MEMORANDUM AND ORDER ON DEFENDANTS' AND INTERVENORS' MOTIONS
The Chicago Council of Lawyers, an association of local
lawyers, and seven of its attorney members have filed this action
for declaratory judgment and injunction seeking a finding that
Rule 1.07 of the Local Criminal Rules of this court and
Disciplinary Rule DR 7-107 of the American Bar Association Code
of Professional Responsibility (collectively referred to as the
no-comment rules) are facially unconstitutional as violative of
the plaintiffs' first amendment rights.*fn1 The no-comment rules
prohibit the release of information by counsel in connection with
pending criminal jury cases, "if there is a reasonable likelihood
that such dissemination will interfere with a fair trial or
the due administration of justice." Local Rule 1.07(a). A.B.A.
Disciplinary Rule DR 7-107(G) extends these principles to civil
The complaint has two counts: Count I is on behalf of
plaintiffs individually while Count II is a purported class
action brought on behalf of all similarly situated attorneys.
Certain criminal defense lawyers were granted leave to intervene
and presently have before the court a motion to have themselves
declared the proper representatives of the subclass of attorneys
defending criminal cases. Both the intervenors and the defendants
have moved to dismiss for failure to state a claim upon which
relief can be granted.*fn3 For the reasons herein stated, the
court grants the motions of intervenors and defendants to
dismiss. In light of this disposition, the procedural questions
raised by the intervenors need not be reached.
A fundamental tenet of our system of justice is "that the
conclusions to be reached in a case will be induced only by
evidence and argument in open court, and not by any outside
influence . . ." Patterson v. Colorado, 205 U.S. 454, 462, 27
S.Ct. 556, 558, 51 L.Ed. 879 (1907). The right to a fair and
impartial adjudication extends not only to criminal defendants
but also to the government and, through it, to society. Cf.
Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d
446 (1970); North Carolina v. Pearce, 395 U.S. 711, 721 n. 18, 89
S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Tijerina,
412 F.2d 661, 666 (10th Cir.), cert. den., 396 U.S. 990, 90 S.Ct.
478, 24 L.Ed.2d 452 (1969); State v. Kavanaugh, 52 N.J. 7,
243 A.2d 225, 231 (1968). Yet, in recent years, it has become
increasingly evident that this fundamental right has been
seriously threatened by excessive and prejudicial publicity.
Against this background, the Supreme Court in Sheppard v.
Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1961),
directed district courts to seek an accommodation between the
competing constitutional guarantees of fair trial and free
speech. In clear and unequivocal language, the Court declared:
"The courts must take such steps by rule and
regulation that will protect their processes from
prejudicial outside interferences. Neither
prosecutors, counsel for defense, the accused,
witnesses, court staff nor enforcement officers
coming under the jurisdiction of the court should be
permitted to frustrate its function. Collaboration
between counsel and the press as to information
affecting the fairness of a criminal trial is not
only subject to regulation, but is highly
censurable and worthy of disciplinary measures."
(Emphasis added.) 384 U.S. 363, 86 S.Ct. 1522.
With respect to extrajudicial disclosures by counsel, the Court
was quite explicit:
"More specifically, the trial court might well have
proscribed extrajudicial statements by any lawyer,
party, witness, or court official which divulged
prejudicial matters, such as the refusal of Sheppard
to submit to interrogation or take any lie detector
tests; any statement made by Sheppard to officials;
the identity of prospective witnesses or their
probable testimony; any belief in guilt or innocence;
or like statements concerning the merits of the
case." (Emphasis added.) 384 U.S. 361, 86 S.Ct. 1521.
The plaintiffs contend that there are four respects in which
the no-comment rules, as applied to criminal jury trials, exceed
the minimum restraint required to assure a fair and impartial
jury trial and are thus facially unconstitutional.
Plaintiffs first argue that the failure of the rules to provide
for the employment of traditional protective devices, in lieu of
partially silencing attorneys, renders them
unconstitutional.*fn5 Initially, it must be remembered that such
devices, unlike the challenged rules, are not preventive
measures, but merely attempts to overcome the effects of
prejudicial publicity once it has occurred. As the court in
Sheppard was careful to point out, "the cure lies in those
remedial measures that will prevent the prejudice at its
inception." (Emphasis added.) 384 U.S. 333, 363, 86 S.Ct. 1522.
Measured against the no-comment rules, these traditional
techniques are clearly inadequate. Continuances, of course, are
in conflict with the Sixth Amendment guarantee of a speedy trial.
Changes of venue compel defendants to sacrifice their
constitutional right to trial in the locale in which the crime
took place. Further, neither these devices nor cautionary
instructions can negate the effect of prejudicial publicity once
it has permeated the proceedings. Sequestration of the jury is
equally inadequate. If it is ordered because of the jurors'
exposure to prejudicial publicity before trial, irremediable
damage may have already been done. Sequestration is generally
viewed as an undesirable last resort by defense counsel
(Intervenors' Br. 24) and may itself prejudice the defendant
because of the inconvenience and annoyance it causes jurors. It
should not be invoked merely to permit attorneys to disseminate
prejudicial publicity. See Reardon Report, 73-76.
Plaintiffs next contend that the rules are unconstitutionally
overbroad because they fail to draw any distinction between
comments favorable to the criminal defendant and those which are
hostile. Admittedly, the publicity problem in the main has been
one of prosecutorial excesses. Reardon Report, 37, 42-43.
However, this does not permit the court to assume that defense
counsel's comments would be non-prejudicial to the prosecution
even though merely favorable to the defendant. Indeed, the
report of a New York City Bar Association committee, chaired by
Judge Harold R. Medina, indicated that it is not uncommon for
defense counsel to actively generate publicity which may taint
the impartiality of a tribunal. See Medina Report, 43-55; Reardon
Report, 42-43, 175; United States ex. rel. Bloeth v. Denno,
313 F.2d 364, 378-379 (2nd Cir.) (dissent), cert. den., 372 U.S. 978,
83 S.Ct. 1112, 10 L.Ed.2d 143 (1963); Sheppard v. Maxwell, supra,
384 U.S. 361, 86 S.Ct. 1507. The adoption of the onesided
approach urged by the plaintiffs would ignore the correlative
interest of society in a fair trial. Any limitation of
prejudicial comment should apply to any attorney bent on securing
improper advantage. State v. Van Duyne, 43 N.J. 369,
204 A.2d 841, cert. den., 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279
(1969); State v. Kavanaugh, supra.
Plaintiffs' third objection is that the rules constitute a
"prior restraint" of first amendment rights and must be judged
accordingly. See Organization for a Better Austin v. Keefe,
402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); New York Times Co.
v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822
(1971). However, unlike the cited cases, the instant situation
does not impose a blanket prohibition on all speech irrespective
of content. Rather, the challenged rules seek only to punish
speech from which prejudice is reasonably likely to result. They