decided as amended august 22 1974. as amended october 23 1974.: August 8, 1974.
Reargued May 15, 1974. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. ON PETITION FOR WRIT OF MANDAMUS OR WRIT OF PROHIBITION.
Van Dusen, Aldisert and Rosenn, Circuit Judges. On Reargument: Seitz, Chief Judge, and Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth Circuit Judges. Adams, Circuit Judge, concurring. Aldisert, Circuit Judge, dissenting, with whom Weis, Circuit Judge, joins.
VAN DUSEN, Circuit Judge.
Philadelphia Newspapers, Inc. (hereinafter the "Philadelphia Inquirer") and Susan Q. Stranahan, appellants in No. 73-1855 and petitioners in No. 73-1856, seek reversal of a written and docketed district court order refusing to vacate an oral order, announced from the bench, enjoining them and other news media representatives from publishing, during the perjury trial of Frederick Schiavo, information concerning murder and conspiracy indictments pending against Schiavo in a related matter.*fn1
Schiavo's perjury trial arose out of the death of Martin Alan Hess, a Government informer scheduled to testify in narcotics and counterfeit cases, who was killed in August 1972 when a bomb which had been placed in his car exploded. Schiavo's perjury indictment charged that he had lied to a federal grand jury which was investigating Hess' death. In addition to being indicted for perjury, Schiavo was indicted by a federal grand jury in the Eastern District of Pennsylvania on charges of conspiracy in connection with the alleged murder of the informer and by the State of New Jersey on charges of first degree murder.
Schiavo's perjury trial commenced on Wednesday, October 3, 1973. In an article appearing on Thursday, October 4, under the by-line of appellant Stranahan, the Philadelphia Inquirer reported the events of the first day of trial. The article also indicated that the defendant was "one of five men charged with conspiring to kill a government informer last August." On Thursday afternoon, fearing that the jury in Schiavo's trial might read the article and learn of the other indictments, the district judge summoned members of the press, including appellant Stranahan, to sidebar and stated that, while he could not tell the press what to publish, he hoped that they would appreciate the problems involved in mentioning the other two indictments.*fn2 On Friday, October 5, again under the by-line of appellant Stranahan, the Philadelphia Inquirer published an account of Thursday's proceedings and, in apparent disregard of the district court's request, referred to the existence of the two other indictments. The article states that "Schiavo also is charged by the Federal government with conspiring to kill Hess and with first-degree murder in New Jersey." On Friday afternoon, at approximately 2:00 P.M., the district judge called the news media representatives covering the trial before him, stated that "they could print that which went on in the court room," but orally ordered them not to mention the above-mentioned two other indictments for different offenses in any further stories, and specifically stated that appellant Stranahan and the editors of the Philadelphia Inquirer would face contempt charges if they violated this order.*fn3 This order was not transcribed that week; also, it was neither set forth in writing by the district court nor entered on the district court docket until after the appeal was docketed in this court. The first evidence on the district court docket of the reduction of the district court order to writing is a docket entry on October 10, 1973.*fn4
At approximately 4:00 P.M. the same afternoon (October 5), counsel for appellants appeared before the district court and presented argument in support of a written motion that the above oral order be vacated. After hearing argument,*fn5 the district court denied the motion to vacate and subsequently denied a motion for a stay of the order pending appeal. This order refusing to vacate the prior oral order was set forth in writing and entered on the district court docket. The appellants immediately filed a notice of appeal late Friday afternoon, October 5, from the 4 P.M. order refusing to vacate the oral order announced about 2 P.M.
In their appeal, the appellants challenge the order of the district court on both constitutional and procedural grounds. For reasons which appear below, we reverse the district court order on procedural grounds.
This appeal confronts this court with two preliminary issues.
First, appellee*fn6 contends that there is no appealable order in the instant case. Specifically, the appellee contends that the district court's oral silence order is not an injunction within the meaning of 28 U.S.C. § 1292(a) (1) but merely an incidental court order which is non-appealable, notwithstanding the fact that it purports to enjoin publication by the newspapers of certain information. We find it unnecessary to resolve this issue as we have concluded that the written order of October 5, 1973, is an appealable final order under 28 U.S.C. § 1291, since it falls within the "collateral order" doctrine established by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). In Cohen, the Supreme Court defined collateral orders as
"that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. . . . We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it."
The order in the instant case constituted a final decision since it determined a matter independent of the issues to be resolved in the criminal proceeding itself, bound persons who were non-parties in the underlying criminal proceeding and had a substantial, continuing effect on important rights.*fn7
Secondly, the appellee contends that the instant appeal should be dismissed as moot since Schiavo's criminal trial has been completed and there no longer exists any restraint upon the appellants. We reject this contention and hold that this case is reviewable as a dispute "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911); see also DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164, 42 U.S.L.W. 4578, 4579 (1974); Roe v. Wade, 410 U.S. 113, 125, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973). This conclusion is not affected by the possibility that appellants may be cited for contempt of the silence order. The publication of proscribed matters in violation of the order would constitute a criminal contempt, and the merits of such an order could not ordinarily be challenged on appeal from a citation for criminal contempt. See United States v. United Mine Workers, 330 U.S. 258, 289-95, 91 L. Ed. 884, 67 S. Ct. 677 (1947); Walker v. Birmingham, 388 U.S. 307, 314-20, 18 L. Ed. 2d 1210, 87 S. Ct. 1824 (1967).*fn8 If this case were deemed moot, it is unlikely that members of the press who are subject to a silence order would ever be able to obtain appellate review, since the underlying criminal proceeding would almost always terminate before the appellate court hears the case.
