provides that (Tenn.1995) (discussing closure of juvenile proceedings and “[m]edia coverage of jury selection is prohibited,” and section holding that the court shall not close proceedings unless it (D)(2) which provides, in part, that determines that failure to do so would result in particularized prejudice to the party seeking closure that would override [t]he presiding judge has the discretion the public's compelling interest in *412 open proceedings); to refuse, limit, terminate, or State v. Drake, 701 S.W.2d 604, 608 (quoting Waller v. temporarily suspend, media coverage Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d of an entire case or portions thereof, 31 (1984), and stating that before closure of a proceeding may in order to (i) control the conduct occur, the party seeking to close the hearing must advance of the proceedings before the court; an overriding interest that is likely to be prejudiced). 2 (ii) maintain decorum and prevent Accordingly, the orders of the Court of Appeals and trial court distractions; (iii) guarantee the safety are reversed. The order denying MPC access to voir dire and of any party, witness, or juror; and (iv) a transcript of voir dire is vacated. ensure the fair administration of justice in the pending cause. 2 State v. Drake involved closure of pre-trial proceedings in a criminal trial; however, the United States Supreme [2] What the trial judge overlooked, however, is that Rule 30 Court has noted that “historically both civil and criminal pertains to broadcast and recording media coverage of court trials have been presumptively open.” Richmond proceedings. “Coverage” is specifically defined in the rule to Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, n. 17, mean “any recording or broadcasting of a court proceeding by 100 S.Ct. 2814, 2829, n. 17, 65 L.Ed.2d 973 (1980). the media using television, radio, photographic, or recording equipment.” Supreme Court Rule 30(B)(1). In this case All Citations MPC sought to have its employees attend and report on the court proceedings. Rule 30 does not apply to print 12 S.W.3d 410, 28 Media L. Rep. 1380

The Sixth Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution afford an accused the right to a “public trial.” See In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); State v. Sams, 802 S.W.2d 635 (Tenn.Crim.App.1990). This right is regarded as “a shared right of the accused and the public, the common concern being the assurance of fairness.” Press Enterprise Co. v. Superior Court, 478 U.S. 1, 7, 106 S.Ct. 2735, 2739, 92 L.Ed.2d 1 (1986). “Transparency,” it has been said, “is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused.” Smith v. Doe, 538 U.S. 84, 99, 123 S.Ct. 1140, 1150, 155 L.Ed.2d 164 (2003). The right to a public trial is not absolute, however, and in certain cases must yield to other rights or interests. See Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984).

The defendant in this case constructs an argument that his due process and public trial guarantees under the federal and state constitutions were abridged because the trial judge excluded the public from viewing the videotapes of gymnastics which showed the victim. The public was excluded, the defendant insists, because when the videotapes were identified and played, the trial judge forced the public spectators on numerous occasions to “shift” to another part of the courtroom to ensure that they could not see the evidence. The State, for its part, does not dispute that the trial judge screened the media and public from viewing videotapes of the victim by arranging the courtroom so that only the jury, witnesses, the defendant, and attorneys could see the videotapes. Instead, the State maintains that the defendant waived the issue by failing to object and, indeed, by being the instigator of the seating arrangement. The State also asserts that the trial judge's actions conformed to Tennessee Supreme Court Rule 30(C)(1) which forbids media coverage in any judicial proceeding “of a witness, party, or victim who is a minor.” Tenn. Sup.Ct. R. 30(C)(1).

We begin by examining the context in which this issue arose. In a jury-out hearing during Detective Breedlove's testimony, the parties and the court discussed various aspects of how and what portions of the videotapes would be played for the jury. Defense counsel addressed the trial court as follows:

MR. JOHNSON: Your Honor, please, one of the reasons that in an earlier hearing General White raised about providing copies to us was the potential revictimization of the victim if it got released outside. I know there [are] members of the public sitting out there, and they are obviously interested in the tapes. And what is—is it

Raybin, Meet the Press Seminar Page 110 of 144 Your Honor's intention for them also to be allowed to see the tapes in light of the General's objection that she didn't want the victim to be revictimized by this? Or does the public have the right to see the video tapes? ... GENERAL WHITE: The public has a right to be in the courtroom. There is no provision from barring them from being in the courtroom. I will defer to the court on the other issue whether or *115 not Your Honor wants to make them sit down. But I know that in these type of cases there's always public in the courtroom and there is no provision in the law to bar them from a public courtroom. MR. JOHNSON: As I indicated earlier my only concern was that earlier the General had argued against us getting copies based on the potential for revictimizing the victim, by letting other people outside of the immediate parties see these video tapes. THE COURT: All right. I guess I'll first start with the media. Who here is from the media? Stand up. All right, and ma'am you're the last person from the media that is here? UNIDENTIFIED SPEAKER: They are out in the hallway. THE COURT: In the hallway? You're with whom? UNIDENTIFIED SPEAKER: With Channel 4. THE COURT: You're with Channel 4. Probably, the other media folks ought to come in here because I am just going to ask y'all what y'all want and that will tell me what I need to decide...... THE COURT: I appreciate you bringing that up, Mr. Johnson, that was very nice. Okay. Is that everybody? We got Channel 4, we got FOX 17.... So. 4 and 17. Now 2 and 5 are not here, they were here yesterday. .... THE COURT: Right, I was going to let y'all sit over there and you can hear and watch the jury, but Mr. Johnson has a good point, we don't want a, quote revictimization, or alleged revictimization of alleged victim at this time. This case is in progress and it is hard enough as it is. So but the rule—I'm giving deference to Supreme Court Rule 30, so I'm wondering if you have any problem with it, sitting over here and not watching this? UNIDENTIFIED SPEAKER: I would just say if the public at large is allowed to watch, we should be allowed to watch too.... That would be my only argument. THE COURT: I can make a decision about the public at large without asking. I think Mr. Johnson has a good point. I don't want to see this child or another child, we used the term revictimized and ... I'm also by saying that that I am recognizing that the defendant is presumed innocent.... So by saying all that I'm ruling that I'm going to ask the public and media, you may stay in the courtroom during this process but I don't want you seeing this video tape. You can hear about it, but I

Raybin, Meet the Press Seminar Page 111 of 144 don't want you watching it at this time. So maybe if I can get you all over in that section. Thanks. So the camera and the audio pickup is off. .... THE COURT: Once we start we need to have a deputy posted at the door and stop them until a break.... So, why don't I get the court officers to go out there and see if there is anyone [who] wants to be in the courtroom now, they need to come in.... Mr. Johnson, if you want to weigh in on any of these instructions up to now, you may. Do have any objection to the way the Court has handled it up to now. MR. JOHNSON: No, Your Honor. The trial transcripts also reflect several additional times when the court directed members of the audience to move.

We are not persuaded initially that a complete or partial closure of the courtroom occurred in this case.

A complete closure has the effect of excluding everyone from the courtroom with the exception of the parties, the attorneys, court personnel, and the witnesses. A complete closure may be for the entire trial or proceeding, or a portion of the proceedings such as the testimony of a particular witness. A partial closure results in the exclusion of certain members of the public while other members of the public are permitted to remain in the courtroom.

Sams, 802 S.W.2d at 639.

No members of the media or public were barred from the courtroom in this case, and the State noted specifically on the record that the public had a right to be in the courtroom. To be sure, the trial court arranged the courtroom to screen the media and public from viewing videotapes of the victim, but courtroom spectators often are disadvantaged in viewing trial exhibits as they are offered and introduced. Furthermore, the record discloses that the only media objection was couched in terms of equal treatment for the media and the public. See Wilbert Rogers v. State, No. W2004–00654–CCA–R3–PC, slip op. at 3–4, 2005 WL 525268 (Tenn.Crim.App., Jackson, Feb. 22, 2005) (declining to find closure of judicial proceedings because trial judge had his court open, even though other courts were apparently closed due to weather; weather-related closing of other court-rooms did not result in denial of a public trial).

The defense cites to no authority describing what happened in this case as a complete or partial closure of trial proceedings. However, even if the right to a

Raybin, Meet the Press Seminar Page 112 of 144 public trial was somehow implicated, we believe the issue is resolved by the defendant's failures to object to the trial court's actions or otherwise make known his concern. Therefore, we conclude that the defendant waived his right to a public trial to the extent that what occurred can even be characterized as a “closure.” State v. Tizard, 897 S.W.2d 732 (Tenn.Crim.App.1994) (finding waiver when defendant failed to object to trial court's exclusion of journalism students during the cross- examination of the victim involving vulgar references to masturbation). The defendant insists that he did not waive any rights and that the State has taken “completely out of context” his negative response to the trial court's inquiry whether he objected “to the way the Court has handled it up to now.” We disagree; from the transcript, it is altogether reasonable to conclude that a waiver occurred. At any rate, even if the trial court and defense counsel were discussing some other matter, such as instructions to the media, the record plainly discloses that the defense did not object when the seating arrangement was being discussed at an earlier point. Finally, even if the defense broached the subject tongue-in-cheek to highlight the inequity of the trial court's restrictions on defense discovery, the defense was not thereby relieved of the obligation of formally objecting to the seating arrangement orchestrated by the trial court.

In summary, the defendant is not entitled to a new trial regarding any claimed violation of his right to a public trial.

State v. Schiefelbein, 230 S.W.3d 88, 114-17 (Tenn. Crim. App. 2007)

Raybin, Meet the Press Seminar Page 113 of 144

I. Gag Orders

Raybin, Meet the Press Seminar Page 114 of 144 State v. Montgomery, 929 S.W.2d 409 (1996) 24 Media L. Rep. 2172

the name of Andre Johnson violated the rights guaranteed to Memphis Publishing Company by the First Amendment to the 929 S.W.2d 409 United States Constitution and Article I, § 19 of the Tennessee Court of Criminal Appeals of Tennessee, Constitution. Therefore, this cause is reversed and remanded at Jackson. for further proceedings consistent with this opinion. STATE of Tennessee, Appellee, v. 1 Tenn.R.App.P. 10. James MONTGOMERY and Tony Carruthers, v. I. MEMPHIS PUBLISHING COMPANY, Intervenor–Appellant. On Saturday morning, April 20, 1996, the Honorable Joseph B. Dailey ruled sua sponte that the media was barred from May 24, 1996. | No Permission to publishing the names of nine prosecution witnesses, who Appeal Applied for to the Supreme Court. were to testify in the capital murder trial of State v. James Montgomery and Tony Carruthers. This prior restraint did not Publishing company applied for extraordinary appeal to impede the media from printing the testimony given by these determine whether Criminal Court, Shelby County, Joseph witnesses. B. Dailey, J., properly barred media from publishing name of prosecution witness who appeared in open court during Counsel for the Memphis Publishing Company arrived at the public trial and used true or given name while testifying. courtroom shortly after the ruling. Judge Dailey and counsel The Court of Criminal Appeals, Jones, P.J., held that prior engaged in a discussion of the facts and the law governing restraint placed on name of witness violated First Amendment prior restraints. Counsel asked Judge Dailey to reconsider his and free press guarantees of State Constitution. ruling. Judge Dailey refused to relent. However, Judge Dailey agreed to meet with counsel later in the day after counsel had Reversed and remanded. the opportunity to research the law controlling the issue in controversy. Attorneys and Law Firms Judge Dailey and counsel for the Memphis Publishing *410 S. Russell Headrick, Memphis, Paul E. Prather, Company met after the trial had recessed for the day. Memphis, Armstrong, Allen, Prewitt, Gentry, Johnson & Again, Judge Dailey and counsel discussed the facts and Holmes, of counsel, for Appellants. the law. Counsel brought to Judge Dailey's attention that approximately one-half of the names on the list distributed Charles W. Burson, Attorney General & Reporter, Amy L. by Judge Dailey had already appeared in articles contained Tarkington, Assistant Attorney General, Nashville, John W. in the Memphis Commercial Appeal, *411 the newspaper Pierotti, District Attorney General, Phillip Gerald Harris, owned and published by Memphis Publishing Company. J. Robert Carter, Assistant District Attorneys General, Judge Dailey subsequently ruled that the Memphis Publishing Memphis, for Appellee. Company could publish the names of eight of the nine prosecution witnesses. However, Judge Dailey kept the prior restraint in place on the name of Andre Johnson. Judge Dailey OPINION stated that he would read the brief and materials furnished by counsel over the weekend and would announce his ruling JONES, Presiding Judge. as to Andre Johnson on Monday morning, April 22, 1996, at This Court granted Memphis Publishing Company's 9:00 a.m. application for an extraordinary appeal 1 to determine Judge Dailey conducted the hearing on Monday morning. He whether a trial court can bar the media from publishing the permitted the Memphis Publishing Company to intervene in name of a prosecution witness when the witness appears in the criminal case. He announced that he was maintaining the open court during a public trial and uses his true or given name prior restraint on Andre Johnson's name. while testifying. In this case, the prior restraint placed upon

Court granted the application. In summary, the Memphis Shortly after the hearing, the Memphis Publishing Company Publishing Company is properly before this Court. filed an application for extraordinary appeal pursuant to Rule 10, Tenn.R.App.P. This Court granted the application on April 23, 1996. The State of Tennessee filed an “Answer in III. Opposition to the Application for Extraordinary Appeal” on April 26, 1996. No other party has expressed an interest in this litigation. Furthermore, the parties have agreed that they do A. not wish to make oral argument in support of their respective positions. Judge Dailey did not conduct a hearing or hear evidence before placing the prior restraint upon the name of Andre The case of State v. Montgomery and Carruthers terminated Johnson. It appears that a potential prosecution witness saw on Friday, April 26, 1996. The jury convicted both the name of a prior prosecution witness named in a newspaper Montgomery and Carruthers of three counts of murder in the article, exited the back door of his home, and went into hiding. first degree, especially aggravated kidnaping, and especially The potential witness failed to appear in court as required. aggravated robbery. The jury subsequently returned three An investigator for the District Attorney General's Office death sentences for both defendants, one for each victim. sought the potential witness. The investigator in turn told an assistant district attorney general what had occurred, and the assistant district attorney general told the trial court what had been reported to him. 5 Judge Dailey stated that placing the II. name of Andre Johnson in the newspaper might scare other [1] The proper way to test a prior restraint is by motion to witnesses from appearing to testify. intervene. An interested person or media representative must seek permission to intervene before the party has standing 5 Judge Dailey acknowledged that the information he was to contest the prior restraint, and, ultimately, test it in the relating was “third hand” hearsay. appellate court. 2 The prior restraint did not preclude the Memphis Publishing Company from printing *412 the testimony, or excerpts of 2 State v. Drake, 701 S.W.2d 604, 608 (Tenn.1985). the testimony, given by Andre Johnson. Moreover, the name of Andre Johnson can be printed by the Memphis Publishing [2] If a person or entity has been permitted to intervene Company after the trial has been concluded. and the trial court refuses to dissolve the prior restraint, the intervenor may seek appellate review pursuant to Rule This was a public trial where the families of the accused, 3 10, Tenn.R.App.P. Recently, the Tennessee Supreme Court the families of the victims, and interested spectators were adopted Rule 30, which governs media coverage in the permitted to enter the courtroom and listen to the testimony courtroom. This rule provides an aggrieved party with of all of the witnesses. When Andre Johnson appeared as a the right to seek appellate review pursuant to Rule 10, prosecution witness, he identified himself as Andre Johnson; Tenn.R.App.P. See Tenn.Sp.Ct.R. 30(E). 4 the people inside the courtroom heard him state his true or given name as well as the testimony that he gave. Ironically, Johnson was well known—a personal acquaintance—of 3 Drake, 701 S.W.2d at 608; see State v. James, 902 S.W.2d 911 (Tenn.1995). both defendants, Montgomery and Carruthers. Johnson, like Montgomery and Carruthers, was a member of a gang. He, 4 This rule exempts the print media who are not using like the defendants, trafficked in narcotics, and he had been cameras in the courtroom. Tenn.Sup.Ct.R. 30(F)(5). previously convicted of a criminal offense and served time for In this case, the Memphis Publishing Company sought the offense. The Memphis Publishing Company printed the permission and was granted the right to intervene in the substance of Johnson's testimony, but did not print Johnson's criminal case. When the trial court refused to remove the prior name. restraint, the Memphis Publishing Company sought appellate review in this case pursuant to Rule 10, Tenn.R.App.P. This

measures to ensure that the balance is never weighed against the accused. B. And appellate tribunals have the duty [3] It has long been established that what occurs in a to make an independent evaluation of the circumstances. Of course, there is public courtroom constitutes public property. 6 Equally well- nothing that proscribes the press from established is that a court does not have special rights reporting events that transpire in the “which enables it, as distinguished from other institutions of 10 democratic government, to suppress ... or censor events which courtroom. transpire [in public] proceedings before it.” 7 Thus, “[t]hose who see and hear what transpired [in open court] can report 10 384 U.S. at 362–63, 86 S.Ct. at 1522, 16 L.Ed.2d at 620 it with impunity.” 8 (emphasis added). In Nebraska Press Ass'n v. Stuart, the preliminary hearing 6 Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, was open to public. However, the court entered an order 91 L.Ed. 1546 (1947). that prohibited everyone in attendance from “releas[ing] or authoriz[ing] the release for public dissemination in any 7 Craig, 331 U.S. at 374, 67 S.Ct. at 1254. form or manner whatsoever any testimony given or evidence 11 8 Craig, 331 U.S. at 374, 67 S.Ct. at 1254. adduced” during the preliminary hearing. The Supreme Court, citing Sheppard, held that this prior restraint violated The United States Supreme Court has reiterated what it said the First Amendment. In ruling, the court said: in Craig on numerous occasions; when there is an open, public trial, the media has an absolute right to publish any 11 information that is disseminated during the course of the 427 U.S. at 542, 96 S.Ct. at 2795, 49 L.Ed.2d at 688. trial. 9 This Court will discuss the salient portions of these decisions. To the extent that this order prohibited the reporting of evidence adduced at the open preliminary hearing, 9 it plainly violated settled principles: “there is nothing See Oklahoma Publishing Co. v. District Court, 430 U.S. *413 that proscribes the press from reporting events that 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977); Nebraska transpire in the courtroom....” The County Court could Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 not know that closure of the preliminary hearing was an L.Ed.2d 683 (1976); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); alternative open to it until the Nebraska Supreme Court so Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 construed state law; but “once a public hearing had been L.Ed.2d 600 (1966). held, what transpired there could not be subject to prior 12 In Sheppard v. Maxwell, the United States Supreme Court restraint.” was concerned with the right of the accused to receive a fair 12 427 U.S. at 568, 96 S.Ct. at 2807, 49 L.Ed.2d at 703 trial. There was enormous media coverage surrounding the (emphasis added) (citations omitted). prosecution of Dr. Sheppard for the murder of his wife. In In Oklahoma Publishing Co. v. District Court, the trial court ruling, the court said in part: entered a pretrial order which “enjoined members of the news media from ‘publishing, broadcasting, or disseminating in From the cases coming here we 13 note that unfair and prejudicial news any manner, the name or picture of [a] minor child.’ ” The comment on pending trials has become Oklahoma Publishing Company challenged the prior restraint increasingly prevalent. Due process created by the trial court. In ruling, the court said: requires that the accused receive a trial by an impartial jury free from outside 13 430 U.S. at 308, 97 S.Ct. at 1045, 51 L.Ed.2d at 357. influences. Given the pervasiveness of modern communications and the Petitioner asks us to only hold that the First and Fourteenth difficulty of effacing prejudicial Amendments will not permit a state court to prohibit the publicity from the minds of the jurors, publication of widely disseminated information obtained at the trial courts must take strong

court proceedings which were in fact open to the public. to limit access to that information existed.... The trial court We think this result is compelled by our recent decisions in clearly abused its discretion in entering the gag order. 17 Nebraska Press Assn. v. Stuart...., and Cox Broadcasting 17 861 S.W.2d at 268 (citations omitted). Corp. v. Cohn .... * * * * * * [4] In summary, once Andre Johnson testified in open court and revealed his first and last name, no valid reason The court below found the rationale of these decisions to existed for the prior restraint on Johnson's name. The trial be inapplicable here because a state statute provided for court's refusal to remove the prior restraint violated the First closed juvenile hearings unless specifically opened to the Amendment rights of the Memphis Publishing Company and public by court order and because “there is no indication its employees. The law is crystal clear: the media may publish that the judge distinctly and expressly ordered the hearing the names and testimony of witnesses testifying in open court to be public.” We think Cox and Nebraska Press are during a public trial with impunity. Any restraint *414 controlling nonetheless. Whether or not the trial judge placed on this right is violative of the First Amendment. expressly made such an order, members of the press were in fact present at the hearing with the full knowledge of the presiding judge, the prosecutor, and the defense counsel. IV. No objection was made to the presence of the press in the courtroom or to the photographing of the juvenile as he The State of Tennessee has filed a motion to dismiss this left the courthouse. There is no evidence that petitioner appeal. The motion alleges that the issue to be decided is moot acquired the information unlawfully or even without the because the trial has ended and the prior restraint on the name State's implicit approval. The name and picture of the of Andre Johnson has been removed. The trial court ruled that juvenile here were “publicly revealed in connection with the Memphis Publishing Company could publish Johnson's the prosecution of the crime....” Under these circumstances, name after the trial had ended. The Memphis Publishing the District Court's order abridges the freedom of the press Company, relying on the exceptions to the mootness doctrine, in violation of the First and Fourteenth Amendments. 14 argues that this Court should address the issue on the merits since it involves a constitutional right. 14 430 U.S. at 310–12, 97 S.Ct. at 1046–47, 51 L.Ed.2d at 358–59 (citations omitted). [5] This jurisdiction recognizes two exceptions to the mootness doctrine. First, if the error is capable of repetition 15 In San Antonio Express–News v. Roman, a case strikingly but may evade appellate review, an appellate court may similar to this case, two minor witnesses testified as defense address the issue on the merits. Second, if the issue to witnesses. When the minors completed their respective be decided is of great public interest and important to the testimony, “the trial court ordered ... the news media in administration of justice, an appellate court may address general not to broadcast, report, or publish the names of these the issue on the merits. Both of these exceptions were two minor witnesses.” 16 In holding that the order of the trial recognized in the recent case of State v. Morrow and Meredith court violated the constitutional rights of the media, the Texas Corp., 18 where this Court addressed a violation of Rule 30, Court of Appeals said: Tennessee Supreme Court. This Court addressed the issue notwithstanding the fact the trial had ended and the relief 15 861 S.W.2d 265 (Tex.Ct.App.1993). sought could not be implemented.

16 861 S.W.2d at 266. 18 Robertson County No. 01–C–01–9601–CC–00022, slip op. at 4, n. 2, 1996 WL 170679 (Tenn.Crim.App., In the instant case, the trial was open to the public and Nashville, April 12, 1996). was attended by the general public as well as the media. The testifying minors identified themselves by first and last names and gave public testimony. No request to conceal A. their identities was made prior to their giving testimony. Once their names were placed in the public record, before a courtroom of spectators, no constitutionally valid reason

The United States Supreme Court addressed the first this time, there is certainly a reasonable expectation that the 23 exception to the mootness rule in Gannett Co. v. procedure in question could be repeated. DePasquale. 19 As the Court said in Gannett: 23 See Nebraska Press Ass'n, 427 U.S. at 546–47, 96 S.Ct. at 2797, 49 L.Ed.2d at 690. 19 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608, 620 (1979). B. To meet that test, two conditions must be satisfied: “(1) the challenged action was in its duration too short to be fully The second exception, issues of great public interest and litigated prior to its cessation or expiration, and (2) there importance to the administration of justice, has been was a reasonable expectation that the same complaining recognized in several cases. 24 The First Amendment rights 20 party would be subjected to the same action again.” of the press are always of great public interest and are of vital 20 443 U.S. at 377, 99 S.Ct. at 2904, 61 L.Ed.2d at 620 importance to the administration of justice in this state. As a (quoting from Weinstein v. Bradford, 423 U.S. 147, 149, result, the appellate courts of this state have zealously guarded 96 S.Ct. 347, 349, 46 L.Ed.2d 350, 353 (1975)). the First Amendment rights of the print and electronic media.

This exception is recognized in McIntyre v. Traughber 21 and 24 See Walker v. Dunn, 498 S.W.2d 102, 104 (Tenn.1972); LaRouche v. Crowell. 22 New Rivieria Arts Theatre v. State ex rel. Davis, 219 Tenn. 652, 658, 412 S.W.2d 890, 893 (1967); McIntyre, 21 884 S.W.2d 134, 137 (Tenn.App.1994). 884 S.W.2d at 137.

22 709 S.W.2d 585, 587 (Tenn.App.1985). [6] These conditions have been met in this case. The ruling SUMMERS and HAYES, JJ., concur. came within the last week of the trial. It expired at the All Citations conclusion of the trial. Thus, it was too short in duration to permit full review. If this procedure is not corrected at 929 S.W.2d 409, 24 Media L. Rep. 2172

Criminal Appeals affirmed the convictions and sentences of both Carruthers and Montgomery. Thereafter, the cases were 35 S.W.3d 516 docketed in this Court. After carefully reviewing the record Supreme Court of Tennessee, *524 and the relevant legal authorities, we conclude that at Jackson. none of the errors raised by Tony Carruthers require reversal, STATE of Tennessee that the evidence is sufficient to support the jury's findings v. of the aggravating circumstances, and that the sentences of death are not excessive or disproportionate considering the Tony V. CARRUTHERS & James Montgomery. circumstances of the crimes and the defendant. With respect Dec. 11, 2000. to James Montgomery, we conclude that the trial court erred in denying him a severance and that the error resulted in Defendants were convicted after joint jury trial in the Montgomery being deprived of a fair trial. Accordingly, we Criminal Court, Shelby County, Joseph B. Dailey, J., of reverse Montgomery's convictions and sentences and remand capital murder and were sentenced to death. They appealed. for a new trial. The Court of Criminal Appeals affirmed. On automatic appeal, the Supreme Court, Drowota, J., held that: (1) in a question of first impression, one defendant both forfeited OPINION and implicitly waived his right to appointed counsel and was properly required to proceed pro se; (2) reversible error was The defendants, Tony V. Carruthers and James Montgomery, committed by not severing pro se defendant's trial from that of were each convicted of first degree murder for killing the codefendant; (3) error was harmless in gag order's being Marcellos “Cello” Anderson, his mother Delois Anderson, overly broad; and (4) death sentence imposed upon pro se and Frederick Tucker in Memphis in February of 1994. 1 All defendant was not disproportionate to similar capital murder of the victims disappeared on the night of February 24, 1994. cases. On March 3, 1994, their bodies were found buried together in a pit that had been dug beneath a casket in a grave in a Affirmed in part, and reversed in part, and remanded for new 2 trial as to one defendant. Memphis cemetery.

Birch Jr., J., filed a concurring and dissenting opinion. 1 They were also each convicted of three counts of especially aggravated kidnapping and one count of especially aggravated robbery of Marcellos Anderson. Attorneys and Law Firms 2 James Montgomery's younger brother Jonathan *523 Stephen R. Leffler and Lee A. Filderman, Memphis, Montgomery was also charged on all counts involved TN, for the appellant, Tony V. Carruthers. in this case. However, several months prior to trial, Jonathan Montgomery was found hanged in his cell in Robert C. Brooks and Edward W. Chandler, Memphis, TN, the Shelby County jail. for the appellant, James Montgomery.

Michael E. Moore, Solicitor General; Amy Tarkington, The Guilt Phase Senior Counsel; Phillip Gerald Harris; Assistant District Attorney General; and J. Robert Carter, Jr., Assistant District The proof introduced at the guilt phase of the trial showed Attorney General, for the appellee, State of Tennessee. that one of the victims, Marcellos Anderson, was heavily involved in the drug trade, along with two other men, Andre “Baby Brother” Johnson and Terrell Adair. 3 Anderson wore DROWOTA, J., delivered the opinion of the court, in which expensive jewelry, including a large diamond ring, carried ANDERSON, C.J., HOLDER, and BARKER, JJ., joined. large sums of money on his person, and kept a considerable Tony Carruthers and James Montgomery were each convicted amount of cash in the attic of the home of his mother, victim of three counts of first degree premeditated murder and Delois Anderson. When his body was discovered, Anderson were sentenced to death on each conviction. The Court of was not wearing any jewelry and did not have any cash on

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 120 of 144 1 State v. Carruthers, 35 S.W.3d 516 (2000) which may be drawn from the evidence. See Hall, 8 S.W.3d credibility in favor of the State, and an appellate court may at 599; Bland, 958 S.W.2d at 659. not reconsider the jury's credibility assessments. Moreover, while we have already resolved the severance issue in favor At the time this offense was committed, first degree of Montgomery, we reject his claim that the circumstantial murder was defined as an “intentional, premeditated and evidence was legally insufficient. In our view, the evidence deliberate killing of another.” Tenn.Code Ann. § 39–13– is legally sufficient. See Footnote 39, supra (discussing the 202(a)(1)(1991). 43 “Intentional” is defined as the “conscious applicability of the co-conspirator hearsay exception). objective or desire to engage in the conduct or cause the result.” Tenn.Code Ann. § 39–11–106(a)(18) (1991). Premeditation, on the other hand, requires “the exercise of Issuance of Gag Order reflection and judgment.” Tenn.Code Ann. § 39–13–201(b) (2) (1991). Finally, deliberation requires proof of a “cool Carruthers next argues that the trial court committed purpose” that includes some period of reflection during which reversible error by issuing a “gag order” preventing him from the mind is free from passion and excitement. See Tenn.Code speaking to the media. 44 The trial court's *559 order, issued Ann. § 39–13–201(b)(1) (1991). about a month before the trial began, states:

43 The statute has since been amended and no longer 44 The trial court also issued a gag order preventing the requires proof of deliberation. See Tenn.Code Ann. media from publishing the names of certain prosecution § 39–13–202(a)(1) (1999 Supp.) (“(a) First degree witnesses, which was later modified to prevent the murder is: (1)[a] premeditated and intentional killing of publication of only one prosecution witness. The Court another....”). of Criminal Appeals vacated this order, holding that it [50] [51] [52] The elements of premeditation and was a prior restraint in violation of the First Amendment deliberation are questions of fact to be resolved by the to the United States Constitution. State v. Montgomery, jury. See Bland, 958 S.W.2d at 660. These elements may 929 S.W.2d 409 (Tenn.Crim.App.1996). The gag order prohibiting the attorneys and Carruthers from talking to be established by proof of the circumstances surrounding the media, however, remained in place throughout trial. the killing. Id.; see also State v. Brown, 836 S.W.2d 530, 539 (Tenn.1992). As we stated in Bland, there are several The Constitutions of the United States and the State of factors which tend to support the existence of these elements Tennessee guarantee defendants in all criminal cases due including: the use of a deadly weapon upon an unarmed process of law and the right to a fair and impartial jury. It victim; the particular cruelty of the killing; declarations by is the duty of the trial court to see that every defendant is the defendant of an intent to kill; evidence of procurement afforded all his constitutional rights. of a weapon; preparations before the killing for concealment of the crime; and calmness immediately after the killing. See In order to safeguard those rights, this Court is of State v. Pike, 978 S.W.2d 904, 914 (Tenn.1998); Bland, 958 the opinion that the following rule is necessary to S.W.2d at 660; Brown, 836 S.W.2d at 541–42; State v. West, constitutionally guarantee an orderly and fair trial by 844 S.W.2d 144, 148 (Tenn.1992). an impartial jury. Therefore, this Court orders the following: [53] [54] Having reviewed the proof in the light most favorable to the State, as we are required to do, we agree with All lawyers participating in this case, including any the Court of Criminal Appeals that the evidence is legally defendants proceeding pro se, the assistants, staff, sufficient to support the jury's verdicts as to each defendant. investigators, and employees of investigators are The trial proof has been thoroughly and fully summarized. forbidden to take part in interviews for publicity and With respect to Carruthers' challenges to the State's witnesses, from making extra-judicial statements about this case suffice it to say that, through cross-examination, the jury from this date until such time as a verdict is returned in was made aware that some of the witnesses had prior felony this case in open court. records, that some of the witnesses admitted to past drug dealing, and that some of the witnesses had given inconsistent Because of the gravity of this case, because of the long statements to the police regarding the events of February 24 history of concerns for the personal safety of attorneys, and 25, 1994. However, the jury resolved these issues of litigants and witnesses in this case, because of the

potential danger—believed by this Court to be very real The Court of Criminal Appeals rejected Carruthers' and very present—of undermining the integrity of the arguments and upheld the gag order in its entirety. As noted judicial system by “trying the case in the media” and in its opinion, the following circumstances were considered of sullying the jury pool, this Court feels compelled to *560 by the trial court as reasons for issuing the gag adopt this extraordinary pretrial measure. order: numerous threats to attorneys; the death of one of Carruthers challenges this order as violating his right to the co-defendants; the highly-charged emotional climate of a fair trial, guaranteed by the Sixth Amendment to the the trial (e.g., the courtroom was guarded by S.W.A.T. United States Constitution and Article I, Section 9 of the team members); the gunning down of a deputy jailer in his Tennessee Constitution. Carruthers is correct to rely upon the driveway, which the trial judge thought was related to the Sixth Amendment. We note, however, that the United States case; the fleeing of one witness after reading about the case Supreme Court has stated that a “right to fair trial” claim also in the newspaper; and the statements of two witnesses who implicates the Fifth and Fourteenth Amendment Due Process had already testified that defendant Montgomery threatened Clauses. See, e.g., Strickland v.. Washington, 466 U.S. 668, to kill them if they talked about the case. Also, as the 684–85, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) ( “The Court of Criminal Appeals noted, Alfredo Shaw testified that Constitution guarantees a fair trial through the Due Process Carruthers threatened him and made arrangements to have a Clauses, but it defines the basic elements of a fair trial largely reporter interview him about recanting his story. Thus, the through the several provisions of the Sixth Amendment.”). court held that the trial judge was properly concerned about Nonetheless, numerous courts have referred simply to the the media's influence on the potential jury pool and the safety Sixth Amendment right to a fair trial in this context, and we of all involved in the trial. The court also held that the public will do the same. See, e.g., In re Dow Jones & Co., Inc., 842 was certainly aware of the trial from the media's coverage and F.2d 603, 609 (2d Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. that Carruthers' statements to the press would not likely have 377, 102 L.Ed.2d 365 (1988); United States v. Ford, 830 F.2d led to unknown witnesses coming forward. 596, 600 (6th Cir.1987). We agree with the Court of Criminal Appeals' judgment that Carruthers also raises First Amendment concerns, which under these circumstances a gag order was proper. We hold, is understandable given that gag orders exhibit the however, that under the constitutional standards discussed characteristics of prior restraints. See United States v. Brown, below, the scope of that order was too broad. Nevertheless, 218 F.3d 415, 424 (5th Cir.2000). But see Dow Jones, 842 given the circumstances of this case, the error is harmless. F.2d at 608 (noting a “substantial difference” between a restraint on the press and a restraint on trial participants). Yet Numerous courts have recognized that the correct standard by the crux of Carruthers' argument on appeal is that his defense which to evaluate the constitutionality of gag orders depends was inhibited because he could not respond to the media's upon who is being restrained: the press or trial participants. coverage of the trial; he could do nothing to alter the jurors' See, e.g., Brown, 218 F.3d at 425; Dow Jones, 842 F.2d at preconceptions about the case gained from their exposure 608. If the gag order is directed to the press, the constitutional to news reports. Carruthers also argues that his inability to standard is very stringent. See Montgomery, 929 S.W.2d at speak to the press may have prevented potential witnesses 414 (discussing Nebraska Press Ass'n v. Stuart, 427 U.S. 539, from coming forward to his defense. Properly stated, then, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)). Carruthers' appeal his argument asserts that the gag order interfered with his before this Court, however, concerns the trial court's gag order right to a fair trial. To the extent Carruthers' brief raises a directed to him, a defendant, representing himself at trial. First Amendment claim, however, we find it moot. By its own terms, the trial court's order ceased to exist upon the As the United States Court of Appeals for the Fifth Circuit return of the verdict, which occurred several years ago. Of has recently determined, the federal circuit courts are split course, since a gag order is by definition a restriction on as to the correct constitutional standard governing gag orders speech, our review of Carruthers' Sixth Amendment claim on trial participants. See Brown, 218 F.3d at 425–28. For demands consideration of First Amendment principles. As is example, the Sixth Circuit has held that gag orders on clear from the case law, discussed below, the proper standard trial participants must meet the exacting “clear and present governing the validity of gag orders explicitly incorporates danger” test for free speech cases enunciated in Near v. these principles, as do we in our analysis. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). See Ford, 830 F.2d at 598 (“We see no legitimate reasons for

© 2015 Thomson Reuters.Raybin, No claim Meet to original the Press U.S. Government Seminar Works. Page 122 of 144 30 State v. Carruthers, 35 S.W.3d 516 (2000) a lower standard for individuals [as compared to the press].”). rests on its interpretation of Gentile v. State Bar of Nevada, Accord Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). The 249 (7th Cir.1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3201, Brown court determined that Gentile rejected the clear and 49 L.Ed.2d 1204 (1976) (applying a “serious and imminent present danger test for trial participants and that Gentile is threat” test); Levine v. United States District Court, 764 F.2d the Supreme Court's latest discussion of the issue. See Brown, 590, 595–96 (9th Cir.1985), cert. denied, 476 U.S. 1158, 106 218 F.3d at 426–28 (noting that the cases endorsing the more S.Ct. 2276, 90 L.Ed.2d 719 (1986) (same). In contrast, the stringent test predated Gentile ). We agree with the Brown Second, Fourth, and Tenth Circuits analyze the validity of gag court's holding. orders on trial participants under the less stringent standard of whether the participant's comments present a “reasonable Gentile involved an attorney who held a press conference likelihood” of prejudicing a fair trial. See Dow Jones, 842 the day after his client was indicted on criminal charges. F.2d at 610; In re Russell, 726 F.2d 1007, 1010 (4th Cir.), See Gentile, 501 U.S. at 1063–65, 111 S.Ct. at 2738–40 cert. denied, 469 U.S. 837, 105 S.Ct. 134, 83 L.Ed.2d 74 (discussing the facts). The attorney proclaimed his client's (1984); United States v. Tijerina, 412 F.2d 661, 666–67 (10th innocence, strongly suggested that a police detective was Cir.), cert. denied, 396 U.S. 990, 90 S.Ct. 478, 24 L.Ed.2d in fact the perpetrator, and stated that the alleged victims 452 (1969). See also News–Journal Corp. v. Foxman, 939 were not credible. Although the trial court “succeeded in F.2d 1499, 1512–15 (11th Cir.1991) (discussing the case law empaneling a jury that had not been affected by the media authority for the less stringent standard). Without deciding coverage and [the client] was acquitted on all charges, whether to adopt the “reasonable likelihood” standard, the the [Nevada] state bar disciplined [the attorney] for his Fifth Circuit determined that the “clear and present danger” statements.” Id. at 1064, 111 S.Ct. at 2739. The Nevada test was not required, and analyzed the case before it under a Supreme Court upheld the state bar's disciplinary action, “substantial likelihood” test. See Brown, 218 F.3d at 427–28. finding that the attorney “knew or reasonably should have known that his comments had a substantial likelihood of [55] Although this Court has upheld restraints on trial materially prejudicing the adjudication of his client's case.” participants, see State v. *561 Hartman, 703 S.W.2d 106 Id. at 1065, 111 S.Ct. at 2739. Although the Supreme (Tenn.1985) (order restraining counsel from talking with Court reversed this judgment because it found the Nevada the public or media about the facts of the case), we have Supreme Court's construction of the disciplinary rule “void never discussed the underlying constitutional issues. We for vagueness,” id. at 1048–51, 111 S.Ct. at 2731–32, a therefore decide this issue based on our own interpretation majority of the Court held that the “substantial likelihood of United States Supreme Court precedent and the Tennessee of prejudice” test struck the proper constitutional balance Constitution with guidance from the federal circuit courts. 45 between an attorney's First Amendment rights and the state's We note that the Court of Criminal Appeals' opinion interest in fair trials. Id. at 1065–76, 111 S.Ct. at 2740–45. 46 emphasizes that “[t]he twist in this case, however, is that Carruthers was representing himself during trial.” Although 46 In Zimmermann v. Board of Professional Responsibility, this fact is relevant in applying the constitutional standard 764 S.W.2d 757 (Tenn.1989) we upheld Disciplinary to determine whether Carruthers' right to a fair trial was Rule 7–107(B) and (E), which govern extrajudicial breached, our review of the case law indicates that the statements made by attorneys in criminal cases, under constitutional standard is the same regardless of which trial the Tennessee and United States Constitutions. The participant is restrained. Zimmermann holding was, in part, based on a decision of the New Jersey Supreme Court analyzing the balance between First Amendment rights and the need to ensure 45 Though they are persuasive authority when interpreting the fair administration of justice. Zimmermann, 764 the United States Constitution, this Court is not bound S.W.2d at 761 (discussing In re Rachmiel, 90 N.J. 646, by decisions of the federal district and circuit courts. 449 A.2d 505 (1982)). Both Zimmermann and In re We are bound only by decisions of the United States Rachmiel, however, were decided before Gentile. In light Supreme Court. See Strouth v. State, 999 S.W.2d 759, of Gentile, we have reconsidered the constitutional issues 769 n. 9 (Tenn.1999); State v. McKay, 680 S.W.2d 447, at stake under both the Tennessee and United States 450 (Tenn.1984). Constitutions. The Brown court's decision to follow a “substantial likelihood” test rather than the “clear and present danger” test

In so doing, the Court held that the stringent standard recognized by an earlier case, Seattle Times Co. v. Rhinehart, governing restraints on the press articulated in Nebraska 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Id. Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 at 1072–73, 111 S.Ct. at 2743–44. As characterized by the L.Ed.2d 683 (1976) should not apply to restraints on lawyers Gentile Court, the Court in Seattle Times “unanimously held whose clients are parties to the proceeding. Id. at 1074, that a newspaper, which was itself a defendant in a libel 111 S.Ct. at 2744. See also News–Journal Corp., 939 F.2d action, could be restrained from publishing material about at 1512–13 (noting that the Supreme Court has suggested the plaintiffs and their supporters to which it had gained *562 restricting trial participants as an alternative to a prior access through court-ordered discovery.” Id. at 1073, 111 restraint on the media). The Court quoted with approval S.Ct. at 2744. The Gentile Court then quoted from Seattle from Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 Times as follows: “[a]lthough litigants do not ‘surrender L.Ed.2d 600 (1966) in which the defendant's conviction was their First Amendment rights at the courthouse door,’ those overturned because of prejudicial publicity that prevented rights may be subordinated to other interests that arise in this him from receiving a fair trial: setting” (citation omitted); and further, “on several occasions [we have] approved restriction on the communications of The courts must take such steps by rule trial participants where necessary to ensure a fair trial for a and regulation that will protect their criminal defendant.” Id. The Court also stated that “[f]ew, processes from prejudicial outside if any interests under the Constitution are more fundamental interferences. Neither prosecutors, than the right to a fair trial by ‘impartial’ jurors, and an counsel for defense, the accused, outcome affected by extrajudicial statements would violate witnesses, court staff nor enforcement that fundamental right.” Id. at 1075, 111 S.Ct. at 2745 (citing officers coming under the jurisdiction Sheppard, 384 U.S. at 350–51, 86 S.Ct. at 1515–16). of the court should be permitted to frustrate its function. Collaboration We conclude that the concerns raised in Gentile and Sheppard between counsel and the press as to are applicable regardless of whether a party or his or her information affecting the fairness of attorney is being restrained. A prejudicial statement made a criminal trial is not only subject to to the press by an attorney is not somehow less prejudicial regulation, but is highly censurable if made by a party. In short, what matters is what is being and worthy of disciplinary measures. said and not who is saying it. See Brown, 218 F.3d at 384 U.S. at 363, 86 S.Ct. at 1522. 428 (“As the district court pointed out, trial participants, like attorneys, are ‘privy to a wealth of information that, Id. at 1072, 111 S.Ct. at 2743. if disclosed to the public, could readily jeopardize the fair trial rights of all parties.’ ”). If anything, as one court has As the Brown court held, however, see Brown, 218 F.3d at reasoned, extrajudicial comments made by trial participants 426, the Court in Gentile did not conclude that the “substantial have the potential to be more harmful than comments made likelihood of prejudice” test was required; it held only that by attorneys: this test complies with the First Amendment. See Gentile, 501 U.S. at 1075, 111 S.Ct. at 2745 (“We agree with the majority Gentile involved a state supreme of the States that [this standard] constitutes a constitutionally court rule governing the conduct permissible balance between the First Amendment rights of members of the bar of that of attorneys in pending cases and the State's interest in state, while we examine *563 a fair trials.”). Moreover, Gentile involved a restraint on an state trial court's restrictive order attorney's speech; in this case, Carruthers was a party as entered in a particular case and well as his own attorney. It is necessary, therefore, to decide directed to all trial participants. whether the Gentile rationale applies to parties. Because of their legal training, attorneys are knowledgeable regarding Although unnecessary to its holding, we find significant which extrajudicial communications evidence in the Gentile opinion that the clear and present are likely to be prejudicial. The danger test is not required for gag orders restraining parties or other trial participants encompassed other trial participants. The Court emphasized the distinction by the restrictive order in this between “participants in the litigation and strangers to it” as case did not have such legal

discernment and expertise. Given the were present daily to record the public attention generated by this proceedings. case, defendants, witnesses and law enforcement personnel were eager to In addition to its concerns about media coverage, the trial talk with the press concerning their court was presented with the problem of witness intimidation. particular views. While attorneys can The trial judge found that witnesses who had already testified be governed by state supreme court or stated that defendant Montgomery threatened to kill them if bar rules, other trial participants do not they talked. Moreover, Alfredo Shaw testified that Carruthers have these guidelines. News–Journal had threatened him and made arrangements to have a reporter Corp., 939 F.2d at 1515 n. 18. interview him about recanting his story. Under these unusual circumstances, the trial court was justified in employing Thus, we conclude that for purposes of the constitutional heightened measures to ensure that a proper jury could be right to a fair trial, Gentile's rationale applies to all trial found and to prevent Carruthers from manipulating the media participants, meaning that the more stringent clear and present so as to intimidate witnesses. The trial judge could not ignore danger test is not required. these issues. Indeed, he had a constitutional duty under the state and federal constitutions to ensure a fair trial. [56] Having decided that the clear and present danger test is not constitutionally mandated, we must now decide which Before a gag order can be entered, however, the case test to adopt: the “substantial likelihood of prejudice” test or, law suggests that a trial court should consider reasonable as some courts have employed, the “reasonable likelihood” alternative measures that would ensure a fair trial without test. As noted, Gentile held only that the substantial restricting speech. In the context of restraints on the press, the likelihood test was constitutional, not that it was required. United States Supreme Court has specifically held that a trial See Brown, 218 F.3d at 426–28; News–Journal Corp., court should consider such measures. See Nebraska Press, 939 F.2d at 1515 n. 18. Nonetheless, we conclude under 427 U.S. at 563–64, 96 S.Ct. at 2804–05. These measures both the state and federal constitutions that the substantial include: a change of trial venue; postponement of the trial to likelihood test strikes a constitutionally permissible balance allow public attention to subside; searching questions *564 between the free speech rights of trial participants, the of prospective jurors; and “emphatic” instructions to the Sixth Amendment right of defendants to a fair trial, and jurors to decide the case on the evidence. Id. (discussing the State's interest in a fair trial. Cf. Gentile, 501 U.S. at Sheppard, 384 U.S. at 357–62, 86 S.Ct. at 1519–22). 1070, 111 S.Ct. at 2742. Accordingly, we hold that a trial court may constitutionally restrict extrajudicial comments by Although it is not clear whether the need to consider trial participants, including lawyers, parties, and witnesses, alternatives is also necessary in the context of restraints on when the trial court determines that those comments pose a trial participants, some federal circuit courts have assumed substantial likelihood of prejudicing a fair trial. so, see, e.g., Brown, 218 F.3d at 430–31; Dow Jones, 842 F.2d at 611–12, and the trial judge considered several of the [57] Under this constitutional standard, we hold that the trial alternatives. The trial court found that neither a change of court was justified in imposing a gag order on Carruthers. venue nor a continuance was practical because the case was At trial, this case garnered a significant amount of media several years old and one attempt to try the case had already coverage, raising the concerns expressed in Sheppard. As been made. The court appropriately gave careful attention Carruthers himself notes in his brief: to voir dire and jury instructions, but determined that these alternatives alone were insufficient. This trial was charged with emotion from start to finish. There were Given the extraordinary nature of this case, we hold that allegations of gang affiliations and the trial court was entitled to make this judgment. We also testimony of large scale narcotics note that in addition to and apart from the concerns about dealings. The courtroom was guarded pretrial publicity interfering with the task of finding an by S.W.A.T. team members and by unbiased jury, the trial court was concerned about witness Sheriff's deputies who were authorized intimidation and Carruthers' potential manipulation of the to search those entering the courtroom. press. None of the alternatives mentioned in Nebraska Press Representatives of news organizations and Sheppard would likely have alleviated these concerns.

