08 Dec Virginia: Constitutional Rights – a Lawyer’s Blog
On transfer from the California Supreme Court, a California Court of Appeal recently held unconstitutional a trial court’s order that required plaintiff’s counsel to remove from her website for the duration of trial her blogs about similar asbestos cases. Steiner v. The Superior Court of Santa Barbara County, 220 Cal. App. 4th 1479, 164 Cal. Rptr. 3d 155, 13 Cal. Daily Op. Serv. 2d 12032, 2013 Daily Journal D.A.R. 14585, 2013 WL 5819545 (Cal. App. Oct. 30, 2013). Despite the order becoming moot when the trial ended, the appellate court exercised its discretion to reach the merits under the “public interest” exception to the mootness doctrine.
On the merits, the special case of Steiner concluded “this was an unlawful prior restraint on the attorney’s free speech under the First Amendment. Whether analyzed under the strict scrutiny standard or the lesser standard for commercial speech, the order was more extensive than necessary to advance the competing public interest in assuring a fair trial. Juror admonitions and instructions, such as those given here, were the presumptively adequate means of addressing the threat of jury contamination in this case.”
Steiner observed further, “We accept that jurors will obey such admonitions.*** If a juror ignored these admonitions, the court had tools at its disposal to address the issue. It did not, however, have authority to impose, as a prophylactic measure, an order requiring [Plaintiff’s counsel] to remove pages from her law firm website to ensure the would be inaccessible to a disobedient juror.”