Fifth Circuit Vacates In Part, Remands In Part, Case Involving Police Officer Website That Criticizes Local Police Department

When restrictions are sought to be imposed on litigants after litigation is filed, a district court must balance a litigant’s First Amendment rights against other important, competing considerations. See Brown, 218 F.3d at 424 (“‘[A]lthough litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise’ in the context of both civil and criminal trials.” …Court orders restricting trial participants’ speech are evaluated under the prior restraint doctrine, which requires that the record establish that the speech creates a potential for prejudice sufficient to justify the restriction. See Brown, 218 F.3d at 424-25. In addition, the restriction must be narrowly tailored and employ the least restrictive means of preventing the prejudice. Id. at 425. We note that the Officers represent that they are willing to accept the application to them of Louisiana Rules of Professional Responsibility 3.6 and 4.4 in this context, although those rules ordinarily would not apply to clients who are not lawyers. They object to the terms of the court’s order only as they support or apply to the portion of the order mandating that the Website be removed in its entirety. Thus, we focus our analysis only on the portion of the order addressing removal of the entire Website.

We begin by addressing the necessity of deferring to district courts in matters affecting the daily functioning of their courts. …In a broader sense, considerable discretion is vested in district courts in ensuring fair trials and avoiding a “circus atmosphere” or “chaos” that can be occasioned by unfettered aggression on the part of one or both sides in litigation. …

PD Defendants’ implicit suggestion in their briefs (made explicit at oral argument) that the Officers have a complete “either or” choice between filing a lawsuit and exercising their First Amendment rights. This area, as the district court recognized, demands a nuanced approach to the delicate balance between the necessity of avoiding a tainted jury pool and the rights of parties to freely air their views and opinions in the “market square” now taking the form of the electronic square known as the Internet. The district court faithfully and carefully addressed numerous precedents surrounding the use of “gag orders” and applied a careful and nuanced approach in much of the challenged order. When it came to the Website, however, the nuanced approach gave way to a more wholesale striking of its entire content—indeed, the very website itself. For the reasons set forth below, we conclude that this wholesale striking cannot stand in its current form.

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