The trial court reasonably concluded that only a gag order order in Dow Jones was similar. See Dow Jones, 842 F.2d at would be effective. Finally, we note that the alternatives 606. mentioned above are not free of cost to the judicial system. As the Gentile Court wrote: [59] Given the history of this trial, we certainly understand why the trial court crafted such a broad order. Indeed, in Even if a fair trial can ultimately certain cases, as where a defendant takes *565 advantage of be ensured through voir dire, change a limited gag order or fails to comply with it, an order of such of venue, or some other device, breadth may be justified. Nonetheless, we hold that initial these measures entail serious costs gag orders on trial participants should ordinarily contain to the system. Extensive voir dire the exceptions found in the Brown order and allow trial may not be able to filter out all of participants to make general statements asserting innocence, the effects of pretrial publicity, and commenting on the nature of an allegation or defense, and with increasingly widespread media discussing matters of public record. coverage of criminal trials, a change of venue may not suffice to undo the [60] We find the trial court's failure to include these effects of statements such as those exceptions in the gag order was harmless error. We fail to made by the petitioner. Gentile, 501 see how limited statements made by Carruthers to the media U.S. at 1075, 111 S.Ct. at 2745. about his innocence, allegations or defenses, or matters in the public record would have altered the result of the trial. We do [58] Having decided that the trial court did not err in issuing not think that allowing Carruthers to make such statements the gag order, the final issue to consider is the scope of the would have furthered the goal of finding an impartial jury, nor order. As discussed above, Carruthers' argument on appeal do we think it probable that any new witnesses would have is properly construed as a “right to fair trial” claim rather come forward. We also point out that these crimes occurred than a First Amendment claim. Nevertheless, a gag order in 1994, and the gag order was issued only one month before by definition restricts speech. In determining whether a gag trial in 1996. In the two years preceding issuance of the gag order is appropriate, therefore, a court must be mindful that order, Carruthers had access to the media. The record shows “[g]overnment may not regulate expression in such a manner both that he availed himself of that access and that the media that a substantial portion of the burden on speech does not responded by actively covering the trial and events leading up serve to advance its goals.” Ward v. Rock Against Racism, to the trial. Under these circumstances, the error below was 491 U.S. 781, 799, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661 harmless. (1989); see also Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974) (the limitation on speech “must be no greater than is necessary or essential to the Sentencing: Non–Capital Offenses protection of the particular governmental interest involved”) (quoted in Brown, 218 F.3d at 429). [61] Citing state and federal constitutional provisions and Tennessee Rule of Criminal Procedure 43, Carruthers next On its face, the trial court's order has no exceptions or contends that his right to be present at a crucial stage of limitations: it prohibits the defendants and their attorneys his criminal proceeding was violated when the trial judge from making any comments to the press about the case. conducted the sentencing hearing on his convictions for This gag order is considerably broader than any upheld especially aggravated robbery and especially aggravated in the cases discussed above. Gentile, though not a gag kidnapping in his absence. The State responds that Carruthers order case, involved a limitation on attorney speech which waived his right to be present because he was voluntarily prohibited only statements “substantially likely to prejudice” absent from the sentencing hearing. We agree. the adjudication of the case. See Gentile, 501 U.S. at 1064, 111 S.Ct. at 2739. Brown involved an order which The record reflects that immediately after the sentencing “left available to the parties various avenues of expression, verdict was rendered on the capital offenses, the trial judge including assertions of innocence, general statements about announced that the sentencing hearing for the non-capital the nature of an allegation or defense, and statements of offenses would be held on May 20, 1996. Carruthers was matters of public record.” Brown, 218 F.3d at 429–30. The present when this announcement was made. The trial judge

J. Change of Venue

Raybin, Meet the Press Seminar Page 127 of 144 IN THE CIRCUIT COURT FOR DICKSON COUNTY, TENNESSEE AT CHARLOTTE

STATE OF TENNESSEE ) ) v. ) Case No. CR7990 ) MITCHELL WAYNE BOWERS )

MOTION FOR CHANGE OF VENUE

Mr. Mitchell Bowers asserts that he cannot receive a fair and impartial trial in

Dickson County because of the sheer number of citizens in this community who have indicated a prejudice and bias against him and who have presumably expressed their prejudices and biases to other Dickson County residents who will serve on the jury. Thus,

Mr. Bowers requests that this Court transfer this case to another venue. As required by Rule

21(b), Tenn. R. Crim. P., and as recognized in State v. Davidson, 121 S.W.3d 600, 611

(Tenn. 2003), this motion is accompanied by affidavits demonstrating the prejudice.

Mr. Bowers is a truck driver. On July 8, 2005 he departed from the lane of traffic and struck and killed a trooper who was standing out of the right-of-way, some short distance over the fog line, while the trooper was writing a ticket to a motorist. After stopping his truck and telling an assisting officer that he was the driver involved, Mr.

Bowers was arrested at the scene.

Raybin, Meet the Press Seminar Page 128 of 144 Mr. Bowers was charged with a non-alcohol related vehicular homicide in violation of Tenn. Code Ann. § 29-13-213, a Class C Felony. Mr. Bowers was later charged with a violation of Tenn. Code Ann. § 55-8-132 – the so-called move-over law – which is a

Class C Misdemeanor punishable by the terms of Tenn. Code Ann. § 55-8-132 with a

$50.00 fine. On July 11, 2005 the general sessions judge fixed a bond at one million dollars. The matter was bound over to the grand jury on July 15th, and the grand jury indicted Mr. Bowers in September. On September 12, 2005 Mr. Bowers was arraigned in this Court, and his bond was reduced to a quarter of a million dollars following an evidentiary hearing. Mr. Bowers was released four days later through a professional bonding company.

The victim, Trooper Todd Larkins, was a young, popular law enforcement officer whose tragic death inflamed the community. In preparation for the trial the defense became aware of pervasive publicity surrounding the case, which has continued unabated in this county of approximately 45,000 souls.

The accident occurred on the interstate and, as is becoming more common, a huge seven-foot cross was erected at the scene within days of the tragedy. More recently, the government erected a large “move-over” sign, which was intentionally located within a mile of the location of the officer’s death (and the seven-foot cross). Source: Department of Safety Website noting that the sign was erected on “I-40 east, Dickson Co., mile marker

173, near Trooper Larkin accident site.” See page 36 of the attachment to the Raybin

Affidavit. These publicly visible signs are intended to catch the attention of all drivers as they pass by. However, they are particularly meaningful to members of the Dickson

Raybin, Meet the Press Seminar Page 129 of 144 County community and can have nothing but an adverse effect on Mr. Bowers’ chances for a fair trial in Dickson County.

The defense commissioned a public opinion survey to gauge community sentiment.

Of those 124 persons who responded to the survey, only two individuals had not heard of the case. The investigators inquired whether Mr. Bowers could have a fair trial in Dickson

County. From the 124 individuals who responded to the survey, the following statistics emerge: 58.9% believed that it would be fairer for the trial to be moved out of Dickson

County, 20.1% either did not know or had no opinion as to whether a fair trial could be conducted in Dickson County, and only 21.0% believed that a fair trial could be conducted in Dickson County. The survey is unassailable given that ALL of the those surveyed had been members of the Dickson County jury pools between March and July of this year.

The survey was completed just prior to the October 8, 2005 rally staged by the trooper’s friends in Dickson to raise money and publicize the move-over law. The rally – attended by hundreds of people – included tee-shirts and bumper stickers containing the trooper’s name and badge number. Naturally this event was subject to wide media attention in the local press and on televised broadcasts to the community.

Rule 22 of the Tennessee Rules of Criminal Procedure requires that a motion for change of venue “be made at the earliest date after which the cause for the change of venue is said to have arisen.” The October 8 rally for Trooper Larkins was the proverbial “last straw,” and thus this motion is promptly tendered to promote the fair administration of justice.

Raybin, Meet the Press Seminar Page 130 of 144 Under the United States Constitution, a defendant must receive a fair trial consistent with constitutional due process. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507

(1966). “The constitutional standard of fairness requires that a defendant have a ‘panel of impartial, indifferent jurors.’” Murphy v. Florida, 421 U.S. 784, 799, 95 S.Ct. 2031

(1975), quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639 (1961). If a defendant cannot obtain such a jury in the county where the charges are brought, the defendant is entitled to a change of venue, see e.g., Groppi v. Wisconsin, 400 U.S. 505, 510-11, 91 S.Ct.

490 (1971). Indeed, Justice Black has stated that “our system of justice has always endeavored to prevent even the probability of unfairness.” In re Murchinson, 349 U.S.

133, 136, 75 S.Ct. 623 (1955).

The Tennessee constitution also affords a defendant a fair trial consistent with Due

Process. Article I, § 9 of the Tennessee Constitution states that “in all criminal prosecutions, the accused hath the right to…a speedy public trial, by an impartial jury of the County in which the crime shall have been committed….” See also, Tenn. R. Crim.

P. 18(a). Where an impartial jury cannot be had in such a county, Rule 21 of the

Tennessee Rules of Criminal Procedure sets forth the standard, stating, in relevant part: “In all criminal prosecutions the venue may be changed upon motion of the defendant, or upon the court’s own motion with the consent of the defendant, if it appears to the court that, due to undue excitement against the defendant in the county where the offense was committed or any other cause, a fair trial probably could not be had.”

The decision whether to change venue falls within the discretion of the trial court.

State v. Smith, 857 S.W.2d 1, 6 (Tenn. 1993); State v. Melson, 638 S.W.2d 342, 360 (Tenn.

Raybin, Meet the Press Seminar Page 131 of 144 1982); Rippy v. State, 550 S.W.2d 636, 638 (Tenn. 1977). In the context of a pretrial motion, the view of the trial court is necessarily prospective:

The rule is preventative. It is anticipatory. It is not solely curative as is a post-conviction constitutional attack. Thus, the rule evokes foresight, always a more precious gift than hindsight, and for this reason the same certainty which warrants the reversal of a conviction will not always accompany the change of venue. Succinctly, then, it is well-grounded fear that a defendant will not receive a fair and impartial trial which warrants the application of the rule.

United States v. Marcello, 280 F. Supp. 510, 513 (E.D. La. 1968), aff’d, 423 F.2d 993 (5th

Cir. 1970).

Notably, the right to a trial by an impartial jury and in the same county wherein the crime has been committed is the defendant’s right. State ex rel. Lea v. Brown, 64 S.W.2d

841, 849 (Tenn. 1933). Specifically, the Tennessee Constitution, as well as Rule 21 of the

Tennessee Rules of Civil Procedure, confer this right only to the defendant. The purpose of the venue rule is to protect the defendant from being tried in some distant location and with the attendant difficulties in obtaining witnesses.

To establish that a change of venue is merited, it has been said that the defendant must prove that the pre-trial publicity is so excessive and inflammatory that a fair trial probably cannot be had. It is clear that the law does not require the defendant to establish proof of actual prejudice; the applicable test is whether a “fair trial probably could not be had.” Tenn. R. Crim. P. 21(a) (emphasis added).

Raybin, Meet the Press Seminar Page 132 of 144 The United States Supreme Court has stated that the decision to grant or deny a motion for a change of venue is a fact-oriented determination that depends upon the

“totality of the circumstances.” Murphy, 421 U.S. at 799. This fact-oriented determination requires the trial court to examine the content and tone of the publicity, as well as the extent to which it has been disseminated to the public where the cause for transfer of venue is undue excitement. See e.g., Mayola v. Alabama, 623 F.2d 992 (5th

Cir. 1980).

Tennessee courts have identified numerous factors which should be considered in determining whether a change of venue should be granted. Those factors relevant to the pretrial assessment include:

1. The nature, extent, and timing of pretrial publicity. 2. The nature of publicity as fair or inflammatory. 3. The particular content of the publicity. 4. The degree to which the publicity complained of has permeated the area from which the venire is drawn. 5. The degree to which the publicity circulated outside the area from which the venire is drawn. 6. The time elapsed from the release of the publicity until the trial. 7. The participation by police or by prosecution in the release of publicity. 8. The severity of the offense charged. 9. The absence or presence of threats, demonstrations, or other hostility against the defendant. 10. Size of the area from which the venire is drawn. 11. Affidavits, hearsay or opinion testimony of witnesses.

State v. Hoover, 594 S.W.2d 743, 746 (Tenn. Crim. App. 1979), citing 33 A.L.R.3d 1.

Several of the factors identified in Hoover are relevant here.

The severity of the offense and the public reaction are best demonstrated by the unreasonable bond originally set by the general sessions court. Mr. Bowers presented no

Raybin, Meet the Press Seminar Page 133 of 144 risk of flight, yet his bond was fixed at a million dollars, which this Court remarked during the bond reduction hearing, was no bond at all. The original bond amount was published in the media, clearly reinforcing the animosity and uproar of the community regarding the allegations against Mr. Bowers.

The fact that Trooper Larkins lived in and served the Dickson County community enhanced public interest as to the circumstances surrounding his death. Admittedly, when a law enforcement officer loses his life in the line of duty, the tragedy immediately grabs the attention of the public. Moreover, when another person causes a law enforcement officer’s death, the public is even more attentive. However, mere attentiveness is not the situation in this case. This case represents an entire community of people outraged or shocked at the death of a beloved public servant, seeking to vindicate their loss.

There has been extensive media coverage of the “facts” and progression of this case since July 8, 2005. From the moment the accident occurred, the media has covered the circumstances of Trooper Larkins’ death and Mr. Bower’s alleged role in the accident.

The press disseminated to the public at large has been unduly inflammatory to Mr.

Bowers given the charitable view given to the trooper and the hostile tone to the accused:

Trooper's family urges attention to move-over law Hearing testimony indicates suspect veered toward trooper, DA says

By PATRICIA LYNCH KIMBROThe Dickson HeraldPublished: Wednesday, 07/13/05

As they prepared to bury their loved one yesterday, Tennessee Highway Patrol Trooper Todd Larkins' family urged more public awareness of the new “move-over” law and said that,

Raybin, Meet the Press Seminar Page 134 of 144 had it been obeyed by a trucker Friday, it could have prevented the trooper's death. The 31-year-old trooper was struck and killed Friday afternoon after he pulled over a motorist in the eastbound lane on Interstate 40 in Dickson County. A Robertson County man, Mitchell Wayne Bowers, 46, is charged with vehicular homicide in Larkins' death. Yesterday, as plans were under way for a second day of visitation with the trooper's family, they took time out to speak to the media. Larkins' sister, Dianna Murphy, along with his widow, Alicia Larkins, his parents and other loved ones, stood in a flower- filled room in Spann Funeral Home, where they spoke of his love and dedication for his work. “We thank each one of you for your sympathy during this tragic and senseless loss of our loved one,” Murphy said. “This was senseless. My daughter won't have her father there for her sweet-16th birthday. He won't be there for her college graduation,” Alicia Larkins said. “This is something we should not be going through. “We're going to miss him, but we at the same time are going to do all we can to push for more public awareness of the move- over law.” Sgt. Jim Hutcherson, Todd Larkins' supervisor, explained that the new law, which went into effect July 1, 2004, requires motorists whenever possible to move away from the emergency lane into the left lane when they see emergency lights of any kind. Apparently, that didn't happen in this case, officials said. In fact, District Attorney General Dan Alsobrooks said it came out at a bail hearing for Bowers on Monday that the trooper “was at least two feet on the right side of the fog line and that the truck driver came down the road and appeared to veer off on the right side of the road, striking the trooper.” Although Trooper Larkins lived his life “with faith instead of fear,” his family said that was one of his biggest concerns. “My husband did not fear being shot,” Alicia Larkins said.

Raybin, Meet the Press Seminar Page 135 of 144 “His biggest fear was being hit rather than being shot. Sometimes they (motorists) would drive by close enough to see if they could knock his hat off.” Murphy added: “Todd lived with faith, not fear. He loved what he did. “His heart's desire was to serve with the Tennessee Highway Patrol.” The family, who said they have received condolences from Gov. Phil Bredesen, said they will work for more funding or whatever it takes to ensure that the move-over law receives more attention. “This is what he would have wanted,” Alicia Larkins said. Published: Wednesday, 07/13/05

Numerous grassroots efforts, as well as statements by Trooper Larkins’s family and friends, have fostered the message that drivers of tractor-trailers should be more careful by yielding to officers who are involved in traffic stops by changing lanes. Trooper Larkins’ widow, Alicia Larkins, has been actively promoting the “move-over” law as a pivotal law for the protection of law enforcement officials. This has all been publicized in the media as demonstrated in the numerous articles attached to the Raybin affidavit.

The press has continued unabated. Most recently, a “Biker’s Rally” in honor of

Trooper Larkins was conducted in Dickson County, and coverage broadcast on News

Channel 5 at 10:00 p.m. on October 8, 2005. See page 47 of the attachment to the Raybin

Affidavit. The event was used to raise awareness of the “Move-Over” law and to educate drivers in an effort to prevent future deaths. Alicia Larkins spoke in the news segment as well. As noted in the affidavit of Ron Lax, tee-shirts and bumper stickers were sold at the rally. The tee-shirts were black with Trooper Larkins’ badge on the front and back. This

Raybin, Meet the Press Seminar Page 136 of 144 demonstration has permeated the entire county regarding Trooper Larkins’ death given that event was also printed in the Dickson County newspaper:

Wednesday, 10/12/05 Bikers ride in memory of Larkins By Tim AdkinsEditor Family and friends of the late Tennessee Highway Patrol Trooper Todd Larkins came out in full force Saturday to remember the fallen officer and spread the word of the state’s “move over” law. They did so by jumping on their motorcycles for a poker run.“He was a real good friend,” said Doug Pendergrass, a childhood friend of the fallen trooper and who organized the event at Thunder Alley in Dickson.

Larkins, a five-year veteran of the THP, was struck and killed in July by a tractor-tractor on Interstate 40 in Dickson County during a routine traffic stop. Family and friends of Larkins want to prevent this from happening to others by bringing attention to the “move over” law. The law, which went into effect in July 2004, requires all motorists when possible to move over when they see the flashing lights of law enforcement or other emergency vehicles.“If we can save just one life, then all this work will be worth it,” said Alicia Larkins, the late trooper’s wife. Organizers estimate the poker run raised about $5,500 and more is expected. The money will go toward buying bumper stickers and billboard advertisements to promote the law.Pendergrass, who manages the bar at Thunder Alley, was pleased with the huge turnout, which attracted about 200 people.“A lot of people knew Todd,” he said. “And we want to help push the ‘move over’ law.”As a part of the poker run, the bikers stopped at five locations in Middle Tennessee and picked up a card at each one. At the end of the day, they determined who had the best poker hand.A trial date for Mitchell Wayne Bowers, the trucker charged in Larkins’ death, is set for February.

In addition, there is a large cross marking the place on I-40 where Trooper Larkins lost his life. Such a marker serves as a constant reminder to all who pass by, and especially

Raybin, Meet the Press Seminar Page 137 of 144 all Dickson County residents operating a car on the interstate, that Trooper Larkins died there. The cross is approximately seven and a half feet tall and five feet wide. See pages

1 and 2 of the attachment to the Raybin Affidavit (photograph of the cross). As has been noted, there is a “Move Over” sign intentionally posted at approximately mile marker 173 on I-40 East, near the Trooper Larkins’ accident site. See pages 36 and 37 of the attachment to the Raybin Affidavit.

While Mr. Bowers and his counsel certainly agree that the “move-over” law is worthwhile legislation, there has been no evidence establishing that Mr. Bowers could have avoided the accident by taking the action required in the “move-over” law. Therefore, the statements associating Alicia Larkins with the prevention of future officer deaths in this manner are unnecessarily suggestive. Such statements have reinforced the belief that Mr.

Bowers’ acted recklessly in causing the death of Trooper Larkins. See also pages 37-40 of the attachment to the Raybin affidavit showing the Governor’s Website with Move-Over press release and photographs.

Here there is clearly adverse publicity. The defense can also demonstrate the impact of that publicity on the community and, specifically, how that adverse publicity affects potential jurors. See, State v. Davidson, 121 S.W.3d 600 (Tenn.,2003) (“While the defendant did produce evidence of publicity, he presented no affidavits or other evidence that this publicity affected or infected the community.”). To that end, the defense commissioned the aforementioned public opinion survey. The result of the survey, described more fully in the affidavit of Ron Lax which accompanies this Motion, is perhaps

Raybin, Meet the Press Seminar Page 138 of 144 the most conclusive proof that Mr. Bowers cannot be fairly and impartially tried in Dickson

County.

Research has demonstrated that general public opinion surveys of people in the community are subject to the valid criticism that those interviewed may not have qualified as potential jurors and thus their opinions are irrelevant. See, State v. Thacker, 164 S.W.3d

208 (Tenn.2005)(“On cross-examination, Ms. Hudgings admitted that she did not attempt to determine whether or not those persons polled were actually qualified to sit on a jury panel.”), and State v. Davidson, 121 S.W.3d 600(Tenn.,2003)(the state presented the testimony of a criminal investigator and a court clerk who had conducted “informal” surveys in Dickson and Cheatham Counties).

In our case the investigators wanted to avoid some random survey of fifty folks walking out of Kroger or Wal-Mart. Thus, they compared “apples to apples.” The investigators went to the courthouse and acquired the names of 237 persons who had most recently qualified to be in the pool of those called for jury service in Dickson County between March and July of this year. The investigators attempted to contact all 237 names by telephone and interview them. The investigators managed to reach 144 persons of whom 16 refused to participate and 4 would not complete the survey. Of the remaining 124 persons surveyed , 58.9% believed it would be fairer for the trial to be conducted away from Dickson County, while 20.1% either did not know or had no opinion as to whether a fair trial could be conducted in Dickson County. The survey revealed that a minority of

21% believed the case could be tried in Dickson County. An overwhelming 98.4% of those surveyed had heard of the Trooper Larkins’ case.

Raybin, Meet the Press Seminar Page 139 of 144 Lastly, while judicial convenience is not a factor in a change of venue determination, it is a practical consideration. In this case preliminary discovery has disclosed that none of the eye-witnesses to the accident reside in Dickson County. Several live or work in

Davidson or Williamson counties. One of the government’s experts lives in Nashville. The motorist whom Trooper Larkins was ticketing now lives in Knoxville. Naturally, none of the proposed defense witnesses reside in Dickson county. A change of venue is not an intolerable burden.

To try Mr. Bowers in Dickson County – where the community feeling is so strongly set against him – will violate Mr. Bower’s right to a fair trial by an impartial jury. Moreover, a change of venue will not place an undue burden on witnesses.

Therefore, Mr. Bowers respectfully requests that this Court grant this Motion for Change of Venue.

Respectfully submitted,

______David L. Raybin, #3385

Financial Center, 22nd Floor 424 Church Street

Raybin, Meet the Press Seminar Page 140 of 144

K. Speaking to Jurors

Raybin, Meet the Press Seminar Page 141 of 144 Rule 3.5. Impartiality and Decorum of the Tribunal, TN R S CT Rule 8, RPC 3.5

Sup.Ct.Rules, Rule 8, RPC 3.5

Rule 3.5. Impartiality and Decorum of the Tribunal

Currentness

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress, or harassment;

(d) conduct a vexatious or harassing investigation of a juror or prospective juror; or

(e) engage in conduct intended to disrupt a tribunal.

Credits [Adopted September 29, 2010, effective January 1, 2011. Comment amended February 19, 2015, effective May 1, 2015.]

Editors' Notes

COMMENT [1] Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the Tennessee Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions. For example, a lawyer shall not give or lend anything of value to a judge, judicial officer, or employee of a tribunal, except as permitted by Canon 4(D)(5) of the Code of Judicial Conduct. A lawyer, however, may make a contribution to the campaign fund of a candidate for judicial office in conformity with Canon 5(B) of the Code of Judicial Conduct.

[2] During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters or jurors, unless authorized to do so by law or court order. Unless such a communication is otherwise prohibited by law or court order, paragraph (b) of this Rule would not prohibit a lawyer from communicating with a judge on the merits of the cause in writing if the lawyer promptly delivers a copy of the writing to opposing counsel and to parties who are not represented by counsel because that would not be an ex parte communication.

[3] Paragraph (b) also does not prohibit a lawyer from communicating with a judge in an ex parte hearing to establish the absence of a conflict of interest under RPC 1.7(c). In such proceedings, the lawyer is of course bound by the duty of candor in RPC 3.3(a)(3).

[4] A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order entered in the case or by a federal court rule, but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication. As the Court stated in State v. Thomas, 813 S.W. 2d. 395 (Tenn. 1991): “After the trial, communication by a lawyer with jurors is permitted so long as he [or she] refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases. Were a lawyer to be prohibited from communicating after trial with a juror, he [or she] could not ascertain if the verdict might be subject to legal challenge, in which event the invalidity of a verdict might go undetected.” Id. (quoting Tenn. Sup. Ct. R. 8, EC 7-29). The Court went on to state in Thomas that “Rule 8 therefore allows post-trial interviews by Counsel with jurors on these matters without the prior approval of the trial court.” Id. at 396. Although the Court's analysis in Thomas was based on an earlier version of Rule 8 (i.e., the Code of Professional Responsibility), the foregoing principles quoted from Thomas remain valid in the context of RPC 3.5.

[4a] A communication with, or an investigation of, the spouse, child, parent, or sibling of a juror or prospective juror will be deemed a communication with or an investigation of the juror or prospective juror.

[5] The advocate's function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

[6] The duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition. See RPC 1.0(m).

DEFINITIONAL CROSS-REFERENCES “Known” See RPC 1.0(f)

“Tribunal” See RPC 1.0(m)

Notes of Decisions (3)

Sup. Ct. Rules, Rule 8, RPC 3.5, TN R S CT Rule 8, RPC 3.5 The state court rules are current with amendments received through July 15, 2015.

Jurors.

(2) Post-Verdict Interrogation of Jurors. No attorney, party, or representative of either may interrogate a juror after the verdict has been returned without prior approval of the court. Approval of the Court shall be sought only by an application made by counsel orally in open court, or upon written motion which states the grounds and the purpose of the interrogation. If a post-verdict interrogation of one or more members of the jury should be approved, the scope of the interrogation and other appropriate limitations upon the interrogation will be determined by the Judge prior to the interrogation.

Raybin, Meet the Press Seminar Page 144 of 144 Liverman v. City of Petersburg, 844 F.3d 400 (2016) 41 IER Cases 1449

[5] investigations of officers were not pretext for First Amendment retaliation; and 844 F.3d 400 United States Court of Appeals, [6] Court of Appeals would remand officers' municipal Fourth Circuit. liability claim to district court. Herbert E. Liverman; Vance R. Richards, Plaintiffs–Appellants, Affirmed in part, reversed in part, and remanded. v. City of Petersburg; John I. Dixon, III, both individually and in his capacity as the Appeal from the United States District Court for the Chief of Police for the City of Petersburg Eastern District of Virginia, *404 at Richmond. James Bureau of Police, Defendants–Appellees. R. Spencer, Senior District Judge. (3:14–cv–00139–JRS)

No. 15-2207 Attorneys and Law Firms | ARGUED: Andrew Thomas Bodoh, THOMAS H. Argued: October 27, 2016 ROBERTS & ASSOCIATES, PC, Richmond, Virginia, | for Appellants. Leslie A. Winneberger, BEALE, Decided: December 15, 2016 DAVIDSON, ETHERINGTON & MORRIS, P.C., Synopsis Richmond, Virginia, for Appellees. ON BRIEF: Background: Police officers brought action against city William F. Etherington, BEALE, DAVIDSON, and police chief under § 1983, alleging that department's ETHERINGTON & MORRIS, P.C., Richmond, social networking policy violated their First Amendment Virginia, for Appellees. rights and that they were retaliated against for seeking Before WILKINSON and TRAXLER, Circuit Judges, to exercise those rights. The United States District Court and Bruce H. HENDRICKS, United States District Judge for the Eastern District of Virginia, James R. Spencer, for the District of South Carolina, sitting by designation. Senior District Judge, 106 F.Supp.3d 744, granted in part and denied in part parties' cross-motions for summary Opinion judgment, 2015 WL 5124465, denied officers' motion to alter and amend judgment, and, 2015 WL 5285764, granted in part and denied in part one officer's motion for Affirmed in part, reversed in part, and remanded by attorney fees. Officers appealed. published opinion. Judge Wilkinson wrote the opinion, in which Judge Traxler and Judge Hendricks joined.

WILKINSON, Circuit Judge: Holdings: The Court of Appeals, Wilkinson, Circuit Judge, held that: Two police officers challenge disciplinary actions for violations of their Department's social networking policy. [1] policy regulated officers' rights to speak on matters of The district court denied relief on most of their claims. public concern; While we are sensitive to the Department's need for discipline throughout the chain of command, the policy [2] policy violated the First Amendment's Free Speech here and the disciplinary actions taken pursuant to it Clause; would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment [3] officers' comments on social networking website spoke cannot countenance. For the reasons that follow, we to matter of public concern; affirm in part, reverse in part and remand for further proceedings. [4] chief was not entitled to qualified immunity on officers' free speech claims;

This case concerns the Department's application of the social networking policy to the following conversation I. between Liverman and Richards. While off-duty on The pertinent facts in this case are not in dispute. June *405 17, 2013, Liverman posted a message to his Plaintiffs Herbert Liverman and Vance Richards were Facebook page: veteran police officers in the City of Petersburg's Police Sitting here reading posts Department. Both served as field officers under Chief referencing rookie cops becoming John Dixon, who led the Department. Dixon in turn instructors. Give me a freaking served under the general direction of the City Manager. break, over 15 years of data collected by the FBI in reference In April 2013, Chief Dixon issued a general order revising to assaults on officers and officer the Department's social networking policy. That policy deaths shows that on average it governs officers' use of social media platforms. The takes at least 5 years for an officer preface to the revised policy prohibits in sweeping terms to acquire the necessary skill set the dissemination of any information “that would tend to know the job and perhaps even to discredit or reflect unfavorably upon the [Department] longer to acquire the knowledge or any other City of Petersburg Department or its to teach other officers. But in employees.” J.A. 161. The central provision of the todays world of instant gratification policy, which we will refer to as the Negative Comments and political correctness we have Provision, states: rookies in specialty units, working Negative comments on the internal as field training officer's and even operations of the Bureau, or specific as instructors. Becoming a master conduct of supervisors or peers that of your trade is essential, not only impacts the public's perception of does your life depend on it but the department is not protected more importantly the lives of others. by the First Amendment free Leadership is first learning, knowing speech clause, in accordance with and then doing. established case law. J.A. 398. More than thirty people “liked” or commented J.A. 162. Another provision, which we label the Public on this post. Richards, also off-duty at the time, Concern Provision, specifies: commented as follows:

Officers may comment on issues Well said bro, I agree 110%... of general or public concern (as Not to mention you are seeing opposed to personal grievances) more and more younger Officers so long as the comments do not being promoted in a Supervisor/ or disrupt the workforce, interfere with roll. It's disgusting and makes me important working relationships or sick to my stomach DAILY. LEO efficient work flow, or undermine Supervisors should be promoted public confidence in the officer. The by experience... And what comes instances must be judged on a case- with experience are “experiences” by-case basis. that “they” can pass around to the Rookies and younger Id. The policy nonetheless “strongly discourages less experienced Officers. Perfect employees from posting information regarding off-duty example, and you know who activities” and provides that violations will be forwarded I'm talking about..... How can to the Chief of Police for “appropriate disciplinary ANYONE look up, or give respect action.” J.A. 163. to a SGT in Patrol with ONLY 1 1/2yrs experience in the street?

Or less as a matter of fact. It's a personnel action forms indicating their probationary Law Suit waiting to happen. And status. you know who will be responsible for that Law Suit? A Police Vet, *406 Several weeks later, however, Chief Dixon altered who knew tried telling and warn the qualifications for promotion. The new protocol the admin for promoting the young expressly excluded any officers on probation from Rookie who was too inexperienced participating in the promotion process. Accordingly, for that roll to begin with. Im with when Liverman and Richards applied for open sergeant ya bro....smh * positions, the Department notified them that they were ineligible to sit for the promotional exam. J.A. 399. Later that day, Liverman responded to Richards with a comment of his own: On October 1, 2013, the two officers sent a letter informing the City that they intended to challenge the disciplinary There used to be a time when actions. Shortly thereafter, Liverman and Richards were you had to earn a promotion or a the subject of several complaints and investigations within spot in a specialty unit...but now it the Department. Based on the findings, Chief Dixon seems as though anything goes and decided to fire Liverman, but Liverman resigned before beyond officer safety and questions receiving notice of his termination. of liability, these positions have been “devalued”...and when something On March 5, 2014, Liverman and Richards filed a six- has no value, well it is worthless. count complaint in federal district court under 42 U.S.C. § 1983, seeking damages and other relief against Chief Id. Richards then replied: Dixon and the City for various violations of the First Your right..... The next 4yrs can't Amendment. The two officers claimed that the social get here fast enough... From what networking policy infringed their free speech rights in I've been seeing I don't think I can Counts One (Liverman) and Two (Richards). Liverman last though. You know the old “but and Richards also challenged the adverse disciplinary true” saying is.... Your Agency is actions taken pursuant to the policy in Counts Three only as good as it's Leader(s)... It's and Four, respectively. Finally, they alleged in Counts hard to “lead by example” when Five and Six that the Department instituted subsequent there isn't one....smh investigations against them in retaliation for proceeding with the instant suit. J.A. 400. The district court granted Liverman summary judgment * “Smh” is an acronym for “shaking my head.” on his claim that the social networking policy infringed his right to free speech, but nonetheless found that Chief Among those who liked or commented on the Facebook Dixon was entitled to qualified immunity because the postings, most were current or former Department policy fell within a gray zone. On Liverman's challenge officers. Two sergeants, Liverman's and Richards's to the disciplinary action, the court found that qualified supervisors, learned of the exchange and notified Chief immunity again shielded Dixon's decision because the Dixon of the issue. Dixon determined that the statements contours of protected speech in this area were not violated the Department's social networking policy and clearly established. The district court next denied relief instructed the sergeants to discipline the officers. In the on Richards's challenges to the policy and the discipline, disciplinary action forms, the Department stated that holding that Richards's speech was purely personal and Liverman's follow-up comment and both of Richards's thus not protected by the First Amendment. For both comments violated the Negative Comments Provision. of their retaliation claims, the court concluded that the They each received an oral reprimand and six months' subsequent internal investigations were not retaliatory. probation, but were advised that such discipline would This appeal followed. not affect their eligibility for promotion. Both the City Manager and Human Resources Director signed the

is unconstitutionally overbroad and, for the following reasons, award judgment to Richards on his claim as well. II.

[1] [2] [3] The legal framework governing public Although regulations on social media use may appear employee speech claims is well known. Public employees to present novel issues, we agree with the district court may not “be compelled to relinquish the First Amendment that such questions are amenable to the traditional rights they would otherwise enjoy as citizens to comment analysis set forth in Connick and Pickering. Indeed, on matters of public interest.” Pickering v. Bd. of Educ., the particular attributes of social media fit comfortably 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). within the existing balancing inquiry: A social media Underlying this principle is the recognition that “public platform amplifies the distribution of the speaker's employees are often the members of the community who message—which favors the employee's free speech are likely to have informed opinions as to the operations interests—but also increases the potential, in some of their public employers.” City of San Diego v. Roe, cases exponentially, for departmental disruption, thereby 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) favoring the employer's interest in efficiency. What (per curiam). Nonetheless, a citizen who accepts public matters to the First Amendment analysis is not only the employment “must accept certain limitations on his or medium of the speech, but the scope and content of the her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418, restriction. 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Government employers enjoy considerable discretion to manage their [6] [7] Here we deal with a broad social networking operations, and the First Amendment “does not require policy setting forth the parameters of public employee a public office to be run as a roundtable for employee speech. In United States v. Nat'l Treasury Employees complaints over internal office affairs.” Connick v. Myers, Union (NTEU), 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 461 U.S. 138, 149, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). 964 (1995), the Supreme Court addressed how courts should apply Pickering when a generally applicable statute [4] [5] Courts begin the First Amendment inquiry by or regulation (as opposed to a post-hoc disciplinary assessing whether the speech at issue relates to a matter action) operates as a prior restraint on speech. NTEU of public concern. See Pickering, 391 U.S. at 568, 88 involved a statute that prohibited federal employees S.Ct. 1731. If speech is purely personal, it is not protected from accepting any compensation for giving speeches and the inquiry is at an end. If, however, the speech or writing articles, even when the topic was unrelated is *407 of public concern, courts must balance “the to the employee's official duties. See id. at 457, 115 interests of the [employee], as a citizen, in commenting S.Ct. 1003. Emphasizing that the honoraria ban impeded upon matters of public concern and the interest of the a “broad category of expression” and “chills potential State, as an employer, in promoting the efficiency of the speech before it happens,” the Court held that “the public services it performs through its employees.” Id.; see Government's burden is greater with respect to this also Connick, 461 U.S. at 142, 103 S.Ct. 1684. statutory restriction on expression than with respect to [the] isolated disciplinary action[s]” in Pickering and its Against this backdrop, we turn to the officers' First progeny. Id. at 467, 468, 115 S.Ct. 1003. Accordingly, Amendment challenges to the Department's social “[t]he Government must show that the interests of both networking policy and the subsequent disciplinary actions potential audiences and a vast group of present and taken against them. future employees in a broad range of present and future expression are outweighed by that expression's ‘necessary impact on the actual operation’ of the Government.” Id. at 468, 115 S.Ct. 1003 (quoting Pickering, 391 U.S. at 571, 88 A. S.Ct. 1731). Further, the government “must demonstrate that the recited harms are real, not merely conjectural, and The district court granted summary judgment to that the regulation will in fact alleviate these harms in a Liverman on his challenge to the social networking policy, direct and material way.” Id. at 475, 115 S.Ct. 1003. but denied Richards's parallel claim on the grounds that his speech was not protected by the First Amendment. We hold that the Department's social networking policy

[8] The threshold question in this case is whether the Department's policy regulates officers' rights to speak on Because the Department's social networking policy matters of public concern. There can be no doubt that it unmistakably imposes a significant burden on expressive does: the restraint is a virtual blanket prohibition on all activity, we next consider whether the Department has speech critical of the government employer. The explicit adequately established “real, not merely conjectural” terms of the Negative Comments Provision prevent harms to its operations. See NTEU, 513 U.S. at plaintiffs and any other officer from *408 making 475, 115 S.Ct. 1003. Chief Dixon's primary contention unfavorable comments on the operations and policies of is that divisive social media use undermines the the Department, arguably the “paradigmatic” matter of Department's interests in maintaining camaraderie among public concern. Sanjour v. EPA, 56 F.3d 85, 91 (D.C. Cir. patrol officers and building community trust. These 1995); see also Roe, 543 U.S. at 80, 125 S.Ct. 521. are, to be sure, legitimate interests. “When close working relationships are essential to fulfilling public [9] Weighing the competing interests on either side of responsibilities, a wide degree of deference to the the Pickering/ NTEU balance, we begin by noting the employer's judgment is appropriate.” Connick, 461 U.S. astonishing breadth of the social networking policy's at 151–52, 103 S.Ct. 1684. And such deference applies language. The policy seeks to prohibit the dissemination with special force to police departments because they are of any information on social media “that would “paramilitary—discipline is demanded, and freedom must tend to discredit or reflect unfavorably upon the be correspondingly denied.” Maciariello v. Sumner, 973 [Department].” J.A. 161. In particular, the Negative F.2d 295, 300 (4th Cir. 1992). Comments Provision proscribes “[n]egative comments on the internal operations of the Bureau”—which could Here, however, the Department fails to satisfy its burden be just about anything—or on the “specific conduct of of demonstrating actual disruption to its mission. Apart supervisors or peers”—which, again, could be just about from generalized allegations of budding “divisiveness” anything. J.A. 162. and claims that some “patrol officers sought [shift] transfers,” J.A. 502, Chief Dixon presented no evidence The interests of “present and future employees” and of any material disruption arising from plaintiffs'—or any their “potential audiences” in such speech is manifestly other officer's—comments on social media. We do not significant. See NTEU, 513 U.S. at 468, 115 S.Ct. 1003. deny that officers' social media use might present some We do not, of course, discount the capacity of social potential for division within the ranks, particularly given media to amplify expressions of rancor and vitriol, with the broad audience on Facebook. But the speculative all its potential disruption of workplace relationships ills targeted by the social networking policy are not that Connick condemned. But social networking sites sufficient *409 to justify such sweeping restrictions on like Facebook have also emerged as a hub for sharing officers' freedom to debate matters of public concern. information and opinions with one's larger community. See Connick, 461 U.S. at 152, 103 S.Ct. 1684; McVey v. And the speech prohibited by the policy might affect the Stacy, 157 F.3d 271, 279 (4th Cir. 1998) (Murnaghan, J., public interest in any number of ways, including whether concurring in part and concurring in the judgment) (“A the Department is enforcing the law in an effective and stronger showing of public interest in the speech requires a diligent manner, or whether it is doing so in a way that is concomitantly stronger showing of government-employer just and evenhanded to all concerned. The Department's interest to overcome it.”). law enforcement policies could well become a matter of constructive public debate and dialogue between law Defendants' fallback argument is that, even if the Negative enforcement officers and those whose safety they are Comments Provision itself is overbroad, the Public sworn to protect. After all, “[g]overnment employees are Concern Provision significantly narrows the reach of often in the best position to know what ails the agencies for the social networking policy. This second provision, which they work.” Waters v. Churchill, 511 U.S. 661, 674, which permits comments on “issues of general or public 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion). concern ... so long as the comments do not disrupt the But this policy will cut short all of that. To repeat, it workforce,” J.A. 162, is ostensibly more aligned with the squashes speech on matters of public import at the very case-by-case analysis of Connick and Pickering. But the outset. milder language in a single provision does not salvage the

© 2017 Thomson Reuters.Page No claim to 149 original U.S.of Government228 Works. 5 Liverman v. City of Petersburg, 844 F.3d 400 (2016) 41 IER Cases 1449 unacceptable overbreadth of the social networking policy misconstrue the thrust of Liverman's and Richards's taken as a whole. Indeed, the Public Concern Provision comments. does not purport to nullify or otherwise supersede the blanket censorship endorsed by the Negative Comments The form and context of the comments indicate that Provision. If the Department wishes to pursue a narrower plaintiffs did in fact speak on an issue of public concern. social media policy, then it can craft a regulation that does Regarding the form of speech, we find it significant not have the chilling effects on speech that the Supreme that the officers chose Facebook as the forum for their Court deplored. We cannot, however, allow the current communication. As our colleague Judge Traxler has policy to survive as a management and disciplinary recognized, Facebook is a dynamic medium through mechanism. which users *410 can interact and share news stories or opinions with members of their community. See Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013). Similar to writing a letter to a local newspaper, see Pickering, B. 391 U.S. at 569–70, 88 S.Ct. 1731, publicly posting on Plaintiffs next assert that the district court erred social media suggests an intent to “communicate to the in dismissing their challenges to the Department's public or to advance a political or social point of view disciplinary actions. We agree. In fact, the facial beyond the employment context,” Borough of Duryea overbreadth of the social networking policy is borne out v. Guarnieri, 564 U.S. 379, 131 S. Ct. 2488, 2501, by the disciplinary actions taken pursuant to it. 180 L.Ed.2d 408 (2011). Further, the officers' Facebook comments were prompted by other “posts referencing [10] When evaluating an ex post disciplinary action, rookie cops becoming instructors.” J.A. 398. Accordingly, rather than an ex ante restraint on speech, the nature of the context of the speech buttresses our conclusion that our review is narrower than the analysis under NTEU. Liverman and Richards were not simply airing personal In this context, our court has adopted the traditional grievances but rather were joining an ongoing public Connick/Pickering three-part test to determine whether debate about the propriety of elevating inexperienced a public employee has sustained a First Amendment police officers to supervisory roles. challenge to an adverse employment action. First, we determine whether the employee spoke as a citizen on a The content of the Facebook comments further confirms matter of public concern. Second, we evaluate whether that they dealt with issues of public import. Defendants the employee's interest in First Amendment expression seek to carve up the Facebook colloquy and assert outweighs the employer's interest in the efficient operation that Liverman's and Richards's comments should be of the workplace. And finally, we decide whether the considered separately. Yet this court has previously protected speech was a substantial factor in the employer's rejected attempts to “divide [ ] [speech] into discrete decision to take adverse employment action. McVey, 157 components to conduct a constitutional analysis on each.” F.3d at 277–78. Stroman v. Colleton Cty. Sch. Dist., 981 F.2d 152, 157 (4th Cir. 1992). Because we do not have “license to ignore the [11] [12] The first inquiry, once again, is whether portions” of the communication that touch on a matter of Liverman and Richards spoke on matters of public public concern, we must view the statements “as a single concern. “Speech involves a matter of public concern expression of speech to be considered in its entirety.” when it involves an issue of social, political, or other Campbell, 483 F.3d at 267. This approach is consistent interest to a community.” Kirby v. City of Elizabeth with the typical experience on social media, where users City, 388 F.3d 440, 446 (4th Cir. 2004). In resolving engage in interactive discussions through a series of posts this question, the Supreme Court has directed courts and comments. Liverman's initial post invited others to to examine the “content, form, and context of a given pick up on his observations; Richards responded, and statement.” Connick, 461 U.S. at 147–48, 103 S.Ct. they began a public dialogue about the Department's 1684. Although defendants are certainly correct that promotion policies. Their comments, therefore, should be “personal complaints and grievances about conditions of read in conjunction as part of a single conversation on the employment” are not matters of public concern, Campbell qualifications of instructors and the increasing number of v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007), they rookies thrust into teaching roles.

indeed, both disciplinary action forms cited violations of Taken together, plaintiffs' statements stand in stark the Negative Comments Provision as the sole basis for the contrast to the sort of “individualized concerns” this court oral reprimand and probation. J.A. 427–28. has characterized as personal grievances. See Brooks v. Arthur, 685 F.3d 367, 374 (4th Cir. 2012). Each veteran In light of the First Amendment protection accorded to officer grounded his statements in specialized knowledge the officers' posts, we conclude that the discipline they and expressed a general “concern about the inability of received pursuant to the social networking policy was the [Department] to carry out its vital public mission unconstitutional. effectively.” Cromer v. Brown, 88 F.3d 1315, 1325–26 (4th Cir. 1996). Liverman's initial post cited an FBI study that underscored the danger of promoting green officers, C. and his subsequent comment noted the implications for “officer safety and questions of liability.” J.A. 398– [15] [16] In the alternative, Dixon contends that the 99. Notwithstanding his more colloquial tone, Richards Department's decisions to adopt the social networking touched on the same issues of public import in his policy and take disciplinary action pursuant to responses. First, he agreed with Liverman's observations the Negative Comments Provision are entitled to and echoed the concerns about “more and more younger qualified immunity. The doctrine of qualified immunity Officers being promoted.” J.A. 399. Then he turned to the shields government officials “who commit constitutional issue of skill development raised by the FBI study and violations but who, in light of clearly established law, concluded that “LEO Supervisors should be promoted could reasonably believe that their actions were lawful.” by experience” and the “Agency is only as good as it's Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en Leader(s).” J.A. 399–400. banc).

