California Court of Appeals, Second District, Sixth Division
Santa Barbara of Superior Court County No. 1374169, Thomas Anderle, Judge.
Farrise Firm, P.C., Simona A. Farrise, Carla V. Minnard; The Arkin Law Firm, Sharon J. Arkin for Petitioners.
No appearance for Respondent.
Herzfeld & Rubin, Craig L. Winterman, Tara-Jane Flynn; Carroll, Burdick & McDonough LLP, Laurie J. Hepler, Nathaniel K. Fisher for Real Party in Interest Volkswagen Group of America, Inc.
Yukevich Cavanaugh, Steven Douglas Smelser, Dykema Gossett LLP, John M. Thomas for Real Party in Interest Ford Motor Co.
McKenna Long & Aldrige, Kelvin Timothy Wyles for Real Party in Interest Pneumo Abex.
An attorney's website advertised her success in two cases raising issues similar to those she was about to try here. The trial court admonished the jury not to "Google" the attorneys or to read any articles about the case or anyone involved in it. Concerned that a juror might ignore these admonitions, the court ordered the attorney to remove for duration of trial two pages from her website discussing the similar cases. We conclude this was an unlawful prior restraint on the attorney's free speech rights under the First Amendment. Whether analyzed under the strict scrutiny standard or the lesser standard for commercial speech, the order was more extensive than necessary to advance the competing public interest in assuring a fair trial. Juror admonitions and instructions, such as those given here, were the presumptively adequate means of addressing the threat of jury contamination in this case.
Although the order was improper, it is no longer in effect and thus no relief can be granted. We deny the petition for writ of mandate.
FACTS AND PROCEDURAL BACKGROUND
Richard and Christie Steiner filed this personal injury action after Richard Steiner contracted lung cancer. They alleged his cancer was caused by exposure to asbestos in friction automobile parts manufactured and distributed by Volkswagen Group of America (Volkswagen), Ford Motor Company (Ford) and others. 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 recent successes against Ford in similar asbestos cases. The first page discussed a $1.6 million verdict against Ford and others, stating that "at least one jury managed to successfully navigate defendants' courtroom confusion and find these companies at fault." The second page described a $4, 355, 987 jury verdict against Ford. Volkswagen asserted that "human nature being what it is, [Volkswagen], in the interests of a fair trial, believes that plainly provocative and prejudicial information should not intentionally be prominently displayed on the internet, by the parties or their counsel in this case during trial. That will obviously prejudice the jury process during the trial and deliberations in this case, if it is encountered by a juror." Ford joined in the motion.
The Steiners argued that the request infringed upon 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 attorneys. The trial court, however, granted the motion at a hearing on August 22, 2011. After the parties expressed confusion over the scope of the order, the court clarified: "I had intended the decision here to be surgical. I was [not] directing [Ms. Farrise to] take down herwhole website by any stretch of the imagination. It was the items that the Defense had pointed to that I was directing my thoughts to. [¶] Maybe I wasn't as clear as I should have been, but that's all. I wasn't asking you to do anything more than just take [down] the comments that the Defense pointed to in their motion, which was, I thought, very specific."
The trial court admonished the jurors not to Google the attorneys. It also gave the standard admonishments prior to opening statements. Those admonishments are not part of the record, but at the time they were given, CACI No. 100 stated: "During the trial, do not read, listen to, or watch any news reports about this case.... This prohibition extends to the use of the Internet in any way, including reading any blog about the case or about anyone involved with it or using Internet maps or mapping programs or any other program or device to search for or to view any place discussed in the testimony."  (See CACI No. 100 (2011 ed.).)
The Steiners, Farrise and her law firm (collectively "petitioners") sought a writ of mandate in this court seeking to reverse the trial court's order requiring Farrise "to take down part of her firm's website during the pendency of the trial of this case in order to assure that the jurors do not view it." (Italics in original.) The petition stated the trial court initially ordered Farrise to take down the entire firm website, but subsequently "modified its order and limited application of the order to the ...