A California appeals court held that a trial court’s order directing a trial attorney to remove posts from her law firm website touting her successes constituted an unlawful prior restraint on the trial attorney’s constitutional right to free speech. Christie Steiner v. Superior Court of Santa Barbara County, 2d Civil No. B235347 (Super. Ct. No. 1374169) (Santa Barbara County, October 30, 2013)

Richard and Christie Steiner filed a personal injury action against Volkswagen Group of America (Volkswagen), Ford Motor Company (Ford) and others in a California trial court. After the jury was impaneled, Volkswagen moved for an order requiring the Steiners’ attorney, Simona A. Farrise, to remove during trial two pages from her law firm website touting her successes against Ford in similar cases. The first page discussed a $1.6 million verdict against Ford and others, while the second page described a $4,355,987 jury verdict against Ford. Volkswagen asserted that the information on the website was “plainly provocative,” and would, if it is encountered by a juror,  prejudice the jury process during trial deliberations. Ford joined in the motion. The Steiners argued that the request infringed upon their counsel’s constitutional right of free speech and that the more appropriate remedy was to admonish the jury not to search the internet for information about the parties’ attorneys. The trial court, however, granted the motion.

The Steiners, Farrise and her law firm (“petitioners”) sought a writ of mandate from the appellate court seeking to reverse the trial court’s order. The appeals court summarily denied the petition. Thereafter, petitioners sought review of the appeals court denial of the writ application in the California Supreme Court. The Supreme Court granted review and transferred the matter back to the appellate court with instruction to decide the matter on the merits.

On review by the appeals court, Volkswagen moved to discharge the writ application as moot because Farrise restored the two pages to her firm website when the Steiners’ trial ended. However, the appeals court denied Volkswagen’s motion and exercised its discretion to reach the merits of the petition, holding that any order restricting an attorney’s free speech rights during trial to prevent potential jury contamination raised an issue of broad public interest.

The appeals court went on to rule that the trial court’s order placed a prior restraint on Farrise’s right to freedom of speech under the United States and California Constitutions. It found that prior restraint orders on trial participants are subject to strict judicial scrutiny and may not be imposed “unless (1) the speech sought to be restrained poses a clear and present danger or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available.” Under this standard, the court found that the trial court’s order constituted an unlawful prior restraint on Farrise’s constitutional right to free speech. The court emphasized that less restrictive alternatives were available to protect the plaintiffs’ fair trial rights, including admonishing jurors not to search the internet for information about the parties’ attorneys.

Volkswagen maintained juror admonishments are no longer effective in today’s world of 24-hour news, Google, Twitter and the Internet. It emphasizes that “jurors’ ready access to information . . . has vastly increased the risk of prejudice from extrajudicial sources and has seriously weakened courts’ ability to filter or control the flow of information.” However, the court disagreed, holding that the first line of defense against juror internet research is “to address the issue in jury instructions.”

The case is annexed here – Christie Steiner v. Superior Court

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