Whether plaintiffs were correct or not in their views is [17] Having found that Dixon violated the officers' First not the issue. The matter they addressed was of more Amendment rights, we must consider whether such rights than personal import. We thus have no trouble finding were “clearly established” at the time of the events at issue. that plaintiffs' Facebook comments, which addressed risks “We do not require a case directly on point” in order to posed by the Department's inexperienced supervisors, conclude that the law was clearly established, “but existing raised issues of public concern. See, e.g., Brooks, 685 precedent must have placed the statutory or constitutional F.3d at 375 (explaining that when an employer's practice question beyond debate.” Ashcroft v. al–Kidd, 563 U.S. “crosses a line to the point that imperils the public 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). welfare ... then the public would rightly be concerned about the matter”); *411 Goldstein v. Chestnut Ridge [18] Dixon first argues that he acted reasonably in Volunteer Fire Co., 218 F.3d 337, 353 (4th Cir. 2000) adopting the social networking policy because the policy (holding that firefighter's complaints about inadequate purported to track the subtle balancing calculus in training and unsafe procedures during emergency calls Pickering. We agree that officials “are not liable for bad were matters of public concern). guesses in gray areas,” Maciariello, 973 F.2d at 298, and “do not expect [police chiefs] to be judges and to have [13] [14] The second and third prongs of the the training to sort through every intricacy of case law.” Connick/Pickering inquiry are not in genuine dispute. Bland, 730 F.3d at 393. But this case does not involve Serious concerns regarding officer training and gray areas: the right against such a sweeping prior restraint supervision are weighty matters that must be offset on speech was clearly established and then some. Indeed, by an equally substantial workplace disruption. Chief it is axiomatic that the government may not ban speech Dixon failed to establish a reasonable apprehension that on the ground that it expresses an objecting viewpoint. plaintiffs' social media comments would meaningfully See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. impair the efficiency of the workplace. See Maciariello, 2538, 120 L.Ed.2d 305 (1992). Accordingly, there can be 973 F.2d at 300. Finally, defendants do not seriously no doubt that prohibiting any “[n]egative comments on dispute that plaintiffs' Facebook comments were a the internal operations of the Bureau, or specific conduct substantial factor in the decision to discipline them—

© 2017 Thomson Reuters.Page No claim to 151 original U.S.of Government228 Works. 7 Liverman v. City of Petersburg, 844 F.3d 400 (2016) 41 IER Cases 1449 of supervisors or peers”—even comments of great public had sent sexually explicit emails to a female officer. concern—violates the First Amendment. J.A. 162. The Department launched an investigation for sexual harassment, during which Liverman admitted to engaging Dixon also asserts that the disciplinary actions taken in sexual misconduct on Department property and while pursuant to the policy were reasonable in light of on duty. Additionally, Liverman was investigated for an the vague boundaries distinguishing public and private incident in which he ignored Chief Dixon's orders and speech. Given the patent unconstitutionality of the social failed to maintain his duty post as directed. networking policy, however, efforts to enforce the policy are similarly suspect. After all, the core of the policy was Richards was also investigated twice. Both inquiries a prohibition on legitimate speech and, as *412 detailed were opened as a result of complaints initiated not above, we have little difficulty locating the officers' speech by Chief Dixon but by his fellow officers. The first within this protected sphere. Plaintiffs raised serious complaint related to a report Richards allegedly made concerns regarding the Department's training programs to the media about another officer's spouse. The and the promotion of inexperienced supervisors, both of Department concluded the investigation within one which are matters of public concern. As this court has held week, after Richards demonstrated his innocence. The time and again, it was clearly established law that such second complaint arose from his involvement with the speech is protected by the First Amendment. See, e.g., Department's Shop with a Cop program. Once again, Brooks, 685 F.3d at 375; Goldstein, 218 F.3d at 353. the Department determined that the allegations were unfounded. We appreciate the need for order and discipline in the ranks. See Maciariello, 973 F.2d at 300 (recognizing that Apart from generalized assertions regarding the existence “greater latitude is afforded to police department officials of the investigations, plaintiffs fail to offer any evidence in dealing with dissension”). At the same time, we cannot that the investigations were retaliatory. Far from countenance an arm of government with such enormous groundless “fishing expeditions,” Appellants' Br. at 34, powers being removed to this extent from public scrutiny. each arose from discrete allegations of misconduct. This is not an all-or-nothing matter; there is a balance to Without more, we see no reason to question the legitimacy be struck. But the Department's social networking policy, of the Department's investigations. After all, simply filing and the disciplinary actions taken to enforce it, lean too a Pickering claim does not confer indefinite immunity on far to one side. We therefore hold that Chief Dixon is not employees or insulate them from subsequent investigation entitled to qualified immunity. and discipline for unrelated misconduct. Granting relief on plaintiffs' retaliation claims would handcuff the Department by forcing inaction even where there is police behavior that warrants close review. Speech is one III. thing; misconduct something else. There are countless Finally, plaintiffs argue that Dixon retaliated against them unobjectionable reasons why a police department might for filing their First Amendment suit. We agree with want to investigate an officer's performance, including the district court that their retaliation claims are without absence from work, *413 tardiness, insubordination, merit. illegal activity, and basic failure to carry out one's duties in a competent and impartial fashion. The garden-variety [19] Plaintiffs argue that the retaliation took the investigations into Liverman's and Richards's conduct form of investigating their conduct on the force. We were no different, and we therefore reject their claims of cannot conclude, however, that plaintiffs have raised retaliation. an issue of triable fact that the investigations were pretextual. See McVey, 157 F.3d at 277–78. There were independent bases for each investigation. Liverman was IV. investigated twice. In notifying the City of his First Amendment claims, Liverman requested a wide range [20] The City argues that Liverman and Richards have of personnel records. While searching for responsive failed to establish municipal liability. The district court documents, the Department discovered that Liverman agreed. We remand on this question to give the district

© 2017 Thomson Reuters.Page No claim to 152 original U.S.of Government228 Works. 8 Liverman v. City of Petersburg, 844 F.3d 400 (2016) 41 IER Cases 1449 court a chance to assess under the appropriate standard officers under his command. If so, the City may also municipal liability for establishing the policy under which be held liable for the injuries that were caused by the plaintiffs were disciplined. applications of that policy.

[21] [22] [23] Under Section 1983, a local government may be held liable for injuries suffered due to the V. “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts Running a police department is hard work. Its mission may fairly be said to represent official policy.” Monell requires capable top-down leadership and a cohesion v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. and esprit on the part of the officers under the chief's 2018, 56 L.Ed.2d 611 (1978). Municipal liability “attaches command. And yet the difficulty of the task and the need only where the decisionmaker possesses final authority for appropriate disciplinary measures to perform it still to establish municipal policy with respect to the action does not allow police departments to wall themselves off ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, from public scrutiny and debate. That is what happened 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Whether an here. The sensitivity of all the well-known issues that entity possesses the requisite authority is a question of surround every police department make such *414 lack state law. Id. at 483, 106 S.Ct. 1292. of transparency an unhealthy state of affairs. The advent of social media does not provide cover for the airing of Here, the district court concluded that the City was not purely personal grievances, but neither can it provide a liable with respect to any of plaintiffs' claims. The court's pretext for shutting off meaningful discussion of larger holding rested on a city ordinance providing that the Chief public issues in this new public sphere. of Police “serve[s] at the pleasure of the city manager” and is “under the direction and control of the city manager.” To recapitulate: We hold that the Department's social Liverman v. City of Petersburg, 106 F.Supp.3d 744, 769 networking policy was unconstitutional and that the (E.D. Va. 2015). Because Dixon does not have the final say disciplinary measures taken against plaintiffs pursuant over Department matters, the court indicated, plaintiffs to that policy were likewise impermissible. The patent failed to show that Chief Dixon “possesses the final overbreadth of the policy negates Chief Dixon's qualified authority required to establish municipal liability.” Id. immunity defense. We find no merit, however, in plaintiffs' retaliation claims, which involved investigations for [24] This analysis misapprehends the nature of the alleged police misconduct independent of any issues of free requisite authority. We deal here not merely with an speech. As to municipal liability, we remand for further individual employment decision, see Crowley v. Prince proceedings in accordance with the foregoing directions. George's Cty., 890 F.2d 683, 687 (4th Cir. 1989), but Remedial issues are also best left for remand, although a broad policy setting forth all the ground rules for in light of all that has transpired, reinstatement is not an employee speech. An entity has “final” authority to set equitable option. The calculation of attorneys' fees must this sort of policy when no further action is needed for of course await the conclusion of proceedings on remand. the policy to take effect. The Supreme Court has expressly noted that “[a]uthority to make municipal policy ... may The judgment of the district court is accordingly affirmed be delegated by an official who possesses such authority” in part, reversed in part, and remanded for further to another official. Pembaur, 475 U.S. at 483, 106 S.Ct. proceedings consistent with this decision. 1292. Here the fact that Dixon serves “under the direction and control of the city manager” does not necessarily AFFIRMED IN PART, REVERSED IN PART, AND establish that he lacked final authority to promulgate REMANDED. the policy whose validity has been successfully challenged herein. We must therefore remand to the district court All Citations to undertake a more particularized inquiry into whether Chief Dixon possessed final authority to set policies on the 844 F.3d 400, 41 IER Cases 1449 parameters of speech on the part of those law enforcement

Motions denied. 2017 WL 58294 Only the Westlaw citation is currently available. Attorneys and Law Firms United States District Court, E.D. Virginia, Brian C. Davison, Leesburg, VA, pro se. Alexandria Division. Julia Bougie Judkins, Martin Schubert, Bancroft Brian C. Davison, Plaintiff, McGavin Horvath & Judkins PC, Fairfax, VA, for v. Defendants. Loudoun County Board of Supervisors, et al., Defendants. MEMORANDUM OPINION 1:16cv932 (JCC/IDD) | James C. Cacheris, UNITED STATES DISTRICT Signed 01/04/2017 COURT JUDGE

Synopsis *1 Defendant Phyllis Randall, Chair of the Loudoun Background: County resident brought action against County Board of Supervisors, blocked Plaintiff Brian county board of supervisors and an official who served Davison from what Plaintiff claims is her official County as chair of the board, alleging official violated his First Facebook page. Plaintiff alleges that this violated his Amendment and due process rights by blocking him from First Amendment and Due Process rights. Defendant official's social media page. Official moved to dismiss for Randall has moved to dismiss Plaintiff's claims against her failure to state a claim, and resident moved for summary [Dkt. 35], and Plaintiff has in turn moved for summary judgment. judgment on those claims [Dkt. 39]. For the reasons that follow, the Court will deny both Motions.

Holdings: The District Court, James C. Cacheris, J., held that: I. Background

A detailed discussion of the events giving rise to this case [1] district court would decline to consider affidavits can be found in the Court's Memorandum Opinion [Dkt. submitted by resident and official in ruling on resident's 11] granting in part and denying in part a previous motion motion for summary judgment; to dismiss. As such, the Court repeats here only what is germane to its rulings on the present Motions. [2] resident was not estopped from asserting claims against official; Plaintiff is a resident of Loudoun County, Virginia, who takes “an interest in rules of ethics for public officials.” [3] resident adequately alleged that official's page was a Compl. [Dkt. 1] ¶ 1. He filed suit against the Loudoun limited public forum under the First Amendment; County Board of Supervisors and its individual members after the Board allegedly ratified a subordinate's decision [4] resident stated a claim for violation of his due process to delete his comments from the Board's official Facebook rights; page. [5] fact that board was a party to action did not preclude Plaintiff's original Complaint referenced a previous resident's official capacity claims against official; and incident during which Defendant Randall allegedly blocked Plaintiff from commenting on her official [6] official was not entitled to qualified immunity from Facebook page. resident's claims. See id. ¶¶ 24, 33. That incident, however, was not the subject of any of Plaintiff's claims.

All Defendants—including Defendant Randall—moved in the light most favorable to the nonmoving party, ‘no to dismiss Plaintiff's original Complaint. In a material facts are disputed and the moving party is entitled Memorandum Opinion, the Court granted that Motion to judgment as a matter of law.’ ” Henry v. Purnell, in part and denied it in part. As relevant here, the Court 652 F.3d 524, 531 (4th Cir. 2011) (quoting Ausherman v. dismissed Plaintiff's claims against the individual members Bank of Am. Corp., 352 F.3d 896, 899 (4th Cir.2003)). of the Loudoun County Board of Supervisors, but An unresolved issue of fact precludes summary judgment permitted Plaintiff's First Amendment and Due Process only if it is both “genuine” and “material.” Anderson v. claims to proceed against the Board itself. In doing so, the Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, Court found Plaintiff had plausibly alleged that Loudoun 91 L.Ed.2d 202 (1986). A factual dispute is genuine “if County's Social Media Comments Policy, see Compl. Exh. the evidence is such that a reasonable jury could return a 11 [Dkt. 1–11], serves to designate the Board's official verdict for the nonmoving party” on that issue. Id. at 248, Facebook page as a limited public forum under the First 106 S.Ct. 2505. It is material if it “might affect the outcome Amendment. of the suit under the governing law.” Id. “In the end, the question posed by a summary judgment motion is whether Plaintiff then filed an Amended Complaint [Dkt. 33] the evidence ‘is so one-sided that one party must prevail adding claims against Defendant Randall based on the as a matter of law.’ ” Lee v. Bevington, 647 Fed.Appx. 275 incident mentioned in Plaintiff's original Complaint. To (4th Cir. 2016) (quoting Anderson, 477 U.S. at 252, 106 wit, Plaintiff alleges that Defendant Randall utilizes an S.Ct. 2505). official Facebook page in connection with her duties as Chair of the Loudoun County Board of Supervisors. See In reviewing a motion to dismiss for failure to state Am. Compl. [Dkt. 33] ¶¶ 5–6. He claims that Defendant a claim under Rule 12(b)(6), the Court “must accept Randall uses her Facebook page to communicate with her as true all of the factual allegations contained in the constituents, and through it “solicit[s] and allow[s] public complaint,” drawing “all reasonable inferences” in the comments and discussions.” See id. ¶¶ 5–6, 9. He further plaintiff's favor. E.I. du Pont de Nemours & Co. v. Kolon contends that, as an official County social media website, Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations the County's Social Media Comments Policy applies to omitted). Generally, the Court may not look beyond the Defendant Randall's Facebook page. See id. ¶¶ 1, 2, 10; four corners of the complaint in evaluating a Rule 12(b) Compl. [Dkt. 1] ¶¶ 21, 29–30. (6) motion. See Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). “A court Plaintiff claims that on February 3, 2016, Defendant has wide discretion to exclude matters outside of the Randall blocked him from posting comments to her pleadings” in evaluating such a motion. Norfolk Fed'n of official Facebook page. See Am. Compl. [Dkt. 33] ¶ Bus. Districts v. Dep't of Hous. & Urban Dev., 932 F.Supp. 15. She allegedly did so because Plaintiff had made 730, 736 (E.D. Va.), aff'd sub nom. Norfolk Fed'n of Bus. “comments critical of either Randall's actions or those Districts v. City of Norfolk, 103 F.3d 119 (4th Cir. 1996). of other government officials of Virginia.” Id. Defendant Randall later acknowledged that she had blocked Plaintiff The Court is mindful that Plaintiff is proceeding in this from her Facebook page. See id. ¶ 17. Plaintiff argues that matter pro se. A “document filed pro se is ‘to be liberally this violated his First Amendment and Due Process rights. construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent standards than *2 On November 17, 2016, Defendant Randall filed a formal pleadings drafted by lawyers.’ ” Erickson v. Pardus, Motion to Dismiss Plaintiff's claims against her [Dkt. 35]. 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) Plaintiff subsequently filed a Motion for Partial Summary (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, Judgment [Dkt. 39] with respect to his new claims. 50 L.Ed.2d 251 (1976)).

II. Legal Standard III. Analysis

“Summary judgment is appropriate only if taking the A. Plaintiff's Motion for Partial Summary Judgment evidence and all reasonable inferences drawn therefrom

[1] Turning first to Plaintiff's Motion for Partial declines to consider the Affidavits in ruling on Plaintiff's Summary Judgment [Dkt. 39], the Court notes that the Motion. Motion does not cite to any evidence of record. Indeed, it does not appear that there is, at this point, any record to speak of in this case. Plaintiff amended his Complaint on B. Defendant Randall's Motion to Dismiss November 3, 2016, to include for the first time the claims that are the subject of the instant Motions. Defendant 1. Estoppel Randall has not yet filed an answer to the Amended Complaint and no discovery has taken place. [3] Turning to Defendant Randall's Motion to Dismiss, Defendant argues first that Plaintiff's new claims against Instead of record evidence, Plaintiff cites to the allegations her should be barred because his previous claims against of his own Amended Complaint. 1 Those allegations her were dismissed with prejudice. It is not clear why this do not establish a factual basis for summary judgment. should be so. Plaintiff did not, before now, bring claims As Defendant notes, many of Plaintiff's allegations are based on Defendant Randall's conduct with respect to her disputed and, at this point, remain only allegations. own Facebook page. Indeed, in dismissing Plaintiff's prior Material issues of fact—for example, who maintains claims against Defendant Randall, the Court expressly Defendant Randall's Facebook page and for what noted that the claims Plaintiff now brings were not purpose—are left unsettled on the record now before the among those at issue. See Mem. Op. [Dkt. 11] at Court. 18 n.3 (“Defendants also argue at considerable length that Defendant Randall did not violate Plaintiff's First Amendment rights by deleting comments Plaintiff made 1 Plaintiff's Motion also occasionally cites “Ex 24.” The on her own Facebook page. But that incident, while exhibit in question, however, was not submitted to mentioned in passing in Plaintiff's Complaint, is neither the Court prior to the hearing on Plaintiff's Motion. the subject of this suit, nor particularly relevant to the As such, Defendant Randall had no opportunity to address it. The exhibit appears to be an image of instant Motion.”). That Plaintiff's prior claims against Defendant Randall's Facebook page—one including Defendant Randall were dismissed does not bar Plaintiff less detail than the image already appended to from bringing tangentially related claims against her now. Plaintiff's Complaint. See Compl. Exh. 18 [Dkt. 1– 18]. It is not clear that the exhibit is properly before the Court on the present Motions, but even assuming 2. Failure to State a First Amendment Claim it is, the image does not warrant summary judgment standing alone. [4] Defendant Randall next argues that Plaintiff has *3 The party moving for summary judgment bears the failed to plead a violation of his First Amendment rights. initial burden of “informing the district court of the basis for its motion,” and identifying the evidence “it believes Loudoun County maintains a Social Media Comments demonstrate[s] the absence of a genuine issue of material Policy governing “Loudoun County social media sites.” fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. See Compl. Exh. 11 [Dkt. 1–11]. The Court has already 2548, 91 L.Ed.2d 265 (1986). Because Plaintiff's Motion found that Plaintiff has plausibly alleged the Policy, is supported by mere allegations, the Court finds that as applied to official County Facebook pages, creates Plaintiff has not met his initial evidentiary burden. His a limited public forum under the First Amendment. Motion must therefore be denied. See Mem. Op. [Dkt. 11] at 16–18. Indeed, Defendants appeared to concede as much in their first Motion to [2] The Court notes that both parties submitted Dismiss. See Mem. in Supp. of Mot. to Dismiss [Dkt. 4] at Affidavits [Dkts. 50, 52] in connection with Plaintiff's 13–14. The Attorney for the Commonwealth for Loudoun Motion. Both, however, did so after the close of briefing, County has likewise admitted that the policy serves such a and on the eve of the hearing on this matter. Neither function in a related case. See Reply in Support of Motion party had an opportunity to meaningfully address the to Dismiss [Dkt. 10] at 2, Davison v. Plowman, No. 1:16– allegations included in the other's Affidavit. Neither party cv–180 (E.D. Va.). makes any excuse for their late filing. The Court therefore

[5] The Court has also previously found that, when (“Facebook is an online social network where members County officials suppress comments in violation of the develop personalized web profiles to interact and share County's Social Media Comments Policy, their actions information with other members,” and that can be used implicate the commenters' First Amendment rights. See by “businesses, organizations and brands ... for similar Mem. Op. [Dkt. 11] at 16–18. “Once it has opened a purposes.”) (citations omitted). The Court notes that limited forum,” the government “must respect the lawful Defendant Randall's page is visible to the general public boundaries it has itself set.” Rosenberger v. Rector & without the need to first register for a Facebook account. Visitors of Univ. of Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). The page in question is titled “Chair Phyllis J. Randall, Government Official.” See Compl. Exh. 18 [Dkt. 1–18]. Defendant does not contend that her actions were The “About” section of the page reads “Chair of the consistent with the County's policy. Instead, she denies Loudoun County Board of Supervisors” and includes a that the County's policy applies to her Facebook page at link to Defendant Randall's profile on Loudoun County's all. website. See id. It does not include any information of a personal nature. The top of the page features an image *4 In support of this contention, Defendant Randall of a plaque reading “Phyllis J. Randall Chair–At–Large,” notes first that she is not individually capable of as well as an image of what the Court presumes to be binding the Loudoun County Board of Supervisors. The Defendant Randall sitting behind the same plaque in front significance of that fact eludes the Court. Plaintiff alleges of a United States flag. See id. that Defendant Randall is an elected Loudoun County official who uses her Facebook page to conduct County The image appended to Plaintiff's Complaint includes business, such as corresponding with her constituents four posts by Defendant Randall. The two most recent about her work in the local government. See Am. Compl. are specifically addressed to “Loudoun,” Plaintiff's [Dkt. 33] ¶¶ 5–6. Whether or not Defendant is capable constituency. See id. All pertain to matters of public, of unilateral action on behalf of the Board, the Loudoun rather than personal, significance. Besides one warning County Social Media Comments Policy can easily be of poor weather conditions in Loudoun County, all posts construed to cover such use of social media by an elected visible in the image involve Defendant's duties as Chair County official. of the Loudoun County Board of Supervisors. See id. They note recent events in the local government and solicit Defendant Randall next contends that she maintains the attendees for local government meetings. See id. Facebook page at issue in her personal capacity, and that Plaintiff's allegation that it is her “official” Facebook In short, the image of Defendant's Facebook page page is conclusory. Plaintiff, however, has incorporated substantiates Plaintiff's claim that Defendant Randall an image of Defendant Randall's Facebook page into his uses the “Chair Phyllis J. Randall, Government Official” Complaint. See Compl. Exh. 18 [Dkt. 1–18]. Based on that Facebook page in connection with her official duties. image, one might reasonably—indeed, easily—infer that Drawing “all reasonable inferences” in Plaintiff's favor, Defendant Randall maintains the Facebook page at issue E.I. du Pont de Nemours & Co., 637 F.3d at 440 (4th in her capacity as Chair of the Loudoun County Board of Cir. 2011), Plaintiff has adequately plead that Defendant Supervisors. Randall's Facebook page is a “Loudoun County social media site[ ],” Compl. Exh. 11 [Dkt. 1–11], governed by The website is not Defendant Randall's personal the County's Social Media Comments Policy. Facebook profile. Rather, it is a Facebook “Page”— a public-facing platform through which public figures *5 The Court notes that many of Defendant's arguments and organizations may engage with their audience or attempt to answer the wrong question. The Court is not constituency. See Matt Hicks, Facebook Tips: What's required to determine whether any use of social media by the Difference between a Facebook Page and Group?, an elected official creates a limited public forum, although http://tinyurl.com/jtb5hoa (Feb. 24, 2010) (last visited the answer to that question is undoubtedly “no.” Rather, December 9, 2016); see also Bland v. Roberts, 730 F.3d the issue before the Court is whether a specific government 368, 385 (4th Cir. 2013), as amended (Sept. 23, 2013) policy, applied to a specific government website, can

© 2017 Thomson Reuters.Page No claim to 158 original U.S.of Government228 Works. 4 Davison v. Loudoun County Board of Supervisors, --- F.Supp.3d ---- (2017) create a “metaphysical” limited public forum for First First Amendment. See Bland, 730 F.3d at 386 n.14. A Amendment purposes. See Rosenberger v. Rector, 515 “metaphysical” forum created by a government policy like U.S. at 830, 115 S.Ct. 2510. That answer to that narrower the County's social media policy, see Rosenberger v. Rector question is undoubtedly “yes.” & Visitors of Univ. of Virginia, 515 U.S. 819, 830, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), is subject to the same First [6] “Limited public forums are characterized by Amendment analysis regardless of whether that policy is ‘purposeful government action’ intended to make the applied to online speech. See Liverman, 844 F.3d at 407 forum ‘generally available’ ” for certain kinds of speech. (“What matters to the First Amendment analysis is not Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. only the medium of the speech, but the scope and content Five, 470 F.3d 1062, 1067 (4th Cir. 2006) (quoting Goulart of the restriction.”). v. Meadows, 345 F.3d 239, 250 (4th Cir. 2003)). At the time of the events giving rise to this suit, the County [8] Finally, Defendant Randall contends that “[n]o maintained a Policy stating that “the purpose of Loudoun individual has the right to hi-jack an individual's County social media sites is to present matters of public Facebook page by relentlessly posting his or her interest in Loudoun County.” Compl. Exh. 11 [Dkt. 1– comments at will, negative or otherwise, or demand that 11]. The Policy provided that visitors were “encourage[d] their comments remain posted indefinitely, just because to submit questions, comments and concerns,” but that the person is also a County official or employee.” Mem. “the county reserve[d] the right to delete submissions” that in. Supp. of Mot. to Dismiss [Dkt. 36] at 9. This argument violated enumerated rules, such as comments that include both assumes that the Facebook page in question is “vulgar language” or “spam.” Id. Such a policy evinces maintained by Defendant in her individual capacity— the County's purposeful choice to open its social media an argument the Court has rejected for purposes of the websites to those wishing to post “questions, comments present Motion—and obscures the relatively narrow issue and concerns” within certain limits. now before the Court. The Court is only tasked here with determining whether Plaintiff has adequately pled that “[S]ocial networking sites like Facebook have...emerged Defendant Randall's Facebook page is governed by the as a hub for sharing information and opinions with County's Social Media Comments Policy, and that her one's larger community.” Liverman v. City of Petersburg, actions failed to comport with that policy. The Court finds 844 F.3d 400, 408 (4th Cir. 2016). The Fourth Circuit that Plaintiff has adequately plead as much, and so has has recently described Facebook as “a dynamic medium stated a claim under the First Amendment. 2 through which users can interact and share news stories or opinions with members of their community” in a manner 2 The Court emphasizes that it does not now hold “[s]imilar to writing a letter to a local newspaper.” Id. the County's Social Media Comments Policy does, in at 410. That Court has repeatedly affirmed the First fact, apply to Defendant Randall's Facebook page. Amendment significance of social media, holding that Rather, based on the allegations of and exhibits speech utilizing Facebook is subject to the same First to Plaintiff's Amended Complaint, Plaintiff has Amendment protections as any other speech. See id.; plausibly pled that Defendant Randall's Facebook Bland, 730 F.3d at 385–86. page is subject to that policy. Courts “look[ ] to the policy and practice of the government to ascertain [7] Defendant Randall contends further that the fact whether it intended to designate a [non-traditional Facebook retains a degree of ownership and control forum] ... as a public forum.” Cornelius v. NAACP over her Facebook page “demonstrates the unique Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802, and non-traditional circumstances under which even an 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). The record, at acknowledged ‘official’ Facebook page can be deemed this point, lacks information regarding the practice of the Loudoun County government with respect to its a governmental public forum, limited or otherwise.” social media policy. Mem. in. Supp. of Mot. to Dismiss [Dkt. 36] at 9. But as discussed above, the County has expressly adopted a policy that governs official Loudoun County social 3. Failure to State a Due Process Claim media websites. As also discussed above, speech online is treated no differently from speech offline under the

*6 [9] Turning to Plaintiff's claim under the Due comment when appropriate. When Process Clause of the Fourteenth Amendment, Defendant appropriate and if possible, a contends first that “[t]he Supreme Court has made a social media administrator will distinction between cases in which there has been prior contact the commenter regarding restraint[ ]” of speech “as opposed to facts such as raised a violation of the county's Social in this case where no such action occurred and the alleged Media Comments Policy to notify disruption is de minimis.” Mem. in. Supp. of Mot. to the commenter and/or to request Dismiss [Dkt. 36] at 9. Plaintiff, however, has alleged voluntary removal of the comment. that Defendant imposed a prior restraint on his speech. Appeals regarding the Public Affairs Moreover, the case Defendant Randall cites— Board of and Communications Division's Regents of State Colleges v. Roth, 408 U.S. 564, 575 n.14, decision to remove a comment may 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)—does not recognize be submitted via email or phone a due process exception for “de minimis” invasions of First at 703–777–0113; the Public Affairs Amendment rights. Rather, the Supreme Court in that and Communications Division will case held that no constitutional right was implicated by respond to appeals within two the facts before the Court. See id. business days.

Defendant next contends that due process required only Loudoun County Social Media Comments Policy, https:// “a post-deprivation opportunity to voice...objections,” www. loudoun.gov/index.aspx?NID=2779 (last visited and Plaintiff was afforded that opportunity insofar Dec. 22, 2016). It therefore appears that affording as he complained of Defendant Randall's actions to Plaintiff process might not have been as impracticable as other government officials. Rep. in. Supp. of Mot. to Defendant Randall contends. Dismiss [Dkt. 36] at 6–7. Regardless of whether a post- deprivation opportunity to be heard would have satisfied Due Process in this instance, no such opportunity was 4. Official Capacity Claims provided Plaintiff. Plaintiff's unilateral complaints to other government officials did not constitute “process” [10] Defendant next argues that Plaintiff's claims against provided him by Loudoun County any more than did her in her official capacity should be dismissed because Plaintiff's filing of this lawsuit. In short, Defendant's (1) the Court dismissed Plaintiff's prior official-capacity Motion provides no reason to dismiss Plaintiff's Due claims against Defendant Randall and (2) the Loudoun Process claim. County Board of Supervisors is already a party to this action. As to the former argument, again, the dismissal of The Court notes further that Defendant Randall's Reply Plaintiff's prior claims against Defendant Randall has no implies it would be have been impracticable to provide bearing on Plaintiff's ability to bring his new claims. Plaintiff with any form of process. Shortly after Defendant Randall filed the instant Motion, however, Loudoun As to the latter argument, Defendant misapprehends the County adopted a new social media policy that employs nature of an official-capacity suit. By suing Defendant in the following procedure: her official capacity, Plaintiff is bringing “a suit against [her] office,” Will v. Michigan Dep't of State Police, 491 The county's social media platforms U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), which are administered by designated staff. is to say the office of the Chair of the Loudoun County When one of the county's social Board of Supervisors. That office is distinct from the media administrators suspects a Loudoun County Board of Supervisors itself. And while violation of the Loudoun County it is true that a claim against a government officer in her Social Media Comments Policy, official capacity may be dismissed when duplicative of he or she will contact the claims against a larger governmental body already named Public Affairs and Communications in the suit, see Mainstream Loudoun v. Bd. of Trustees of Division of the Office of the Loudoun Cty. Library, 2 F.Supp.2d 783, 790–91 (E.D. Va. County Administrator, which will 1998), that is not the case here. review and authorize removal of a

Amendment proscribes in virtually all contexts. See, e.g., R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 385–86, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). That 5. Qualified Immunity being so, a reasonable government official would also be on notice that depriving an individual of their First *7 [11] Defendant argues further that she is entitled Amendment rights without warning or recourse implicates to qualified immunity with respect to Plaintiff's claims that individual's Due Process rights. See Bd. of Regents of against her in her individual capacity. State Colleges, 408 U.S. at 575 n.14, 92 S.Ct. 2701; see also Mem. Op. [Dkt. 11] at 19–20. [12] A government official is entitled to qualified immunity with respect to suits against her in her individual Finally, Defendant contends that “[t]here is no distinction capacity unless “(1) the allegations underlying the claim, between the court's finding in favor of the Sheriff on his if true, substantiate the violation of a federal statutory or entitlement to qualified immunity in Bland [v. Roberts ] constitutional right; and (2) this violation was of a clearly and [Defendant's] entitlement to qualified immunity in established right of which a reasonable person would have this case.” Rep. in. Supp. of Mot. to Dismiss [Dkt. 36] known.” Ridpath v. Bd. of Governors Marshall Univ., 447 at 8. In Bland, the Fourth Circuit found that a sheriff F.3d 292, 306 (4th Cir. 2006). Defendant contends that who declined to reappoint a deputy in retaliation for the law was not “clearly established” here in light of the deputy's act of “liking” a political rival's Facebook “the pleaded and acknowledged control and ownership page was entitled to qualified immunity. See 730 F.3d at all Facebook pages by Facebook, which imposes its own 391. The Court's decision, however, rested entirely on its terms and conditions and possesses licensed software finding that its prior precedent regarding when sheriffs which allows for deletion of postings or blocking of may discharge deputies “sent very mixed signals.” Id. individuals by third parties as well as Facebook.” Mem. in. Supp. of Mot. to Dismiss [Dkt. 36] at 9. *8 That precedent has no application here. In short, Defendant is not entitled to qualified immunity simply Defendant, however, does not explain the manner in because this case involves a relatively new technology. The which this left the law unsettled. As discussed above, the Court confines its qualified immunity analysis to the brief Supreme Court has long rejected the proposition that argument that Defendant Randall has put forward, and speech online is subject to a different First Amendment reserves the question of whether Defendant Randall is in standard than speech offline. See, e.g., Reno v. ACLU, 521 fact entitled to qualified immunity on other grounds or U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). on a more fully developed record. The Court declines, The Fourth Circuit has already applied this principle to however, to supply arguments Defendant Randall has not speech on Facebook. See Bland, 730 F.3d at 385–86; see made. also Liverman, 844 F.3d at 410–12 (finding a police chief not entitled to qualified immunity for violating a police officer's First Amendment rights in connection with the officer's Facebook comments). III. Conclusion

It is equally well established that the government For the foregoing reasons, the Court will deny both may create a “metaphysical” forum for speech by Plaintiff's Motion for Summary Judgment [Dkt. 39] and promulgating a policy like the County's Social Media Defendant's Motion to Dismiss [Dkt. 35]. Comments Policy. See Rosenberger, 515 U.S. at 830, 115 S.Ct. 2510. These principles in combination would An appropriate order will issue. put a reasonable government official on notice that suppressing public comment in violation of that All Citations policy would run afoul of the First Amendment— particularly where, as here, Defendant is alleged to have --- F.Supp.3d ----, 2017 WL 58294 engaged in viewpoint discrimination, something the First

28 Touro L. Rev. 149

Touro Law Review 2012

Article LAWYERS AND SOCIAL MEDIA: THE LEGAL ETHICS OF TWEETING, FACEBOOKING AND BLOGGING

Michael E. Lackey Jr. a1 Joseph P. Minta aa1

I. Introduction aaa1

Lawyers should not--and often cannot--avoid social media. Americans spend more than 20% of their online time on social media websites, which is more than any other single type of website. 1 Many young lawyers grew up using the Internet and spent most of their college and law school years using social media sites. Some older attorneys have found that professionally-focused social media sites are valuable networking tools, and few big companies or law firms would ignore the marketing potential of websites like Facebook, Twitter, LinkedIn or YouTube. Finally, for litigators, these sites provide valuable information about witnesses and opposing parties. 2

Yet social media sites are also rife with professional hazards for unwary attorneys. Rapidly evolving legal doctrines, fast- paced technological developments, a set of laws and professional rules written for the offline world, and the Internet's infancy provide only an incomplete map for lawyers trying to navigate the social media landscape.

Recent developments in social media technology are exposing the tensions inherent in older ethical rules and provoking difficult questions for lawyers seeking to take advantage of this new technology. *150 For example, how can a “tweet” comply with legal advertising disclaimer rules when the required disclaimer exceeds the 140-character limit for the mini- post? 3 How can attorneys avoid the unauthorized practice of law in far-flung states when blog posts and Facebook messages are sent nationally or even globally? 4 And how can an attorney avoid an inadvertent conflict of interest when he receives an anonymous online comment that actually comes from an adverse party? 5

Additional questions arise when social media infiltrate the courthouse and the courtroom. For instance, can (and, perhaps more importantly, should) a judge “friend” or “follow” an attorney online? Can that judge friend a third party to resolve a discovery dispute? Can an attorney friend an opposing party to obtain potentially incriminating information, or can an attorney obtain that information directly from the social media provider?

This article discusses these common social media scenarios and aims to provide guidance on the proper way for lawyers to participate in the social media space. Part II provides a brief primer on social media and the most popular social media sites. Part III examines some of the potential ethical conflicts arising from social media and highlights many of the recent cases discussing lawyers' use of these increasingly popular sites. Specifically, this section focuses on some of the most likely sources of ethical violations, including potential violations of the duty of confidentiality, of legal advertising rules, and of prohibitions of the unauthorized practice of law. In doing so, this section makes some recommendations for lawyers trying to find their way through the largely uncharted ethical areas in the intersection between law and cyberspace. Part IV focuses on the ethical implications of social media by members of the judiciary, examining sensitive areas for attorneys, judicial employees, and judges. Finally, Part V discusses some of the basics that lawyers need to know so they can use social media to better serve a client's needs. In *151 particular, this section recommends that lawyers

© 2017 Thomson Reuters.Page No claim to 162 original U.S.of Government228 Works. 1 LAWYERS AND SOCIAL MEDIA: THE LEGAL ETHICS OF..., 28 Touro L. Rev. 149 understand how to ethically obtain social media information in discovery or investigations and suggests that in-house counsel carefully craft policiesgoverning appropriate social media use in hiring, firing, and other employment decisions.

II. Background on Social Media

Although social media sites share certain key characteristics, 6 the purposes and architecture of these sites are nearly limitless. Social media has been defined as:

web-based services that allow individuals to (1) construct public or semi-public profiles within a bounded system, (2) articulate a list of other users with whom they share a common connection, and (3) view and traverse their list of connections and those made by others within the system. 7

Sites can conform to this definition while nonetheless taking a variety of forms. For instance, blogs (a blend of the term “web log”) are “personal Internet journals” that are updated on a regular basis by the author or “blogger,” who often does not have any specialized training. 8 These sites were some of the earliest social media sites, first sprouting up in the earliest days of the Internet. 9 Blogs can contain information related to a specific topic and often are written in a personal tone. 10 Thanks in part to websites like Blogspot, Word Press, and Tumblr that make blog creation relatively simple, there are now more than 165 million blogs. 11

Today, the most well-known social media sites include social networking sites like Facebook and Myspace. 12 These sites allow individuals and organizations to connect virtually with others to communicate *152 privately, share photographs and other digital media, and make public or semi-public announcements. 13 LinkedIn provides similar services to professionals, allowing these individuals to network in cyberspace by posting resumes, sending messages, and connecting with current and former colleagues. 14 Currently, Facebook has more than 750 million active users, with 50% of those users logging in on any given day. 15

Twitter, one of the fastest growing social media sites, is a free social networking and micro-blogging service that enables users to send and read each others' updates, known as “tweets.” 16 Because Twitter relies heavily on cell phone text message technology, these “tweets” are limited to 140 characters. 17 These tweets are displayed on the author's profile page and are delivered to other users who have subscribed to the author's messages by following the author's account. 18 Twitter reportedly has more than 100 million users. 19

Video and photo-sharing sites like YouTube, Veoh, Flickr, Yahoo! Video, and MSN Soapbox are also examples of social media. YouTube users alone posted 13 million hours of video in 2010, with forty-eight hours of video uploaded to the site every minute. 20

Originally, users joined sites like these to share information and individual user-generated content with smaller networks of friends and relatives. 21 Today, however, social media sites are becoming popular tools for open marketing, viral or stealth marketing, and information sharing. 22 For example, many politicians, entertainers, *153 universities, nonprofit organizations, sports leagues, media companies, and other businesses all have their own “channels” on YouTube. 23 Moreover, on Facebook, consumers can “friend” companies like Starbucks, Coca-Cola, and McDonalds. 24 In all, 79% of Fortune 100 companies use at least one form of social media, and 20% of companies are using all of the four main

© 2017 Thomson Reuters.Page No claim to 163 original U.S.of Government228 Works. 2 LAWYERS AND SOCIAL MEDIA: THE LEGAL ETHICS OF..., 28 Touro L. Rev. 149 technologies (Facebook, Twitter, YouTube, and blogs). 25 As a result, a variety of industries, including the legal industry, have been forced to figure out how social media fit into their marketing models.

III. Common Ethical Problems Posed by Social Media

Like most professionals, lawyers have been unable to avoid social media. As of 2009, more than 70% of lawyers are members of a social media site--up nearly 25% from the past year--with 30% growth reported among lawyers ages forty- six and older. 26 According to the ABA's 2010 Legal Technology Survey Report, 56% of attorneys in private practice are on social media sites, up from 43% the year before. 27

Law firms are also experimenting with how social media fit into their marketing models. Some firms, for example, operate Twitter accounts, touting litigation news and law firm accomplishments 140 characters at a time. 28 Consequently, the viral nature of social *154 media can cause management headaches when, for example, partners at one major law firm learned that a lighthearted self-congratulatory song intended for firm ears only found its way onto a legal blog and then onto YouTube. 29

In addition to public relations frustration, lawyers and law firms also need to consider whether their forays into the social media world place them on the wrong side of any ethical or legal rules. Lawyers around the country have learned that in the social media universe, serious professional fallout can be just one click away. 30 However, interpreting the various ethical proscriptions can be difficult because existing ethics rules generally are geared toward the offline world, and most laws and rules were promulgated in the early years of the Internet before most social media sites were invented. 31

In response to new technologies, the American Bar Association formed its “Commission on Ethics 20/20” in 2009, recognizing that “[t]echnological advances and globalization have changed our profession in ways not yet reflected in our ethics codes and regulatory structure.” 32 This commission released its initial proposal on June 29, 2011. 33 The initial recommendations focus on when electronic communications give rise to an attorney-client relationship, which types of client development tools lawyers may use, and when online communications constitute “solicitations.” 34 These suggestions will undergo additional comment and revision before they are presented *155 to the association's policymaking House of Delegates in 2012. 35 It is too soon to know just how much clarity these revised rules will provide, and in the meantime, lawyers need to understand how their online actions correspond to existing ethics rules.

This Part examines common ethical hazards for lawyers using social media in practice. In particular, this Part considers the duty of confidentiality, legal advertising rules, and the unauthorized or inadvertent practice of law. This Part also analyzes some of the recommendations from the ABA's Commission on Ethics 20/20 and provides a few best practices for attorneys on each of these subjects.

