Joel Levine v. United States District Court for the Central District of California, United States of America, Real Party in Interest

775 F.2d 1054 12 Media L. Rep. 1458 Joel LEVINE, et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF CALIFORNIA, Respondent, United States of America, Real Party in Interest. C.A. No. 85-7208. United States Court of Appeals, Ninth Circuit. Nov. 1, 1985. As Amended Nov. 12, 1985. Paul L. Hoffman, Joan Howarth, Douglas E. Mirell, David P. Crochetiere, Los Angeles, Cal., for petitioners. Robert C. Bonner, U.S. Atty., Robert L. Brosio, Russell Hayman, Asst. U.S. Attys., Los Angeles, Cal., for respondent Dist. of Cal., etc. Before SNEED, NELSON and BEEZER, Circuit Judges. ORDER 1 Prior report: 764 F.2d 590 (9th Cir.1985). 2 Judges Sneed and Beezer have voted to deny the petition for rehearing and to reject the petitioners' suggestion for rehearing en banc. Judge Nelson would grant the petition for rehearing and approve the petitioners' suggestion for rehearing en banc. 3 The full court has been advised of the suggestion for en banc rehearing. A vote has been taken, and has failed to receive a majority of votes in favor of en banc consideration. Fed.R.App.P. 35(b). 4 The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. 5…

dissenting, with whom PREGERSON, FERGUSON, NELSON and REINHARDT, Circuit Judges, join.

I regret that a majority of our active judges have failed to vote to rehear this case en banc. The case raises an extraordinarily important constitutional issue: to what extent does the First Amendment limit the authority of trial judges to restrain the extra-judicial comments of criminal defendants and their lawyers? In the absence of controlling Supreme Court precedent, the decision in this case — the first from any circuit to approve a gag order on defense attorneys under the “clear and present danger” standard — is likely to have a broad impact on the freedom of expression of trial participants throughout the nation. Moreover, the decision will significantly restrict the media’s ability to gather information and the public’s right to be informed about our criminal justice system. Finally, I agree with Judge Nelson that the decision cannot be reconciled with the Supreme Court’s decision in Nebraska Press Association v. Stuart, 427 U.S. 539 , 96 S.Ct. 2791 , 49 L.Ed.2d 683 (1976), and this court’s decisions in CBS, Inc. v. United States District Court, 729 F.2d 1174 (9th Cir.1984), and…

ORDER

Prior report: 764 F.2d 590 (9th Cir.1985).

Judges Sneed and Beezer have voted to deny the petition for rehearing and to reject the petitioners’ suggestion for rehearing en banc. Judge Nelson would grant the petition for rehearing and approve the petitioners’ suggestion for rehearing en banc.

The full court has been advised of the suggestion for en banc rehearing. A vote has been taken, and has failed to receive a majority of votes in favor of en banc consideration. Fed.R.App.P. 35(b).

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

dissenting:

I join Judge Norris’ dissent. I believe that respect for the right of free speech, *1056 and faith in the ability of an American jury to arrive impartially at a just verdict based solely on the evidence presented in court, counsel against the issuance of “gag orders.”