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Lawyer Can't be Forced to Take Down Website Describing Past Cases

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By William Peacock, Esq. on November 04, 2013 2:57 PM

Prior restraint of free speech. It's a dangerous game, and an important one too. Though this trial ended years ago, the California Court of Appeals, Second Appellate District, heard the case anyway, as this issue is likely to creep up again.

Can a trial judge order a lawyer to take pages down off of her website in order to preserve an impartial jury?

Past Verdicts in Similar Cases

The attorney, Simona A. Farrise, had a website where she detailed past verdicts against Ford and other car companies for millions of dollars. In the case at issue, the issue was whether asbestos in automobile parts Ford, Volkswagen, and others manufactured and distributed caused the plaintiff, Richard Steiner to contact lung cancer

Ford and Volkswagen asked the court to order Farrise to take down the two pages, as they felt the site's claims were "provocative and prejudicial" and would "obviously prejudice" the jury should the jurors find Farrise's website.

In addition to admonishing the jury to stay off of the Internet, and to not "Google" the attorneys in the case, Superior Court Judge Thomas Anderle ordered Farrise to take down the pages.

More Than Necessary

Apparently, we have a lot of faith in jurors' respect for judicial admonitions, even in the days of 24/7 Internet in one's pocket.

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.

The court makes one other great point: as in a prior case, where a newspaper was prohibited from reporting on testimony (but other newspapers weren't), even if Farrise's page was silenced, that doesn't mean the jurors wouldn't find the information elsewhere.

And while Volkswagen argues that the 24/7 Internet calls for such extreme measures, that same argument works against them -- the Internet is a big place, with lots of different sources for the same information.

In other words, the remedy was not only one that our system abhors (prior restraint of free speech), but it was one that may not have even been able to achieve the ends desired.

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