A. The Duty of Confidentiality

Model Rule 1.6(a) protects lawyer-client confidentiality and prohibits lawyers from revealing information “relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted” under one of a handful of listed exceptions. 36 The ease of sharing and publicizing information through social media, however, raises a danger that lawyers might fall afoul of this duty.

The disclosure of confidential information can occur in myriad ways. Blog posts, Facebook status messages, and tweets all allow for instant publication of information, including information about procedural developments, interparty negotiations, courtroom developments, and business-related travel. 37 Many social media sites such as Facebook and

LinkedIn also offer the ability to import contact information from existing e-mail accounts, but doing so may publicize details about clients, witnesses, consultants, and vendors. 38 Photo-sharing sites can host photos that accidentally display confidential information such as evidence, trial materials, or personnel locations, while geo-mapping sites like Foursquare that publish users' location information could permit lawyers to reveal information such as a current investigatory trip or meeting. 39 Even a post that hides the *156 identity of a client and recounts only public details of a trial still might reveal confidential information. 40

Indeed, there can be an inherent “‘tension between the duty of confidentiality and the Facebook norm of enormously reduced, if not nonexistent, personal boundaries.”’ 41 And although many lay people tweet, post, or blog their every thought with little self-censorship and few repercussions, inappropriate use of social media in the legal world can result in the release of confidential information, a waiver of the attorney client-privilege, or disciplinary action. 42

Social media even cost one Illinois public defender her job after it was revealed that she was blogging about her cases. 43 In the blog posts, the assistant public defender referred to “clients by either their first name, a derivative of their first name, or by their jail identification number.” 44 In the posts she disclosed her clients' crimes and drug use as well as the details of private client conversations. 45 Because the posts included confidential client information, she was fired, charged with violating legal ethics, and ultimately received a sixty-day suspension from the state supreme court. 46

A client's use of social media can similarly create problems with respect to attorney-client confidentiality. A federal judge in California, for example, upheld an order compelling discovery of a *157 client's e-mails, instant message conversations, and blog posts after concluding that discussions of conversations with counsel waived attorney-client privilege. 47 In the lawsuit, which itself involved social media, a woman sued Universal Music after the company asked YouTube to remove a video she posted of her son dancing to the Prince song, “Let's Go Crazy.” 48 Universal Music sought discovery of the plaintiff's communications with her lawyer after computer records revealed that the woman used a social media service to discuss her counsel's motivations for representing her pro bono, her decision to abandon her state law claims, and the factual allegations behind her case. 49 As the judge explained, “When a client reveals to a third party that something is ‘what my lawyers thinks,’ she cannot avoid discovery on the basis that the communication was confidential.” 50

The current proposal from the ABA's Commission on Ethics 20/20 does not include any changes to the existing confidentiality rules. 51 The comments on the current rule note only that lawyers “must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure” 52 and must choose a method of communication that has a reasonable expectation of confidentiality when transmitting information. 53 Because, in this instance, emerging technologies merely provide a new medium for conveying information, this guidance can continue to be applied with relative ease to the online world. For example, as with other technologies, lawyers should understand how social media sites function and the information that is shared by each site used. 54 And, *158 as discussed in greater detail below, privacy settings on social media sites can play an important role in limiting the disclosure of information; lawyers should employ these filters and settings to the extent possible. 55 Finally, carefully dividing personal and professional networks can help avoid issues relating to contact-sharing.

B. Legal Advertising

Social media use can often blur the lines between private communication and public advertisement. If that line is crossed, lawyers could run afoul of their jurisdictions' ethical rules governing attorney advertising and solicitation.

With respect to explicit social media advertising, the guidance for lawyers is rather straightforward. In general, lawyers and law firms should ensure that any postings, messages, and video campaigns are permitted and are approved by the required authorities under their jurisdictions' relevant rules. 56 This may include the need to keep copies of the social media posting for later review by state authorities. 57

Some specific types of social media communication pose additional risks that attorneys need to consider, as many attorneys may not realize their actions online may fall under the rules governing advertising. For example, Connecticut's ethical rules suggest that even a simple LinkedIn invitation to another user that links to a lawyer's personal page describing his practice may be an advertisement subject to regulation. 58 With some social media sites, however, it can be impossible for an attorney's communications to comply with legal advertising rules that have yet to adapt to this new technology. For *159 example, the 140-character limit on tweets sometimes can make it impossible to include the required disclaimer requirements. 59

In some instances, attorneys can even be required to police the content others post online. Rating and review sites that allow consumers to search for a particular type of business or company and read reviews that other consumers post can implicate local ethics rules. 60 Although lawyers have little or no control about what clients post to their “profiles” on many of these sites, some state bar associations have nonetheless concluded that these sites can implicate state advertising rules. For instance, the Ethics Advisory Committee for the South Carolina Bar Association concluded that any lawyer who adopts, endorses, or otherwise “claims” information on a rating or review site is responsible for making sure the information complies with the relevant rules of professional conduct. 61 The committee explained that lawyers generally are not responsible for information not placed or disseminated by the lawyer or on the lawyer's behalf, but “by requesting access to and updating any website listing (beyond merely making corrections to directory information), a lawyer assumes responsibility for the content of the listing.” 62

Once a posting qualifies as an advertisement, the traditional rules apply. Model Rule 4.1, for instance, prohibits “puffery,” or “mak[ing] a false statement of material fact or law to a third person.” 63 Professional rules in Illinois and New York prohibit attorneys from using words like “specialist,” “certified,” or “expert” in advertising, unless they possess certain qualifications. 64 The Arizona State Bar concluded that such rules mean that a lawyer cannot state in an online chat that he “specializes” in a particular area of law unless he is certified in that area of law with the state bar. 65 Finally, Texas requires attorney video advertising to be filed with the state's Advertising *160 Review Committee, 66 and the Texas State Bar reminds attorneys that this filing requirement extends to firm videos posted on video-sharing sites like YouTube, Myspace, or Facebook if those videos solicit legal services and no exemption applies. 67

To avoid these risks, lawyers should refrain from editing, updating, expanding, or otherwise “claiming” profiles created by third parties, unless they are comfortable being responsible for the content. 68 Regardless, attorneys should monitor social profiles for factual accuracy, whether those profiles are third-party created or self-maintained. 69 This includes omitting any representation of expertise if it has not been approved by the proper authorities. 70 Finally, lawyers should phrase descriptions of past work and experience in ways that emphasize the fact-specificity of each outcome and include appropriate disclaimers. 71

Because of some of the confusion surrounding online legal advertising, the ABA's Commission on Ethics 20/20 studied theexisting advertising rules extensively. 72 The commission's initial proposal, however, recommended few changes. 73 The commission advised leaving the text of the current Model Rule 7.2 unchanged, 74 but in its report the commission

© 2017 Thomson Reuters.Page No claim to 166 original U.S.of Government228 Works. 5 LAWYERS AND SOCIAL MEDIA: THE LEGAL ETHICS OF..., 28 Touro L. Rev. 149 acknowledged that the Internet blurs the lines between advertising and lawyer referral. 75 For example, one firm recently distributed free t-shirts bearing the firm's name, then offered a chance to win a prize to everyone who posted a photo on Facebook of them wearing the shirt. 76 The commission explained that because the firm was arguably giving people something “of value” *161 by offering them an opportunity to win a prize for “recommending” the law firm's services, such a promotion might violate existing ethics rules. 77

The main change the ABA Commission recommended can be found in its comments on Rule 7.2, which clarify what it means to “recommend” a lawyer's services, defining a lawyer recommendation as “[a] communication. . .[that] endorses or vouches for a lawyer's credentials, abilities or qualities.” 78 The comment also clarifies when “a lawyer may pay others for generating [Internet-based] client leads.” 79 Under this new definition, the t-shirt promotion, for example, would not be a recommendation because “wearing the t-shirts could not reasonably be understood as a ‘recommendation’ (i.e., it is not reasonably understood as an endorsement of the law firm'scredentials, abilities, or qualities).” 80

Beyond this clarification, however, the proposal does little more than add “the Internet, and other forms of electronic communication” to the list of “most powerful media for getting information to the public.” 81 A co-chairwoman of the ABA Commission explained that “[t]hough the Model Rules were written before these technologies had been invented, their prohibition of false and misleading communications apply just as well to online advertising and other forms of electronic communications that are used to attract new clients today.” 82 The proposal, however, does little to resolve other existing ambiguities.

C. The Unauthorized or Inadvertent Practice of Law

Although it is possible to use social media merely for passive advertising, these platforms facilitate, and even encourage, dynamic, interactive use. However, this dynamism, combined with the broad reach of social media, creates the risk of the inadvertent, and sometimes unauthorized, practice of law.

*162 First, social media communications are rarely one sided. Social media sites make it just as easy for people in other jurisdictions to leave blog comments, send Facebook messages, or tweet back to lawyers, and because anonymity or pseudonymity are common online, it is not always possible for the lawyer to know where the communication originated. This further complicates a lawyer's attempts to follow licensing rules.

As one commentator notes, “The speed of social networking . . . may facilitate referrals, advice, and the formation of apparent attorney-client relationships, all with a few clicks of a mouse[, and i]n social networking, casual interactions sometimes cannot be distinguished from more formal relationships.” 83 As a result, lawyers need to monitor interactions with non-lawyers carefully to avoid creating the appearance of an attorney-client relationship, or even a prospective attorney-client relationship. This is particularly important because ethics rules provide that “[e]ven when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation,” except in limited circumstances. 84 Under Model Rule 1.18, if a lawyer receives information from a prospective client that would be harmful to an existing client, he is disqualified from representing clients with materially adverse interests. 85 Such disqualification can have far-reaching consequences because Rule 1.18 also prevents attorneys at the same firm from representing the client unless both the existing client and the prospective client consent or if the lawyer who received the information “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,” the disqualified lawyer is “timely screened” from representation, and the prospective client receives prompt written notice. 86

Second, social media sites permit users to send information regionally, nationally, or even globally. But the practice of law is still bound by jurisdictional limits with lawyers regulated and licensed on a state-by-state basis, with disciplinary charges awaiting those who practice in jurisdictions where they are not licensed. 87 *163 With the growth of social media, the same technology that allows lawyers to easily send information across global networks also makes it easy for lawyers to engage in law practice within jurisdictions where they are not licensed. 88

Finally, the frequent use of anonymity and pseudonymity online also can give rise to inadvertent conflicts of interests as lawyers unintentionally develop relationships with parties who have interests that are adverse to those of existing clients. 89 A lawyer also may state a position on an issue that is adverse to the interests of a client, inadvertently creating an issue conflict. 90

The ABA's Commission on Ethics 20/20 has proposed various revisions to Rule 1.18 to clarify when online communications give rise to a prospective client relationship. 91 One proposed revision includes a more detailed definition of a “prospective client,” defining the term as someone who has “a reasonable expectation that the lawyer is willing to consider forming a client-lawyer relationship.” 92 Similar language now appears in Comment 2, and “[t]he Commission concluded that this language . . . more accurately characterizes the applicable standard and is more capable of application to electronic communications.” 93

*164 The proposal also broadens the types of interactions that give rise to a prospective client relationship. For example, the commission suggests changing “discusses” to “communicates” in the first paragraph “to make clear that a prospective client-lawyer relationship can arise even when an oral discussion between a lawyer and client has not taken place.” 94 Similarly, the commission recommends replacing the phrase “had discussions with a prospective client” to “learned information from a prospective client.” 95

Additionally, the commission recommends adding a sentence in one of the comments to make it clear that a person is not owed any duties under Rule 1.18 if the person contacts a lawyer for the purpose of disqualifying the lawyer from representing an opponent. 96

The current proposal does not address the problem of unauthorized practice of law through social media, but there are steps lawyers can take to avoid these risks. For example, lawyers should not give fact-specific legal advice and should instead stick to discussing general legal topics and information. As the Arizona Bar explains, attorneys should treat online discussion groups and chat rooms the same way they treat offline legal seminars for lay people. 97 In other words, an attorney should avoid answering specific legal questions “unless the question presented is of a general nature and the advice given is not fact-specific.” 98 For similar reasons, lawyers should exercise caution when using social media to discuss sensitive client matters. 99

Any blog or social media posting should also contain a clear and conspicuous disclaimer to prevent misunderstandings. These notices “should disclaim the existence of an attorney-client relationship, except on express agreement from the lawyer, and caution prospective clients not to send a lawyer confidential information, without *165 confirmation of an agreement to undertake representation.” 100 Moreover, the disclaimer should indicate the state (or states) in which the attorney is admitted to practice. 101 Lawyers can also use “click-wrap” disclaimers, also known as “click- through” disclaimers, which require readers to acknowledge their understanding that the communication does not form an attorney-client relationship by clicking “accept” prior to accessing the website. 102

IV. Social Media and the Judiciary

Because of special ethics rules and practices governing lawyers and the judiciary, lawyers must take particular care when social media use involves judges, clerks, or other judicial employees. 103 Similarly, because of their special role in the judicial system, judges and judicial employees must be especially careful in their social media use to maintain an appearance of impartiality and to prevent security risks. This Part discusses some of the pitfalls of social media posts about the judiciary and judicial proceedings as well as some of the specific considerations facing judges and judicial employees who use social media.

A. Attorney Comments About Tribunals and the Judiciary

Lawyers have quickly learned that social media sites provide *166 a useful tool for uncovering opposing parties' misconduct. 104 For example, photos, videos, and online posts can catch a party in a lie or can unwittingly reveal inside information. What attorneys sometimes forget, however, is that these tools can just as easily reveal their own misconduct, and attorneys who “overshare” online can end up facing disciplinary action.

Model Rule 3.3 prohibits attorneys from making false statements to a tribunal. 105 This prohibition is not new, but when lawyers share personal information on publicly accessible platforms, these lies become easier to detect. One Texas judge, for example, checked a lawyer's Facebook page after the lawyer requested a continuance because of the death of her father. The young lawyer's Facebook posts revealed that “there wasn't a lot of grief expressed online.” 106 Instead, the lawyer's posts described a week of partying and drinking with friends. 107 When the lawyer asked for a second continuance, the judge declined and disclosed the results of her research to a senior partner at the lawyer's firm. 108

Attorneys also should never disparage judges online. Florida lawyer, Sean Conway, received a public reprimand from the Florida Supreme Court after calling a Fort Lauderdale judge an “Evil, Unfair Witch” on a popular South Florida legal blog. 109 And a lawyer in California received a forty-five-day suspension after posting blog entries disparaging a judge and defendant while serving as a juror. 110 In general, the best way to avoid sanctions arising out of social media *167 posts is simple and straightforward: never communicate a false statement or post disparaging comments. Furthermore, effective use of social media sites' privacy settings can help mitigate the damage of such statements, if they do occur.

B. Social Media and Judicial Employees

Social media use raises special ethical, confidentiality, and security concerns for law clerks and other judicial employees. 111 Some potential ethical problems include:

• Tweets or Facebook posts may inadvertently reveal confidential information from court filings or discussions that take place in a judge's chambers;

• Videos, photos, or online comments revealing improper or even illegal conduct can reflect poorly on the court;

• Social network connections with parties or attorneys appearing before the court can suggest special access or favoritism;

• Commenting on pending matters or on matters that may soon appear before the court could present an image of impropriety. 112

Beyond ethical concerns, posting photos of the interior of the courthouse or posting information about a judge's location at a certain day or time could put the safety of judicial employees at risk. 113

To avoid these problems, many judges and courts provide social media policies and guidelines to their employees. These policies, however, vary by court and even by judge. While some policies might include sweeping social media bans, others simply contain basic rules or general guidelines for employees.

Because of the unique safety risks facing judges and judicial employees, the most detailed portions of many of these policies contain prohibitions designed to reduce security risks. For example, the social media policies of several courts bar judicial employees from posting pictures of court events, judicial offices, and even the courthouse *168 itself. 114

Unlike the more uniform safety rules, ethical prohibitions and guidelines tend to vary more among the courts. For example, the District of Rhode Island simply provides its law clerks and interns with a list of broad guidelines, like “Think before you post,” “Speak for yourself, not your institution,” and “Keep secrets secret,” but its policy includes few blanket prohibitions. 115 Several policies also include general advice to obey libel and copyright laws. 116

In contrast, the Southern District of Indiana and the Central District of California provide a more detailed list of prohibitions; both bar employees from using a court e-mail address for social networking, from disclosing confidential information, from posting photos or profile information that affiliates a judicial employee with a candidate or political party, and from “friending,” “following,” or “recommending” a lawyer or law firm that appears before the court. 117

The Central District of California also prohibits employees from using United States District Court seals and logos, and from “identifying yourself as a court employee at all in social media.” 118 In contrast, the Southern District of Indiana's policy states that employees may identify themselves by a “court-related job title” such as law clerk or administrative assistant, on the condition that employees do not identify their specific court or judge. 119 The Southern District *169 of Indiana's policy also instructs judicial employees that “[a]ny commentary you post that could reveal an association with the court must contain an explicit disclaimer that states: ‘These are my personal views and not those of my employer.”’ 120

Finally, some of the same rules that apply to most employees also apply to judicial employees, and social media policies caution judicial employees not to post photos of themselves engaging in improper or illegal conduct. 121

C. Social Media and Judges

Attorneys and judicial employees are not the only members of the legal profession using social media. More than forty percent of judges reported that they use social media sites. 122 Judges, however, must exercise additional caution when it comes to social media use. In particular, judges need to decide whether to “friend” or “follow” attorneys who appear before them and how to communicate with attorneys over social media. Some judges also must mediate social media discovery disputes that arise in the cases before them, which often require creative solutions.

1. Judges and Attorneys as Social Media “Friends”

States disagree over whether a judge may friend an attorney who appears before him. 123 The Ohio Supreme Court's Board of *170 Commissioners on Grievances and Discipline, for example, wrote that “[a] social network ‘friend’ may or may not be a friend in the traditional sense of the word” because “[a]nyone who sets up a profile page on a social networking site can request to become a ‘friend’ (or similar designation) of any of the millions of users on the site.” 124 “There are hundreds of millions of ‘friends' on social networking sites.” 125 As a result, a judge may friend a lawyer who

© 2017 Thomson Reuters.Page No claim to 170 original U.S.of Government228 Works. 9 LAWYERS AND SOCIAL MEDIA: THE LEGAL ETHICS OF..., 28 Touro L. Rev. 149 appears before him in court, provided he follows ethical guidelines, avoids posting comments about a pending matter, and disqualifies himself when necessary. 126

New York's committee on judicial conduct further explains that there is nothing “inherently inappropriate” about a judge joining a social network because in some ways it “is no different from adding the person's contact information into the judge's Rolodex or address book or speaking to them in a public setting.” 127 The committee noted, however, that the public nature of the online link could create the appearance of a stronger bond, a factor judges should consider when deciding whether a particular relationship requires disclosure or recusal. 128

In Florida, the state's judicial ethics advisory committee concluded that judges could not be social media friends with attorneys who appear before them. 129 The committee acknowledged that it was not saying “that simply because a lawyer is listed as a ‘friend’ on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, [it] means that this lawyer is, in fact, in a special position to influence the judge.” 130 The committee explained that the real issue was not whether the lawyer is actually in a position to influence the judge, but whether the online friendship conveys the impression that the lawyer has such influence. 131

*171 Even in jurisdictions that permit a judge to friend an attorney, “a judge's actions and interactions must at all times promote confidence in the judiciary [and a] judge must avoid impropriety or the appearance of impropriety . . . .” 132 As a result, ex parte communications should be avoided in the online world, just as they must be avoided if stated in person or over the phone. A North Carolina judge, for example, was reprimanded for discussing a case with an attorney on Facebook. In that case, a judge presiding over a child custody case became Facebook friends with the father's attorney. 133 In response to a posting from the attorney, the judge posted that he had “two good parents to choose from.” 134 The judge also posted that he “feels that he will be back in court,” a reference to the fact that the case had not settled. 135 The father's counsel responded to these posts by writing “I have a wise judge.” 136 The judge later disclosed the exchanges to the mother's attorney, but was ultimately reprimanded for the communications. 137

In addition to avoiding ex parte communications, state ethics committees also have explained that a judge “must not investigate matters before the judge, must not make improper public statements on pending or impending cases, and must disqualify from cases when the judge has personal bias or prejudice concerning a party or aparty's lawyer or when the judge has personal knowledge of facts in dispute.” 138

2. Using Social Media to Address Discovery Disputes

The difficulties inherent in social media sometimes haverequired judges to respond creatively to discovery disputes. Social media sites have become invaluable discovery resources, 139 but the personal nature of many social media profiles and posts implicates *172 considerable privacy concerns. As a result, judges have needed to figure out how to mediate these disputes.

In Tennessee, for example, a magistrate judge adopted an unorthodox approach to a protracted discovery dispute involving photos taken by the plaintiff and other witnesses. 140 The judge offered to create a Facebook account to expedite discovery of the photos, captions, and comments. 141 The judge then explained that if the witnesses accepted his friend requests he would conduct an in camera inspection of photos and related comments, disseminate any relevant information to the parties, and then close the Facebook account. 142

Other judges have ordered parties to turn over hard copies of their social profile information for a more traditional in camera review. For example, one defendant requested production of Facebook content related to a plaintiff's alleged teasing and taunting, or any content related to the communications involving the student's claims in Bass v. Miss Porter's School. 143 The student had since lost access to her account but requested the information from Facebook. 144 When Facebook agreed to provide “reasonably available data,” the judge ordered the student to provide responsive documents to the school and give the entire set of documents to the court for in camera review. 145 The defendant provided about a hundred pages of documents to the school and “more than 750 pages of wall postings, messages, and pictures” to the court. 146 After reviewing the documents, the court ultimately concluded that there was “no meaningful distinction” between the two sets of documents and ordered the plaintiff to provide the entire set of documents to the school. 147

Other judges have eschewed such detailed reviews entirely and simply have ordered parties to turn over social media posts and *173 account information directly to opposing parties. 148 It is unclear, however, whether such decisions comport with federal online privacy laws. 149

V. The Duty of Competence

Model Rule 1.1 explains that “[a] lawyer shall provide competent representation to a client.” 150 One of the comments on this rule further clarifies that to fulfill this duty and “maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice.” 151 As a result, today's lawyers need to understand how social media sites work and how they can be used to serve a client's needs. 152 To that end, this Part briefly discusses some of the basic information that attorneys need to know to obtain social media information in discovery and investigations. It also highlights a few of the key points in-house counsel should consider when crafting social media policies that comply with regulatory requirements and employment laws.

A. Using Social Media in Court

Social media can provide an abundance of information about opposing parties, especially given the tendency of most social media users to “over-share” online. As a result, attorneys in a variety of practice areas recognize that social media sites can be invaluable sources of information. Family law attorneys, for example, have learned that social media sites can provide all types of information once available only through extensive investigation or by hiring a private detective. Now, with just a few clicks of a mouse, Facebook photos can reveal infidelity, a YouTube video can show a spouse partying instead of watching the kids, and irate social media posts can *174 establish that one spouse in a custody dispute has a terrible temper. 153

Similarly, attorneys for personal injury defendants have a diminished need to hire investigators to follow plaintiffs with video cameras because YouTube videos or Facebook photos can reveal if a plaintiff is exaggerating, or even falsifying alleged injuries, particularly where social media users have lax privacy settings in place for their accounts. In one case, for example, photos of a personal injury plaintiff smiling happily outside her home contradicted claims that her injuries from falling from an allegedly defective chair left her “largely confined to her house and bed.” 154

Even one of the most famous names in social media, Facebook founder Mark Zuckerberg, learned the hard way that once litigation is underway, social media posts can easily reveal comments one would prefer to keep private. During a legal battle surrounding allegations that Zuckerberg stole the idea for his social media site, Facebook's legal team pulled unflattering instant messages from Zuckerberg's computer. 155 A Silicon Valley technology site later obtained

© 2017 Thomson Reuters.Page No claim to 172 original U.S.of Government228 Works. 11 LAWYERS AND SOCIAL MEDIA: THE LEGAL ETHICS OF..., 28 Touro L. Rev. 149 and published some of the posts. 156 Although readers of the messages contend that they do not support the theft claim, they “portray Zuckerberg as backstabbing, conniving, and insensitive.” 157

To take advantage of this social media bounty, however, lawyers need to know how to legally (and ethically) obtain this information, and the law in this area is not always clear.

B. The Discoverability of Social Media

In general, social media is discoverable to the same extent as any other information. In fact, Federal Rule of Civil Procedure 26 specifically provides for the production of “electronically stored information.” 158 Pursuant to Rule 26, relevant information in any format “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible *175 evidence.” 159

Nonetheless, because the information on a social media site is stored on the provider's server rather than on the user's hard drive, the provider, not the user, typically possesses the right to share the information. 160 Generally, it is difficult to obtain this information directly from a provider because of the Stored Communications Act (“SCA”). 161 Congress enacted the SCA as Title II of the Electronic Communications Privacy Act 162 to address privacy concerns arising out of new technologies such as the Internet. 163 The SCA “regulat[es] the relationship between government investigators and [network] service producers in possession of users' private information,” and limits the government's ability to compel disclosure of this information from third parties. 164 More specifically, the SCA prevents certain third-party providers from disclosing their users' electronic communications to the government or a third party without a search warrant in most circumstances. 165

In 1986, however, when Congress enacted the SCA, the Internet was drastically different from the technology many know and use today. 166 As a result, applying this law to social media technologies can be like trying to force a square peg into a round hole, and courts *176 in different jurisdictions have reached different conclusions in their struggles to do so. In Crispin v. Christian Audigier, Inc., 167 the Central District of California became the first court to extend SCA protection to some social media posts and messages. 168 In that case, the defendant sought basic subscriber information and certain communications from several social media sites. 169 The court drew distinctions among the different types of communications on social media sites and concluded that the SCA protects private messages between individual users because these messages are similar to the e-mail services that existed when Congress adopted the SCA. 170 The court also held that the SCA protects a user's Facebook wall posts and MySpace comments, but the court added that in order to be protected from disclosure, these posts and comments must not be “completely public.” 171 As a result, under this rule, SCA protection turns on a user's privacy settings. 172

Other courts have been more willing to release social media information. In Ledbetter v. Wal-Mart Stores, Inc., 173 for example, a district court in Colorado issued a brief order finding that requests for the private messages, blog entries, photos, user logs, and other social media information of a personal injury defendant were “reasonably calculated to lead to the discovery of admissible evidence.” 174 In a similar holding, a state judge in New York granted the defendants access to a personal injury plaintiff's current and historical social media pages. 175 The court held that the plaintiff had no expectation *177 of privacy in her Facebook and MySpace pages because “neither Facebook nor MySpace guarantee complete privacy,” and therefore “when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.” 176 Both of these

© 2017 Thomson Reuters.Page No claim to 173 original U.S.of Government228 Works. 12 LAWYERS AND SOCIAL MEDIA: THE LEGAL ETHICS OF..., 28 Touro L. Rev. 149 decisions, however, omit discussion of the SCA, so it is unclear how--or even if--they would apply in future cases or in other jurisdictions. 177

Attorneys can overcome the SCA's hurdles by seeking information directly from the social media user. Attorneys, however, need to be careful about how they access these social media profiles. In particular, ethical rules prohibit lawyers from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” 178 Other rules restrict communications with unrepresented persons 179 as well as persons represented by another attorney. 180 Based on these rules, state bar associations conclude that attorneys can access a user's social media information in some cases, but not others. Generally, state bar associations have found that accessing a publicly available website or social media page does not violate ethics rules prohibiting dishonesty or rules governing communications with adverse parties. 181 This is because, as these bodies explain, accessing a public *178 site “is no different from reading a magazine article or purchasing a book written by that adversary.” 182

However, local bar associations differ on whether ethical rules permit attorneys or their agents to “friend” a potential witness in an effort to gain access to the witness's information. The Bar Association of the City of New York concluded that “an attorney or her agent may use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person's social networking website without also disclosing the reasons for making the request.” 183 The committee explained that such a conclusion is consistent with judicial policies favoring informal discovery. 184 Conversely, the Philadelphia Bar Association concluded that it would be deceptive for a lawyer to ask a third party to request access to a potential witness's social networking site without first revealing the connection to the lawyer or the true purposes for seeking access. 185

To avoid running into ethical problems attorneys should proceed cautiously when attempting to obtain social media information. Attorneys should not make misrepresentations via social media, especially when those misrepresentations are designed to obtain information that would not otherwise be available. 186 Attorneys also should avoid contact with victims, witnesses, and other individuals involved in an opposing counsel's case without disclosing their professional interests and affiliations. 187

C. In-House Policies Governing Social Media Use

Social media also pose additional challenges for in-house counsel, and these attorneys need to carefully craft policies governing appropriate social media use. Although the details will depend in part on the needs of the organization, the drafters should consider addressing: *179

1. Litigation/Document Holds

Generally, a party has a duty to preserve information relevant to an issue when it is reasonably foreseeable that the issue is or will be the subject of litigation. 188 Typically, when faced with reasonably anticipated litigation, companies identify individuals and entities connected to litigation as well as the data they may have regarding the relevant issues. 189 The entity then “suspend[s the] routine document retention/destruction policy and put[s] in place a ‘litigation hold’ to ensure the preservation of relevant documents.” 190

Normally, enforcing these litigation or document holds is relatively straightforward because the information is held on a local server, hard drive, or network drive, but social media sites complicate these holds because the information is frequently stored on a third party's computer, limiting the company's ability to control the information and ensure that it

© 2017 Thomson Reuters.Page No claim to 174 original U.S.of Government228 Works. 13 LAWYERS AND SOCIAL MEDIA: THE LEGAL ETHICS OF..., 28 Touro L. Rev. 149 remains preserved. 191 In these cases, the party's relationship with the service provider or the provider's terms of service will influence the data preservation process, and parties should be aware of these policies before litigation arises. 192

2. Regulatory Requirements

Corporate social media use also implicates various regulatory limits already placed on offline communications. For example, social media communications could violate federal securities laws and associated securities trading rules, including federal disclosure requirements *180 and antifraud provisions. 193 Furthermore, allowing employees in the medical industry to use social media without proper training could lead to violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) 194 and other patient privacy laws. 195 As a result, in-house counsel need to consider regulatory rules when crafting corporate social media policies and should examine any relevant agency guidance when interpreting how existing regulatory rules apply in the social media context.

3. Employment Decisions

Finally, employers need to consider how to utilize social media when making hiring and firing decisions, as well as how to regulate the social media use of existing employees. Employers are increasingly using social media sites to search for information on prospective employees. 196 These searches can cause additional legal headaches because in addition to providing information on an applicant's ability to perform a particular job, social media sites also can reveal characteristics that are protected under state and federal employment laws, such as the prospective employee's age, ethnicity, gender, religion, marital status, sexual orientation, and other characteristics. Employment decisions cannot be based on this information, but the information often cannot be “unseen” once someone with hiring authority has viewed it.

Further, once an employee is hired, social media sites can disclose what an employee does outside the office, and employers do not always have the freedom to make adverse employment decisions based on those discoveries. Certain states have “lifestyle” statutes that prohibit employers from making employment decisions based on all or some off-duty behavior. 197 As a result, employers must ensure *181 that they are not making employment decisions based on this information. Generally, however, employers have considerably more latitude to regulate and monitor employee social media use on employer-owned electronic equipment. 198 To minimize the risk that social media searches will lead to an employment discrimination claim, in-house counsel often implement “screening” features in hiring decisions. These features monitor when prospective employees visit certain social media sites, and pass along non-protected information to those who will make the ultimate hiring decisions. With respect to current employees, written policies explaining the appropriate use of social media and contemporaneous documentation of non-discriminatory reasons for adverse employment decisions are generally advisable.

Finally, the National Labor Relations Board has recently begun taking a close look at employers' social media policies toexamine whether the policies inappropriately restrict employees' rights under Section 7 of the National Labor Relations Act. 199 Where a policy prohibits employees from discussing wages and working conditions, the NLRB has found the policy overly broad. 200 Nonetheless, narrowly tailored policies designed to protect business interests (such as maintaining a consistent public message) will usually be considered permissible. 201

*182 VI. Conclusion

Some attorneys have found that social media can provide potential benefits in marketing, networking, and as a litigation resource. However, attorneys who are not careful about the use of social media risk breaching client confidences,

© 2017 Thomson Reuters.Page No claim to 175 original U.S.of Government228 Works. 14 LAWYERS AND SOCIAL MEDIA: THE LEGAL ETHICS OF..., 28 Touro L. Rev. 149 incurring disciplinary action, or even losing their jobs. Ethical risks include breaching the duty of confidentiality, violating legal advertising rules, and engaging in the unauthorized or inadvertent practice of law. Additionally, attorneys face sanctions for revealing misconduct or disparaging judges on social media sites. The use of social media by judges and judicial employees presents additional ethical and security risks. Judicial employees must ensure that they are not revealing confidential information, posting comments or photos that would reflect poorly on the court, or disclosing information that would put the safety of a judge or judicial employee at risk. Meanwhile, judges need to consider their social media ties to attorneys who appear before them and must decide if, when, and how to use social media to resolve discovery disputes.

Litigators and corporate employers alike hope to take advantage of the bounty of information on most social media sites, but also must make sure that their use of that information complies with legal and ethical standards. Unfortunately, existing ethics rules and legal standards provide few clear guidelines, and fast-changing legal doctrines and technologies add to the complications. Proposed revisions to the ABA's Model Rules of Professional Conduct might provide additional clarity, but are unlikely to resolve the existing questions surrounding the ethical use of social media. As this technology continues its rapid evolution, lawyers should exercise caution in their use of social media. While online actions frequently have offline ethical analogues, social media often exposes tensions inherent in the application of rules written for the pre-Internet practice of law. Nonetheless, by understanding the current rules and following certain best practices, attorneys can take advantage of the potential benefits of social media, while avoiding many of its hazards.

Footnotes a1 Michael E. Lackey, Jr. is a litigation partner in the Washington, D.C. office of Mayer Brown LLP. aa1 Joseph P. Minta is a litigation associate in the Washington, D.C. office of Mayer Brown LLP. aaa1 This article expresses the views of the authors, but not of the firm.

1 What Americans Do Online: Social Media and Games Dominate Activity, Nielsen Wire (Aug. 2, 2010), http:// blog.nielsen.com/nielsenwire/online_ mobile/what-americans-do-online-social-media-and-games-dominate-activity/. This number jumps to more than twenty-five percent when video-viewing sites like YouTube are added to the total. Id.

2 Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media Is Obvious, It's Also Dangerous, 97 A.B.A. J. 48, 51 (2011).

3 See generally Model Code of Prof'l Conduct R. 7.3(c) (2007) (requiring that written and electronic communications to clients bear the words “Advertising Material”).

4 See generally Model Code of Prof'l Conduct R. 5.5(a) (2007) (“A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”).

5 See Model Code of Prof'l Conduct R. 1.7 (2007); Model Code of Prof'l Conduct R. 1.8 (2007); Model Code of Prof'l Conduct R. 1.10 (2007); Model Code of Prof'l Conduct R. 1.11 (2007). Each rule contains restrictions that would certainly raise ethical issues resulting from such contact.

6 Danah M. Boyd & Nicole B. Ellison, Social Network Sites: Definition, History, and Scholarship, 13 J. Computer-Mediated Comm. 210, 210 (2007).

7 Id. at 211.

8 See What Are Blogs?, WiseGeek, http://www.wisegeek.com/what-are-blogs.htm (last visited July 20, 2011).

9 Id.

10 Id.

11 BlogPulse Stats, BlogPulse, http://www.blogpulse.com/ (last visited July 20, 2011).

12 Myspace, previously known as “MySpace,” rebranded its website and introduced a new suite of products on October 27, 2010. See Meet the New Myspace, MYSPACE (Oct. 27, 2010), http:// www.myspace.com/pressroom/2010/10/meet-the-new- myspace/.

13 See What Is Facebook?, WiseGeek, http://www.wisegeek.com/what-is-facebook.htm (last visited Oct. 11, 2011); What Is Myspace?, WiseGeek, http:// www.wisegeek.com/what-is-myspace.htm (last visited Oct. 11, 2011).

14 About Us, Linkedin, http://press.linkedin.com/about (last visited Oct. 11, 2011).

15 Statistics, Facebook, http://www.facebook.com/press/info.php? statistics (last visited July 20, 2011).

16 About Twitter, Twitter, http://twitter.com/about (last visited July 20, 2011).

17 What Is Twitter?, Twitter, http://business.twitter.com/basics/what-is-twitter (last visited July 6, 2011).

18 Id.

19 Id. According to Twitter, its users post 230 million “tweets” per day. Id.

20 Statistics, YouTube, http://www.youtube.com/t/press_statistics (last visited Oct. 11, 2011).

21 Boyd & Ellison, supra note 6, at 214. The first recognizable site was launched in 1997, called SixDegrees.com. However, it closed and its founders later stated that the site was too ahead of its time. Id.

22 See How to Use Social Networking Sites for Marketing and PR, N.Y. Times, Dec. 24, 2008, http://www.nytimes.com/ allbusiness/AB11702023_ primary.html. PR managers are advising companies to use social networking sites as an outlet for marketing and PR. Id.

23 See Channels--YouTube, YouTube, http://www.youtube.com/members (last visited July 20, 2011). Individuals and organizations with their own YouTube channels include President Obama, Harvard University, Universal Music Group, Showtime, Justin Bieber, Apple, Inc., and the Travel Channel. Id.

24 See James Ledbetter, Introducing the Big Money Facebook 50, TheBigMoney (Nov. 30, 2009, 12:00 AM), http://www.thebigmoney.com/articles/-big-money-facebook-50/2009/11/30/introducing-big-money-facebook-50? page=0,0 (discussing the companies making the best use of Facebook). Id. Several consumer products also have their own Facebook pages. For example, at one point Kellogg's Pop-Tarts were winning over more than 7,000 new Facebook “fans” per day. See Stuart Elliott, Marketers Trade Tales About Getting to Know Facebook and Twitter, N.Y. Times, Oct. 15, 2010, at B2.

25 See Catherine Smith, Fortune 100 Companies' Social Media Savvy (STATS), Huffington Post (last updated Aug. 10, 2010, 5:12 AM), http:// www.huffingtonpost.com/2010/06/10/fortune-100-companies-soc_n_607366.html (noting that the Fortune 100 Companies are the most active on Twitter).

26 Tresa Baldas, They Blog, They Tweet, They Friend; And, Oh Yes, They Discover Electronically: Tech Advances Redesigned Lawyers' Lives, 32 Nat'l L.J. 11, 11 (2009).

27 Press Release, ABA, ABA Legal Tech. Survey Results Released (Sept. 28, 2010) (on file with the Touro Law Review).

28 See, e.g., Tamer El-Ghobashy, Tweeting for Lawyers 101, Wall St. J. Law Blog (July 15, 2011, 10:14 AM), http:// blogs.wsj.com/law/2011/07/15/tweeting-for-lawyers-101/.

29 Michael J. de la Merced, Unauthorized Enjoyment of Song Irks Law Firm, N.Y. Times, Aug. 27, 2007, http:// www.nytimes.com/2007/08/27/business/media/27lawsuit.html (discussing Nixon Peabody's attempts to stop the viral spread of a song touting a recent legal award).

30 See generally Seidenberg, supra note 2.

31 The ABA Model Rules of Professional Conduct were last revised in 2002. Model Rules of Professional Conduct: Preface, Am.Bar, http:// www.americanbar.org/groups/professional_responsibility/publications/ model_ rules_of_professional_conduct/model_rules_of_professional_conduct_preface.html (last visited July 20, 2011). Congress enacted the Stored Communications Act (SCA) in 1986, which restricts the ability of certain third-party service providers to release user information. 18 U.S.C. §2701 (a)(1)-(2) (2006). The majority of today's most popular social media sites, however, did not exist until 2003 or later. See Boyd & Ellison, supra note 6, at 212 fig.1 (showing that LinkedIn and MySpace were invented in 2003, Facebook was launched in 2004, YouTube in 2005, and Twitter in 2006).

32 Press Release, ABA, ABA President Carolyn B. Lamm Creates Ethics Comm'n to Address Tech. and Global Practice Challenges Facing U.S. Lawyers (Aug. 4, 2009) (on file with the Touro Law Review).

33 Press Release, ABA, ABA Comm'n on Ethics 20/20 Recommends No New Restrictions on Lawyer Adver., (June 29, 2011) (on file with the Touro Law Review).

34 Id.

35 Id.

36 Model Rules of Prof'l Conduct R. 1.6(a) (2007).

37 Jeffrey T. Kraus, Online Social Networking--Ethics and Liability Issues, 2010 Loss Prevention J. 8, 9.

38 Id.; Steven C. Bennett, Ethics of Lawyer Social Networking, 73 Alb. L. Rev. 113, 118-19 (2009).

39 Antone Johnson, Ethics Tips for Lawyers Using Social Media, Bottom Line Law Group, http://bottomlinelawgroup.com/ bllg/wp-content/uploads/2010/11/Ethics-Tips-for-Lawyers-Using-Social-Media.pdf (last visited Oct. 13, 2011).

40 Nev. Comm. on Ethics & Prof'l Responsibility, Formal Op. 411 (2009) (discussing Rule 1.6(a) which requires that all information relating to a client be confidential, including the mere identity of a client).

41 Leslie A. Gordon, Why Can't We Be Friends?, ABA J. (Jan. 1, 2010, 9:00 PM), http://www.abajournal.com/magazine/article/ why_cant_we_be_friends/ (quoting legal ethicist, John Steele).

42 See Rita M. Glavin, Note, Prosecutors Who Disclose Prosecutorial Information for Literary or Media Purposes: What About the Duty of Confidentiality?, 63 Fordham L. Rev. 1809, 1810-11, 1823-24 (1995) (“A prosecutor, ... is not authorized to disclose representational information for purposes unrelated to his professional duties, such as for literary or media purposes, and he must obtain consent, as required by confidentiality rules, to do so.”); Adam C. Losey, Note, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, 60 Fla. L. Rev. 1179, 1182 (2008) ( “[E]mployees who e-mail an attorney from the workplace, or from a workplace e-mail account, often lose the evidentiary protections of attorney-client privilege.”).

43 See Seidenberg, supra note 2, at 43.

44 Complaint at P 2, In the Matter of Kristine Ann Peshek, No. 09 CH 89 (Ill. Attorney Registration & Disciplinary Comm'n Aug. 25, 2009).

45 Id. PP 4-8.

46 Debra Cassens Weiss, Blogging Assistant PD Gets 60-Day Suspension for Post on Little-Disguised Clients, ABA J. (May 26, 2010, 8:57 AM), http:// www.abajournal.com/news/article/blogging_assistant_pd_gets_60-day_suspension_ for_posts_on_little-disguised_/.

47 See Lenz v. Universal Music Corp., No. 5:07-cv-03783 JF, 2010 WL 4789099, at *1 (N.D. Cal. Nov. 17, 2010).

48 Id.

49 Id. at *1-4. In one chat, for example, she told her friend that she had told one of her attorneys that it was fine to drop her state law claim because “pursuing the federal portion of the case achieves the ends [she has] in mind.” Id. at *3. In another conversation, she hinted at the content of an unfiled brief her lawyer had drafted. Id. at *4 n.2.

50 Lenz, 2010 WL 4789099, at *5.

51 Compare Model Rules of Prof'l Conduct R. 1.6 (existing confidentiality rules), with Memorandum from the ABA Comm'n on Ethics 20/20 on Initial Draft Proposals on Lawyers' Use of Tech. and Client Dev. (June 29, 2011) (on file with the Touro Law Review) (proposing amendments to Rule 1.18 entitled Duties to Prospective Clients, and 7.3 entitled Direct Contact with Prospective Clients, but no proposals made to amend Rule 1.6) [hereinafter Technology and Client Development].

52 Model Rules of Prof'l Conduct R. 1.6 cmt. 16.

53 Id. R. 1.6 cmt. 17.

54 See J.T. Westermeier, Ethics and the Internet, 17 Geo. J. Legal Ethics 267, 301 (2004) (observing that lawyers “may be required to keep abreast of technological advances in security, as well as the technological advances being developed by hackers who are seeking to steal secrets from third parties”).

55 See infra Section V: A.

56 See Merri A. Baldwin, Ethical and Liability Risks Posed by Lawyers' Use of Social Media, Am. Bar (July 28, 2011), http:// apps.americanbar.org/litigation/committees/professional/articles/summer2011-liability-social-media.html (noting that “[t]he same ethical and professional rules apply to communications made on social networking sites as apply to any other communications by lawyers, and it is important for lawyers to understand how to apply these rules to new situations”).

57 See, e.g., Ariz. Comm. on Ethics & Prof'l Responsibility, Informal Op. 97-04 (1997) (noting that for certain solicitations “a copy of the communication must be maintained for three years”).

58 See Martin Whittaker, Internet Advertising Isn't Exempt from Rules, Speakers Make Clear in Separate Programs, 24 Law. Man. Prof. Conduct 444, 444-45 (2008).

59 See, e.g., Wash. Rules of Prof'l Conduct R. 7.2(c) (2006) (requiring that all advertisements contain “the name and office address of at least one lawyer or law firm responsible for its content”).

60 See S.C. Ethics Advisory Comm., Advisory Op. 09-10 (2009) (presuming that lawyers adopt or authorize certain advertisements).

61 Id.

62 Id.

63 Model Rules of Prof'l Conduct R. 4.1 (2007).

64 See, e.g., Ill. Rules of Prof'l Conduct R. 7.4(c) (2010); N.Y. Rules of Prof'l Conduct R. 7.4(a) (2011).

65 Ariz. Comm. on Ethics & Prof'l Responsibility, Informal Op. 97-04.

66 Tex. Model Code of Prof'l Conduct DR 7.07 (2005).

67 Kraus, supra note 37, at 10.

68 S.C. Ethics Advisory Comm., Advisory Op. 09-10.

69 Id.; see also Model Rules of Prof'l Conduct R. 7.1 (2007) (prohibiting “a false or misleading communication about the lawyer or the lawyer's services”). Careful monitoring can also help uncover potentially defamatory reviews from disgruntled clients. See Cynthia Foster, Lawyer Sues Over Ex-Client's Bad Review, The Recorder (Nov. 3, 2011), available at http:// www.law.com/ jsp/ca/PubArticleFriendlyCA.jsp?id=1202523864054.

