February/March 2012

Miami Judge Denies Motion to Gag Southern Poverty Law Center

Holland & Knight Newsletter
Stacey H. Wang

Finding no threat to fair trial rights and therefore no violation of local court or state bar rules, a federal magistrate denied a private youth prison contractor's motion to gag Southern Poverty Law Center (SPLC) lawyers in litigation alleging constitutional violations against juveniles by the prison guards.

SPLC, on behalf of youths detained at the contractor's privately-owned, publicly-funded prison, sued the contractor, its owner and a prison counselor for damages and an injunction, alleging that the guards systematically abuse children incarcerated at the facility.

The facility, frustrated at SPLC's publicity and its efforts to lobby the Florida Legislature to terminate the company's contract, moved to gag all participants. The facility's motion was based upon alleged violations of Local Rule 77.2(a)(7) and The Florida Bar Rule 4-3.6(b) by SPLC lawyers in their interactions with reporters and mobilization of a community group. The facility argued that SPLC was saturating the media with information about the trial as part of a media campaign "to try and convict [the facility] in the local press," "robbing" them of their Seventh Amendment right to an impartial jury, and violating the local court and state bar rules.

At the hearing, defense counsel asserted that numerous articles about the litigation - regardless of how early in the proceedings they were published - are forever digitally archived on the Internet and within reach of potential jurors. Defense counsel also submitted purported evidence of communication between SPLC lawyers and reporters and argued that such communications were clear violations of the Local Rules.

SPLC countered that most of the articles were published at the times the complaint and amended complaint were filed and that trial was still months away. Importantly, the publicity targeted by the defendants implicate SPLC's right to exercise core political speech, including protest flyers, communication with legislators, appearances at rallies and an appearance by a plaintiff's mother at a legislative hearing. SPLC also argued that the publicity in the record in this case simply did not compare to the "carnival atmosphere" described in case law that the defendants cited.

Magistrate Judge Andrea M. Simonton sided with SPLC and would not issue the gag order. In the court's written order, she rejected the facility's argument that the language of the Local Rule created a presumption of a "reasonable likelihood" of interference with a trial. She also noted that the facts were distinguishable from the precedent the defense relied on. The magistrate found no evidence that the archived online articles were still in active circulation and, to the extent that potential jurors may be able to access past articles electronically, the magistrate ruled that "such concerns are more appropriately addressed at the time of trial." Accordingly, she held that a protective order was inappropriate.

Holland & Knight represented the Southern Poverty Law Center in this matter.

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