Appellants advance numerous arguments in support of their contention that the district court erred in refusing to vacate the silence order. Before reaching those arguments, however, we must address one problem not noted by appellants.
We assume for purposes of this appeal that the district court had power to enter the silence order, even though that order directly bound non-parties and governed their actions outside the presence of the court. The Sixth Amendment imposes a duty on the district courts no less than on prosecutors to take reasonable measures to ensure defendants fair trials, free of prejudice and disruption. See Sheppard v. Maxwell, 384 U.S. 333, 361-63, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966). Certainly, a federal trial judge may, to that end, restrict the actions of non-parties in his presence. See United States ex rel. Robson v. Malone, 412 F.2d 848 (7th Cir. 1969); United States v. Venuto, 182 F.2d 519 (3d Cir. 1950). In fulfilling their charge, the district courts also are authorized to restrict conduct outside the courtroom of parties, lawyers, jurors, witnesses, court officials and others connected with the trial process. Sheppard v. Maxwell, supra at 361-62. This nucleus of clear judicial power to assure defendants fair trials underlies our assumption that the court below possessed the power to prohibit non-parties from taking actions, out of court, that would imperil efforts to provide Schiavo a fair trial.*fn9 This assumption does not pre-judge the possible constitutional limits on the exercise of such a power.*fn10
Appellants' most vigorously pressed contention is that the district court's refusal to vacate the silence order was error because entry of the silence order against newspapers and reporters contravened the First Amendment guarantee of freedom of the press from governmental restraint. Appellants also argue that the district court's initial order should have been vacated because it was entered without according them appropriate procedural safeguards.
We have concluded that the district court's written order of October 5, refusing to vacate the previous oral order, should be reversed since the previous oral order was procedurally deficient in various important respects. Our conclusion that this case should be reversed on procedural grounds makes resolution of the constitutional issue unnecessary. See Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136-37, 67 S. Ct. 231, 91 L. Ed. 128 (1947). In Alma Motor Co., supra, the Supreme Court stated:
"If two questions are raised, one of non-constitutional and the other of constitutional nature, and a decision of the non-constitutional question would make unnecessary a decision of the constitutional question, the former will be decided. This same rule should guide the lower courts as well as this one. We believe that the structure of the problems before the Circuit Court of Appeals required the application of the rule to this case."*fn11
This case came before us in an unusual procedural posture. The oral silence order which was entered at 2 P.M. on October 5, 1973, and which is being challenged on this appeal was never reduced by the district judge to written form, stating in specific terms exactly what conduct on the part of the press was being restrained and for what reasons such conduct was being restrained, nor was it entered on the district court docket in the criminal proceeding against Schiavo. In addition, no part of the official transcript relating to the oral order was filed until October 10, 1973,*fn12 and the transcript of the actual silence order itself was not completed and filed until November 6. Therefore, as of the time that the notice of appeal was filed in this court on Friday, October 5, there was no written version of the silence order, either in the form of a written order on a separate document or in the form of a transcript of the proceedings, which this court could consider in resolving the appeal. The sole written record which was either presented to or available for this court's consideration was the written order refusing to vacate the prior oral order. This written order, consisting of one sentence, gave no indication of the substance of the previous oral order or of the reasons for its issuance.
In addition to the above, the silence order was not simply an interlocutory order binding persons already parties to the criminal proceeding and already properly before the court. Rather, the silence order was directed at non-parties, who were brought before the court solely because of the court's desire to prevent outside interference with the trial. As such, the silence order was a final decision in a collateral matter against non-parties, with a continuing binding effect against such persons which would last indefinitely. Because of the application to revoke the oral order, it could be expected that the persons bound by that order would seek immediate appellate review since they faced the threat of criminal contempt charges if they disobeyed such order.
In light of the above factors, we have concluded, pursuant to our supervisory powers,*fn13 that the oral silence order was procedurally deficient. Where a district court enters such an order which is immediately appealable as a final decision in a collateral matter, and where such order binds non-parties for a continuing period of time, the order should be reduced to written form, stating specifically the terms of the order and the reasons therefor, and entered on the district court docket.*fn14 Accordingly, we hold that the written order of October 5, 1973, must be reversed. The district court should have vacated the oral order, held a prompt hearing after notice to the involved members of the press and parties, and, if a silence order was deemed to be justified, reduced such order to writing with specific terms and reasons and had it entered on the district court docket.*fn15
The above procedural requirements, which we impose under our supervisory power, are particularly necessary in a case such as the instant case, where the district court order affects the First Amendment rights of the press. First, the district court's failure to reduce the order to writing subjected the First Amendment rights of the press to an impermissible "chilling effect." The appellants could act only at their own risk since they were subject to the threat of criminal contmept for failure to comply with the order, and such risk was necessarily increased by the fact that the appellants had no written version of the order detailing precisely what conduct was prohibited. Second, the fact that the order involved the balancing of fundamental constitutional rights made it even more imperative that this court, in reviewing the merits of the order, have before it a written order providing specifically what conduct was restrained and for what reasons.