70 See Model Rules of Prof'l Conduct R. 7.4(a) (2007) (stating that “[a] lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law”).

71 See, e.g., Ariz. Comm. on Ethics & Prof'l Responsibility, Informal Op. 97-04 (prohibiting advertisements that “create an unjustified expectation”).

72 See Memorandum from the ABA Comm'n on Ethics 20/20 on Client Confidentiality and Lawyers' Use of Tech., (Sept. 20, 2010) (on file with the Touro Law Review).

73 Press Release, supra note 33.

74 Technology and Client Development, supra note 51.

75 Id.

76 Id.

77 Id.

78 Id.

79 Technology and Client Development, supra note 51.

80 Id. (“[A] lawyer may pay others for generating client leads, such as Internet-based client leads, ... as long as the person does not recommend the lawyer and any payment is consistent with Rule 1.5(e) ... and Rule 5.4 ....”).

81 Id.

82 Press Release, supra note 33 (quoting Commission Co-Chair Jamie Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr LLP in Washington, D.C.).

83 Bennett, supra note 38, at 122.

84 Model Rules of Prof'l Conduct R. 1.18(b) (2007).

85 Id. R. 1.18(c).

86 Id. R. 1.18(d)(2).

87 See, e.g., Model Rules of Prof'l Conduct R. 5.5(a) (“A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”); see also Catherine J. Lanctot, Attorney- Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke L.J. 147, 156 (1999) (“Lawyers answering questions about the law in jurisdictions in which they are not licensed to practice may violate restrictions against the unauthorized practice of law.”).

88 See Melissa H. Weresh, A Bold New Frontier--To Blog Where No Lawyer Has Blogged Before, Iowa Law., Jan. 2009, at 13 (discussing the difficulty non-location-specific internet posts pose for lawyers).

89 See Lanctot, supra note 87, at 156 (“The possibility that a lawyer might inadvertently create a conflict of interest by answering legal questions from someone with an interest adverse to a current or former client is particularly troubling in the sometimes- anonymous world of cyberspace.”).

90 See id.

91 See Technology and Client Development, supra note 51.

92 Id.

93 Id. Proposed additions to Comment 3 elaborate on the new definition by listing a number of factors to use in assessing whether someone has become a prospective client. See id. These factors include: whether the lawyer previously represented or declined to represent the person; whether the person, prior to communicating with the lawyer, encountered any warnings or cautionary statements that were intended to limit, condition, waive or disclaim

the lawyer's obligations; whether those warnings or cautionary statements were clear, reasonably understandable, and conspicuously placed; and whether the lawyer acted or communicated in a manner that was contrary to the warnings or cautionary statements. Id.

94 Technology and Client Development, supra note 51.

95 Id.

96 Id. This concept is commonly referred to as “taint shopping.” See, e.g., Assoc. of the Bar of the City of New York, Formal Op. 2006-02 (2006); Va. Legal Ethics Comm., Legal Ethics Op. 1794 (2004). Some states already incorporate the concept into their versions of Rule 1.18. See, e.g., N.Y. Rules of Prof'l Conduct R.1.18(e)(2).

97 Ariz. Comm. on Ethics & Prof'l Responsibility, Informal Op. 97-04.

98 Id.

99 See id. (noting that “[l]awyers also may want to caution clients about transmitting highly sensitive information via e-mail if the e-mail is not encrypted or otherwise secure from unwanted interception”).

100 Bennett, supra note 38, at 121 (citing David Hricik, To Whom It May Concern: Using Disclaimers to Avoid Disqualification by Receipt of Unsolicited E-mail from Prospective Clients, 2005 Prof. Law. 1, 3-4).

101 Id. at 127. As an extra precaution, an attorney also should ask posters and commenters about their state of residence before answering any questions or sending any messages. Id.

102 As one example of a “click-wrap” disclaimer: By clicking “accept” you agree that our review of the information contained in e-mail and any attachments that you submit in a good faith effort to retain us will not preclude any lawyer in our firm from representing a party in any matter where that information is relevant, even if that information is highly confidential and could be used against you, unless that lawyer has actual knowledge of the content of the e-mail. We will otherwise maintain the confidentiality of your information. Id. at 122 n.61.

103 Seidenberg, supra note 2.

104 See infra Section V: A-B.

105 Model Rules of Prof'l Conduct R. 3.3 (2007).

106 John Schwartz, A Legal Battle: Online Attitude vs. Rules of the Bar, N.Y. Times, Sept. 13, 2009, http:// www.nytimes.com/2009/09/13/us/13lawyers.html?_r=1&hp (quoting Judge Susan Criss); see also Molly McDonough, Facebooking Judge Catches Lawyer in a Lie, Sees Ethical Breaches, A.B.A. J. (July 31, 2009, 3:16 PM) http:// www.abajournal.com/news/article/facebooking_judge_catches_lawyers_in_lies_ crossing_ethical_lines_abachicago/ (discussing instances of a judge exposing lies and other borderline unethical behavior from attorneys' Facebook statuses).

107 Schwartz, supra note 106.

108 Id.

109 The Fla. Bar v. Conway, 996 So. 2d 213 (Fla. 2008); Schwartz, supra note 106. A South Florida county bar association recently examined the blog itself to examine whether it adheres to local standards of professional conduct. See Tonya Alanez, Courthouse Gossip Blog Faces Scrutiny from County Bar, S. Fla. Sun-Sentinel, Apr. 1, 2010, at 3B. The blog, however, is still active. See JaaBlog Welcome, JAABlog.com, http://jaablog.jaablaw.com/ (last visited July 20, 2011).

110 See Martha Neil, Calif. Lawyer Suspended over Trial Blogging While Serving as Juror, A.B.A. J. (Aug. 4, 2009, 2:58 PM) http:// www.abajournal.com/news/article/calif._lawyer_suspended_over_trial_blog_while_ serving_as_juror/.

111 See generally Judicial Conference of the United States, Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees (2010) [hereinafter Judicial Employee Social Media Guidelines].

112 For additional examples, see id. at 15-16.

113 Id. at 18.

114 Id. at 30 (quoting United States District Court for the District of Rhode Island, Social Media Policy/Guidelines, at 1 (2010) [hereinafter District of Rhode Island Social Media Policy]); id. at 34 (quoting United States District Court for the Central District of California, Clerks Office Employee Social Media and Social Networking Policy, at 3 [hereinafter Central District of California Social Media Policy]); see also United States District Court for the Southern District of Indiana, Social Media and Social Networking Policy for Chambers' Office Staff, at 1 [hereinafter Southern District of Indiana Social Media Policy].

115 Judicial Employee Social Media Guidelines, supra note 111, at 27-29 (quoting District of Rhode Island Social Media Policy, supra note 114). To be sure, the court's policy also notes that law clerks and interns also are bound by the First Circuit's Social Media Policy. Id. at 27 (quoting District of Rhode Island Social Media Policy, supra note 114, at n.1).

116 Id. at 34 (quoting Central District of California Social Media Policy, supra note 114); Southern District of Indiana Social Media Policy, supra note 114.

117 Judicial Employee Social Media Guidelines, supra note 111, at 33-36 (quoting Central District of California Social Media Policy, supra note 114); Southern District of Indiana Social Media Policy, supra note 111.

118 Judicial Employee Social Media Guidelines, supra note 111, at 32-33, 36 (quoting Central District of California Social Media Policy, supra note 114).

119 Southern District of Indiana Social Media Policy, supra note 114, at 1.

120 Id. To be sure, at fifty-six characters in length, this disclaimer would effectively preclude judicial employees from Tweeting about the court.

121 Judicial Employee Social Media Guidelines, supra note 111, at 28-29 (quoting District of Rhode Island Social Media Policy, supra note114); Id. at 34 (quoting Central District of California Social Media Policy); Southern District of Indiana Social Media Policy, supra note 114, at 1.

122 Conference of Court Public Information Officers, New Media and the Courts 65 (2010).

123 Compare Fla. Jud. Ethics Advisory Comm., Formal Op. No. 2009-20 (2009) (“The Committee believes that listing lawyers who may appear before the judge as ‘friends' on a judge's social networking page reasonably conveys to others the impression that these lawyer ‘friends' are in a special position to influence the judge.”), with Ohio Bd. of Comm'rs on Grievances and Discipline, Formal Op. No. 2010-7 (2010) (“A judge may be a ‘friend’ on a social networking site with a lawyer who appears as counsel in a case before the judge.”), and Ky. Judicial Ethics Comm., Formal Op. JE-119 (2010) (“While the nomenclature of a social networking site may designate certain participants as ‘friends,’ the view of the Committee is that such a listing, by itself, does not reasonably convey to others an impression that such persons are in a special position to influence the judge.”), and N.Y. Jud. Ethics Comm., Informal Op. 08-176 (2009) (“The Committee cannot discern anything inherently inappropriate about a judge joining and making use of a social network.”).

124 Ohio Bd. of Comm'rs on Grievances and Discipline, Formal Op. No. 2010-7, at 2.

125 Id.

126 See id. at 6-7.

127 N.Y. Jud. Ethics Comm., Informal Op. 08-176, at 4.

128 Id.

129 Fla. Jud. Ethics Advisory Comm., Formal Op. No. 2009-20, at 9.

130 Id. at 3-4.

131 Id. at 4. Following this opinion, some Florida lawyers found themselves with far fewer “friends” as judges “defriended” practicing attorneys on their friend lists. Tonya Alanez, Ethics Group Frowns on Judicial ‘Friends,’ S. Fla. Sun Sentinel, Jan. 17, 2010, at 3B. At least one county court judge, however, sent an e-mail to the ten attorneys affected asking them not to take his actions personally. Id.

132 Ohio Bd. of Comm'rs on Grievances and Discipline, Formal Op. No. 2010-7.

133 John C. Martin, Public Reprimand of Terry, North Carolina Judicial Standards Commission, Inquiry No. 08-234, at 2-3, 5 (Apr. 1, 2009).

134 Id. at 2.

135 Id.

136 Id.

137 Id. at 2, 5.

138 See, e.g., Ohio Bd. of Comm'rs on Grievances and Discipline, Formal Op. No. 2010-7.

139 See infra Parts V: A-B.

140 See Barnes v. CUS Nashville, LLC, No. 3:09-cv-00764, 2010 WL 2265668, at *1 (M.D. Tenn. June 3, 2010).

141 Id.

142 Id.

143 No. 3:08cv1807, 2009 WL 3724968, at *1 (D. Conn. Oct. 27, 2009).

144 Id.

145 Id.

146 Id.

147 Id. In fact, Facebook now has a feature that makes it easier for courts to conduct more traditional in camera reviews of social media information by allowing users to download copies of their entire profile. See Download Your Information, Facebook, http://www.facebook.com/help/?page=18830 (last visited July 20, 2011). Users then can provide this information to judges for an offline review.

148 See infra Part V: B (discussing the discoverability of social media).

149 See infra Part V: B (discussing the application of the Stored Communications Act with the Internet today).

150 Model Rules of Prof'l Conduct R. 1.1 (2007).

151 Id. R. 1.1 cmt. 6.

152 One could actually argue that, at least in some contexts, attorneys who do not use social media as part of their representation of clients are actually failing to live up to their ethical obligations. See Margaret DiBianca, Complex Ethical Issues of Social Media, TheBencher, Nov./Dec. 2010, available at http://www.innsofcourt.org/Content/Default.aspx?Id=5497 (discussing whether “ethical duties may require lawyers to be adept in social media”).

153 See Seidenberg, supra note 2; see also Stephanie Chen, Divorce Attorneys Catching Cheaters on Facebook, CNN.COM (June 1, 2010), http:// articles.cnn.com/2010-06-01/tech/facebook.divorce.lawyers_1_privacy-settings-social-media-facebook? _s=PM:TECH.

154 Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 654 (Sup. Ct. 2010).

155 See Jose Antonio Vargas, The Face of Facebook, The New Yorker (Sept. 20, 2010), http://www.newyorker.com/ reporting/2010/09/20/100920fa_fact_ vargas.

156 Id.

157 Id.

158 Fed. R. Civ. P. 26(b)(2)(B).

159 Fed. R. Civ. P. 26(b)(1).

160 Ariana Eunjung Cha, What Sites Such as Facebook and Google Know and Whom They Tell, Wash. Post (May 29, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/05/28/AR2010052804853.html.

161 18 U.S.C. § 2701 (2006).

162 Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1848 (1986) (codified at 18 U.S.C. §2510 (2006)).

163 See generally Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208 (2004) (explaining the history and flaws of the SCA).

164 See id. at 1212-14.

165 See 18 U.S.C. §§ 2702-03 (2006 & Supp. III 2009). For a more detailed discussion of which types of third-party providers must comply with the SCA, see Kerr, supra note 163, at 1213-14.

166 The World Wide Web, for example, did not exist, and cloud computing services and social network sites would not be developed for nearly a decade. Tim Berners-Lee invented the World Wide Web in 1989. See Tim Berners-Lee, World Wide Web Consortium, http://www.w3.org/People/Berners-Lee/ (last visited Jan. 9, 2012); see also Boyd & Ellison, supra note 6. Instead, at the time Congress enacted the SCA, Internet users could effectively do three things: (1) download and send e- mail; (2) post messages to online bulletin boards; and (3) upload and store information that they could then access on other computers. See S. Rep. No. 99-541, at 8-9 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3562-63 (describing “some of the new telecommunications and computer technologies referred to in the [ECPA]”).

167 717 F. Supp. 2d 965 (C.D. Cal. 2010).

168 Id. at 991.

169 Id. at 968-69.

170 Id. at 981-82. The court further held that the SCA protects unread private messages because storage of these messages was “incidental” to the original transmission. Id. at 987.

171 Crispin, 717 F. Supp. 2d at 981 (citing Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 875 (9th Cir. 2002)).

172 Most social media sites allow users to restrict who can view their profiles and information. Facebook users can limit access to their profiles, even tailoring their settings to list which people can view individual pieces of information on their pages. See Data Use Policy, Facebook, http:// www.facebook.com/about/privacy/ (last visited Jan. 9, 2012). Similarly, YouTube users can mark their videos as private so they “can only be viewed by others authorized by the user who posted...them.” Viacom Int'l v. YouTube, Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008). Finally, although Twitter's default setting is to make information public, users also can add additional privacy filters. Twitter Privacy Policy, Twitter, https://twitter.com/privacy (last visited Jan. 9, 2012).

173 No. 06-cv-01958-WYD-MJW, 2009 WL 1067018 (D. Colo. Apr. 21, 2009).

174 Id. at *2.

175 Romano, 907 N.Y.S.2d at 651; see also Patterson v. Turner Constr. Co., 2011 N.Y. Slip Op. 07572 (N.Y. App. Div. Oct. 27, 2011) (“The postings on plaintiff's online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access ...”).

176 Id. at 656-57. One state court went even further, requiring a plaintiff to provide his Facebook and MySpace user names and passwords to the defendant. See McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (Pa. Ct. of Common Pleas Sept. 9, 2010), available at http:// www.padisciplinaryboard.org/documents/McMillen-v-Hummingbird-Speedway.pdf. The court in this case, however, has been heavily criticized for, among other things, glossing over any relevance analysis in its decision. See, e.g., Venkat, Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case-- McMillen v. Hummingbird Speedway, Tech. & Mktg. Law Blog (Oct. 24, 2010, 10:24 AM), http://blog.ericgoldman.org/ archives/2010/10/court_orders_ di_1.htm.

177 There is at least one proposal to amend the Stored Communications Act. See Electronic Communications Privacy Act Amendments Act of 2011, S.1011, 112th Cong. (2011). However, these proposed amendments are generally focused on other aspects of the Act.

178 Model Rules of Prof'l Conduct R. 8.4 (2007).

179 Model Rules of Prof'l Conduct R. 4.3 (2007) (stating that a lawyer will not state or imply to an unrepresented person that he is disinterested in the matter and requiring a lawyer to take reasonable steps to correct any misunderstandings that arise).

180 Model Rules of Prof'l Conduct at R. 4.2 (2007) (barring a lawyer from communicating with a person represented by counsel about the subject of the representation absent the consent of the other lawyer or a court order).

181 See, e.g., N.Y. State Bar Assoc. Op. 843 (2010) (concluding that accessing a page open to all members of a public network does not implicate a local ethics rule barring deception); Or. State Bar Legal Ethics Comm. Op. 2005-164 (2005) (finding that accessing an opposing party's public website does not violate ethics rules limiting communications with adverse parties).

182 Or. State Bar Legal Ethics Comm., Op. 2005-164, at 453.

183 N.Y. City Bar Ass'n Comm. on Prof'l and Ethics, Formal Op. 2010-2 (2010).

184 Id.

185 Phila. Bar Ass'n Prof'l Guidance Comm., Formal Op. No. 2009-02 (2009). The committee stated, however, that it would be permissible for the attorney to “ask[] the witness forthrightly for access.” Id.

186 Id.

187 Id.

188 See Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010); Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003).

189 Zubulake, 220 F.R.D. at 218.

190 Id.

191 This problem is essentially one of “cloud computing.” In cloud computing, users store their data on a virtual platform known as “the cloud,” “where users interact with Internet applications and store data on distant servers rather than on their own hard drives.” Oregon v. Bellar, 217 P.3d 1094, 1111 n.10 (Or. Ct. App. 2009) (Sercombe, J., dissenting).

192 See generally David D. Cross & Emily Kuwahara, E-Discovery and Cloud Computing: Control of ESI in the Cloud, EDDE Journal (Spring 2010) http://www2.americanbar.org/sections/scitech/ST203001/Pages/default.aspx (last visited Jan. 9, 2012) (discussing the effect of cloud computing on electronic discovery).

193 See generally Regulatory Notice 10-06: Social Media Websites, FINRA, 2 (Jan. 2010), available at http://www.finra.org/ web/groups/industry/ @ip/@reg/@notice/documents/notices/p120779.pdf; Commission Guidance on the Use of Company Websites, 73 Fed. Reg. 45862 (proposed Aug. 7, 2008) (to be codified at 17 C.F.R. pt. 241, 271).

194 See 42 U.S.C. § 1320d-2(d) (2006 & Supp. IV 2010).

195 See generally David Gevertz & Gina Greenwood, Creating an Effective Social Media Policy for Healthcare Employees, 6 Health Law. 28, 28-30 (2010) (discussing the risks of social networking in an age of medical privacy laws).

196 Id. at 28.

197 For example, Colorado, North Dakota, California, and New York have statutes prohibiting discrimination on the basis of lawful conduct outside of work. See Colo. Rev. Stat. §24-34-402.5 (2007); N.D. Cent. Code §14-02.4-01 (1993); Cal. Lab. Code 96(k) (2000); N.Y. Lab. Law § 201-d(2)(a) (McKinney 1992). California, New York, and the District of Columbia prohibit discrimination based on an employee's political affiliation. See Cal. Lab. Code §1101 (2011); N.Y. Lab. Law §201-d (McKinney 1992); D.C. Code § 2-1402.31(a) (2006). Also, at least sixteen jurisdictions plus the District of Columbia have statues barring discrimination based on the off-duty use of tobacco. See Off-Duty Conduct, NCSL, http:// www.ncsl.org/IssuesResearch/EmploymentWorkingFamilies/EmployeeOffDutyConduct/ tabid/ 13369/Default.aspx.Portals/1/documents/legismgt/%5CDefault.aspx (last updated May 30, 2008).

198 The Supreme Court has not directly addressed employer monitoring of employee social media use, but in City of Ontario v. Quon, where the Court upheld an employer's ability to monitor messages sent on employer-owned pagers, the Court suggested that it plans to proceed on a case-by-case basis in this area of the law. 130 S. Ct. 2619, 2628-29 (2010).

199 29 U.S.C. § 157 (2006).

200 Am. Med. Response of Conn., Inc. and Nat'l Emergency Med. Servs. Ass'n, No. 34-CA-12576, 2011 WL 1788948, at *30 (N.L.R.B. May 10, 2011).

201 See generally Memorandum from Lafe Solomon, Acting Gen. Counsel, N.L.R.B., Report of the Acting General Counsel Concerning Social Media Cases, OM 11-74 (Aug. 18, 2011), available at http://www.nlrb.gov/news/acting-general-counsel- releases-report-social-media-cases. 28 TOUROLR 149

threaten, harass, and intimidate a teacher, even when speech originated off campus; 799 F.3d 379 United States Court of Appeals, [3] student's recording threatened, harassed, and Fifth Circuit. intimidated the teachers/coaches and was directed at Taylor BELL; Dora Bell, individually and as school community, and was thus subject to Tinker rule; mother of Taylor Bell, Plaintiffs–Appellants and v. [4] student's recording reasonably could have been ITAWAMBA COUNTY SCHOOL BOARD; Teresa forecast to cause a substantial disruption of the school. McNeece, Superintendent of Education for Itawamba County, Individually and in her official capacity; Trae Wiygul, principal of Itawamba Affirmed. Agricultural High School, Individually and in his official capacity, Defendants–Appellees. E. Grady Jolly, Circuit Judge, wrote specially concurring opinion. No. 12–60264. | Jennifer Walker Elrod, Circuit Judge, wrote a concurring Aug. 20, 2015. opinion, which Jones, Circuit Judge, joined.

Synopsis Gregg Costa, Circuit Judge, wrote concurring opinion, Background: High school student and his mother, which Owen and Higginson, Circuit Judges, joined. individually and on behalf of student, brought action against school board alleging that disciplinary action James L. Dennis, Circuit Judge, wrote dissenting opinion, taken against student for posting a video on the internet in which Graves, Circuit Judge, joined in full, and which of rap recording made off-campus containing threatening Prado, Circuit Judge, joined, except as to Parts I and II. B. language against two teachers/coaches violated his First Amendment right to free speech. The United States Edward C. Prado, Circuit Judge, wrote dissenting District Court for the Northern District of Mississippi, opinion. Neal B. Biggers, J., 859 F.Supp.2d 834, granted summary judgment for school board. Student appealed. The Court Haynes, Circuit Judge, wrote opinion dissenting in part. of Appeals, James L. Dennis, Circuit Judge, 774 F.3d 280, affirmed in part, reversed in part, and remanded. Student James E. Graves, Jr., Circuit Judge, wrote dissenting petitioned for rehearing en banc, which was granted and opinion. panel opinion vacated, 782 F.3d 712.

Attorneys and Law Firms On rehearing en banc, the Court of Appeals, Holdings: *382 Wilbur O. Colom (argued), Scott Winston Colom, Rhesa Hawkins Barksdale, Circuit Judge, held that: Attorney, Colom Law Firm, *383 L.L.C. Columbus, MS, for Plaintiffs–Appellants. [1] student's recording did not reach to the level of posing a grave and unique threat to the physical safety of students; Benjamin Elmo Griffith (argued), Griffith Law Firm, Oxford, MS, Michael Stephen Carr, Esq., Attorney, [2] the Tinker rule, that conduct by a student, which Griffith & Carr, Cleveland, MS, Michele H. Floyd, materially disrupts classwork or involves substantial Fulton, MS, for Defendants–Appellees. disorder or invasion of the rights of others, is not immunized by the First Amendment, applies when a Scott L. Sternberg, Baldwin Haspel Burke & Mayer, student intentionally directs at the school community L.L.C., New Orleans, LA, for Amicus Curiae Student speech reasonably understood by school officials to Press Law Center.

Cmty. Sch. Dist., 393 U.S. 503, 514, 89 S.Ct. 733, 21 Allyson Newton Ho, John Clay Sullivan, Morgan, L.Ed.2d 731 (1969) (infringing otherwise-protected school Lewis & Bockius, L.L.P., Dallas, TX, Jeffrey Carl speech requires “facts which might reasonably have led Mateer, General Counsel, Hiram S. Sasser, Esq., Kelly J. school authorities to forecast substantial disruption of Shackelford, Esq., Chief Counsel, Plano, TX, for Amicus or material interference with school activities”). Because Curiae Mary Beth Tinker. that standard is satisfied in this instance, the summary judgment is AFFIRMED. Appeal from the United States District Court for the Northern District of Mississippi.

Before STEWART, Chief Judge, and JOLLY, I. DAVIS, JONES, SMITH, BARKSDALE, DENNIS, CLEMENT, PRADO, OWEN, ELROD, On Wednesday, 5 January 2011, Bell, a high-school SOUTHWICK, HAYNES, GRAVES, HIGGINSON senior, posted a rap recording on his public Facebook and COSTA, Circuit Judges. profile page (and later on YouTube), using what appears to be a representation of a Native American as the Opinion rap recording's cover image. (His high-school mascot is a Native American.) The recording, in part, alleges RHESA HAWKINS BARKSDALE, Circuit Judge: misconduct against female students by Coaches W. and R. Away from school or a school function and without using school resources (off-campus speech), Taylor Bell, *384 Although there are three different versions of a student at Itawamba Agricultural High School in the transcribed rap recording in the summary-judgment Itawamba County, Mississippi, posted a rap recording record, the school board stipulated, at the preliminary- containing threatening language against two high school injunction hearing for this action, to the accuracy of the teachers/coaches on the Internet (first on his publicly following version provided by Bell, who refers to himself accessible Facebook profile page and then on YouTube), in the recording as “T–Bizzle”. (Accordingly, except for intending it to reach the school community. In the deleting part of both coaches' names, the numerous recording, Bell names the two teachers and describes spelling and grammatical errors in the following version violent acts to be carried out against them. Interpreting are not noted.) the language as threatening, harassing, and intimidating Let me tell you a little story about these Itawamba the teachers, the Itawamba County School Board took coaches / dirty ass niggas like some fucking coacha disciplinary action against Bell. roaches / started fucking with the white and know they fucking with the blacks / that pussy ass nigga W[.] got Bell claims being disciplined violated his First me turned up the fucking max / Amendment right to free speech. On cross-motions for summary judgment, the district court ruled, inter alia: the Fucking with the students and he just had a baby / school board, as well as the school-district superintendent, ever since I met that cracker I knew that he was crazy / Teresa McNeece, and the school principal, Trae Wiygul, always talking shit cause he know I'm from daw-city / acting in their official capacities (the school board), acted the reason he fucking around cause his wife ain't got no reasonably as a matter of law. Bell v. Itawamba Cnty. Sch. tidies / Bd., 859 F.Supp.2d 834 (N.D.Miss.2012). This niggha telling students that they sexy, betta watch Primarily at issue is whether, consistent with the your back / I'm a serve this nigga, like I serve the junkies requirements of the First Amendment, off-campus with some crack / Quit the damn basketball team / the speech directed intentionally at the school community coach a pervert / can't stand the truth so to you these and reasonably understood by school officials to be lyrics going to hurt threatening, harassing, and intimidating to a teacher satisfies the almost 50–year–old standard for restricting What the hell was they thinking when they hired Mr. student speech, based on a reasonable forecast of a R[.] / dreadlock Bobby Hill the second / He the same substantial disruption. See Tinker v. Des Moines Indep. see / Talking about you could have went pro to the

NFL / Now you just another pervert coach, fat as hell / Talking about you gangsta / drive your mama's PT *385 4. “middle fingers up if you want to cap that Cruiser / Run up on T–Bizzle / I'm going to hit you with nigga / middle fingers up / he get no mercy nigga”. my rueger Bell's use of “rueger” [sic] references a firearm Think you got some game / cuz you fucking with some manufactured by Sturm, Ruger & Co.; to “cap” someone juveniles / you know this shit the truth so don't you try is slang for “shoot”. to hide it now / Rubbing on the black girls ears in the gym / white hoes, change your voice when you talk to A screenshot of Bell's Facebook profile page, taken them / I'm a dope runner, spot a junkie a mile away / approximately 16 hours after he posted the rap recording, came to football practice high / remember that day / I shows his profile, including the rap recording, was open do / to me you a fool / 30 years old fucking with students to, and viewable by, the public. In other words, anyone at the school could listen to it.

Hahahah / You's a lame / and it's a dam shame / instead On Thursday, 6 January, the day after the recording you was lame / eat shit, the whole school got a ring was posted, Coach W. received a text message from his mutherfucker wife, informing him about the recording; she had learned about it from a friend. After asking a student about Heard you textin number 25 / you want to get it on / the recording, the coach listened to it at school on the white dude, guess you got a thing for them yellow student's smartphone (providing access to the Internet). bones / looking down girls shirts / drool running down The coach immediately reported the rap recording to your mouth / you fucking with the wrong one / going to the school's principal, Wiygul, who informed the school- get a pistol down your mouth / Boww district superintendent, McNeece. OMG / Took some girls in the locker room in PE / Cut The next day, Friday, 7 January, Wiygul, McNeece, and off the lights / you motherfucking freak / Fucking with the school-board attorney, Floyd, questioned Bell about the youngins / because your pimpin game weak / How the rap recording, including the veracity of the allegations, he get the head coach / I don't really fucking know / But the extent of the alleged misconduct, and the identity of I still got a lot of love for my nigga Joe / And my nigga the students involved. Bell was then sent home for the Makaveli / and my nigga codie / W[.] talk shit bitch don't remainder of the day. even know me

Middle fingers up if you hate that nigga / Middle fingers Because of inclement weather, the school was closed up if you can't stand that nigga / middle fingers up if you through Thursday, 13 January. During Bell's resulting want to cap that nigga / middle fingers up / he get no mercy time away from school, and despite his having spoken nigga with school officials about his rap recording, including the accusations against the two coaches, Bell created a (Emphasis added.) finalized version of the recording (adding commentary and a picture slideshow), and uploaded it to YouTube for At the very least, this incredibly profane and vulgar public viewing. rap recording had at least four instances of threatening, harassing, and intimidating language against the two Bell returned to school when it reopened on Friday, coaches: 14 January; he was removed from class midday by the assistant principal and told he was suspended, pending 1. “betta watch your back / I'm a serve this nigga, like I a disciplinary-committee hearing. (He was permitted to serve the junkies with some crack”; remain in the school commons until the school bus he 2. “Run up on T–Bizzle / I'm going to hit you with my rode arrived at the end of the day.) By letter that day rueger”; to Bell's mother, the superintendent informed her: Bell's suspension would continue until further notification; 3. “you fucking with the wrong one / going to get a pistol and a hearing would be held to consider disciplinary down your mouth / Boww”; and action for Bell's “alleged threatening intimidation and/or

© 2017 Thomson Reuters.Page No claim to 189 original U.S.of Government228 Works. 3 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 harassment of one or more school teachers”. The listed, the proceeding to its purpose: to resolve whether possible basis for such action was consistent with the Bell threatened, harassed, and intimidated the teachers; school district's administrative disciplinary policy, which and, to decide whether his suspension should be lists “[h]arassment, intimidation, or threatening other upheld. In numerous instances, the school-board attorney students and/or teachers” as a severe disruption. emphasized this purpose, noting Bell's “comments made [in the recording that] ‘you've f—ed with the wrong one / The disciplinary-committee hearing, originally scheduled going to get a pistol down your mouth / POW’[,] those are for Wednesday, 19 January, was delayed at Bell's mother's threats to a teacher”. request; it was held on Wednesday, 26 January. Although there is no transcript of the hearing, it was recorded; that Bell contested the school-board attorney's interpretation, recording is in the summary-judgment record. The hearing responding: “Well that ain't really what I said”; and was facilitated by the school-board attorney, Floyd; three then provided what he described as the written “original disciplinary-committee members were present, as well copy” of what had been recorded. (It is unclear from as the school principal and Bell, his mother, and their the disciplinary-committee-hearing recording, or other attorney. parts of the summary-judgment record, which copy Bell provided.) Bell explained he did not mean he was going The hearing began with the principal's providing a to shoot anyone, but that he was only “foreshadowing summary of events, after which the YouTube version of something that might happen”. (Emphasis added.) But, he the rap recording was played. Among the disciplinary- agreed that individuals “outside the school setting” had committee members' questions, one member asked Bell made “certain statements” to his mother that “ ‘put a whether he had reported the alleged misconduct to school pistol down your mouth’[,] that is a direct threat”. officials. Bell explained he had not done so because he believed they would ignore his complaints. Instead, Near the end of the disciplinary-committee hearing, Bell he made the rap recording because he knew people explained again: he put the recording on Facebook and were “gonna listen to it, somebody's gonna listen to it”, YouTube knowing it was open to public viewing; part of his acknowledging several times during the hearing that he motivation was to “increase awareness of the situation”; posted the recording to Facebook because he knew it and, although he did not think the coaches would hear the would be viewed and heard by students. *386 Moreover, recording and did not intend it to be a threat, he knew he explained that at least 2,000 people had contacted him students would listen to it, later stating “students all have about the rap recording in response to the Facebook and Facebook”. YouTube postings. On 27 January, the day after the hearing, the school- One of the committee members asked Bell why he had board attorney informed Bell's mother by letter that: posted a new version of the rap recording on YouTube, the disciplinary committee had determined “the issue of after school officials had discussed with him his posting it whether or not lyrics published by Taylor Bell constituted on Facebook. Bell gave a few (and somewhat conflicting) threats to school district teachers was vague”, but that explanations: the Facebook version was a raw copy, so the publication of the recording constituted harassment he wanted a finalized version on YouTube; the Facebook and intimidation of two teachers, in violation of school- version was for his friends and “people locally” to hear, district policy and state law; as a result, the disciplinary whereas the YouTube version was for music labels to committee recommended to the school board that Bell's hear; and he posted the YouTube version with a slideshow seven-day suspension be upheld and that he be placed in of pictures to help better explain the subject matter of the county's alternative school for the remainder of the the recording (his Facebook version only included a brief nine-week grading period (approximately six weeks); Bell explanation of the backstory in the caption to the rap would not be “allowed to attend any school functions and recording). [would] be subject to all rules imposed by the Alternative School”; and “[he would] be given time to make up any Although Bell's attorney, at one point, attempted to work missed while suspended or otherwise receive a 0, discuss the misconduct of the coaches alleged in the pursuant to Board policy”. rap recording, the school-board attorney redirected

After being informed of the disciplinary-committee's concerning alleged misconduct by the coaches. (The recommendation, Bell's attorney informed the school- affidavits, however, were not considered by the court.) In board attorney, by 31 January telephone call, that: Bell addition, Bell, his mother, school-board attorney Floyd, wished to appeal to the school board the disciplinary- and Franklin (offered as an expert in rap music) were committee's recommendation; and, although Bell and his called as witnesses by Bell; superintendent McNeece and mother were *387 expected to appear at the board Coaches R. and W., by the school district. meeting on 7 February, they would be without counsel because he was unable to attend due to a scheduling Bell testified about his making and disseminating the conflict. recording; the meaning behind certain statements in it; and the resulting events leading up to, and after, school On 7 February, the school board, after being presented officials disciplined him. Bell's mother testified about her with a recitation of the recording, unanimously found: recollection of the events leading up to the disciplinary- Bell “threatened, harassed and intimidated school committee and school-board hearings. She testified the employees”. (The only document in the record from school principal never stated Bell was dangerous or the school-board meeting is the minutes, which state: threatening, and that Bell was told to stay in the school “Chairman Tony Wallace entertained a motion by before suspending him. Clara Brown to accept the discipline recommendation of the Discipline Committee regarding student with Floyd testified about her recollection of the events MSIS # 000252815 (I.A.H.S.) and finding that this before, during, and after the disciplinary-committee student threatened, harassed and intimidated school and school-board hearings. During her testimony, the employees. Wes Pitts seconded the motion. Motion court noted Bell's contention that the rap recording Carried Unanimously.”) In other words, unlike the addressed a matter of public concern. Floyd discussed earlier-described disciplinary committee findings, which the school-district policy Bell violated: he threatened, do not characterize the rap recording as threatening harassed, and intimidated school employees; similarly, she (instead, finding that point “vague”), the school board testified that, at their respective hearings, the disciplinary found Bell had not only harassed and intimidated the committee and the school board discussed the possibility teachers, but had also threatened them. of disruption.

By 11 February letter to Bell's mother, the school-board Over the school-district's objection, Franklin was attorney explained the board's findings: “Bell did threaten, permitted to testify as an expert. Characterizing the harass and intimidate school employees in violation statements in Bell's recording as nothing more than of School Board policy and Mississippi State Law”. “colorful language” used to entice listeners *388 and (Again, as stated in the written school-district policy, reflective of the norm among young rap artists, Franklin “[h]arassment, intimidation, or threatening other students testified that it gave him no cause for concern. On cross- and/or teachers” constitutes a severe disruption.) examination, however, he testified: if an individual's name is used in a rap recording and precedes the words “[p]ut a Approximately two weeks later, on 24 February, Bell and pistol in your mouth and cap him”, “it would definitely be his mother filed this action, claiming, inter alia, the school cause for a conversation with the young man, absolutely”. board, superintendent, and principal (again, the school board) violated his First Amendment right to free speech. The superintendent testified: she had attended the school- On 2 March, Bell requested a preliminary injunction, board meeting; there was a foreseeable danger of seeking his immediate reinstatement to his high school, substantial disruption at the school as a result of the rap including the reinstatement of “all privileges to which he recording; and, a written version of Bell's rap recording was and may be entitled as if no disciplinary action had was presented to the school board, before it adopted the been imposed”, and all references to the incident being disciplinary-committee's recommendation for suspension expunged from his school records. and temporary placement in the alternative school.

At the 10 March hearing for the requested injunction, Both coaches identified in the rap recording testified that Bell presented four affidavits from students at his school it adversely affected their work at the school. Coach R.

© 2017 Thomson Reuters.Page No claim to 191 original U.S.of Government228 Works. 5 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 testified: subsequent to the publication of the recording, On appeal, only the summary judgment against Bell's First students began spending more time in the gym, despite Amendment claim was challenged. A divided panel in teachers' telling them to remain in classrooms; and the December 2014 held, inter alia: the school board violated recording affected him in the way he conducted himself Bell's First Amendment right by disciplining him based on around students, noting he would no longer work with the language in the rap recording. *389 Bell v. Itawamba female members of the track team, instead instructing Cnty. Sch. Bd., 774 F.3d 280, 304–05 (5th Cir.2014), reh'g males on the team on how to coach the females and en banc granted & opinion vacated, 782 F.3d 712 (5th then having the males do so. Coach W. testified he: Cir.2015). En-banc review was granted in February 2015. interpreted the statements in the rap recording literally, after hearing it on a student's smartphone at school; was “scared”, because “you never know in today's society ... II. what somebody means, [or] how they mean it”; and would not allow the members of the school basketball team he Because the summary judgment against Bell's mother's coached to leave after games until he was in his vehicle. Fourteenth Amendment claim and for the school officials' qualified-immunity claim was not contested on appeal, After finding Bell's last day attending the alternative the only issue before our en-banc court is the summary school would be the next day, 11 March, the district judgment against Bell's First Amendment claim. (The court ruled whether to grant injunctive relief was moot. misconduct alleged by Bell against the two teachers is, of Accordingly, the requested injunction was denied. course, not at issue.)

It does not appear that any discovery took place after A summary judgment is reviewed de novo, applying the the preliminary-injunction hearing. On 9 May, following same standard as did the district court. E.g., Feist v. La., a case-management conference, the magistrate judge Dep't of Justice, Office of the Att'y Gen., 730 F.3d 450, entered an order stating: “it appears that there are no 452 (5th Cir.2013). Summary judgment is proper when factual issues and that this case should be resolved by “there is no genuine dispute as to any material fact and motions for summary judgment”; and the parties had 90 the movant is entitled to judgment as a matter of law”. days to file those motions. Fed.R.Civ.P. 56(a). “A genuine dispute of fact exists when evidence is sufficient for a reasonable jury to return a Therefore, approximately three months later, the school verdict for the non-moving party, and a fact is material if it board filed its summary-judgment motion on 1 August; might affect the outcome of the suit.” Willis v. Cleco Corp., Bell and his mother, on 5 August. On 15 March 2012, 749 F.3d 314, 317 (5th Cir.2014) (citations and quotation the district court denied the Bells' motion and granted the marks omitted). school board's. In doing so, it concluded the rap recording constituted “harassment and intimidation of teachers [1] In determining whether to grant summary judgment, and possible threats against teachers and threatened, the court, in its de novo review, views the evidence in the harassed, and intimidated school employees”. Bell, 859 light most favorable to the nonmovant. E.g., Dameware F.Supp.2d at 840 (internal quotation marks omitted). Dev., L.L.C. v. Am. Gen.Life Ins. Co., 688 F.3d 203, The court also concluded the rap recording “in fact 206–07 (5th Cir.2012). Consistent with that, on cross- caused a material and/or substantial disruption at school motions for summary judgment, “we review [de novo ] each and ... it was reasonably foreseeable to school officials party's motion independently, viewing the evidence and the song would cause such a disruption”. Id. Moreover, inferences in the light most favorable to the nonmoving the court concluded, inter alia: (1) the superintendent party”. Cooley v. Hous. Auth. of Slidell, 747 F.3d 295, and principal were entitled to qualified immunity in their 298 (5th Cir.2014) (internal quotation marks omitted) individual capacities; and (2) Bell's mother could not show (quoting Ford Motor Co. v. Tex. Dep't of Transp., 264 F.3d a violation of her Fourteenth Amendment rights (she 493, 498 (5th Cir.2001)). claimed the school's disciplining Bell violated her right to make decisions regarding the custody and care of her son). The summary-judgment record at hand includes, inter Id. at 841–42. alia: (1) the affidavits of four students regarding the coaches' alleged misconduct; (2) screenshots of Bell's

Facebook page; (3) a transcription of the rap recording might not be afforded First Amendment protection in the submitted by the school board; (4) a transcription of school setting. the recording submitted by Bell (stipulated version); (5) the letter from the superintendent to Bell's mother, [4] [5] Balancing these competing interests, Tinker informing the Bells of a hearing before the disciplinary provided in 1969 the standard for evaluating whether the committee; (6) the digital recording of the rap recording; First Amendment protects a student's speech. There, the (7) the first screenshot of Bell's Facebook “wall”; (8) Court considered the suspension of students for wearing the second screenshot of Bell's Facebook “wall”; (9) the black armbands in protest against the Vietnam War. recording of the disciplinary-committee hearing; (10) the Tinker, 393 U.S. at 505–14, 89 S.Ct. 733. In holding the minutes of that hearing, containing the recommended students' speech protected under the First Amendment, disciplinary action; (11) the school-board attorney's letter the Court, focusing primarily on the effect of that to Bell's mother, informing her of the disciplinary speech on the school community, held: A student “may committee's findings and recommended discipline; (12) the express his opinions ... if he does so without materially school-board-hearing minutes; (13) the school-district's and substantially interfer[ing] with the requirements of discipline policy; (14) the school-board attorney's letter appropriate discipline in the operation of the school and to Bell's mother informing her of the school-board's without colliding with the rights of others ”. Id. at 513, determination; and (15) the transcript of the preliminary- 89 S.Ct. 733 (alteration in original) (emphasis added) injunction hearing. (internal quotation marks omitted). Put another way, “conduct by the student, in class or out of it, which for any reason ... materially disrupts classwork or involves substantial disorder or invasion of the rights of others A. is, of course, not immunized ...”. Id. (emphasis added). [2] [3] Students qua students do not forfeit their First Approximately three years after Tinker, our court held this Amendment rights to freedom of speech and expression. standard can be satisfied either by showing a disruption Tinker, 393 U.S. at 506, 511, 89 S.Ct. 733 (“School officials has occurred, or by showing “demonstrable factors that do not possess absolute authority over their students.... In would give rise to any reasonable forecast by the school the absence of a specific showing of constitutionally valid administration of ‘substantial and material’ disruption”. reasons to regulate their speech, students are entitled to Shanley v. Ne. Indep. Sch. Dist., Bexar Cnty., Tex., 462 freedom of expression of their views.”). On the other hand, F.2d 960, 974 (5th Cir.1972) (emphasis added) (holding the First Amendment does not provide students absolute school's suspension of students for their off-campus rights to such freedoms, and those rights must be tempered distribution of “underground” newspaper violated Tinker in the light of a school official's duty to, *390 inter alia, ). “teach[ ] students the boundaries of socially appropriate behavior”, Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. Since Tinker, the Court has revisited student speech 675, 681, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), and on several occasions, each time carving out narrow “protect those entrusted to their care”, Morse v. Frederick, exceptions to the general Tinker standard based on certain 551 U.S. 393, 408, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007). characteristics, or content, of the speech. See, e.g., Morse, As Justice Oliver Wendell Holmes, Jr., wrote nearly a 551 U.S. at 425, 127 S.Ct. 2618 (Alito, J, concurring) century ago: “[T]he character of every act depends upon (grave and unique threats to the physical safety of the circumstances in which it is done. The most stringent students, in particular, speech advocating illegal drug use); protection of free speech would not protect a man in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273, falsely shouting fire in a theatre and causing a panic.” 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) (school-sponsored Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, speech); Fraser, 478 U.S. at 685, 106 S.Ct. 3159 (lewd, 63 L.Ed. 470 (1919) (citation omitted). Therefore, because vulgar, or indecent speech); see also Morgan v. Swanson, “the constitutional rights of students in public school are 659 F.3d 359, 374 (5th Cir.2011) (en banc) (describing not automatically coextensive with the rights of adults in the Court's holdings as “expand[ing] the kinds of speech other settings”, Fraser, 478 U.S. at 682, 106 S.Ct. 3159, schools can regulate.... to several broad categories of certain speech, which would be protected in other settings, student speech” (internal quotation marks omitted)). In Fraser, the Court held the school board acted within its

© 2017 Thomson Reuters.Page No claim to 193 original U.S.of Government228 Works. 7 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 authority when it disciplined a student for an “offensively grading period. In support, he contends: Tinker does not lewd and indecent” speech delivered at a student assembly. apply to off-campus speech, such as his rap recording; 478 U.S. at 677–78, 685, 106 S.Ct. 3159. In Hazelwood, and, even if it does, Tinker 's “substantial disruption” the Court upheld a school's right to “exercis [e] editorial test is not satisfied. For the reasons that follow, we hold: control over the style and content of student speech” in Tinker applies to the off-campus speech at issue; there is a school-sponsored *391 newspaper when the student no genuine dispute of material fact precluding ruling, as a engages in “expressive activities that students, parents, matter of law, that a school official reasonably could find and members of the public might reasonably perceive to Bell's rap recording threatened, harassed, and intimidated bear the imprimatur of the school” and the school officials' the two teachers; and a substantial disruption reasonably “actions are reasonably related to legitimate pedagogical could have been forecast, as a matter of law. concerns”. 484 U.S. at 262, 271, 273, 108 S.Ct. 562.

