Can a Trial Court, Consistent with the First Amendment, Order an Attorney to Take Down Part of Her Website During Trial?

Posted in: Constitutional Law

On October 30 of this year, in the case of Steiner et al. v. The Superior Court of Santa Barbara County, an interesting First Amendment question arose. One of the attorney’s websites advertised that she had had success in two prior cases that were similar to the case that she was about to try. (They were personal injury actions, all with similar facts.) The Court, in response, ordered that the attorney had to take down the relevant portion of her website—that is, the portion that discussed that attorney’s favorable outcomes in similar cases.

The strange aspect of the Court’s order forcing the attorney to take down the relevant portion of her website is that the order was arguably redundant, in that jurors were also admonished not to perform online research generally, and not to do research on any of the attorneys. Thus, the only possible defense of the judge’s ordering the attorney to take down the website would have had to come from the judge’s sense that jurors—who are now so used to going online to get their questions answered—would simply ignore the judge’s admonition to them not to do so. In other words, the only defense of the judge’s order is a prediction that jurors would act lawlessly.

Why The Lawyer Won Her First Amendment Case Regarding Her Website Sections

The court that reviewed the trial judge’s order deemed that order to have imposed an unlawful prior restraint on speech, and thus to have committed a serious violation of the First Amendment. (A prior restraint is a highly disfavored remedy when it comes to speech. More typical remedies in the First Amendment context include, for instance, money damages, as is the case in the defamation context.) Thus, it was no surprise that the lawyer prevailed here.

But, interestingly, the proceedings in the case went on. Even though the issue regarding the website was moot– since the attorney, after a ruling stating that she could do so, restored the relevant text about her prior victories to her website—the proceedings continued. With the lawyer’s having gotten what she had asked for, and with her website fully restored, one might think the case was now moot—and, in fact, it was. But in an interesting twist, the court invoked a little-used exception to mootness doctrine, the public interest exception. A legal issue is moot when it has no practical consequences for either party. But here, an issue that would have been deemed moot instead fell into the public-interest exception to mootness doctrine. (Another, similar doctrine characterizes issues as being capable of repetition but evading review.)

In the end, this was a case in which a frustrated judge overreached in order to ensure jurors’ fairness and neutrality during the trial. But while the judge’s objectives were honorable, they did not merit the sacrifice of First Amendment rights that the judge exacted from the attorney by effectively shutting down part of her website.

Moreover, the judge’s approach in this case would invite a slippery slope, in a number of ways. Assuming that jurors do not dutifully follow judges’ instructions raises its own problems; and allowing judges to control any website except that of their own court or chambers can only lead to abuse.

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