When Richard developed lung cancer from exposure to asbestos while on the job, neither he or his wife, Christie, thought their case would make it to the Supreme Court.
The Steiners filed a lawsuit citing personal injury against the Volkswagen Group of America, Ford Motor Company and others. Volkswagen moved early in the hearings to order Simona Farrise, the Steiners’ lawyer to take down two pages of her website which Volkswagen claimed publicized her victory over Ford in similar cases.
Volkswagen told the judge that the pages were provocative and prejudicial and would affect their case against the Steiners if the pages were viewed by a juror.
Steiners’ attorneys counter-argued that any order requiring the removal of the two pages in question would trample on Farrise’s Constitutional right of freedom of speech. They went on to suggest that the proper remedy was simply to instruct the jury not to search the Internet for information about the case.
The Court of Appeals sought direction from the Supreme Court and then issued an order to show cause. By then though, the point was moot. The trial was over. However, claiming public interest, the Court of Appeal reviewed the order.
Subsequently the Court of Appeal said the trial court’s order was basically a gag order and placed an unfair restraint on Farrise’s right to freedom of speech.
Usually gag orders are scrutinized by judicial review. A gag order can’t be imposed unless the speech poses a clear and current threat to a protected interest. Even when a gag order meets that criteria, it is still required to be narrowly written.
Volkswagen’s attorneys claimed the order should be looked at under the less restrictive light of commercial speech. Historically, there are four criteria that applies to state regulations on commercial speech. First, the court has to determine if the speech concerns lawful activity and isn’t misleading. Depending on the court’s findings, the court must then decide if the asserted interest of the government is substantial, if the restraint directly advances that interest and the extent in which it is necessary to serve that interest.
The Court of Appeal determined that the order of the trial court didn’t pass the Constitutional “smell test” under the commercial speech argument. The Court of Appeal also found the order would not pass the even more rigorous scrutiny analysis.
With no evidence that Farise’s webpages about prior cases was misleading, the government had to seek another tack to keep jurors from learning about past victories.
Trial courts have wrestled with the problem of tech-savvy jurors for years. There has been vigorous debate on the subject and no one has suggested prior restraints on speech because of the possibility a juror will do online research. The trial court’s order did not apply to any other possible websites that described Ford’s loss in previous cases — only Farrise’s website.
The instructions of the trial court were enough to protect both parties’ right to a fair trial and the court instructed jurors about not accessing the internet or social media until after the verdict was in.