And, most recently in Morse, the Court considered 1. whether a school infringed a student's First Amendment right of free speech when it disciplined him for holding [7] As our court explained in Morgan v. Swanson, up a banner that stated “BONG HiTS 4 JESUS” at a student-speech claims are evaluated “in light of the special school-sponsored event. 551 U.S. at 397–98, 127 S.Ct. characteristics of the school environment, beginning by 2618. The Court, through Justice Alito's controlling categorizing the student speech at issue”. 659 F.3d at 375 concurrence (joined by Justice Kennedy), held a school (footnotes and internal quotation marks omitted). We may discipline a student for speech which poses a “grave must thus decide whether Bell's speech falls under Tinker, and ... unique threat to the physical safety of students”, or one of the Court's above-described exceptions. See, e.g., such as “advocating illegal drug use”. Id. at 425, 127 S.Ct. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d 2618. (Justice Alito limited his “join[ing] the opinion of Cir.2001) (employing a similar approach, noting “[s]peech the Court on the understanding that the opinion does not falling outside of ... categories [such as those in Fraser and hold that the special characteristics of the public schools Hazelwood ] is subject to Tinker 's general rule”). necessarily justify any other speech restrictions”. Id. at 423, 127 S.Ct. 2618.) [8] The parties do not assert, and the record does not show, that the school board disciplined Bell based [6] For these exceptions, schools are not required to on the lewdness of his speech or its potential *392 prove the occurrence of an actual disruption or one perceived sponsorship by the school; therefore, Fraser that reasonably could have been forecast. Similarly, in and Hazelwood are not directly on point. Bell's speech Ponce v. Socorro Independent School District, our court likewise does not advocate illegal drug use or portend a extended the Morse exception to certain threats of school Columbine-like mass, systematic school-shooting. And, as violence. 508 F.3d 765, 771–72 (5th Cir.2007). In response Justice Alito noted, when the type of violence threatened to a diary brought to school containing “terroristic does not implicate “the special features of the school threat[s]” mirroring recent mass school shootings, the environment”, Tinker 's “substantial disruption” standard school suspended the student. Id. at 767. On appeal, our is the appropriate vehicle for analyzing such claims. court upheld the suspension as constitutional, extending Morse, 551 U.S. at 425, 127 S.Ct. 2618 (citing Tinker, 393 Morse 's exception to speech “bearing the stamp of ... U.S. at 508–09, 89 S.Ct. 733) (“[I]n most cases, Tinker 's mass, systematic school-shootings” based on the “[l]ack ‘substantial disruption’ standard permits school officials of forewarning and the frequent setting within schools to step in before actual violence erupts”.). Although [which] give mass shootings the unique indicia that the threats against, and harassment and intimidation of, concurring opinion [in Morse ] found compelling with teachers certainly pose a “grave ... threat to the physical respect to drug use”. Id. at 771. safety” of members of the school community, id., violence forecast by a student against a teacher does not reach In challenging the summary judgment, Bell claims the the level of the above-described exceptions necessitating school board violated his First Amendment free-speech divergence from Tinker 's general rule. We therefore rights by temporarily suspending him and placing him in analyze Bell's speech under Tinker. See Ponce, 508 F.3d an alternative school for the six weeks remaining in the at 771–72 & n. 2 (“[B]ecause [threats of violence against

© 2017 Thomson Reuters.Page No claim to 194 original U.S.of Government228 Works. 8 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 individual teachers] are relatively discrete in scope and Morse, 551 U.S. at 418, 127 S.Ct. 2618 (Thomas, J., directed at adults, [they] do not amount to the heightened concurring) (lamenting the Court's failure to “offer an level of harm that was the focus of both the majority explanation of when [Tinker ] operates and *393 when it opinion and Justice Alito's concurring opinion in Morse does not”, and noting: “I am afraid that our jurisprudence ”.); see also Wisniewski v. Bd. of Educ. of Weedsport Cent. now says that students have a right to speak in schools Sch. Dist., 494 F.3d 34, 38 (2d Cir.2007) (analyzing threats except when they do not”). of violence to individual teachers under Tinker ); Boim v. Fulton Cnty. Sch. Dist., 494 F.3d 978, 982–83 (11th Greatly affecting this landscape is the recent rise in Cir.2007) (same). incidents of violence against school communities. See LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir.2001) (“[W]e live in a time when school violence is an unfortunate reality that educators must confront 2. on an all too frequent basis”.). School administrators In claiming Tinker does not apply to off-campus speech, must be vigilant and take seriously any statements by Bell asserts: Tinker limits its holding to speech inside the students resembling threats of violence, Ponce, 508 F.3d “schoolhouse gate”; and each of the Court's subsequent at 771, as well as harassment and intimidation posted decisions reinforces this understanding. online and made away from campus. This now-tragically common violence increases the importance of clarifying “Experience shows that schools can be places of special the school's authority to react to potential threats before danger.” Morse, 551 U.S. at 424, 127 S.Ct. 2618 violence erupts. See Morse, 551 U.S. at 408, 127 S.Ct. (Alito, J., concurring). Over 45 years ago, when Tinker 2618 (pressing that dangerous speech, such as speech was decided, the Internet, cellphones, smartphones, advocating drug use, is substantially different from the and digital social media did not exist. The advent political speech at issue in Tinker, because it presents of these technologies and their sweeping adoption a “far more serious and palpable” danger than an by students present new and evolving challenges for “undifferentiated fear or apprehension of disturbance” or school administrators, confounding previously delineated “a mere desire to avoid the discomfort and unpleasantness boundaries of permissible regulations. See, e.g., Wynar that always accompany an unpopular viewpoint” (citation v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1064 and internal quotation marks omitted)); see also Ponce, (9th Cir.2013) (“With the advent of the Internet 508 F.3d at 772 (“School administrators must be and in the wake of school shootings at Columbine, permitted to react quickly and decisively to address a Santee, Newtown and many others, school administrators threat of physical violence ... without worrying that they face the daunting task of evaluating potential threats will have to face years of litigation second-guessing their of violence and keeping their students safe without judgment as to whether the threat posed a real risk of impinging on their constitutional rights.”). Students substantial disturbance.”). now have the ability to disseminate instantaneously and communicate widely from any location via the In the light of these competing interests and increasing Internet. These communications, which may reference concerns regarding school violence, it is necessary to events occurring, or to occur, at school, or be about establish the extent to which off-campus student speech members of the school community, can likewise be may be restricted without offending the First Amendment. accessed anywhere, by anyone, at any time. Although, Our holding concerns the paramount need for school under other circumstances, such communications might officials to be able to react quickly and efficiently to be protected speech under the First Amendment, off- protect students and faculty from threats, intimidation, campus threats, harassment, and intimidation directed at and harassment intentionally directed at the school teachers create a tension between a student's free-speech community. See, e.g., Morse, 551 U.S. at 425, 127 S.Ct. rights and a school official's duty to maintain discipline 2618 (Alito, J., concurring) (“[D]ue to the special features and protect the school community. These competing of the school environment, school officials must have concerns, and differing standards applied to off-campus greater authority to intervene before speech leads to speech across circuits, as discussed infra, have drawn violence.”); Lowery v. Euverard, 497 F.3d 584, 596 (6th into question the scope of school officials' authority. See Cir.2007) (“School officials have an affirmative duty to

© 2017 Thomson Reuters.Page No claim to 195 original U.S.of Government228 Works. 9 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 not only ameliorate the harmful effects of disruptions, but Ascension Parish Sch. Bd., 393 F.3d 608, 615 n. 22, 619 n. to prevent them from happening in the first place.”). 40 (5th Cir.2004) (same).

In Shanley, students distributed newspapers containing articles they authored “during out-of-school hours, and a. without using any materials or facilities owned or Despite Bell's recognizing the wealth of precedent across operated by the school system”, “near but outside the numerous circuits contrary to his position, he asserts: school premises on the sidewalk of an adjoining street, Tinker does not apply to speech which originated, and separated from the school by a parking lot”. 462 F.2d was disseminated, off-campus, without the use of school at 964. In concluding the students' speech was protected, resources. Bell's position is untenable; it fails to account our court ruled: “[T]he activity punished here does not for evolving technological developments, and conflicts not even approach the ‘material and substantial’ disruption ... only with our circuit's precedent, but with that of every either in fact or in reasonable forecast [and] [a]s a factual other circuit to have decided this issue. matter ... there were no disturbances of any sort, on or off campus, related to the distribution of the [newspaper]”. Id. Since Tinker was decided in 1969, courts have been at 970. required to define its scope. As discussed below, of the six circuits to have addressed whether Tinker applies to Further, as noted supra, four other circuits have held off-campus speech, five, including our own, have held that, under certain circumstances, Tinker applies to speech it does. (For the other of the six circuits (the third which originated, and was disseminated, off-campus. See, circuit), there is an intra-circuit split. See Layshock v. e.g., Wynar, 728 F.3d at 1069; D.J.M. ex rel. D.M. v. Hermitage Sch. Dist., 650 F.3d 205, 219–20 (3d Cir.2011) Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 766–67 (en banc) (Jordan, J., concurring) (discussing that Tinker (8th Cir.2011); Kowalski v. Berkeley Cnty. Schs., 652 F.3d 's applicability to off-campus speech remains unresolved 565, 573–74 (4th Cir.2011); Doninger v. Niehoff, 527 F.3d in the third circuit); see also J.S. ex rel. Snyder v. Blue 41, 48–50 (2d Cir.2008). Therefore, based on our court's Mountain Sch. Dist., 650 F.3d 915, 931 & n. 8 (3d Cir.2011) precedent and guided by that of our sister circuits, Tinker (en banc) (divided court assuming, without deciding, that applies to off-campus speech in certain situations. the Tinker substantial-disruption *394 test applies to online speech harassing a school administrator).) The remainder of the circuits (first, sixth, seventh, tenth, b. eleventh, D.C.) do not appear to have addressed this issue. Therefore, the next question is under what circumstances Although the Supreme Court has not expressly ruled may off-campus speech be restricted. Our court's on this issue, our court, 43 years ago, applied Tinker precedent is less developed in this regard. For the to analyze whether a school board's actions were reasons that follow, and in the light of the summary- constitutional in disciplining students based on their judgment record, we need not adopt a specific rule: rather, off-campus speech. E.g., Shanley, 462 F.2d at 970 Bell's admittedly intentionally directing at the school (“When the Burnside/Tinker standards are applied to this community his rap recording containing threats to, and case ...”.); see also Sullivan v. Hous. Indep. Sch. Dist., harassment and intimidation of, two teachers permits 475 F.2d 1071, 1072 (5th Cir.1973) (“This case arises Tinker 's application in this instance. from the unauthorized distribution of an underground newspaper near a high school campus, and presents the now-familiar clash between claims of First Amendment i. protection on the one hand and the interests of school boards in maintaining an atmosphere in the public In 1972 in Shanley, our court expressly declined to adopt schools conducive to learning, on the other.” (emphasis a rule holding a school's attempt to regulate off-campus added)); Wisniewski, 494 F.3d at 39 (interpreting Sullivan speech under Tinker was per se unconstitutional. 462 F.2d as applying Tinker to off-campus speech); Porter v. at 974. Our court explained: “[E]ach situation involving expression and discipline will create its own problems of

© 2017 Thomson Reuters.Page No claim to 196 original U.S.of Government228 Works. 10 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 reasonableness, and for that reason we do not endeavor MySpace messages) ], schools may take disciplinary here to erect any immovable rules, but only to sketch action in response to off-campus speech that meets the guidelines”. Id. Likewise, in 1973 in Sullivan, our court requirements of Tinker ”); Snyder, 650 F.3d at 940 (Smith, considered Tinker, but did not address any parameters for J., concurring) (noting that any standard adopted “cannot its application to off-campus speech. 475 F.2d at 1076–77. turn solely on where the speaker was sitting when the speech was originally uttered [because s]uch a standard Our court's far more recent, 2004 opinion in Porter, would fail to accommodate the somewhat ‘everywhere at however, provides valuable *395 insight in this regard. once’ nature of the [I]nternet”, and advocating allowing There, the school expelled a student after his brother schools to discipline off-campus speech “[r]egardless of its brought to school a sketchpad containing a two-year- place of origin” so long as that speech was “intentionally old drawing of the school's being attacked by armed directed towards a school”); Kowalski, 652 F.3d at 573 personnel. 393 F.3d at 611. The depiction, albeit violent (applying Tinker when a “sufficiently strong” nexus exists in nature, “was completed [at] home, stored for two years, between the student's speech and the school's pedagogical and never intended by [the creator of the drawing] to be interests “to justify the action taken by school officials in brought to campus”. Id. at 615 (emphasis added). After carrying out their role as the trustees of the student body's concluding Tinker applied to the school's regulations, well-being”); D.J.M., 647 F.3d at 766 (applying Tinker our court held the speech was protected because the because “it was reasonably foreseeable that [the student's] student never intended for the drawing to reach the school, threats about shooting specific students in school would describing its introduction to the school community be brought to the attention of school authorities and as “accidental and unintentional”. Id. at 618, 620 create a risk of substantial disruption within the school (“Because [the student's] drawing was composed off- environment”); Doninger, 527 F.3d at 48 (holding Tinker campus, displayed only to members of his own household, applies to speech originating off-campus if it “would stored off-campus, and not purposefully taken by him foreseeably create a risk of substantial disruption within to [school] or publicized in a way certain to result in its the school environment, at least when it was similarly appearance at [school], we have found that the drawing is foreseeable that the off-campus expression might also protected by the First Amendment”.). Of importance for reach campus” (internal quotation marks omitted)). the issue at hand, and after describing precedent from our and other circuits' applying Tinker to off-campus speech, [9] The pervasive and omnipresent nature of the our court stated its holding was “not in conflict with this Internet has obfuscated the on- *396 campus/off-campus body of case law” regarding the First Amendment and distinction advocated by Bell, “mak[ing] any effort to off-campus student speech because the drawing's being trace First Amendment boundaries along the physical “composed off-campus and remain[ing] off-campus for boundaries of a school campus a recipe for serious two years until it was unintentionally taken to school by his problems in our public schools”. Layshock, 650 F.3d at younger brother takes the present case outside the scope 220–21 (Jordan, J., concurring). Accordingly, in the light of these precedents”. Id. at 615 n. 22 (emphasis added). of our court's precedent, we hold Tinker governs our analysis, as in this instance, when a student intentionally Porter instructs that a speaker's intent matters when directs at the school community speech reasonably determining whether the off-campus speech being understood by school officials to threaten, harass, and addressed is subject to Tinker. A speaker's intention that intimidate a teacher, even when such speech originated, his speech reach the school community, buttressed by and was disseminated, off-campus without the use of his actions in bringing about that consequence, supports school resources. applying Tinker 's school-speech standard to that speech. This holding is consistent with our circuit's precedent in In addition, those courts to have considered the Shanley and Sullivan, that of our sister circuits, and our circumstances under which Tinker applies to off-campus reasoning in Porter. Further, in holding Tinker applies speech have advocated varied approaches. E.g., Wynar, to the off-campus speech in this instance, because such 728 F.3d at 1069 (holding that, regardless of the location determinations are heavily influenced by the facts in each of the speech, “when faced with an identifiable threat matter, we decline: to adopt any rigid standard in this of school violence [ (threats communicated online via

© 2017 Thomson Reuters.Page No claim to 197 original U.S.of Government228 Works. 11 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 instance; or to adopt or reject approaches advocated by “rueger” [sic], which, as discussed supra, is a type of other circuits. firearm), and encouraged others to engage in this action; and harassed and intimidated the coaches by forecasting the aforementioned violence, warning them to “watch [their] back[s]” and that they would “get no mercy” when ii. such actions *397 were taken. Accordingly, as further [10] Turning to the matter before us, there is no discussed infra, there is no genuine dispute of material genuine dispute of material fact that Bell intended his rap fact that Bell threatened, harassed, and intimidated the recording to reach the school community. He admitted coaches by intentionally directing his rap recording at during the disciplinary-committee hearing that one of the the school community, thereby subjecting his speech to purposes for producing the recording was to “increase Tinker. awareness of the [alleged misconduct]” and that, by posting the rap recording on Facebook and YouTube, he knew people were “gonna listen to it, somebody's gonna 3. listen to it”, remarking that “students all have Facebook”. In short, Bell produced and disseminated the rap Having held Tinker applies in this instance, the next recording knowing students, and hoping administrators, question is whether Bell's recording either caused an actual would listen to it. disruption or reasonably could be forecast to cause one. Taking the school board's decision into account, and the Further, regardless of whether Bell's statements in the deference we must accord it, see, e.g., Wood v. Strickland, rap recording qualify as “true threats”, as discussed 420 U.S. 308, 326, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), in part II.B., they constitute threats, harassment, and overruled in part on other grounds, Harlow v. Fitzgerald, intimidation, as a layperson would understand the terms. 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); The Oxford English Dictionary defines: “threaten” as “to Shanley, 462 F.2d at 975; Callahan v. Price, 505 F.2d declare (usually conditionally) one's intention of inflicting 83, 87 (5th Cir.1974), this question becomes whether injury upon” another, 17 Oxford English Dictionary 998 a genuine dispute of material fact exists regarding the (2d ed.1989); “harass” as “[t]o wear out, tire out, or reasonableness of finding Bell's rap recording threatening, exhaust with fatigue, care, [or] trouble”, 6 id. at 1100 harassing, and intimidating; and, if no genuine dispute (emphasis in original); and “intimidate” as “[t]o render precludes that finding, whether such language, as a matter timid, inspire with fear; [or] to force to or deter from of law, reasonably could have been forecast to cause a some action by threats or violence”, 8 id. at 7–8. See substantial disruption. also Black's Law Dictionary 1708 (10th ed.2014) (defining “threat” as “[a] communicated intent to inflict harm or loss on another or on another's property”); id. at 831 a. (defining “harassment” as “[w]ords, conduct, or action ... that, being directed at a specific person, annoys, alarms, As noted by our court in Shanley, “in deference or causes substantial emotional distress to that person and to the judgment of the school boards, we refer ad serves no legitimate purpose”); Elonis v. United States, ––– hoc resolution of ... issues [such as this one] to the U.S. ––––, 135 S.Ct. 2001, 2011–12, 192 L.Ed.2d 1 (2015) neutral corner of ‘reasonableness' ”. 462 F.2d at 971; (explaining that a “threat” can have different definitions see also id. at 975 (“[T]he balancing of expression based on context (for example, the difference between its and discipline is an exercise in judgment for school use in criminal statutes and its being protected speech administrations and school boards, subject only to the under the First Amendment)). constitutional requirement of reasonableness under the circumstances”.). For the reasons discussed supra, there is A reasonable understanding of Bell's statements satisfies no genuine dispute of material fact that the school board's these definitions; they: threatened violence against the finding the rap recording threatened, harassed, and two coaches, describing the injury to be inflicted (putting intimidated the two coaches was objectively reasonable. the pistol down their mouths and pulling the trigger, and “capping” them), described the specific weapon (a

will govern if they are within the range where reasonable minds will differ ”. Cash, 585 F.3d at 222 (emphasis b. added) (internal citations and quotation marks omitted). Next, we consider whether the school board's disciplinary Accordingly, school authorities are not required expressly action against Bell, based on its finding he threatened, to forecast a “substantial or material disruption”; rather, harassed, and intimidated two coaches, satisfies Tinker. courts determine the possibility of a reasonable forecast Arguably, a student's threatening, harassing, and based on the facts in the record. See, e.g., id. at 217, intimidating a teacher inherently portends a substantial 222; see also Tinker, 393 U.S. at 514, 89 S.Ct. 733 disruption, making feasible a per se rule in that regard. (“[T]he record does not demonstrate any facts which We need not decide that question because, in the light of might reasonably have led school authorities to forecast this summary-judgment record, and for the reasons that substantial disruption of or material interference with follow, Bell's conduct reasonably could have been forecast school activities, and no disturbances or disorders on the to cause a substantial disruption. school premises in fact occurred”. (emphasis added)).

Factors considered by other courts in determining, pursuant to Tinker, the substantiality vel non of an i. actual disruption, and the objective reasonableness vel of a forecasted substantial disruption, include: the [11] As discussed supra, Tinker allows a school board non to discipline a student for speech that either causes a nature and content of the speech, the objective and substantial disruption or reasonably is forecast to cause subjective seriousness of the speech, and the severity of the possible consequences should the speaker take action, one. 393 U.S. at 514, 89 S.Ct. 733. The Tinker test is satisfied when: an actual disruption occurs; or the e.g., Wynar, 728 F.3d at 1070–71; the relationship of record contains facts “which might reasonably have led the speech to the school, the intent of the speaker to school authorities to forecast substantial disruption of or disseminate, or keep private, the speech, and the nature, and severity, of the school's response in disciplining the material interference with school activities”. Id. student, e.g., Doninger, 527 F.3d at 50–52; whether the speaker expressly identified an educator or student by [12] “Tinker requires a specific and significant fear of disruption, not just some remote apprehension of name or reference, and past incidents arising out of similar speech, 652 F.3d at 574; the manner in disturbance.” Saxe, 240 F.3d at 211. “School officials e.g., Kowalski, must be able to show that their actions were caused which the speech reached the school community, e.g., by something more than a mere desire to avoid the Boim, 494 F.3d at 985; the intent of the school in discomfort and unpleasantness that always accompany disciplining the student, Snyder, 650 F.3d at 926, 929 (majority opinion), 951 (Fisher, J., dissenting); and the an unpopular viewpoint.” A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 221 (5th Cir.2009) (alterations and internal occurrence of other in-school disturbances, including quotation marks omitted). “Officials must base their administrative disturbances involving the speaker, such as “[s]chool officials ha[ving] to spend considerable time decisions on fact, not intuition”, id. at 221–22 (internal quotation marks omitted); and *398 those decisions are dealing with these concerns and ensuring that appropriate safety measures were in place”, 647 F.3d at 766, entitled to deference, Shanley, 462 F.2d at 967 (“That D.J.M., courts should not interfere with the day-to-day operations brought about “because of the need to manage” concerns of schools is a platitudinous but eminently sound maxim over the speech, Doninger, 527 F.3d at 51. which this court has reaffirmed on many occasions.”). See also Wood, 420 U.S. at 326, 95 S.Ct. 992 (“It is not the role of the federal courts to set aside decisions of school ii. administrators which the court may view as lacking a basis in wisdom or compassion.”). [15] Applying this precedent to the summary-judgment record at hand, and for the reasons that follow, [13] [14] As our court has held: “While school officials a substantial disruption reasonably could have been must offer facts to support their proscription of student forecast as a matter of law. Viewing the evidence in speech, this is not a difficult burden, and their decisions the requisite light most favorable to Bell, including his

© 2017 Thomson Reuters.Page No claim to 199 original U.S.of Government228 Works. 13 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 assertions that he wanted only to raise awareness of weeks). The reasonableness of, and amount of care given alleged misconduct by two teachers (Bell admitted at to, this decision is reinforced by the school board's finding, the disciplinary-committee hearing that his recording differently from the disciplinary committee's, that Bell's was meant to “increase awareness of the situation” and statements also constituted threats. that he was “foreshadowing something that might happen ” (emphasis added)), the manner in which he voiced his And finally, numerous, recent examples of school concern—with threatening, intimidating, and harassing violence exist in which students have signaled potential language—must be taken seriously by school officials, violence through speech, writings, or actions, and then and reasonably could be forecast by them to cause a carried out violence against school communities, after substantial disruption. school administrators and parents failed to properly identify warning signs. See, e.g., Report of the Virginia The speech pertained directly to events occurring at Tech Review Panel, Mass Shootings at Virginia Tech school, identified the two *399 teachers by name, and April 16, 2007, 52 (August 2007), available at https:// was understood by one to threaten his safety and by governor.virginia.gov/media/3772/fullreport.pdf (section neutral, third parties as threatening. (Bell agreed at the entitled “Missing the Red Flags”); see also Ponce, 508 F.3d disciplinary-committee hearing that “certain statements” at 771 (“[T]he difficulty of identifying warning signs in the were made to his mother “outside the school setting” various instances of school shootings across the country that “ ‘put a pistol down your mouth’ [,] that is a direct is intrinsic to the harm itself”.); LaVine, 257 F.3d at 987 threat”.) The possible consequences were grave—serious (“After Columbine, Thurston, Santee and other school injury to, including the possible death of, two teachers. shootings, questions have been asked how teachers or Along that line, Bell admitted he intended the speech to administrators could have missed telltale ‘warning signs,’ be public and to reach members of the school community, why something was not done earlier and what should be which is further evidenced by his posting the recording to done to prevent such tragedies from happening again.”). Facebook and YouTube. In determining objective reasonableness vel non for As noted, the school district's Discipline—Administrative forecasting a substantial disruption, the summary- Policy lists “[h]arassment, intimidation, or threatening judgment record and numerous related factors must be other students and/or teachers” as a severe disruption. considered against the backdrop of the mission of schools: Although we may not rely on ipse dixit in evaluating to educate. It goes without saying that a teacher, which the school board's actions, Shanley, 462 F.2d at 970, includes a coach, is the cornerstone of education. Without the school-district's policy demonstrates an awareness teaching, there can be little, if any, learning. Without of Tinker 's substantial-disruption standard, and the learning, there can be little, if any, education. Without policy's violation can be used as evidence supporting the education, there can be little, if any, civilization. reasonable forecast of a future substantial disruption. See, e.g., Morse, 551 U.S. at 408–10, 127 S.Ct. 2618 (relying It equally goes without saying that threatening, harassing, on, inter alia, the student's violation of established school and intimidating a teacher impedes, if not destroys, the policy in holding the school board did not violate the ability *400 to teach; it impedes, if not destroys, the student's First Amendment right); Fraser, 478 U.S. at ability to educate. It disrupts, if not destroys, the discipline 678, 686, 106 S.Ct. 3159 (noting that the “[t]he school necessary for an environment in which education can take disciplinary rule proscribing ‘obscene’ language and the place. In addition, it encourages and incites other students prespeech admonitions of teachers gave adequate warning to engage in similar disruptive conduct. Moreover, it can to [the student] that his lewd speech could subject him to even cause a teacher to leave that profession. In sum, sanctions”). it disrupts, if not destroys, the very mission for which schools exist—to educate. Further, even after finding Bell threatened, intimidated, and harassed two teachers, the school board's response If there is to be education, such conduct cannot be was measured—temporarily suspending Bell and placing permitted. In that regard, the real tragedy in this instance him in an alternative-education program for the is that a high-school student thought he could, with remainder of the nine-week grading term (about six impunity, direct speech at the school community which

© 2017 Thomson Reuters.Page No claim to 200 original U.S.of Government228 Works. 14 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 threatens, harasses, and intimidates teachers and, as a facts fit, but Tinker's admonitions—or the admonitions result, objected to being disciplined. in various precedents—are not equally forceful in every case. The same can be said of Morse. It is perhaps more Put succinctly, “with near-constant student access to applicable here than Tinker, because it speaks in terms social networking sites on and off campus, when offensive of physical and moral danger to students. Morse makes and malicious speech is directed at school officials and clear that such danger does not require proof of disruptive disseminated online to the student body, it is reasonable effects that the speech may cause, as would be required in to anticipate an impact on the classroom environment”. the case of mere expression of non-lethal statements. Snyder, 650 F.3d at 951–52 (Fisher, J., dissenting). As stated, the school board reasonably could have It is true that in a footnote in Ponce we indicated that forecast a substantial disruption at school, based on the individual threats of violence are more appropriately threatening, intimidating, and harassing language in Bell's analyzed in the light of Tinker as opposed to threats of rap recording. mass violence, which we analyzed under Morse. These are evolving principles, however, and we now have before us a different case from Tinker, Morse, Ponce, or Porter. Tinker may well be a relevant *401 precedent here. But B. that does not mean that all aspects of a political speech In considering Bell's First Amendment claim, and our case must be slavishly applied to a case of threats to kill having affirmed summary judgment for the school board teachers. under Tinker, it is unnecessary to decide whether Bell's speech also constitutes a “true threat” under Watts v. We should apply reasonable common sense in deciding United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d these continually arising school speech and discipline 664 (1969) (holding hyperbolic threats on the President's cases, as we would in any case dealing with the evolving life are not “true threats”). See Elonis, 135 S.Ct. at common law, which takes into account the technological 2012 (declining to address the First Amendment question and societal environs of the times. When Tinker was (whether the speech was a “true threat” not protected written in 1969, the use of the Internet as a medium for by that amendment) after resolving the case on other student speech was not within the Court's mind. It is also grounds). true that this issue was not in the forefront of the Court's mind when Porter was written in 2004, or even when Morse and Ponce were written. Ever since Morse, the use, the extent and the effect of the online speech seem to have III. multiplied geometrically. For the foregoing reasons, the judgment is AFFIRMED. Judges should also view student speech in the further context of public education today—at a time when many schools suffer from poor performance, when disciplinary E. GRADY JOLLY, specially concurring: problems are at their highest, and when schools are, In determining the contours of constitutionally in many ways, at their most ineffective point. Judges permissible school discipline, older cases are relevant for should take into account the effect the courts have had block building, but only block building, as we decide on these problems in school discipline. Increasing judicial what speech schools may discipline under the First oversight of schools has created unforeseen consequences, Amendment. In Tinker, there was no threat to kill a for teachers and for schools as much as for students. teacher, no threat of violence, and no lewd or slanderous Students feel constraints on conduct and personal speech comments regarding a teacher. Tinker also did not address to be more and more permissive. Teachers will decide not the intersection between on-campus speech and off- to discipline students, given the likelihood of protracted campus speech. When Tinker refers to a disruption, it is litigation and its pressures on the time and person of those saying that student ideas may be expressed on campus who work hard to keep up with the increasing demands unless they are so controversial that the expression creates placed on them as teachers. Schools will not take on the a disruption. Those principles are controlling where the risk of huge litigation costs when they could use these

© 2017 Thomson Reuters.Page No claim to 201 original U.S.of Government228 Works. 15 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 resources on school lunches, textbooks, or other necessary while “much political and religious speech might be school resources to educate children, all of which are perceived as offensive to some,” such speech “is at the sorely lacking in so many, many instances. core of what the First Amendment is designed to protect”) (internal quotation marks omitted); id. at 422–23, 424, Judges can help to address these concerns by speaking 127 S.Ct. 2618 (Alito, J., concurring) (emphasizing the clearly, succinctly and unequivocally. I would decide this First Amendment's protection of speech that comments case in the simplest way, consonant with our cases and the on political or social issues and observing that “[i]t cases in other circuits, by saying as little as possible and is ... wrong to treat public school officials, for purposes holding: relevant to the First Amendment, as if they were private, nongovernmental actors standing in loco parentis ”). Student speech is unprotected by the First Amendment and is subject to school discipline when that speech Indeed, as Judge D. Brooks Smith has cautioned, because contains an actual threat to kill or physically harm Tinker allows the suppression of student speech (even personnel and/or students of the school; which actual political speech) based on its consequences rather than its threat is connected to the school environment; and which content, broad off-campus application of Tinker “would actual threat is communicated to the school, or its create a precedent with ominous implications. Doing so students, or its personnel. would empower schools to regulate students' expressive activity no matter where it takes place, when it occurs, With these comments, I join Judge Barksdale's opinion. or what subject matter it involves—so long as it causes a substantial disruption at school.” See J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 939 (3d Cir.2011) JENNIFER WALKER ELROD, Circuit Judge, joined (en banc) (Smith, J., concurring) (five-judge concurrence by JONES, Circuit Judge, concurring: opining that Tinker does not apply off campus). I agree I fully concur in the careful, well-reasoned majority with my learned colleague on the Third Circuit that the opinion, because Bell's rap was directed to the school First Amendment does not, for example, allow a public and contained threats of physical violence. See Wynar school to punish a student for “writ[ing] a blog entry v. Douglas Cnty. Sch. Dist., 728 F.3d 1062, 1069 (9th defending gay marriage” from his home computer, even Cir.2013) (declining to consider threshold tests from other if the blog entry causes a substantial disruption at the circuits and holding only that schools may discipline off- school. Id. (Smith, J., concurring). campus student speech under the Tinker standard “when faced with an identifiable threat of school violence”); see By my read, the majority opinion avoids such “ominous also Morse v. Frederick, 551 U.S. 393, 424, 127 S.Ct. 2618, implications” and does not subject a broad swath of off- 168 L.Ed.2d 290 (2007) (Alito, J., concurring) (remarking campus student expression to Tinker. Rather, it quite that “any argument for altering the usual free speech rules sensibly decides only the case before it, applying Tinker in the public schools ... must ... be based on some special to Bell's rap, which was intentionally directed toward characteristic of the school setting,” and recognizing only the school and contained threats of physical violence. one such special characteristic: “threat[s] to the physical Because this cautious approach does not place public safety of students”); Ponce v. Socorro Ind. Sch. Dist., 508 school officials in loco parentis or confer upon them a F.3d 765, 770–72 (5th Cir.2007) (interpreting Morse to broad power to discipline non-threatening off-campus *402 allow punishment of off-campus speech threatening speech, I concur in full. a mass shooting).

Most importantly, nothing in the majority opinion GREGG COSTA, Circuit Judge, joined by OWEN and makes Tinker applicable off campus to non-threatening HIGGINSON, Circuit Judges, concurring: political or religious speech, even though some school This case involves two serious problems that arise all administrators might consider such speech offensive, too frequently in today's classrooms: violence and sexual harassing, or disruptive. See Morse, 551 U.S. at 403, harassment. Judge Dennis's dissent points out that the 409, 127 S.Ct. 2618 (majority opinion) (noting that the harassment of female students is a matter of vital public student speech in Morse did not “convey[ ] any sort concern that Bell's song sought to expose. The problem of political or religious message” and recognizing that for Bell is that his song—with its graphic discussion of

© 2017 Thomson Reuters.Page No claim to 202 original U.S.of Government228 Works. 16 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 violence against the coaches—goes well beyond blowing —one that would deprive schools of any authority the whistle on the alleged harassment. to discipline students for off-campus speech published on social media no matter how much it disrupts the Judge Dennis's dissent contends that these whistleblowing learning environment—would allow sexual harassment aspects of the song nonetheless entitle the speech to and ferocious cyberbullying that affect our classrooms “special protection” under the First Amendment. Dissent to go unchecked. See Morrow v. Balaski, 719 F.3d at 403, 410. It treats this argument as a separate basis for 160, 164 (3d Cir.2013) (describing multiple cyberbullying ruling in Bell's favor. But fitting this case within Snyder incidents in which students were threatened by phone v. Phelps, public employee speech cases like Pickering, and on MySpace by another student); S.J.W. ex rel. and the litany of other cited cases assumes that Tinker is Wilson v. Lee's Summit R–7 Sch. Dist., 696 F.3d 771, not implicated. Tinker, of course, involved speech on not 773 (8th Cir.2012) (explaining that students' posts on a just a matter of public concern, but the public concern blog they created “contained a variety of offensive and of its day—the *403 war in Vietnam. Tinker v. Des racist comments as well as sexually explicit and degrading Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504, 89 comments about particular female classmates, whom they S.Ct. 733, 21 L.Ed.2d 731 (1969). Yet the Court still identified by name”); Kowalski v. Berkeley Cnty. Sch., balanced the value of that speech against its impact on the 652 F.3d 565, 568 (4th Cir.2011) (detailing online bullying learning environment. See id. at 509, 89 S.Ct. 733. That incident in which high school students created webpage disruption analysis may well have come out differently called “Students Against Shay's Herpes” in reference to had the Tinkers combined their armband protest with another high school student). talk of violence. Identifying some aspect of Bell's song that addresses a matter of public concern therefore is not With these additional observations, I join the majority enough to elevate it above the Tinker framework unless opinion. Tinker does not apply to this type of off-campus speech (in which case the speech would enjoy First Amendment protection from school discipline so long as it constitutes JAMES L. DENNIS, Circuit Judge, with whom any form of protected speech, not just the “highest rung”). GRAVES, Circuit Judge, joins in full, and with whom PRADO, Circuit Judge, joins except as to Parts I and II. Whichever First Amendment doctrine one tries to latch B., dissenting: onto, the inescapable question is thus whether Tinker 's Although mischaracterizing itself as “narrow” in scope, balancing approach governs “off-campus” student speech the en banc majority opinion broadly proclaims that a that is directed at the school community. For the reasons public school board is constitutionally empowered to discussed in the majority opinion, along with the views punish a student whistleblower for his purely off-campus expressed by every other circuit that has taken a position Internet speech publicizing a matter of public concern. on this issue, I agree that it does, at least when the speech As if to enforce the adage that “children should be seen is threatening, harassing, and intimidating as it is here. and not heard,” the majority opinion *404 holds that the Itawamba County School Board did not violate the First Broader questions raised by off-campus speech will be left Amendment when it suspended high school senior Taylor for another day. That day is coming soon, however, and Bell for composing and posting a rap song on the Internet this court or the higher one will need to provide clear using his home computer during non-school hours, which guidance for students, teachers, and school administrators criticized two male teachers for their repeated sexual that balances students' First Amendment rights that harassment of minor female students. In my view, the Tinker rightly recognized with the vital need to foster a majority opinion commits serious constitutional and school environment conducive to learning. That task will summary-judgment procedural errors because: (1) Bell not be easy in light of the pervasive use of social media is entitled to summary judgment because his off-campus among students and the disruptive effect on learning rap song was specially protected speech on a matter of that such speech can have when it is directed at fellow public concern; (2) the School Board was not authorized students and educators. Indeed, although Judge Dennis's by Tinker v. Des Moines Independent Community School dissent extols the aspects of Bell's song that sought to District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), combat sexual harassment, the blanket rule it advocates to censor students' off-campus online speech; and (3) even

© 2017 Thomson Reuters.Page No claim to 203 original U.S.of Government228 Works. 17 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 assuming arguendo that Tinker granted the School Board S.Ct. 2729, 2735–36, 180 L.Ed.2d 708 (2011). Similarly, power to censor such speech, the School Board was not the majority opinion also altogether fails to consider entitled to summary judgment under Tinker, because the Supreme Court precedents that substantially restrict the evidence, viewed in the light favorable to the non-movant, government's ability to regulate Internet speech, Reno Bell, does not support the conclusion that Bell's speech v. American Civil Liberties Union, 521 U.S. 844, 868– caused a substantial disruption of school activities or 70, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the justified a reasonable forecast of such a disruption by extent to which the *405 majority opinion's vague school officials. The majority opinion thereby denigrates framework fails to provide constitutionally adequate and undermines not only Bell's First Amendment right to notice of when student speech crosses the line between engage in off-campus online criticism on matters of public permissible and punishable off-campus expression, see concern but also the rights of untold numbers of other id. at 871–72, 117 S.Ct. 2329; accord Brown, 131 S.Ct. public school students in our jurisdiction to scrutinize the at 2744–46 (Alito, J., concurring). Further, by deriving world around them and likewise express their off-campus its rule from a school policy that focuses on whether online criticism on matters of public concern. In doing so, a layperson might view Bell's speech as “threatening,” the majority opinion obliterates the historically significant “harassing,” or “intimidating,” the majority opinion distinction between the household and the schoolyard by ignores First Amendment precedents demanding that the permitting a school policy to supplant parental authority government prove more than mere negligence before over the propriety of a child's expressive activities on the imposing penalties for so-called “threatening” speech. See Internet outside of school, expanding schools' censorial Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 authority from the campus and the teacher's classroom to L.Ed.2d 535 (2003); N.A.A.C.P. v. Claiborne Hardware the home and the child's bedroom. Co., 458 U.S. 886, 904, 928–29, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). As detailed herein, the majority opinion commits a number of fundamental errors that necessitate Third, by holding that the Tinker framework applies highlighting lest readers be misinformed by its version to off-campus speech like Bell's, the majority opinion of the relevant facts and law. First and foremost, the simply ignores that Tinker 's holding and its sui majority opinion erroneously fails to acknowledge that generis “substantial-disruption” framework are expressly Bell's rap song constitutes speech on “a matter of public grounded in “the special characteristics of the school concern” and therefore “occupies the highest rung of the environment,” Tinker v. Des Moines Indep. Cmty. Sch. hierarchy of First Amendment values.” See Snyder v. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 Phelps, 562 U.S. 443, 452, 131 S.Ct. 1207, 179 L.Ed.2d 172 (1969), and the need to defer to school officials' authority (2011) (internal quotation marks and citation omitted). “to prescribe and control conduct in the schools,” id. at Instead, by narrowly focusing its analysis on a few, plainly 507, 89 S.Ct. 733 (emphasis added), whereas Bell's rap rhetorical lyrics in Bell's song, the majority opinion wholly song was recorded and released entirely outside the school glosses over the urgent social issue that Bell's song lays environment. The Court's post-Tinker precedents make bare and thus flouts Supreme Court precedent requiring clear this critical distinction. See, e.g., Morse v. Frederick, us to evaluate whether “the overall thrust and dominant 551 U.S. 393, 422, 127 S.Ct. 2618, 168 L.Ed.2d 290 theme of [Bell's song] spoke to broader public issues”— (2007) (Alito, J., concurring) (noting that Tinker allows which it did. See id. at 454, 131 S.Ct. 1207. schools to regulate “in-school student speech ... in a way that would not be constitutional in other settings”). In Second, in drastically expanding the scope of schools' this regard, the majority opinion also fails to account authority to regulate students' off-campus speech, the for the vital fact that the Tinker framework is far too majority opinion disregards Supreme Court precedent indeterminate of a standard to adequately protect the establishing that minors are entitled to “significant” First First Amendment right of students, like Bell, to engage Amendment protection, including the right to engage in in expressive activities outside of school, as well as their speech about violence or depicting violence, and that the parents' constitutional right to direct their children's government does not enjoy any “free-floating power to upbringing and the First Amendment right of adults restrict the ideas to which children may be exposed.” and children alike to receive students' speech. In other See Brown v. Entm't Merchants Ass'n, ––– U.S. ––––, 131 words, the majority opinion allows schools to police their

© 2017 Thomson Reuters.Page No claim to 204 original U.S.of Government228 Works. 18 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 students' Internet expression anytime and anywhere— an unprecedented and unnecessary intrusion on students' I. rights. The en banc majority opinion completely ignores Bell's Fourth and finally, the majority opinion also errs in its argument that the School Board violated his First very application of the Tinker framework. As detailed Amendment rights in punishing him for his rap song, in the panel majority's opinion, the summary-judgment which he contends was protected speech on “a matter evidence simply does not support the conclusion, as of public concern.” Although Bell strenuously made his required by Tinker, that Bell's song substantially disrupted “speech on a matter of public concern” argument at school activities or that school officials reasonably could every opportunity, including at the en banc oral argument, have forecasted that it would do so. In reaching the the en banc majority opinion fails to address this opposite conclusion, the majority opinion not only fails critical point. Instead, the majority opinion transforms to view the summary-judgment evidence in the light the Itawamba County School Board disciplinary policy most favorable to the non-movant, Bell, accord Tolan v. into an unprecedented rule of constitutional law that Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1865, 188 L.Ed.2d effectively permits school officials across our Circuit 895 (2014), but also dilutes the Tinker “substantial- to punish a student's protest of teacher misconduct disruption” framework into an analytic nullity. regardless of when or where the speech occurs and regardless of whether the student speaker is, at the time Even in the most repressive of dictatorships, the citizenry of the speech, an adult or a minor fully within the is “free” to praise their leaders and other people of custody and control of his or her parents. I respectfully power or to espouse views consonant with those of their but strongly disagree with the majority opinion's silent leaders. “Freedom of speech” is thus a hollow guarantee rejection of Bell's argument, not only because Bell's if it permits only praise or state-sponsored propaganda. argument is meritorious, but also because the opinion's Freedom of speech exists exactly to protect those who sub silentio decision of the issue presented has led it into would criticize, passionately and vociferously, the actions several serious and unfortunate constitutional errors. of persons in power. But that freedom is denied to Bell by the majority opinion because the persons whose Speech on “matters of public concern” is “at the heart conduct he dared to criticize were school teachers. If of the First Amendment's protection.” Snyder v. Phelps, left uncorrected, the majority opinion inevitably will 562 U.S. 443, 451–52, 131 S.Ct. 1207, 179 L.Ed.2d 172 encourage school officials to silence student speakers, (2011) (internal quotation marks and citation omitted). like Taylor Bell, solely because *406 they disagree “The First Amendment reflects ‘a profound national with the content and form of their speech, particularly commitment to the principle that debate on public issues when such off-campus speech criticizes school personnel. should be uninhibited, robust, and wide-open.’ ” Id. at Such a precedent thereby clearly contravenes the basic 452, 131 S.Ct. 1207 (quoting New York Times Co. v. principle that, “[i]n our system, students may not be Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d regarded as closed-circuit recipients of only that which 686 (1964)). “That is because ‘speech concerning public the States chooses to communicate. They may not be affairs is more than self-expression; it is the essence of confined to expression of those sentiments that are self-government.’ ” Id. (quoting Garrison v. Louisiana, officially approved.” Tinker, 393 U.S. at 511, 89 S.Ct. 379 U.S. 64, 74–75, 85 S.Ct. 209, 13 L.Ed.2d 125 733. Today, however, the majority opinion exempts the (1964)). “Accordingly, ‘speech on public issues occupies children of Texas, Louisiana, and Mississippi from this the highest rung of the hierarchy of First Amendment long-established constitutional safeguard. Because the values, and is entitled to special protection.’ ” Id. (quoting majority opinion's undue deference to a public school Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 board's assertion of authority to censor the speech of L.Ed.2d 708 (1983)). students while not within its custody impinges the very core of our Constitution's fundamental right to free Although the Supreme Court has noted that “the speech, I respectfully but emphatically dissent. boundaries of the public concern test are not well defined,” San Diego v. Roe, 543 U.S. 77, 83, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam), it has “articulated some

