Friday, November 1, 2013
Order to Remove Language From Website Held Unconstitutional
Lawyer’s Discussion of Similar Cases Did Not Impair Defendants’ Right to Fair Trial—C.A.
By a MetNews Staff Writer
A trial judge overstepped his bounds by ordering an attorney to remove two pages from her website for the duration of a trial dealing with issues similar to those reflected in the pages’ content, the Court of Appeal for this district has ruled.
The order by Santa Barbara Superior Court Judge Thomas Anderle was an unlawful prior restraint on Simona A. Farrise’s First Amendment rights, Justice Steven Z. Perren wrote Wednesday for Div. Six.
Farrise represented Richard and Christie Steiner in their suit against Volkswagon, Ford Motor Company and others, alleging that asbestos in automobile parts they manufactured and distributed caused Richard Steiner to contact lung cancer.
Farrise’s law firm website touted previous successes against Ford in similar asbestos cases.
Pages on the site detailed verdicts against Ford and others for amounts that respectively totaled $1.6 million and approximately $4.3 million. The first page additionally stated, “at least one jury managed to successfully navigate defendants’ courtroom confusion and find these companies at fault.”
Ford joined Volkswagen in asking the court to order Farrise to take down the pages on her website during trial, arguing that they were “provocative and prejudicial” and would “obviously prejudice the jury process” in the event that a juror came across the site.
Santa Barbara Superior Court Judge Thomas Anderle issued an order directing Farrise to take down the specific comments on her site that the defendants had objected to. He also gave standard instructions to jurors that they should not read any news reports about the case, nor should they “Google the attorneys.”
After Farrise and the Steiners challenged the order, the Court of Appeal eventually ruled that even if Farrise’s site were characterized as commercial speech, and only subject to intermediate scrutiny by the courts, the judge’s order was “more extensive than necessary to advance the competing public interest in assuring a fair trial.”
Although Farrise had already restored each of the pages to her website shortly after the trial ended, the Court of Appeal held that the issue was not moot due to the “public interest” exception. “Because any order restricting such speech during trial is likely to become moot before a writ petition can be heard,” the court reasoned, “we agree it raises an issue of broad public interest that is likely to evade timely review.”
“The trial court properly admonished the jurors not to Google the attorneys and also instructed them not to conduct independent research. We accept that jurors will obey such admonitions. It is a belief necessary to maintain some balance with the greater mandate that speech shall be free and unfettered. 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 Farrise to remove pages from her law firm website to ensure they would be inaccessible to a disobedient juror. Notwithstanding the good faith efforts of a concerned jurist, the order went too far.”
Though the court’s ruling upheld Farrise’s position, it admonished her appellate counsel, Sharon J. Arkin, for falsely suggesting in that the trial court’s order required Farrise to take down her “entire” website, rather than the specific passages that the defendants had objected to.
In a footnote, the court suggested that Arkin had violated Business and Professions Code § 6068(d) which states that attorneys have a duty “never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”
Arkin could not be reached for comment.
The case is Steiner v. Superior Court (Volkswagen Group Of America), 13 S.O.S. 5648.
Copyright 2013, Metropolitan News Company