Finally, we note that the procedural requirements which we impose under our supervisory powers for this type of proceeding*fn16 are similar to those imposed by the Federal Rules of Civil Procedure. Cf. F.R. Civ. P. 54, 58, 65(d), and 79(a).*fn17
For the foregoing reasons, the district court written order of October 5, 1973, will be reversed and the case remanded for such action as may be necessary, consistent with this opinion.
ADAMS, Circuit Judge, concurring:
The procedural and constitutional issues raised by the district court's refusal to vacate its oral order restraining the publication in newspapers of certain background material concerning Schiavo do not readily lend themselves to precise formulation. Moreover, even though a satisfactory formulation may appear to be achieved, reasoned explanations for alternative definitions of a number of the issues exist. It is not surprising, therefore, that while I concur with the plurality's conclusions on several points -- for example, those concerning appealability*fn1 -- its opinion does not reflect my own perceptions of the problems presented by this appeal in several major respects.*fn1a
Thus, although agreeing that the appeal in this case is not moot, I attach somewhat greater significance than does the plurality to the representation made to this Court by the United States Attorney that the district court intends to conduct proceedings with the view to holding any person, subject to the order, who violated it, in contempt.*fn2 This representation renders the mootness question substantially more analytically difficult than the brevity of the plurality's discussion might suggest. Specifically, it would appear necessary to consider the effect of a determination that this appeal is not moot on an attempt by an alleged contemnor to attack the merits of the district court's order should a contempt proceeding take place.
Also, the plurality's characterization of the grounds for the reversal of the district court's order as "procedural" seems too facile. If the order is to fall because of the absence of procedural safeguards prior to its issuance, such safeguards are dictated in this case by the First Amendment values implicated. I would not invoke our supervisory powers, assuming such powers may be invoked in the context of the dispute presented here, to require the district courts to follow certain procedures when case law so clearly compels such a result in any event.
Further, the order in this case, in my judgment, may be questioned on the settled constitutional ground that it fails to achieve the precision that any restriction on speech or press must possess in order to comport with the First Amendment.
The district court's oral order sought to limit publication of potentially prejudicial material during the pendency of Schiavo's trial. By the time this Court was prepared to deal with the appeal from the order, the trial had concluded. Thus, since there no longer existed any reason to limit the publication of the matters arguably covered by the oral order, the Government asserts that the appeal is now moot.
The plurality "[rejects] this contention and [holds] that this case is reviewable as a dispute 'capable of repetition, yet evading review.'"*fn3 With this decision, I agree. However, although the plurality suggests that an alleged contemnor may be able to secure review of the merits of a silence order at a contempt proceeding, the question is far from settled and in rejecting the appellee's mootness contention, it may be suggested that we implicitly disparage the possibility of any review of the merits of silence orders at the contempt stage.*fn4
To discount the possibility of challenging an order in a contempt proceeding appears to be consistent with the Supreme Court's decisions in United States v. United Mine Workers*fn5 and Walker v. Birmingham.*fn6 "Violations of an order are punishable as criminal contempt even though the order is set aside on appeal."*fn7 Nonetheless, I, apparently like the plurality, am not confident that a silence order like the one here is completely immune from collateral attack in a contempt proceeding. Clearly, the question whether collateral attack on the merits of a silence order is available cannot be definitively resolved in this case, for we are not reviewing an attempt to attack an order collaterally in a contempt proceeding. But it appears appropriate to adumbrate considerations that may remove silence orders, at least in some instances, from what may seem to some to be the precedential ambit of United Mine Workers, and Walker.
In Walker, the Supreme Court stated that "[the] case would arise in quite a different constitutional posture if the petitioners, before disobeying the injunction, had challenged it in the Alabama courts, and had been met with delay or frustration of their constitutional claims."*fn8 It has been suggested, not unreasonably, that the Supreme Court thus "qualified the application of the collateral bar rule by requiring that adequate and effective remedies for review be present before the rule can be properly invoked."*fn9 Adopting such a precept, it can be argued that "adequate and effective" appellate remedies are frequently lacking when silence orders are issued during the course of a criminal case.*fn10
The facts of this case offer an illustrative situation. The district court issued its oral order at 2:00 P.M. on Friday afternoon and denied the motion to vacate about two hours later. Representatives of the media immediately filed notice of appeal. Both in the district court and here they moved for a stay. The district court denied the request and this Court did not grant a stay until the following Wednesday, five days later. On that same day, the jury returned its verdict. Hence, by the time the strictures of the district court's order were lifted the information covered by the order had, for all practical purposes, ...