© 2017 Thomson Reuters.Page No claim to 205 original U.S.of Government228 Works. 19 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 guiding principles, principles that accord broad protection Id. The record confirms that any distress occasioned by to speech to ensure that courts themselves do not become Westboro's picketing turned on the content and viewpoint inadvertent censors,” Snyder, 562 U.S. at 452, 131 S.Ct. of the message conveyed, rather than any interference with 1207. “Speech deals with matters of public concern when the funeral itself. Id. The picketers peacefully displayed it can be fairly considered as relating to any matter of signs that read “God Hates the USA/Thank God for political, social, or other concern to the community, or 9/11,” “America is Doomed,” “Don't Pray for the USA,” when it is a subject of legitimate news interest; that is, “Thank God for IEDs,” “Thank God for Dead Soldiers,” *407 a subject of general interest and of value and “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” concern to the public.” Id. at 453, 131 S.Ct. 1207 (internal “You're Going to Hell,” and “God Hates You.” Id. at 448, quotation marks and citations omitted). “The arguably 131 S.Ct. 1207. The Westboro picketers displayed these ‘inappropriate or controversial character of a statement is signs for about 30 minutes before the funeral began. Id. at irrelevant to the question whether it deals with a matter of 449, 131 S.Ct. 1207. public concern.’ ” Id. (quoting Rankin v. McPherson, 483 U.S. 378, 387, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)). 1 “The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he Determining whether speech involves a matter of public could see the tops of the picket signs as he drove to the concern “requires us to examine ‘the content, form, and funeral, he did not see what was written on the signs context’ of th[e] speech, as revealed by the record as a until later that night, while watching a news broadcast whole.” Id. (quoting Dun & Bradstreet, Inc. v. Greenmoss covering the event.” Id. at 449, 131 S.Ct. 1207. Builders, Inc., 472 U.S. 749, 761, 105 S.Ct. 2939, 86 Snyder's father thereafter filed a diversity action against L.Ed.2d 593 (1985)). “As in other First Amendment Phelps and other picketers alleging, inter alia, state tort cases, the court is obligated ‘to make an independent claims of intentional infliction of emotional distress, examination of the whole record in order to make sure that intrusion upon seclusion, and civil conspiracy. Id. at 449– the judgment does not constitute a forbidden intrusion on 50, 131 S.Ct. 1207. After a jury awarded millions of dollars the field of free expression.’ ” Id. (quoting Bose Corp. v. in damages, Phelps and his congregants argued that they Consumers Union of United States, Inc., 466 U.S. 485, 499, were entitled to judgment as a matter of law because 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). “In considering the First Amendment fully protected their speech. Id. at content, form, and context, no factor is dispositive, and it 450, 131 S.Ct. 1207. The district *408 court reduced the is necessary to evaluate all the circumstances of the speech, punitive damages award, but left the verdict otherwise including what was said, where it was said, and how it was intact. Id. The Fourth Circuit reversed, concluding that said.” Id. at 454, 131 S.Ct. 1207. Westboro's statements were entitled to First Amendment protection because those statements “were on matters In Snyder, the Supreme Court applied this framework of public concern, were not provably false, and were to hold that the First Amendment barred an aggrieved expressed solely through hyperbolic rhetoric.” Id. at 451, father from recovering for, inter alia, intentional infliction 131 S.Ct. 1207. of emotional distress, against an anti-gay church congregation whose picketing coincided with the funeral The Supreme Court granted certiorari and affirmed. Id. of his son, who was a marine, notwithstanding the alleged at 461, 131 S.Ct. 1207. Evaluating the “content, form and outrageousness and hurtfulness of the picketers' speech to context” of the congregants' protest, the Court concluded Snyder. 1 562 U.S. at 460, 131 S.Ct. 1207. Specifically, that Westboro's speech addressed a matter of public in that case, Fred Phelps, the founder of the Westboro concern and was entitled to “special protection” under the Baptist Church, traveled to Maryland, along with six First Amendment, thus barring Snyder from recovering in parishioners, in order to hold a protest on public property tort on the basis of the “outrageousness” of their speech. 1,000 feet from the funeral of Marine Lance Corporal Id. at 458, 131 S.Ct. 1207. According to the Court: Matthew Snyder, who was killed in Iraq in the line of duty. Id. at 448, 131 S.Ct. 1207. The picketing was conducted Such speech cannot be restricted simply because it is under police supervision and out of the sight of those at upsetting or arouses contempt. “If there is a bedrock the church. Id. at 457, 131 S.Ct. 1207. The protest was principle underlying the First Amendment, it is that not unruly; there was no shouting, profanity, or violence. the government may not prohibit the expression of an

idea simply because society finds the idea itself offensive wife's appearance (the song states that “his wife ain't or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 got no titties”). 3 By describing Rainey as “Bobby Hill [109 S.Ct. 2533, 105 L.Ed.2d 342] (1989). Indeed, “the the second,” the song also draws parallels between the point of all speech protection ... is to shield just those coaches' alleged sexual misconduct and the alleged sexual choices of content that in someone's eyes are misguided, misconduct of a former Itawamba coach, Bobby Hill, who or even hurtful.” Hurley v. Irish–American Gay, Lesbian was arrested the previous year for sending sexually explicit and Bisexual Group of Boston[], 515 U.S. 557, 574 [115 text messages to a female student. Although the song does S.Ct. 2338, 132 L.Ed.2d 487] (1995). contain some violent lyrics, the song's overall “content” is indisputably a darkly sardonic but impassioned protest Id. Further, the Court concluded: of two teachers' alleged sexual misconduct, e.g., opining Westboro believes that America is morally flawed; that Rainey is “a fool/30 years old fucking with students many Americans might feel the same about Westboro. at the school.” That Bell's song may fall short of the Westboro's funeral picketing is certainly hurtful and its School Board's aesthetic preferences for socio-political contribution to public discourse may be negligible. But commentary is not relevant to determining whether Westboro addressed matters of public import on public the rap song's content addresses a matter of public property, in a peaceful manner, in full compliance with concern. See, e.g., Snyder, 562 U.S. at 453, 131 S.Ct. the guidance of local officials. The speech was indeed 1207 (observing that “[t]he arguably inappropriate or planned to coincide with Matthew Snyder's funeral, but controversial character of a statement is irrelevant to did not itself disrupt that funeral, and Westboro's choice the question whether it deals with a matter of public to conduct its picketing at that time and place did not concern”) (internal quotation marks omitted). In Snyder, alter the nature of its speech. the Supreme Court explicitly rejected the argument that the crude and egregiously offensive messages on the Speech is powerful. It can stir people to action, move anti-gay protesters' signs—which included “Fag Troops,” them to tears of both joy and sorrow, and—as it did here “God Hates the USA/Thank God for 9/11” and “Thank —inflict great pain. On the facts before us, we cannot God for Dead Soldiers”—should affect the inquiry into react to that pain by punishing the speaker. As a Nation whether the signs addressed a matter of public concern. we have chosen a different course—to protect even Id. at 454, 131 S.Ct. 1207. According to the Court, hurtful speech on public issues to ensure that we do not “[w]hile these messages may fall short of refined social stifle public debate. That choice requires that we shield or political commentary, the issues they highlight ... are Westboro from tort liability for its picketing in this case. matters of public import.” Id. So much more so here where Bell addresses a serious issue of alleged teacher Id. at 460–461, 131 S.Ct. 1207. sexual misconduct toward minor students. Indeed, similar to Snyder, even if some of Bell's lyrics were crude and Applying these principles to the instant case, the record contained violent imagery, “th[is] would not change the indisputably reveals that Bell's speech addressed a matter fact that the overall thrust and dominant theme of [Bell's of public concern. Bell composed his song after a song] spoke to broader public issues.” See id. number of his female friends at school informed him that Coaches Wildmon and Rainey had frequently sexually 2 2 Bell's Facebook page labels the song “P.S. Koaches,” harassed them during school. The lyrics of Bell's song but Bell's complaint identifies the song's title as “PSK describe in detail the female students' allegations of sexual The Truth Needs to be Told.” misconduct, e.g., describing Coach Wildmon as “telling 3 students that they [were] sexy,” and Coach Rainey as Notably, the instances of sexual misconduct detailed “rubbing on the black girls' ears in the gym.” With a in Bell's lyrics were not unsubstantiated. Four darkly parodic—and, by many standards, crude—tone, different female students submitted sworn affidavits detailing the sexual harassment they endured at the the song ridicules the coaches for their outrageously hands of the coaches. For instance, consistent with inappropriate conduct with the female students, e.g., Bell's lyrics, one female student stated in her sworn describing one coach as having “drool running down [his] affidavit that Rainey had rubbed her ears without mouth” while he “look[s] down girls' shirts,” and positing her permission. Likewise, another female student that Wildmon is “fucking around” *409 because of his claimed that Wildmon had looked down her shirt;

told her that she “was one of the cutest black female needed to address. I'm an artist ... I students” at Itawamba; commented on her “big butt”; speak real life experience.... and told her that he “would date her if [she] were older.” Another female student consistently stated Later, at the Disciplinary Committee meeting, Bell that Rainey told her, “Damn, baby, you are sexy,” likewise explained that the song was an effort to while in the school gym. Another female student “speak out” on the issue of teacher-on-student sexual stated that Rainey told her that he would “turn” her harassment. 6 “back straight from being gay.” The “form” of Bell's speech, i.e., a rap song, likewise 6 Bell also explained that he did not immediately militates in favor of finding that it addresses a matter report the teachers' misconduct to school authorities of public concern. It is axiomatic that music, like other because, in his view, school officials generally ignored art forms, has historically functioned as a mechanism to complaints by students about the conduct of teachers. 4 raise awareness of contemporary social issues. Rap is Although Bell was an enrolled high school student, he no exception. “Over the past twenty years there has been was not within the custody of the school system when extensive academic discourse on the role of rap music ... he initially composed, recorded, and posted his rap song as a form of political expression.” Commonwealth v. Gray, on the Internet during the Christmas holidays. At that 463 Mass. 731, 755 n. 24, 978 N.E.2d 543 (2012) (collecting time he was eighteen years old but living with his mother, 5 authorities). A long aspiring rap artist himself, Bell and therefore was an adult capable of making his own invoked this same tradition by deploying the artistic decisions as to expressing his views publicly. Even if he had conventions and style of the rap genre in order to critique still been a minor at the time he composed and posted his the coaches' sexual harassment of female students. song, he would have been subject to the exclusive control, custody, and discipline of his parent—not the school 4 See, e.g., Bob Dylan, The Times They Are system. See Shanley v. Ne. Indep. Sch. Dist., 462 F.2d A–Changin', on The Times They Are a 960, 964 (5th Cir.1972). Because Bell's speech did not fall Changin' (Columbia Records 1964) (“Come Senators, within any of the narrow unprotected categories of speech Congressmen, please heed the call. Don't stand in the recognized by the Supreme Court (e.g., obscenity or a true doorway, don't block up the hall.”). threat), 7 it was fully protected speech and presumptively 5 Bell's stage name is “T–Bizzle.” not subject to governmental regulation or censorship on the basis of its content. See Erznoznik v. City of *410 Finally, the “context” of Bell's speech likewise Jacksonville, 422 U.S. 205, 213, 95 S.Ct. 2268, 45 L.Ed.2d evinces that it addresses a matter of public import. By 125 (1975) (“Speech that is neither obscene as to youths releasing his song on the Internet, Bell sought to bring nor subject to some other legitimate proscriptions cannot attention to the coaches' sexual misconduct against his be suppressed solely to protect the young ...”). Beyond female classmates, just as the Westboro group in Snyder that basic First Amendment protection, however, the sought to bring attention to its protest by picketing in content, form, and context of Bell's speech indisputably public. See Snyder, 562 U.S. at 454–55, 131 S.Ct. 1207 reveals that it was also entitled to “special protection” (concluding that the “context” of “[the protesters'] signs, against censorship because it was speech on a matter of displayed on public land next to a public street, reflect the public concern safeguarded “at the heart” of the First fact that the church finds much to condemn in modern Amendment's protections. Snyder, 562 U.S. at 451–52, society”). In a monologue introduction on the YouTube 131 S.Ct. 1207. Therefore, at a bare minimum, Bell version of his song, Bell described the genesis of the rap was entitled to as much, if not more, First Amendment as follows: protection as tortfeasors and public employees when the A lot of people been asking me lately state attempts to regulate their speech addressing matters you know what was my reasoning of public concern. See, e.g., Snyder, 562 U.S. at 459– behind creating P.S. Koaches. It's ... 60, 131 S.Ct. 1207 (holding that speakers on matters of something that's been going on ... for *411 public concern could not be held liable in tort a long time [ ] that I just felt like I for intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy on the basis of their speech); United States v. Nat'l Treasury Employees Union,

513 U.S. 454, 466–68, 115 S.Ct. 1003, 130 L.Ed.2d 964 Snyder. What is at issue, however, is whether publicly (1995) (explaining the restrictions upon the government to protesting that alleged misconduct warrants “special punish employees when they speak on matters of public protection” for Bell's speech. The answer to that concern); Rankin, 483 U.S. at 386–89, 107 S.Ct. 2891 question, as explained above, is yes. In any event, (holding that threatening statement by public employee however, Bell has offered uncontroverted proof of the coaches' sexual harassment of the minor female addressed a matter of public concern and government students in the form of sworn affidavits detailing that could not terminate her on the basis of that speech). abuse, which were introduced into evidence in this Moreover, while it is not dispositive of this case, it bears case. mentioning that the School Board has never attempted to argue that Bell's song stated any fact falsely. Furthermore, Snyder itself squarely illumines the errors in the majority's two-prong test. Turning first to the majority opinion's flawed criticism of Bell's intention to publicize 7 Although the School Board claims that Bell's speech his message, the Supreme Court in Snyder explicitly held constitutes a “true threat,” this argument is without that a speaker's efforts to communicate his message to the merit for the reasons explained in the panel majority public is a reason to provide his speech with heightened opinion. See Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 300–03 (5th Cir.2014) (explaining that protection—not a reason to permit greater regulation by Bell's song did not constitute a “true threat,” “as the state. 562 U.S. at 454–55, 131 S.Ct. 1207 (concluding evidenced by, inter alia, its public broadcast as a that protesters' decision to conduct their protest “on rap song, its conditional nature, and the reactions of public land next to a public street” evinced that the speech its listeners”). In any event, as explained herein, the addressed a matter of public concern). Yet, in direct majority opinion does not conclude that Bell's song contradiction to Snyder, the majority opinion's proffered was a true threat. See Maj. Op. pp. 396, 399–400. Nor framework perversely faults Bell for his efforts to publicize could it. the teachers' sexual misconduct, thus creating precedent The majority opinion, however, wholly ignores these that contravenes the very values that the First Amendment critical aspects of Bell's speech, 8 instead reflexively seeks to protect. See Hustler Magazine, Inc. v. Falwell, reducing Bell's rap song to “intimidating, harassing, and 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) (“At threatening” speech without any analysis whatsoever. the heart of the First Amendment is the recognition of Indeed, under the majority opinion's newfound approach, the fundamental importance of the free flow of ideas and Bell's off-campus speech is regulable by school officials opinions on matters of public interest and concern.”). pursuant to Tinker because (i) Bell wanted his speech to be heard by community members and (ii) “a layperson” In addition, contrary to the majority opinion's focus apparently would view some of the lyrics in the rap on how a “layperson” apparently would perceive Bell's as “threatening,” “harassing,” and “intimidating.” As speech, the Supreme Court's cases, including Snyder, an initial matter, I am compelled to point out that *412 demonstrate that listeners' subjective opinions the majority opinion's test unabashedly adopts almost about speech cannot control whether speech addresses a the precise wording of the Itawamba County School matter of public concern or not. For example, in Snyder, Board's disciplinary policy. Unmoored from traditional the Court explained that “[t]he arguably ‘inappropriate constitutional law analysis, the majority opinion instead or controversial character of a statement is irrelevant exalts this single school board's policy to a new rule of to the question whether it deals with a matter of constitutional law. See Maj. Op. pp. 395–96 (holding public concern.’ ” 562 U.S. at 453, 131 S.Ct. 1207. that Tinker applies where student's off-campus speech is (quoting Rankin, 483 U.S. at 387, 107 S.Ct. 2891). threatening, harassing and intimidating). Specifically, in Snyder, a layperson likewise might have viewed the anti-gay protesters' messages as harassing 8 (“God Hates You”), intimidating (“You're Going to The majority opinion instead summarily concludes Hell”), and threatening (“Thank God for Dead Soldiers,” that the “misconduct alleged by Bell against the two “Thank God for IEDs”), but the Court nevertheless teachers is, of course, not at issue.” See Maj. Op. held that “the overall thrust and dominant theme of p. 389. Of course, I agree that the veracity of these allegations is not the “issue” in this case anymore than Westboro's demonstration spoke to broader public issues” the veracity of Westboro's signs was the “issue” in entitling it to “special protection.” Id. at 454, 131 S.Ct. 1207. Thus, the “special protection” that must

© 2017 Thomson Reuters.Page No claim to 209 original U.S.of Government228 Works. 23 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 be afforded to Bell's speech here cannot be qualified by the majority opinion's mere conjecture that some II. hypothetical “layperson” might consider a few of Bell's lyrics to fit the Oxford English Dictionary's definition The en banc majority opinion affirms the School Board's of “threatening,” “harassing” or “intimidating.” See id. punishment of Bell pursuant to its new and unprecedented Indeed, there is no constitutional basis for excluding rule of constitutional law whereby schools may punish “threatening,” “harassing,” or “intimidating” speech students' off-campus speech pursuant to Tinker if that from the “special protection” that is afforded speech speech is intentionally directed at the school community on matters of public concern. The majority opinion's and is *413 “threatening, harassing, and intimidating” to approach is thus tantamount to permitting mainstream the ears of a “layperson” without any instruction on the sensitivities to define whether speech addresses a matter meaning of these terms. The majority opinion's content- of public concern or not. Snyder clearly demonstrates based, vague, and “layperson”-based restriction directly that approach is flawed. Id. at 453, 131 S.Ct. 1207; conflicts with the core principles underlying the First see also Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. Amendment's guarantees as explained by the Supreme 1780, 29 L.Ed.2d 284 (1971) (recognizing that the First Court. Amendment does not permit “a majority to silence dissidents simply as a matter of personal predilections”).

In sum, by refusing to recognize that Bell's speech A. addresses a matter of public concern and is thereby “The First Amendment provides that ‘Congress shall entitled to “special protection” against censorship, the make no law ... abridging the freedom of speech.’ ” United majority opinion creates a precedent that effectively States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, inoculates school officials against off-campus criticism 176 L.Ed.2d 435 (2010). As a general matter, the First by students. In so doing, the majority opinion fails to Amendment prohibits the government from “restrict[ing] take seriously the long-established principle that the First expression because of its message, its ideas, its subject Amendment was adopted to protect “vehement, caustic, matter, or its content.” Ashcroft v. American Civil Liberties and sometimes unpleasantly sharp attacks on government Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d and public officials.” Sullivan, 376 U.S. at 270, 84 S.Ct. 771 (2002). “From 1791 to the present, however, the First 710; cf. City of Houston v. Hill, 482 U.S. 451, 465, Amendment has permitted restrictions upon the content 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (holding that the of speech in a few limited areas, and has never included First Amendment does not permit states to “provide the a freedom to disregard these traditional limitations.” police with unfettered discretion to arrest individuals for Stevens, 559 U.S. at 468, 130 S.Ct. 1577. “These limited words or conduct that annoy or offend them”). Contrary areas—such as obscenity, incitement, and fighting words to the majority opinion's position, school officials are —represent well-defined and narrowly limited classes of no exception. See West Virginia State Bd. of Educ. v. speech, the prevention and punishment of which has never 319 U.S. 624, 637, 63 S.Ct. 1178, 87 L.Ed. Barnette, been thought to raise any constitutional problem.” Brown 1628 (1943) (“The Fourteenth Amendment ... protects the v. Entm't Merchants Ass'n, ––– U.S. ––––, 131 S.Ct. 2729, citizen against the State itself and all of its creatures— 2733, 180 L.Ed.2d 708 (2011) (internal quotation marks Boards of Education not excepted.”); Shanley, 462 F.2d and citations omitted). at 964 (“It should have come as a shock to the parents of five high school seniors ... that their elected school board In Brown, the Supreme Court specifically rejected the had assumed suzerainty over their children before and argument that state officials retain a broad “free-floating after school, off school grounds, and with regard to their power” to create whole new categories of unprotected children's rights of expressing their thoughts. We trust that speech that are applicable solely to minors, even if such it will come as no shock whatsoever to the school board speech is deemed harmful in the eyes of the government. that their assumption of authority is an unconstitutional Id. at 2735–36. In that case, the Court struck down as usurpation of the First Amendment.”). violative of the First Amendment a California law that prohibited the sale or rental of violent video games to minors. Id. at 2732–33. Specifically, the law proscribed

© 2017 Thomson Reuters.Page No claim to 210 original U.S.of Government228 Works. 24 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 the sale or rental to minors of video “games ‘in which and high school reading lists (e.g., the description in the range of options available to a player includes killing, “Lord of the Flies” of a schoolboy who is savagely maiming, dismembering, or sexually assaulting an image murdered by other children). Id. at 2736. Accordingly, as of a human being, if those acts are depicted’ in a manner in Stevens, because there was no “longstanding tradition” that ‘[a] reasonable person, considering the game as of prohibiting minors' participation in speech containing a whole, would find appeals to a deviant or morbid violent imagery, the Court refused to hold that such interest of minors,’ that is ‘patently offensive to prevailing speech is categorically exempted from First Amendment standards in the community as to what is suitable for protection. Id. at 2736–38. minors,’ and that ‘causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for 9 In Stevens, the United States government had minors.’ ” Id. (quoting Cal. Civ.Code Ann. § 1746(d)(1) attempted to leverage similar arguments in defending (A)). California purportedly enacted the law based on its a federal statute banning depictions of animal cruelty. legislative judgment, which it claimed was supported by 559 U.S. at 468–69, 130 S.Ct. 1577. The United States research, that such games were harmful to children. Id. argued that “depictions of animal cruelty” should be at 2738–39. In defending the law, California argued, inter added to the list of categories of unprotected speech, alia, that the First Amendment permitted it “to create alongside obscenity, incitement, and defamation. Id. a wholly new category of content-based regulation that However, because there was no “tradition excluding is permitted only for speech directed at children”—viz., depictions of animal cruelty from ‘the freedom of “violent” speech as defined above that lacked “serious speech’ codified in the First Amendment,” the Court refused to create a new category of unprotected literary, artistic, political, or scientific value for minors.” speech for such depictions. Id. The Court also Id. at 2733–35. explicitly rejected “as startling and dangerous” the government's contention that it could create new In a strongly worded opinion by Justice Scalia, the categories of unprotected speech by applying a Supreme Court rejected California's arguments and struck “simple balancing test” that weighs the value of a down the law. Concluding that its recent decision in particular type of speech against its social costs. Id. at United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 470, 130 S.Ct. 1577. According to the Court, 176 L.Ed.2d 435 (2010), 9 controlled *414 the outcome [t]he First Amendment's guarantee of free speech of the case, the Court held that California could not does not extend only to categories of speech that survive an ad hoc balancing of relative social defend its law by analogizing the violent speech at issue costs and benefits. The First Amendment itself to the obscenity exception to the First Amendment reflects a judgment by the American people that because its prior “cases have been clear that the obscenity the benefits of its restrictions on the Government exception ... does not cover whatever a legislature finds outweigh the cost. Our Constitution forecloses shocking, but only depictions of sexual conduct.” Id. any attempt to revise that judgment simply on at 2734. More critically, however, the Court outright the basis that some speech is not worth it. rejected California's argument that the First Amendment Id. A subsequent, much more narrow version of permitted the state “to create a wholly new category of the statute at issue in Stevens, was upheld by our content-based regulation,” i.e., speech containing violent court. United States v. Richards, 755 F.3d 269, 271, imagery, “that is permissible only for speech directed 279 (5th Cir.2014) (discussing history of 18 U.S.C. at children.” Id. at 2735. Although acknowledging that § 48 and upholding version that proscribed only the state “possesses legitimate power to protect children “unprotected obscenity”), cert. denied, ––– U.S. from harm,” the Court concluded that such power “does ––––, 135 S.Ct. 1546, 191 L.Ed.2d 642 (2015). not include a free-floating power to restrict the ideas to Applying these principles to the instant case, Brown which children may be exposed.” Id. at 2736. Further, represents a forceful reaffirmation by the Court that while noting that California's argument would “fare better the First Amendment applies to minors, 10 id. at if there were a longstanding tradition in this country 2735, and that the government may only restrict that of specially restricting children's access to depictions of *415 constitutional right in “narrow and well-defined violence,” the Court observed that there was no such circumstances,” id. at 2736 (citing Erznoznik, 422 U.S. tradition, as evidenced by the extent of violence contained at 212–13, 95 S.Ct. 2268). Indeed, after Brown, it in common children's stories (e.g., Hansel and Gretel) cannot seriously be contested that minors enjoy the First

Amendment right to engage in speech containing violent children may be exposed.” 131 S.Ct. at 2736. In so holding, imagery when they are at home, away from school, so the Court echoed the principles announced in Stevens long as that speech does not rise to the level of a true and rejected the argument that the state is empowered threat, incitement or fighting words. See id. at 2736– to carve out new “categorical exemptions” to the First 38 (holding that speech containing violent imagery is Amendment's protections (e.g., obscenity) that are solely protected under the First Amendment, even for minors). applicable to minors absent a “longstanding tradition” Nevertheless, the majority opinion wholly fails to reckon of restricting such speech. Id. In direct contradiction with these important statements by the Court. Instead, by to these principles, however, the majority opinion here simply assuming that all children speak “qua students,” affords state officials with precisely such a “free-floating its legal analysis begins with the false premise that the power” by effectively permitting them to regulate an speech at issue constitutes “student speech” that must unprecedented and content-based category of speech, i.e., be “tempered in the light of a school official's duty” “threatening,” “harassing,” and “intimidating” speech to teach students appropriate behavior. See Maj. Op. that is directed at the school community. Yet, the majority pp. 389–90 (discussing the First Amendment rights of opinion cites no “longstanding tradition” in this country “[s]tudents qua students”). But the Supreme Court has of “specially restricting” children's ability to engage off never suggested that minors' constitutional rights outside campus in “threatening,” “harassing,” or “intimidating” of school are somehow qualified if they coincidentally are speech. Nor could it. See id. (“California's argument enrolled in a public school. To the contrary, Brown evinces would fare better if there were a longstanding tradition that the majority opinion instead should have begun its in this country of specially restricting children's access analysis from the basic premise that children are entitled to to depictions of violence, but there is none.”); Stevens, “significant” First Amendment rights. 131 S.Ct. at 2735– 559 U.S. at 469, 130 S.Ct. 1577 (“But we are unaware 36. of any similar tradition excluding depictions of animal cruelty from ‘the freedom of speech’ codified in the First 10 In so holding, the Court also explicitly rejected Justice Amendment, and the Government points us to none.”). Thomas' contention in his dissent that minors have To the extent the majority opinion posits this category no right to speak absent their parents' consent. Id. of speech is without redeeming social value 11 or that at 2736 n. 3 (noting that Justice Thomas “cites no its risks outweigh its costs, the Supreme Court has flatly case, state or federal, supporting this view, and to rejected such a rationale for carving out new categories our knowledge there is none”). Although conceding of unprotected speech. See Stevens, 559 U.S. at 470, 130 that the government may have authority to enforce S.Ct. 1577 (“The First Amendment's guarantee of free parental prohibitions in certain circumstances (e.g., speech does not extend only to *416 categories of speech forcing concert promoters not to admit minors whose that survive an ad hoc balancing of relative social costs parents have forbidden them from attending), the Court nevertheless observed that “it does not follow and benefits.”). In this connection, the Court in Brown that the state has the power to prevent children from likewise held that majoritarian abhorrence for a category hearing or saying anything without their parents' prior of speech (i.e., violent speech) will not justify a categorical consent. The latter would mean, for example, that it restriction upon that type of speech. See Brown, 131 S.Ct. could be made criminal to admit persons under 18 to at 2733 (“Under our Constitution, esthetic and moral a political rally without their parents' prior written judgments about art and literature ... are for the individual consent—even a political rally in support of laws to make, not for the Government to decree, even with the against corporal punishment of children, or laws in mandate or approval of a majority.” (internal quotation favor of greater rights for minors.” Id. (emphasis in marks and citation omitted)). Moreover, contrary to original). the majority opinion's approach, the Supreme Court in Further, Brown and Stevens illuminate the error in the both Brown and Stevens emphasized that the “historic majority opinion's decision to proclaim an entirely new, and traditional categories” of unprotected speech (e.g., content-based restriction on students' First Amendment fighting words, obscenity) are “well defined and narrowly rights. Although acknowledging that the government limited.” See Brown, 131 S.Ct. at 2733; Stevens, 559 U.S. has certain powers to protect children from harm, the at 468–69, 130 S.Ct. 1577. Here, far from announcing Supreme Court in Brown expressly held that this “does not a “narrow” or “well defined” restriction on speech, include a free-floating power to restrict the ideas to which the majority opinion simply declares that schools may

© 2017 Thomson Reuters.Page No claim to 212 original U.S.of Government228 Works. 26 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 regulate off-campus student speech that its invented majority *417 opinion overlooks these unequivocal layperson might consider “threatening,” “harassing,” or statements by the Supreme Court. See, e.g., Maj. Op. “intimidating.” As detailed below, the breadth of these p. 392 (concluding that “[t]he advent of [the Internet content-based restrictions will leave students to speak at and other] technologies and their sweeping adoption their own peril away from school, because school officials by students present new and evolving challenges for will be unconstrained due to the majority opinion's school administrators, confounding previously delineated failure to provide any specific or determinate definition of boundaries of permissible regulations”). “threatening,” “harassing,” or “intimidating.” 12 The Court in Brown echoed this principle in observing 11 However, as explained above, Bell's speech clearly that government should not be afforded greater had “social value” as it constituted speech on a matter deference to restrict speech when new communication of public concern. technologies emerge. 131 S.Ct. at 2733 (“[W]hatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of B. freedom of speech and the press, like the First Amendment's command, do not vary’ when a new The Court's opinion in Reno v. American Civil Liberties and different medium for communication appears.”) Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 874 (1997), further reveals the flaws in the majority 495, 503, 72 S.Ct. 777, 96 L.Ed. 1098 (1952)); opinion's holding that schools may regulate students' accord Citizens United v. Federal Election Comm'n, off-campus online speech, like Bell's. Reno was the first 558 U.S. 310, 326, 130 S.Ct. 876, 175 L.Ed.2d significant First Amendment case specifically pertaining 753 (2010) (“Courts, too, are bound by the First to the Internet to reach the Supreme Court, and Amendment. We must decline to draw, and then redraw, constitutional lines based on the particular concerned a facial challenge to a congressional statute, media or technology used to disseminate political the Communications Decency Act of 1996 (“CDA”), speech from a particular speaker.”). which was aimed at protecting minors from “indecent” and “patently offensive” material on the Internet by In addition, the Court's analysis in Reno reveals how the prohibiting the transmission of those materials to minors. majority opinion's ill-devised framework for regulating 521 U.S. at 858–59, 117 S.Ct. 2329. In striking down minors' off-campus Internet speech would be too vague the CDA as violative of the First Amendment, the altogether for the First Amendment to tolerate. The Court Court articulated a number of principles that are directly in Reno took special issue with the vagueness of the pertinent to the instant case. terms that the CDA utilized to describe the proscribed speech. Id. at 871, 117 S.Ct. 2329. For example, the First, Reno reveals that the majority opinion here Court emphasized that the statute did not define either is in error in concluding that the advent of the “indecent” material or material that “in context, depicts Internet and other technologies necessitates expanding or describes, in terms patently offensive as measured by schools' authority to regulate students' off-campus speech. contemporary community standards, sexual or excretory See Maj. Op. pp. 392–93. In direct contradiction activities or organs.” Id. As the Court observed, “[g]iven to the majority opinion's logic, the Court in Reno the absence of a definition of either term, this difference held that Supreme Court precedents “provide no basis in language will provoke uncertainty among speakers for qualifying the level of First Amendment scrutiny about how the two standards relate to each other and that should be applied to [the Internet].” Id. at 870, just what they mean. Could a speaker confidently assume 117 S.Ct. 2329. Although the Court previously had that a serious discussion about birth control practices, recognized that special factors justify greater regulation homosexuality, the First Amendment issues raised by the of speech expressed in broadcast media, see, e.g., FCC Appendix to our Pacifica opinion, or the consequences of v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 prison rape would not violate the CDA?” Id. L.Ed.2d 1073 (1978), the Court explicitly found that “[t]hose factors are not present in cyberspace.” Reno, Similar vagueness concerns drove Justice Alito to conclude that the California “violent video game” 521 U.S. at 868, 117 S.Ct. 2329. 12 Nevertheless, the regulation in Brown violated the Constitution. Brown,

131 S.Ct. at 2743–46 (Alito, J., joined by Roberts, to provide any meaningful definition of what constitutes C.J., concurring in the judgment). As Justice Alito “threatening,” “harassing,” or “intimidating” speech. observed, one of the elements defining the proscribed Rather, the majority opinion merely concludes that if violent video games was whether a “reasonable person, a “layperson would understand” 13 speech to qualify considering [a] game as a whole,” would find that it as “threatening,” “harassing,” and “intimidating,” then “appeals to a deviant or morbid interest of minors.” that speech is regulable under Tinker. In so holding, the Id. at 2745. However, as Justice Alito observed, the majority opinion fails to apprehend that reasonable minds “prevalence of violent depictions in children's literature may differ about when speech qualifies as “threatening,” and entertainment creates numerous opportunities for “harassing,” or “intimidating.” As the Supreme Court's reasonable people to disagree about which depictions may First Amendment precedents make clear, “it is ... often excite ‘deviant’ or ‘morbid’ impulses.” Id. at 2746. true that one man's vulgarity is another's lyric,” Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 29 L.Ed.2d 284 Here, the en banc majority opinion similarly announces (1971), and that the very same words may simultaneously a new, categorical restriction upon students' off-campus be perceived as repulsive to some and political to others, speech that fails to “give people of ordinary intelligence see Snyder, 562 U.S. at 444–45, 131 S.Ct. 1207 (“Westboro fair notice of what is prohibited.” See id. at 2743. may have chosen the picket location to increase publicity Specifically, the majority opinion holds that school for its views, and its speech may have been particularly officials may punish students' off-campus speech when hurtful to Snyder. That does not mean that its speech (i) it is intended to be heard by the school community; should be afforded less than full First Amendment (ii) could be perceived by a layperson as “threatening,” protection under the circumstances of this case.”). Thus, “harassing,” and “intimidating,”; and (iii) satisfies the “[g]iven the vague contours of the coverage of the Tinker “substantial-disruption” framework. See Maj. Op. [majority opinion's framework], it [will] unquestionably pp. 395–96. As with the statute struck down in Reno, silence[ ] some speakers whose messages would be entitled however, each one of these three prongs to the majority to constitutional protection.” Reno, 521 U.S. at 874, 117 opinion's framework contains defects that fail to provide S.Ct. 2329. students, like Bell, with adequate notice of when their off- campus speech crosses the critical line between protected 13 Unfortunately, the majority opinion provides and punishable expression. First, the majority opinion's virtually no details about the identity of its focus on whether the student “intended” his speech to apocryphal layperson. In any event, I am dubious reach the school community significantly burdens the that a school board may punish students for making ability of students to engage in online speech, because statements at home and on the Internet that the virtually any speech on the Internet can reach *418 most sensitive of listeners in society would find to members of the school community. See Reno, 521 U.S. at be “threatening,” “harassing,” or “intimidating.” See 870, 117 S.Ct. 2329 (observing that the Internet permits Ashcroft, 542 U.S. at 674, 124 S.Ct. 2783 (Stevens, “any person ... [to] become a town crier with a voice J. concurring) (“I continue to believe that the that resonates farther than it could from any soapbox”). Government may not penalize speakers for making How, then, can a student be certain that his off-campus available to the general World Wide Web audience blog posting will not be read by members of the school that which the least tolerant communities in America community and thereby be deemed by school officials deem unfit for their children's consumption.”). Nevertheless, by permitting school officials to punish to be “intentionally direct[ed] at the school community”? off-campus speech like Bell's pursuant to Tinker, the As a result of the ambiguities in the majority opinion's majority opinion announces a precedent whereby the framework, he simply cannot. See id. (“Through the use First Amendment rights of minors outside of school of Web pages, mail exploders, and newsgroups, the same are “only ... as strong as the weakest, or at least the individual can become a pamphleteer.”). most thin-skinned, listener in a crowd.” Cuff ex re. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 120 (2d Second, the majority opinion's “threatening, harassing, Cir.2012) (Pooler, J., dissenting). and intimidating” test suffers from the precise same Third, the aforementioned concerns are exacerbated by ambiguities that drove the Court to strike down the CDA the fact that the Tinker standard itself could be viewed as in Reno. As with the CDA, the majority opinion fails somewhat vague. 14 Tinker permits schools to regulate on-

© 2017 Thomson Reuters.Page No claim to 214 original U.S.of Government228 Works. 28 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 campus expressive activities not only when the speech, in expressive activities simply cannot be reconciled with the fact, causes a substantial disruption, but also when school long-established principle that “the point of all speech officials can “reasonably forecast” such a disruption, protection ... is to shield [from censorship] just those Tinker, 393 U.S. at 514, 89 S.Ct. 733. If this standard choices of content that in someone's eyes are misguided, were applied *419 off campus, how can a student or or even hurtful.” Hurley v. Irish–American Gay, Lesbian a student's parents know with any degree of certainty and Bisexual Group of Boston, 515 U.S. 557, 574, 115 S.Ct. when off-campus online speech can be “forecasted” to 2338, 132 L.Ed.2d 487 (1995). cause a “substantial disruption”? Although Tinker is not a completely toothless standard, see A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 221 (5th Cir.2009), its framework C. inherently requires guesswork about how a third-party school official will prophesize over the effect of speech. Further, by adopting a rule that focuses on whether a Thus, in light of the majority opinion, before a student “layperson” would perceive Bell's speech as “threatening,” drafts an email or writes a blog entry, he hereinafter “harassing,” and “intimidating,” the majority opinion will be required to conjecture over whether his online also ignores Supreme Court case law that demands a speech might cause a “disruption” that is “substantial” in more burdensome showing upon the government before the eyes of school officials, or, alternatively, whether a levying penalties upon a speaker based on the content of school official might reasonably portend that a substantial his speech. disruption might happen. In this way, the majority opinion erroneously defines the contours of protected speech Amongst the most consistent principles of First with reference to the potential reactions of listeners. Amendment jurisprudence has been the need for See Beckerman v. City of Tupelo, 664 F.2d 502, 509 “[e]xacting proof requirements” before imposing liability (5th Cir.1981) (observing that the Supreme Court's cases for speech. See Illinois ex rel. Madigan v. Telemarketing concerning the “hecklers' veto” show that it “is not Associates, Inc., 538 U.S. 600, 620, 123 S.Ct. 1829, 155 acceptable for the state to prevent a speaker from L.Ed.2d 793 (2003). For example, the Supreme Court has exercising his constitutional rights because of the reaction explicitly rejected arguments permitting tort liability to to him by others”). be imposed for speech pertaining to public figures simply because it “is patently offensive and is intended to inflict 14 As explained below, this framework makes sense for emotional injury.” Falwell, 485 U.S. at 50, 108 S.Ct. 876. student speech occurring on campus, where school Rather, in order to “give adequate ‘breathing space’ to the officials have competing interests in maintaining freedoms protected by the First Amendment,” the Court conduct in the schools. However, this standard is has held that a public figure must prove not only falsity inappropriate where, as here, the school's interest is but also actual malice. Id. at 56, 108 S.Ct. 876. Similarly, comparatively attenuated. in the criminal context, “mens rea requirements ... provide What will be the direct consequence of these various layers ‘breathing *420 room’ for more valuable speech by of vagueness upon students' First Amendment freedoms? reducing an honest speaker's fear that he may accidentally “[I]t will operate[ ] to chill or suppress the exercise of incur liability for speaking.” United States v. Alvarez, those freedoms by reason of vague terms or overbroad ––– U.S. ––––, 132 S.Ct. 2537, 2553, 183 L.Ed.2d 574 coverage.” See Nevada Comm'n on Ethics v. Carrigan, (2012) (Breyer, J., concurring in the judgment). Thus, ––– U.S. ––––, 131 S.Ct. 2343, 2353, 180 L.Ed.2d 150 in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, (2011) (Kennedy, J. concurring). Indeed, for students, 23 L.Ed.2d 430 (1969), the Supreme Court reversed the whose performance at school largely determines their conviction of a Ku Klux Klan leader for threatening fate in the future, even the specter of punishment will “revengeance” if the “suppression” of the white race likely deter them from engaging in off-campus expression continued, relying on “the principle that the constitutional that could be deemed controversial or hurtful to school guarantees of free speech and free press do not permit a officials. Accord Reno, 521 U.S. at 871–72, 117 S.Ct. State to forbid or proscribe advocacy of the use of force 2329 (“The vagueness of such a regulation raises special or of law violation except where such advocacy is directed First Amendment concerns because of its obvious chilling to inciting or producing imminent lawless action and is effect on free speech.”). Such a burden on student's likely to incite or produce such action.” Id. at 447, 89 S.Ct.

1827 (emphasis added); see also Noto v. United States, 367 not the First Amendment requires a speaker to have a U.S. 290, 297–98, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961) “subjective intent” to threaten an individual before the (“[T]he mere abstract teaching of ... the moral propriety government can impose criminal penalties for a threat. Id. or even moral necessity for a resort to force and violence, at 2004 (“The question is whether [18 U.S.C. § 875(c) ] ... is not the same as preparing a group for violent action requires that the defendant be aware of the threatening and steeling it to such action.”). Subsequently, the Court nature of the communication, and—if not—whether the applied Brandenburg 's focus on the “intent” of the speaker First Amendment requires *421 such a showing.”). The to hold that a speaker may not be held liable for damages Court, however, avoided this constitutional question by in a civil case even when his remarks “might have been deciding the case on narrower grounds, viz., that a jury understood ... as intending to create a fear of violence.” instruction explaining that petitioner could be convicted N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 904, upon a showing of negligence was inconsistent with 927, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (emphasis the statute's implicit mens rea requirement. Id. at 2012 added). (“The jury was instructed that the Government need only prove that a reasonable person would regard Elonis's Applying these well-established First Amendment communications as threats, and that was error.... Given principles, the Supreme Court in Virginia v. Black, 538 our disposition, it is not necessary to consider any First U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), struck Amendment issues.”). Specifically, the Court outright down a Virginia statute that criminalized burning a cross rejected the government's contention that the statute in public “with the intent of intimidating any person,” permitted petitioner to be convicted if he (i) knew the and which provided that the public burning of a cross “contents and context” of his speech and (ii) “a reasonable “shall be prima facie evidence of an intent to intimidate.” person would have recognized that the [speech] would be Id. at 347–48, 123 S.Ct. 1536. Although cross burning read as genuine threats.” Id. at 2011. While recognizing is “widely viewed as a signal of impending terror,” id. that such a “ ‘reasonable person’ standard is a familiar at 391, 123 S.Ct. 1536 (Thomas, J., concurring), “in feature of civil liability in tort law,” the Court concluded light of [its] long and pernicious history as a signal of that the standard is “inconsistent with the conventional impending violence,” id. at 363, 123 S.Ct. 1536 (opinion requirement for criminal conduct—awareness of some of O'Connor, J.), a plurality of the Court held that a wrong doing.” Id. (internal quotation marks omitted). subjective intent requirement was necessary in order to distinguish “constitutionally proscribable intimidation” Applying the foregoing principles to the instant case, the from “core political speech,” id. at 365–66, 123 S.Ct. 1536. majority opinion errs by making the scope of Bell's First “Intimidation in the constitutionally proscribable sense of Amendment rights outside of school contingent upon the word is a type of true threat, where a speaker directs whether a “layperson” might interpret his speech to be a threat to a person or group of persons with the intent “threatening,” “harassing,” and “intimidating,” see Maj. of placing the victim in fear of bodily harm or death.” Id. Op. pp. 396–97, and whether a school official might at 360, 123 S.Ct. 1536 (emphasis added). As the plurality “reasonably” forecast a substantial disruption based on explained, the prima facie evidence provision of the statute his speech, see Maj. Op. pp. 398–99. The majority was facially unconstitutional because it “ignore[d] all the opinion's test effectively amounts to the very kind of contextual factors that are necessary to decide whether a negligence standard that the Supreme Court has rejected particular cross burning was intended to intimidate. The for determining whether a speaker may be held liable on First Amendment does not permit such a short cut.” Id. the basis of his words. See, e.g., Claiborne Hardware Co., at 367, 123 S.Ct. 1536. In other words, the prima facie 458 U.S. at 928–29, 102 S.Ct. 3409; Brandenburg, 395 evidence provision “strip [ped] away the very reason a U.S. at 447, 89 S.Ct. 1827. Further, by permitting Bell to state may ban cross burning with the intent to intimidate.” be punished solely on the basis that a third-party might Id. at 365, 123 S.Ct. 1536. consider his speech “intimidating” or “threatening,” the majority opinion ignores the Court's explanation in Black Recently, in Elonis v. United States, ––– U.S. ––––, that “[i]ntimidation in the constitutionally proscribable 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), the Supreme sense of the word is a type of true threat, where Court was presented with the opportunity to revisit its a speaker directs a threat to a person or group of reasoning in Virginia v. Black and clarify whether or persons with the intent of placing the victim in fear of

© 2017 Thomson Reuters.Page No claim to 216 original U.S.of Government228 Works. 30 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 bodily harm or death.” 538 U.S. at 360, 123 S.Ct. 1536 disruption” framework are expressly grounded in “the (emphasis added). Instead, perhaps conceding sub silentio special characteristics of the school environment.” Tinker that Bell's speech does not satisfy the demanding “true v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, threat” standard described in Black, the majority opinion 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In Tinker, the Court circumvents this issue altogether by creating an entirely confronted the question whether school officials may, new and diluted test that renders speech unprotected so consistent with the First Amendment, restrict students' long as its invented layperson might view the speech as expressive activities that occur at school. Id. Specifically, “intimidating,” “harassing,” and “threatening,” despite the students in Tinker were suspended for wearing to the fact that such speech does not constitute a “true school armbands that expressed their opposition to the threat.” See Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d Vietnam War. Id. at 504, 89 S.Ct. 733. While recognizing 280, 300–03 (5th Cir.2014) (explaining that Bell's song that students do not “shed their constitutional rights did not constitute a “true threat,” “as evidenced by, inter to freedom of speech or expression at the schoolhouse alia, its public broadcast as a rap song, its conditional gate,” id. at 506, 89 S.Ct. 733, the Court also observed nature, and the reactions of its listeners”). Moreover, that students' exercise of their First Amendment rights the majority opinion's approach is especially problematic at school must be calibrated against the competing need in light of the critical fact that Bell's speech addresses of school officials “to prescribe and control conduct in a matter of public concern. In cases involving speech the schools,” id. at 507, 89 S.Ct. 733 (emphasis added). addressing public figures and matters of public import, To reconcile the interests at stake that may collide when the Court has consistently applied a stricter evidentiary student speech occurs on campus, the Court articulated burden before permitting liability to be imposed on a a rule that has become the lodestar for evaluating the speaker on the basis of his speech. See, e.g., Falwell, 485 scope of students' on-campus First Amendment rights U.S. at 56, 108 S.Ct. 876 (holding that “public figures and ever since: while on campus, a student is free to “express public officials” must prove “actual malice” in addition his opinions, even on controversial subjects, if he does to falsity before recovering for intentional infliction of so without ‘materially and substantially interfer(ing) with emotional distress on the basis of speech directed at them); the requirements of appropriate discipline in the operation Sullivan, 376 U.S. at 279–80, 84 S.Ct. 710 (holding that the of the school’ and without colliding with the rights of First Amendment “prohibits a public official *422 from others.” Id. at 513, 89 S.Ct. 733 (quoting Burnside v. Byars, recovering damages for a defamatory falsehood relating to 363 F.2d 744, 749 (5th Cir.1966)). his official conduct unless he proves that the statement was made with ‘actual malice’ ”). Here, in sharp contrast, the The Supreme Court's holding in Tinker is expressly majority opinion announces a constitutional rule whereby based upon the “special characteristics of the school students, like Bell, may be held liable for their off-campus environment,” id. at 506, 89 S.Ct. 733, and the need speech that criticizes official misconduct based largely to defer to school officials' authority “to prescribe on the reactions of the very officials in question or the and control conduct in the schools,” id. at 507, 89 perception of the majority opinion's invented “layperson.” S.Ct. 733. Indeed, the very analytic content of the Such a flimsy standard simply cannot be squared with the resulting “substantial-disruption” framework evinces that foregoing First Amendment precedents. See also Pacifica the Court was solely concerned with the potentially Foundation, 438 U.S. at 745–46, 98 S.Ct. 3026 (“[T]he fact disruptive consequences of speech by students that occurs that society may find speech offensive is not a sufficient on campus, where school officials and fellow students may reason for suppressing it. Indeed, if it is the speaker's be directly affected. See, e.g., id. at 514, 89 S.Ct. 733 opinion that gives offense, that consequence is a reason (“[The students] neither interrupted school activities nor for according it constitutional protection.”). sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder.”). Moreover, the Court's later school-speech cases emphasize that the III. Tinker framework is limited to speech occurring within In ultimately holding that the Tinker framework applies to the school environment. For example, according to the off-campus speech like Bell's, the majority opinion ignores Court's decision in Bethel School District No. 403 v. Fraser, that Tinker 's holding and its sui generis “substantial- 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986),

Tinker rests on the premise that “the constitutional *423 in narrowly limiting the reach of the Court's holding, rights of students in public schools are not automatically Justice Alito characterized school officials' regulation of coextensive with the rights of adults in other settings.” the student-speech at issue in that case 15 as “standing at Id. at 682, 106 S.Ct. 3159 (emphasis added); see also the far reaches of what the First Amendment permits.” id. at 688 n. 1, 106 S.Ct. 3159 (Brennan J., concurring Id. at 425, 127 S.Ct. 2618. As the foregoing demonstrates, in judgment) (stating that the Court's student-speech Morse and the Court's other post-Tinker precedents make precedents “obviously do not [apply] outside of the school crystal clear what the majority opinion and some *424 of environment” and also observing that if the plaintiff in our sister circuits' decisions 16 fail to follow: Tinker does Fraser “had given the speech [for which he was punished] not authorize school officials to regulate student speech outside of the school environment, he could not have been that occurs off campus and not at a school-sponsored penalized simply because [school] officials considered event, where the potential “collision” of interest upon his language to be inappropriate”). Subsequently, in which Tinker 's holding pivots simply is not present. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), the Court described 15 its decision in Tinker as “address[ing] educators' ability In Morse, the Court held that the First Amendment to silence a student's personal expression that happens did not prevent school officials from punishing a to occur on the school premises.” Id. at 271, 108 S.Ct. student who unfurled at a school-sanctioned event a banner that reasonably could be perceived as 562 (emphasis added); see also id. at 266, 108 S.Ct. 562 promoting illegal drug use. 551 U.S. at 396, 127 (observing that schools may regulate some on-campus S.Ct. 2618. Notably, the majority opinion in this case speech “even though the government could not censor overstates Morse 's narrow holding by describing that similar speech outside the school”). holding as extending to “grave and unique threats to the physical safety of students, in particular speech Most recently, in Morse, Justice Alito's controlling advocating illegal drug use.” See Maj. Op. p. 390 concurrence observed that Tinker allows school officials (emphasis added). Contrary to the majority opinion's to regulate “in-school student speech ... in a way that description, Justice Alito's concurrence explicitly would not be constitutional in other settings.” 551 U.S. stated that the Court's holding was limited to the at 422, 127 S.Ct. 2618 (Alito, J. concurring). Justice Alito specific speech at issue in that case, viz., speech further emphasized the historically significant distinction advocating drug use at a school event. See Morse, 551 between on-campus and off-campus expression by U.S. at 425, 127 S.Ct. 2618 (Alito, J. concurring). comparing the unique harms of speech that occurs within 16 For example, in concluding that Tinker applies to the schoolyard as opposed to outside of school: “School off-campus speech, the Eighth Circuit committed attendance can expose students to threats to their physical the same fundamental misreading of Tinker that the safety that they would not otherwise face. Outside of district court committed in the instant case. D.J.M. school, parents can attempt to protect their children ex rel D.M. v. Hannibal Pub. Sch. Dist. No. 60, in many ways and may take steps to monitor and 647 F.3d 754, 765 (8th Cir.2011). Specifically, the exercise control over the persons with whom their children Eighth Circuit read wholly out of context the Court's associate.” Id. at 424, 127 S.Ct. 2618 (Alito, J. concurring). statement in Tinker that schools may regulate student In this regard, Justice Alito also rejected the contention speech “in class or out of it,” 393 U.S. at 513, 89 S.Ct. 733 (emphasis added), in order to hold that the that school officials “stand in the shoes of the students' school district in that case was permitted to punish parents,” explaining that “[i]t is a dangerous fiction to a student for his off-campus online speech pursuant pretend that parents simply delegate their authority— to Tinker 's substantial-disruption framework. The including their authority to determine what their children majority opinion likewise commits the same error may say and hear—to public school authorities.” Id. in emphasizing this very language in reasoning that Further, Justice Alito observed that he joined the majority Tinker applies to off-campus speech. See Maj. Op. p. opinion on the understanding that the Court's holding 390. does not justify “any other speech restriction” based on Further, even assuming arguendo, without deciding, the “special characteristics” of the school environment schools possess some authority to regulate students' off- beyond those already recognized in the Court's prior campus speech under certain circumstances, the majority student-speech cases. Id. at 423, 127 S.Ct. 2618. Indeed, opinion errs in deeming the Tinker framework as the

© 2017 Thomson Reuters.Page No claim to 218 original U.S.of Government228 Works. 32 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 appropriate standard to delineate the scope of that the consequences of the speech in question and the authority. In reaching this conclusion, the majority constitutional interests at stake are simply not the same as opinion's logic is flawed from the very start. The majority in Tinker. opinion oddly begins its analysis by citing our opinion in Morgan v. Swanson, 659 F.3d 359 (5th Cir.2011) (en banc), 17 The majority opinion in Morgan ultimately held that for the proposition that the threshold task facing the en the school officials' conduct of prohibiting students banc court is “categorizing the student speech at issue.” from passing out religious messages on campus Id. at 375. Without ever mentioning that Morgan was violated the constitution. 659 F.3d at 364 (explaining a case involving qualified immunity for school officials' that Judge Elrod's opinion represented the majority suppression of on-campus speech, 17 the majority opinion opinion on this point). However, the majority of the en banc court found that the right announced then proceeds to determine whether it should evaluate was not “clearly established.” Id. The reason that Bell's claim under the Tinker framework or under one “categorization” of the speech was important in that of the other categorical exemptions for student speech case was because of Establishment Clause concerns that the Supreme Court or this court has recognized. if the speech could be perceived as school-sponsored. See Maj. Op. pp. 391–92. Then, after determining that Id. at 375. The analysis there has little to do with the the School Board here did not punish Bell because his matters at issue here. speech was lewd (Fraser ) or school-sponsored (Hazelwood 18 ) or threatened a Columbine-style mass shooting (Ponce The majority opinion mischaracterizes our precedents ), the majority opinion summarily concludes via process- by suggesting that we previously have held that Tinker applies to purely off-campus speech. See Maj. Op. of-elimination that the Tinker framework must be the pp. 390, 394. In Shanley, we held that school officials appropriate framework for evaluating whether Bell's violated the First Amendment when they punished speech is protected or not. See Maj. Op. p. 392 (“We students for selling underground newspapers “near therefore analyze Bell's speech under Tinker.”). But the but outside the school premises on the sidewalk of majority opinion suspiciously neglects to note that not an adjoining street, separated from the school by a single one of these precedents has ever been applied a parking lot.” 462 F.2d at 964. Although we held by the Supreme Court or our Circuit 18 to regulate a that the speech in question did not meet the Tinker student's off-campus *425 Internet speech, like Bell's. standard, id. at 970, we did not hold that Tinker Nevertheless, the majority opinion simply assumes that necessarily can be applied to uphold the punishment of a student for purely off-campus speech. those precedents apply under these circumstances without The same is true of our decision in Sullivan v. first conducting any meaningful analysis to justify its Houston Independent School District, 475 F.2d logic. In other words, by comparing apples to oranges, 1071 (5th Cir.1973). In Sullivan, the court did the majority opinion puts the proverbial cart before the not apply the Tinker substantial-disruption test horse. Indeed, as explained above, the Tinker standard to assess whether school officials violated the was invented, in part, to counteract the consequences of First Amendment. The Sullivan court recognized speech that actually occurs within the school environment that there is nothing per se unreasonable about and to take account of school officials' competing interest requiring a high school student to submit written to “control conduct in the schools.” See Tinker, 393 material to school authorities prior to distribution U.S. at 507, 89 S.Ct. 733. Specifically, in Tinker, the on campus or resulting in a presence on campus, competing state interest was in avoiding the disruptive and that it could not be seriously urged that the consequences of speech that occurs within school. See school's prior submission rule is unconstitutionally id. Accordingly, the Supreme Court crafted a specific vague or overbroad. 475 F.2d at 1076 (citing Shanley, 462 F.2d at 960; Pervis v. LaMarque level of scrutiny (the “substantial-disruption” test) to Indep. Sch. Dist., 466 F.2d 1054 (5th Cir.1972)). evaluate restrictions on speech within school that strikes Instead, the court held that the school principal a balance between the competing interests at stake. Even had disciplined a student for failure to comply with assuming arguendo schools had some authority to punish the school's rules requiring prior submission to the students' off-campus speech, it is therefore simply a non school principal of all publications, not sponsored sequitur for the majority opinion to reflexively assume that by the school, which were to be distributed on the the same analysis should regulate the scope of schools' campus or off campus in a manner calculated to authority to punish students' expression off campus, where result in their presence on the campus. Id. at 1073,

1076. The student was disciplined for twice selling Moreover, the majority opinion's extension of Tinker newspapers at the entrance of the school campus, to off-campus speech additionally burdens the long- to persons entering therein, without making prior established constitutional interest of parents in the rearing submission of the papers, and for using profanity of their children. The Supreme Court has “consistently towards the principal (“the common Anglo–Saxon recognized that the parents' claim to authority in their own vulgarism for sexual intercourse”) and in the household to direct the rearing of their children is basic presence of the principal's assistants (specifically, “I in the structure of our society.” Ginsberg v. New York, don't want to go to this goddamn school anyway”). 390 U.S. 629, 639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Id. at 1074. Thus, notwithstanding the Sullivan court's references to Tinker in that decision, that see also, e.g., Troxel v. Granville, 530 U.S. 57, 65, 120 opinion did not hold that the Tinker substantial- S.Ct. 2054, 147 L.Ed.2d 49 (2000) (observing that “the disruption test applies to off-campus speech. interest of parents in the care, custody, and control of In sum, contrary to its suggestion that its decision their children ... is perhaps the oldest of the fundamental logically follows from our prior precedents, the liberty interests recognized by the Court”); Pierce v. Soc'y majority's opinion today is the first time our circuit of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 has ever held that school officials may punish (1925) (“The child is not the mere creature of the state; students' purely off-campus speech pursuant to the those who nurture him and direct his destiny have the Tinker framework. right, coupled with the high duty, to recognize and prepare The majority opinion's flawed logic in this regard stems him for additional obligations.”). This fundamental right naturally from a more fundamental error: the majority of parents indisputably includes the right to inculcate opinion fails to take seriously the significance of the their children with ideologies and values that the state various constitutional interests that are implicated by its or mainstream society may consider repugnant. See, decision to expand Tinker 's reach. As detailed above, the e.g., Meyer v. Nebraska, 262 U.S. 390, 403, 43 S.Ct. particular facts of this case principally concern the First 625, 67 L.Ed. 1042 (1923) (holding that a war-era law Amendment right of students to speak out on “matters banning teaching of German language violated parents' of public concern” when they are away from school by substantive due process rights); accord Morse, 551 U.S. utilizing the unrivaled power of the Internet to make those at 424, 127 S.Ct. 2618 (Alito, J., concurring) (observing messages heard. But narrowly focusing on this issue alone that “[i]t is a dangerous fiction to pretend that parents ignores the constellation of other constitutional interests simply delegate their authority—including their authority that the majority opinion will negatively impact. For to determine what their children may say and hear— example, even when their off-campus expression does not to public school authorities”). The majority opinion's have a “political” or “religious” dimension, children still extension of the Tinker framework will inevitably frustrate maintain “significant” First Amendment rights, Brown, this constitutional right, because school officials will 131 S.Ct. at 2735–36, which indisputably include a right hereinafter be empowered to supplant parents' control to express disrespect or disdain for their teachers when over their children's off-campus speech that is critical of they are off campus. See *426 Kime v. United States, their teachers. 459 U.S. 949, 951, 103 S.Ct. 266, 74 L.Ed.2d 207 (1982) (“[T]he First Amendment does not permit a legislature In addition, authorizing schools to regulate students' to require a person to show his respect for the flag by off-campus speech likewise burdens the constitutional saluting it. The same constitutional principle applies when interest of fellow citizens in hearing students' off-campus the legislature, instead of compelling respect for the flag, speech. Courts have long recognized that the First forbids disrespect.”). Further, for purposes of the First Amendment protects not only the right to speak but Amendment, it is simply irrelevant whether prevailing also the right to receive speech from others. See, e.g., social mores deem a child's disrespect for his teacher to be First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 783, contemptible. “The history of the law of free expression 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (stating that is one of vindication in cases involving speech that many the “First Amendment ... afford[s] public access to citizens may find shabby, offensive, or even ugly.” See discussion, debate, and the dissemination of information United States v. Playboy Entertainment Grp., 529 U.S. 803, and ideas”); Martin v. City of Struthers, 319 U.S. 141, 826, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). 143, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) (explaining that the First Amendment “embraces the right to distribute

© 2017 Thomson Reuters.Page No claim to 220 original U.S.of Government228 Works. 34 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 literature ... and necessarily protects the right to receive with constitutional safeguards.” Goss v. Lopez, 419 U.S. it”); Rossignol v. Voorhaar, 316 F.3d 516, 522 (4th 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). Further, Cir.2003) (“The First Amendment ... protects both a while it is true that Tinker “is not a difficult burden,” speaker's right to communicate information and ideas Cash, 585 F.3d at 222 (internal quotation marks omitted), to a broad audience and the intended recipients' right this is the very reason that we must not apply Tinker to to receive that information and those ideas.” *427 off-campus speech, like Bell's. Otherwise, armed with the (emphasis in original)). The facts of the instant case comfort that courts will simply defer to their decisions, poignantly illustrate how the suppression of students' off- schools will largely have carte blanche to regulate students' campus speech will burden the First Amendment right of off-campus speech, thus significantly burdening not only other citizens to receive that speech. As detailed above, the First Amendment rights of students but also the Bell authored and publicized his rap song in an effort constitutional rights of their parents and their listeners. to raise awareness of a crucial issue to members of his community, viz., the sexual harassment of female students by male school officials. Receiving this information IV. would be critically important to community members, particularly parents of female students at Itawamba, in As explained above, the Supreme Court has not decided order to ensure that such conduct ceased and did not whether, or, if so, under what circumstances, a public recur. 19 Nevertheless, by endorsing the School Board's school may regulate students' online, off-campus speech, punishment of Bell, the majority's opinion will empower and it is not necessary or appropriate for the majority school officials to censor other students' efforts to inform opinion to anticipate such a decision here. That is because, fellow citizens of information that they have the right— even if Tinker were applicable to the instant case, the and the urgent need—to receive. Cf. Lamont v. Postmaster evidence does not support the conclusion, as would General, 381 U.S. 301, 308, 85 S.Ct. 1493, 14 L.Ed.2d be required by Tinker, that Bell's Internet-posted song 398 (1965) (Brennan, J. concurring) (“The dissemination substantially disrupted the school's work and discipline or of ideas can accomplish nothing if otherwise willing that the school officials reasonably could have forecasted addressees are not free to receive and consider them. It that it would do so. would be a barren marketplace of ideas that had only sellers and no buyers.”). In considering the School Board's motion for summary judgment, we are required to view the evidence in the

19 As explained above, allegations that coaches sexually light most favorable to Bell, the non-movant. *428 See harassed students were nothing new at Itawamba Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1868, 188 Agricultural High School when Bell composed his L.Ed.2d 895 (2014) (per curiam). The majority opinion, rap song. In 2009, Itawamba coach Bobby Hill was however, wholly disclaims this duty by ignoring material arrested and accused of sending sexually explicit text facts and refusing to draw inferences in Bell's favor— messages to a minor student. particularly those facts and inferences clearly evincing that Exacerbating the violence committed against these Bell's song was not and could not be regarded as a threat. constitutional interests is the unprecedented amount of For example, Bell has been an aspiring musician since deference that the majority opinion affords school boards he was a young boy. He began writing lyrics as a child in disciplining off-campus speech pursuant to Tinker. and started to pursue a musical career in earnest while Again, Maj. Op. pp. 396–97, and again, Maj. Op. p. in his teens. Like many musical artists, Bell has a stage 397, and again, Maj. Op. pp. 397–98, the majority name, “T–Bizzle,” and he regularly 20 records music in a opinion emphasizes the extent of “deference” that, in professional studio. Indeed, the very rap that gave rise to its view, courts are required to provide school board this case was recorded at a recording studio off campus disciplinary decisions under Tinker. Contrary to the called “Get Real Entertainment” records. As he explained majority opinion's approach, however, we do not “defer” to the Disciplinary Committee, Bell considers himself “an to schools in interpreting and applying the Constitution. artist,” and, as explained above, he originally composed “The authority possessed by the State to prescribe and and publicized the song in an effort to “speak out” on and enforce standards of conduct in its schools, although raise awareness of an important issue in his community, concededly very broad, must be exercised consistently i.e., sexual harassment of students. Moreover, consistent

© 2017 Thomson Reuters.Page No claim to 221 original U.S.of Government228 Works. 35 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 with his musical aspirations, Bell explained that the on Montwood High School or a coordinated version of the song posted to YouTube was also intended “shooting at all the [district's] schools at the same to attract the attention of record labels. Further, the time.” At several points in the journal, the author screenshot of Bell's Facebook page reveals that his friends expresses the feeling that his “anger has the best who commented on the song viewed it as the product of [him]” and that “it will get to the point where [he] will no longer have control.” The author of Bell's musical talent as a rap musician rather than a predicts that this outburst will occur on the day threat of violence (e.g., “Hey, don't forget me when you're that his close friends at the school graduate. famous” and “Lol ... been tellin you since we was little ... Id. Likewise, in LaVine, a student brought to you got all the talent in the world ...”). In addition, no campus a poem written in the first person describing one—neither Wildmon, Rainey, nor any other teacher or how the narrator murdered without remorse school official—testified that s/he thought Bell, himself, 28 people at his school and which ominously subjectively intended to cause anyone to fear that Bell concluded with the narrator's prediction that he personally would harm any person. Nor was there any “may strike again.” LaVine, 257 F.3d at 983–84. evidence that Bell was a dangerous person or that he had *429 Moreover, the majority opinion likewise either ever engaged in violent or unlawful conduct. Although ignores or glosses over other relevant evidence tending Bell in his rap song referred to a firearm, the evidence does to show that school officials did not consider Bell's song not reflect that Bell had ever owned, possessed, or had threatening but instead punished him merely because they any actual experience with firearms. Except for a single did not like the content of his speech. For example, tardiness, Bell had an unblemished school conduct record. during the closing remarks of the Disciplinary Committee These crucial facts not only impeach the School Board's meeting, one member of the committee provided the contention that Bell's song could reasonably be perceived following admonition to Bell: as a legitimate threat of violence, but also illuminate the fallacies in the majority opinion's comparison between I would say censor your material.... this case and other circuit decisions that have condoned Because you are good [at rapping], punishment for intentionally violent student speech. 21 but everybody doesn't really listen to that kind of stuff. So, if you want to get [ ] your message out to 20 “Once a week,” if possible. everybody, make it where everybody 21 For example, the majority opinion compares Bell's will listen to it.... You know what rap song to the potential violence “signaled” in Ponce I'm saying? Censor that stuff. Don't v. Socorro Independent School District, 508 F.3d 765 put all those bad words in it.... The (5th Cir.2007) and LaVine v. Blaine School District, bad words ain't making it better ... 257 F.3d 981, 987 (9th Cir.2001). But even a cursory Sometimes you can make emotions comparison between this case and the facts of those with big words, not bad words. You cases reveals the majority opinion's flawed logic. In know what I'm saying? ... Big words, Ponce, a student brought to campus a private diary, not bad words. Think about that which was written in the first-person narrative, and when you write your next piece. showed its contents to a classmate. 508 F.3d at 766. The diary detailed the plan of his “pseudo- The school's censorial focus on the “bad words” in Bell's Nazi” group to conduct coordinated “Columbine- song can also be gleaned from the transcript of the style” shootings at his school and at other schools in preliminary-injunction hearing: the district. Id. As the Ponce opinion explains: The notebook describes several incidents School Board Lawyer: You realized what you had involving the pseudo-Nazi group, including one done in publishing this song, while it may be, in your in which the author ordered his group “to perception, an artistic endeavor, was filthy; and it was brutally injure two homosexuals and seven colored” people and another in which the author filled with words like fuck, correct? describes punishing another student by setting Bell: Yes, sir. his house on fire and “brutally murder[ing]” his dog. The notebook also details the group's plan to commit a “[C]olumbine shooting” attack

there was no evidence that any student played the song Further, although the majority opinion emphasizes at school. Indeed, school computers blocked Facebook, Wildmon's testimony that Bell's rap song allegedly scared and cellphones were prohibited, which decreased the him, the majority opinion refuses to acknowledge that likelihood that students could access the song on campus. Rainey testified that he viewed the song as “just a Further, Bell testified that he never encouraged students rap” and that “if [he] let it go, it will probably just or staff to listen to the song at school, and there is no die down.” In addition to ignoring these material facts, evidence to the contrary. Tellingly, when asked if she the majority opinion likewise refuses to draw obvious could point to any disruption at the school as a result of inferences from the record which further evince the fact Bell's song, the superintendent referred only to the fact that school officials did not consider Bell's song to be that the coaches said that they had altered their “teaching threatening in nature. For example, in sharp contrast to styles” in order to avoid any appearance of initiating other cases in which courts have upheld discipline for a or engaging in sexual relationships or harassment with 22 student's purportedly “violent” speech, nothing in the female students. 23 Yet, neither the superintendent nor the record reflects that school officials ever contacted law coaches described how this alleged change in “teaching enforcement about Bell's song. To the contrary, Bell's styles” had substantially harmed their ability to teach their principal drove him home that day, and he thereafter assigned courses. And, in any event, it is self-evident that a was allowed to return to classes. Later, when Bell was teacher's effort to avoid the appearance that he is engaging suspended pending the outcome of the Disciplinary in sexual relationships with students should be deemed a Committee hearing, he nevertheless was allowed to remain dictate of the classroom and not a disruption of it. 24 In unattended in the school commons for the remainder of sum, even assuming arguendo that Tinker could be applied the day. These are simply not the actions of school officials to Bell's speech in this case, the School Board failed who seriously or reasonably believe a student poses a to satisfy its burden under the “substantial-disruption” threat of violence to school officials. framework.

22 See, e.g., Ponce, 508 F.3d at 767; Wynar v. Douglas 23 For example, Wildmon testified: “I tried to make Cnty. Sch. Dist., 728 F.3d 1062, 1065–66 (9th sure, you know, if I'm teaching, and if I'm scanning Cir.2013); LaVine, 257 F.3d at 985. the classroom, that I don't look in one area too long. Had the majority opinion properly reviewed all the I don't want to be accused of, you know, staring at relevant facts and drawn the clear inferences therefrom, it a girl or anything of that matter.” Rainey testified would have been compelled to conclude that the evidence that he no longer felt he could be as “hands on” here does not support a finding, as would be required with his female members of the track team, and thus by Tinker, that a “substantial disruption” occurred or “sometimes I tell the boys to go and work with the that school officials reasonably could have “forecast” girls.” a substantial disruption as a result of Bell's rap. 393 24 Even assuming arguendo these changes in the U.S. at 514, 89 S.Ct. 733. As an initial matter, the coaches' teaching and coaching styles could be evidence plainly shows that there was no commotion, classified as “disruptions,” the School Board has not boisterous *430 conduct, interruption of classes, or any presented any evidence to support a finding that such lack of order, discipline and decorum at the school, as disruptions were “substantial,” as required by Tinker. a result of Bell's posting of his song on the Internet. In reaching the opposite conclusion, however, the Cf. Shanley, 462 F.2d at 970 (“Disruption in fact is an majority opinion reasons that Bell's “threatening, important element for evaluating the reasonableness of a intimidating, and harassing language ... could be forecast regulation screening or punishing student expression.”). by [school officials] to cause a substantial disruption.” See In fact, at the preliminary injunction hearing, Wildmon Maj. Op. p. 398. But, the “evidence” that the majority explained that his students “seem[ed] to act normal” after opinion cites for this conclusion is, at the very best, sorely Bell's rap was released, and Rainey testified that most lacking. For example, the majority opinion emphasizes of the talk amongst students had not been about Bell's that Wildmon and some unnamed “third parties” 25 song but rather about his suspension and transfer to purportedly perceived Bell's rap song as threatening. alternative school. Aside from the single instance when See Maj. Op. p. 398. Yet, the majority opinion fails to Wildmon requested a student play the song for him,

© 2017 Thomson Reuters.Page No claim to 223 original U.S.of Government228 Works. 37 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 apprehend that an individual's perception of speech is not to place the heading “SEVERE DISRUPTIONS ” above necessarily tantamount to a rational assessment of that twenty-one different disciplinary “offenses,” one of which speech nor a valid basis for concluding that such speech is the school's prohibition on “[h]arassment, intimidation, is “unprotected” under the First Amendment. Indeed, or threatening other students and/or teachers.” Under regardless of how some individuals might view Bell's the policy, other “severe disruptions” include, inter alia, speech, no reasonable listener could perceive Bell's lyrics “stealing,” “cutting classes,” and “profanity, or vulgarity as *431 threats in light of the particular context; nor did (to include acts, gestures, or symbols directed at another the particular listeners here. See United States v. Jeffries, person.)” According to the majority opinion, this “policy 692 F.3d 473, 480 (6th Cir.2012) (“A reasonable listener demonstrates an awareness of Tinker 's substantial- understands that a gangster growling ‘I'd like to sew your disruption standard, 26 and the policy's violation can be mouth shut’ to a recalcitrant debtor carries a different used as evidence supporting the reasonable forecast of connotation from the impression left when a candidate a future substantial disruption.” The majority opinion's uses those same words during a political debate. And a reasoning in this regard is flawed. As an initial matter, this reasonable listener knows that the words ‘I'll tear your policy nowhere states that it applies to student conduct or head off’ mean something different when uttered by a speech that, like Bell's, occurs away from school or school- professional football player from when uttered by a serial related activities. In this respect, the policy is facially killer.”). Critically, the speech at issue in this case occurred distinguishable from those on-campus policies in Morse in a rap song, a musical genre in which hyperbolic and and Fraser to which the majority opinion analogizes. violent language is commonly used in order to convey Moreover, however, the majority opinion's logic is entirely emotion and meaning—not to make real threats of circular. The very task before our court is determining violence. See, e.g., Andrea L. Dennis, Poetic (In)Justice? whether the School Board's decision to discipline Bell Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 under a school policy comported with constitutional Colum. J.L. and Arts. 1, 22 (2007). Further, as detailed dictates. According to the majority opinion, however, the above, Bell is a long-aspiring rapper; he composed the School's Board's decision to discipline Bell under a school song in a professional studio; and he publically broadcast policy is evidence that the punishment comported with the song to raise public awareness and to attract the constitutional dictates. Contrary to the majority opinion's attention of record labels. These crucial contextual facts assertions otherwise, this is prototypical ipse dixit. reveal that Bell's song was just that: a song, authored by a young and aspiring musical artist—not the calling card 26 The majority opinion cites no evidence to substantiate of a would-be killer. The majority opinion therefore errs that the somewhat parallel language is anything more by relying upon unsubstantiated and unreasonable beliefs than a mere coincidence. that Bell's song was “threatening” in order to support its conclusion that the School Board satisfied its burden under Tinker. Accord Cash, 585 F.3d at 221–22 (observing *432 V. that school “[o]fficials must base their decisions on fact, not intuition”) (internal quotation marks omitted). “[A] ‘function’ of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, 25 During a seconds-long aside at the Disciplinary Committee hearing, Bell simply alluded to such creates dissatisfaction with conditions as they are, or statements by third parties. Neither Bell nor anyone even stirs people to anger.” Cox v. Louisiana, 379 U.S. else provided any details whatsoever about these third 536, 551–52, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). By parties, nor did he specify whether he heard these raising awareness of high school athletic coaches' sexual statements himself or via a third party. misconduct toward minor female students, Taylor Bell's For additional support that Tinker is satisfied, the rap song had this exact effect, and amongst those most majority opinion also emphasizes the wording of the “stir[red] to anger” were Itawamba school officials. The School Board's Discipline–Administrative Policy. See First Amendment prohibited Itawamba from expressing Maj. Op. p. 398. Specifically, the majority opinion derives that anger by punishing Bell for the content of his speech. meaning from the parallels between Tinker 's “substantial See Barnette, 319 U.S. at 637, 63 S.Ct. 1178 (“The disruption” framework and the School Board's decision Fourteenth Amendment ... protects the citizen against the

State itself and all of its creatures—Boards of Education opinion teaches that same mistaken lesson to all the not excepted.”). “If there is a bedrock principle underlying children in our Circuit. Indeed, in concluding that the the First Amendment, it is that the government may not First Amendment officially condones Bell's censoring and prohibit the expression of an idea simply because society punishment by the School Board, instead of safeguarding finds the idea itself offensive or disagreeable.” Texas v. his freedom of speech, the majority opinion undermines Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d the rights of all students and adults to both speak and 342 (1989). Indeed, “the point of all speech protection ... *433 receive speech on matters of public concern through is to shield just those choices of content that in someone's the Internet. eyes are misguided, or even hurtful.” Hurley, 515 U.S. at 574, 115 S.Ct. 2338. The majority opinion, however, For these reasons, I respectfully and earnestly dissent. forsakes its duty to uphold this most elementary and important of our Constitution's guarantees. EDWARD C. PRADO, Circuit Judge, dissenting: In its conclusion, the majority opinion observes that the I agree with Judge Dennis's dissent that Bell's rap “mission” of schools is “to educate.” Maj. Op. p. 399. Yet, song constitutes expressive speech protected by the First the majority opinion fails to apprehend the breadth of Amendment and that the school's discipline for that what an “education” encompasses. As the Supreme Court speech violated the First Amendment under existing has explained, “[t]he vigilant protection of constitutional Supreme Court precedent. I therefore respectfully dissent freedoms is nowhere more vital than in the community and join Judge Dennis's dissent in part. 1 of American schools.” Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). Teachers are 1 I do not join Part I of Judge Dennis's dissent. “charge [d] ... with the task of [i]mbuing their students Unlike the dissent, I would conclude that speech with an understanding of our system of democracy.” is presumptively protected by the First Amendment New Jersey v. T.L.O., 469 U.S. 325, 354, 105 S.Ct. 733, unless it fits within a specific category of unprotected 83 L.Ed.2d 720 (1985) (Brennan, J., concurring in part speech-regardless of the subject matter of the speech. and dissenting in part). “That they are educating the Thus, I would not extend the doctrinal distinction young for citizenship is reason for scrupulous protection between private speech and speech on a matter of of Constitutional freedoms of the individual, if we are public concern from the torts and public-employment not to strangle the free mind at its source and teach contexts into the student-speech context. I also do not join Part II(B) of the dissent. I agree youth to discount important principles of our government with the dissent's larger point that the majority as mere platitudes.” Barnette, 319 U.S. at 637, 63 S.Ct. opinion's standard is vague and will prove difficult 1178. “[E]ducation prepares individuals to be self-reliant to apply; however, I am not as sure as the dissent and self-sufficient participants in society.” Wisconsin v. that the Supreme Court's 1997 decision in Reno Yoder, 406 U.S. 205, 221, 92 S.Ct. 1526, 32 L.Ed.2d 15 v. American Civil Liberties Union, 521 U.S. 844, (1972). Accordingly, “students must always remain free to 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), remains inquire, to study and to evaluate, to gain new maturity and indicative of how the Court would resolve this case understanding; otherwise our civilization will stagnate today. The Internet has changed dramatically since and die.” Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 1997, so much so that I wonder whether the Court's S.Ct. 1203, 1 L.Ed.2d 1311 (1957). views on online student speech have evolved to take into account the potential for harm that simply did Viewed in the light of these longstanding principles, not exist to the same degree when Reno was decided Bell's song was not a disruption of school activities but eighteen years ago. See, e.g., J.S. v. Bethlehem Area Sch. Dist., 569 Pa. 638, 807 A.2d 847, 863 (2002) rather was an effort to participate as a citizen in our (observing that “the advent of the Internet has unique constitutional democracy by raising awareness complicated analysis of restrictions on speech”). of a serious matter of public concern. Yet, rather than commending Bell's efforts, the Itawamba County School I write separately because off-campus online student Board punished him for the content of his speech, in effect speech is a poor fit for the current strictures of First teaching Bell that the First Amendment does not protect Amendment doctrine, which developed from restrictions students who challenge those in power. The majority on other media, and I hope that the Supreme Court will soon give courts the necessary guidance to resolve

© 2017 Thomson Reuters.Page No claim to 225 original U.S.of Government228 Works. 39 Bell v. Itawamba County School Bd., 799 F.3d 379 (2015) 321 Ed. Law Rep. 654 these difficult cases. See David L. Hudson, Jr., The First 400–01, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (citing Amendment: Freedom of Speech § 7:6 (2012) (“[T]he next Porter, 393 F.3d at 615 n. 22); see also id. at 425, 127 S.Ct. frontier in student speech that the U.S. Supreme Court 2618 (Alito, J., concurring) (reasoning that the location of will explore is online speech.”). This issue has divided the the speech matters and that, “due to the special features of circuits and state supreme courts. Some have concluded the school environment, school officials must have greater that the Tinker standard categorically does not apply to authority to intervene before speech leads to violence”). online off-campus speech. See J.S. ex rel. Snyder v. Blue But this exception does not apply to purely off-campus Mountain Sch. Dist., 650 F.3d 915, 937 (3d Cir.2011) speech. See id. at 405, 393 F.3d 608 (majority op.) (“Had (en banc) (Smith, J., concurring) (noting that “[l]ower Fraser delivered the same speech in a public forum outside courts ... are divided on whether Tinker's substantial- the school context, it would have been protected.”). disruption test governs students' off-campus expression”); see also Thomas v. Bd. of Ed., Granville Cent. Sch. Dist., Moreover, Bell's speech does not fall within the First 607 F.2d 1043, 1053 n. 18 (2d Cir.1979) (“[W]e believe Amendment exception we have previously recognized for that [the] power [to regulate expression] is denied to public student speech that threatens “violence bearing the stamp school officials when they seek to punish off-campus of a well-known pattern of recent historic activity: mass, expression simply because they reasonably foresee that systematic school-shootings in the style that has become in-school distribution may result.”). Some courts have painfully familiar in the United States.” Ponce v. Socorro assumed without deciding that Tinker applies. See, e.g., Indep. Sch. Dist., 508 F.3d 765, 770–71 (5th Cir.2007) J.S., 650 F.3d at 928–31 (majority op.). And some courts (emphasis added). Indeed, in Ponce, we emphasized have held that Tinker applies to online off-campus speech the narrow scope of this exception, concluding that if “it was foreseeable ... [that the] conduct would reach the this exception does not include “threats of violence to school via computers, smartphones, and other electronic individual teachers [, which should be] analyzed under devices,” Kowalski v. Berkeley Cnty. Schs., 652 F.3d Tinker ” or not at all, id. at 771 n. 2 (emphasis added), 565, 574 (4th Cir.2011), or if there is a “sufficient nexus meaning that threatening language about an individual between the website and the school campus to consider the teacher is not within the Morse exception and may be speech as occurring on campus,” J.S. v. Bethlehem Area punished only if it is either “on school premises” within Sch. Dist., 569 Pa. 638, 807 A.2d 847, 865 (2002). I am the meaning of Tinker, Porter, 393 F.3d at 615, or if it unaware of a circuit or state supreme court going as far constitutes a true threat. We reasoned: “Such threats [to as the majority in this case and holding that threatening, teachers], because they are relatively discrete in scope and harassing, or intimidating online speech that occurred directed at adults, do not amount to the heightened level purely off campus may be prohibited or punished. The of harm that was the focus of both the majority opinion majority's holding *434 appears to depart from the other, and Justice Alito's concurring opinion in Morse.” Ponce, already divided circuits in yet another direction. 508 F.3d at 771 n. 2 (citing Boim v. Fulton Cnty. Sch. Dist., 494 F.3d 978 (11th Cir.2007); Wisniewski v. Bd. of Bell's speech does not fit within the currently established, Educ. of the Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d narrow categories of unprotected speech, and I would wait Cir.2007)). “The harm of a mass school shooting is, by for the Supreme Court to act before exempting a new contrast, so devastating and so particular to schools that category of speech from First Amendment protection. As Morse analysis is appropriate.” Id. (emphasis added). we previously stated in Porter v. Ascension Parish School Board, the Tinker standard only applies to substantially In this case, Bell's rap song was performed disruptive “student speech on the school premises.” 393 and broadcasted entirely off-campus, and the song F.3d 608, 615 (5th Cir.2004) (emphasis added) (internal described violence directed at individual teachers—not a quotation marks omitted); see also id. at 615 n. 22 Columbine-type mass school shooting. Therefore, Bell's (criticizing other courts for “[r]efusing to differentiate rap does not fall within the Tinker or the Morse categories between student speech taking place on-campus and of unprotected speech under our Circuit's decisions in speech taking place off-campus”). Schools officials may Porter and Ponce. Further, in the context of expressive also punish speech that advocates illegal drug use and rap music protesting the sexual misconduct of faculty that takes place at off-campus school-sanctioned activities members, no reasonable juror could conclude that Bell's during school hours. Morse v. Frederick, 551 U.S. 393, rap lyrics constituted a “true threat.” See Virginia v.

Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 I join Judge Dennis's dissenting opinion. Like Judge (2003) (“ ‘True threats' encompass [only] those statements Dennis, my view is that the Tinker framework was not where the speaker means to *435 communicate a intended to apply to off-campus speech. I recognize, serious expression of an intent to commit an act of however, that current technology serves to significantly unlawful violence to a particular individual or group of blur the lines between on-campus and off-campus speech. individuals.”). Therefore, I would reverse the district court In the light of this undeniable reality, and in the and render judgment for Bell. alternative, I would apply a modified Tinker standard to off-campus speech. My Tinker–Bell standard would begin I therefore agree with Judge Dennis's dissent that our with the Tinker substantial disruption test. See Tinker Circuit should hesitate before carving out a new category v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, of unprotected speech. 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); see also Shanley v. Ne. Indep. Sch. Dist., 462 F.2d 960 (5th Cir.1972). Even so, I share the majority opinion's concern about the It would further include a nexus prong that is derived potentially harmful impact of off-campus online speech most significantly from the Fourth Circuit's nexus test on the on-campus lives of students. The ever-increasing in Kowalski v. Berkeley County Schools, 652 F.3d 565 encroachment of off-campus online and social-media (4th Cir.2011). The nexus prong would incorporate the speech into the campus, classroom, and lives of school important factors, considered by other appellate courts, of students cannot be overstated. See Kowalski, 652 F.3d at foreseeability and the speech's predominant message. 567–69, 571 (confronting a situation in which one high- school student created a webpage dedicated to spreading This standard would protect the First Amendment rights rumors about the sexually transmitted disease of another of students to engage in free expression off campus, while student and her supposed sexual promiscuity, thereby also recognizing that school officials should have some “singl[ing] out [that student] for harassment, bullying ability, under very limited circumstances, to discipline and intimidation”). Ultimately, the difficult issues of off- students for off-campus speech. Mindful of these core campus online speech will need to be addressed by the principles and concerns, I would apply the following test. Supreme Court. In order for a school to discipline a student for off- For the foregoing reasons, I respectfully dissent. campus speech, the school must: *436 (1) provide evidence of facts which might HAYNES, Circuit Judge, dissenting in part: reasonably have led school authorities to forecast I respectfully dissent from the portion of the majority a substantial disruption OR evidence of an actual, opinion affirming the district court's grant of summary substantial disruption; 1 AND judgment in favor of the School Board on Bell's 1 claim. I conclude that the majority opinion greatly and 1 Tinker, 393 U.S. at 509, 513–14, 89 S.Ct. 733; see also unnecessarily expands Tinker to the detriment of Bell's Shanley, 462 F.2d at 974 (“We emphasize ... that there First Amendment rights. I would reverse the district must be demonstrable factors that would give rise to court's grant of summary judgment to the School Board any reasonable forecast by the school administration and remand for further proceedings on those matters for of ‘substantial and material’ disruption of school substantially the same reasons set forth in Section III of activities before expression may be constitutionally restrained.”). the original panel majority opinion. See Bell, 774 F.3d at 290–303. (2) demonstrate a sufficient nexus between the speech and the school's pedagogical interests that would 1 Credibility and inferences matter here, so I would justify the school's discipline of the student. 2 In not reverse the denial of Bell's summary judgment motion. this regard, I would consider three non-exclusive factors: JAMES E. GRAVES, JR., Circuit Judge, dissenting: 2 See Kowalski, 652 F.3d at 573 (“There is surely a limit to the scope of a high school's interest in the order,

shock to the parents of five high school seniors ... that safety, and well-being of its students when the speech their elected school board had assumed suzerainty at issue originates outside the schoolhouse gate. But over their children before and after school, off school we need not fully define that limit here, as we are grounds, and with regard to their children's rights satisfied that the nexus of [the student's] speech to [the of expressing their thoughts.”); id. at 966 (explaining high school's] pedagogical interests was sufficiently that the parents filed the lawsuit in “objecti[on] to strong to justify the action taken by school officials the school board's bootstrap transmogrification into in carrying out their role as the trustees of the student Super–Parent”). body's well-being.”).

a. whether the speech could reasonably be expected i. giving particular weight to evidence, experiential 3 or otherwise (like the bullying research in the to reach the school environment. 6 3 Fourth Circuit's Kowalski decision), which See Wisniewski v. Bd. of Educ., 494 F.3d 34, 38– indicates that particular off-campus speech has 39 (2d Cir.2007), cert. denied, 552 U.S. 1296, 128 a unique and proven adverse impact on students S.Ct. 1741, 170 L.Ed.2d 540 (2008) (expanding the and the campus environment. reach of Tinker to include off-campus speech that is 6 reasonably foreseeable to “come to the attention of Kowalski, 652 F.3d at 572. school authorities”); Doninger v. Niehoff, 527 F.3d 41, 50 (2d Cir.2008) (applying Tinker to off-campus c. whether the predominant message of the speech where the speech is reasonably foreseeable student's to reach the school property); D.J.M. v. Hannibal Pub. Sch. Dist., 647 F.3d 754, 766 (8th Cir.2011) speech is entitled to heightened protection. 7 (same, where speech was reasonably foreseeable to be 7 brought to the attention of school authorities). See Section I of Judge Dennis's dissenting opinion; see also Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280, 299 n. 46 (5th Cir.2014), rev'd en banc. b. whether the school's interest as trustee of student In my view, if this test were applied to the facts of this case, well-being 4 outweighs the interest of respecting 5 the school's discipline of Bell would clearly fail. For this the traditional parental role in disciplining a additional, alternative reason, I dissent. student for off-campus speech ... 4 See Kowalski, 652 F.3d at 573. All Citations 5 Our court has held in high regard the traditional role of parents to discipline their children off campus. See 799 F.3d 379, 321 Ed. Law Rep. 654 Shanley, 462 F.2d at 964 (“It should have come as a