UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SEALED APPELLANT 1,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

Magistrate's No. H-99-607-M

MARK L.D. WAWRO	WILLIAM BENNETT TURNER
Susman Godfrey LLP	Rogers, Joseph, O'Donnell & Quinn
1000 Louisiana Street, Suite 5100	311 California Street, 10th Floor
Houston, TX 77002-5096	San Francisco, CA 94104-2602
Telephone: (713) 651-9366	Telephone: (415) 956-2828
MICHAEL TRAYNOR
LORI R.E. PLOEGER
J. TIMOTHY NARDELL
Cooley Godward LLP
One Maritime Plaza
20th Floor
San Francisco, CA 94111-3580
Telephone: (415) 693-2000

The plot gets curiouser and curiouser. First the Government, on a secret application, obtains a United States Magistrate's Order (the "Magistrate's Order") that requires ApolloMedia to produce, on three days' notice, documents concerning a supposed criminal investigation conducted by a private university. Then Paragraph 7 of the Magistrate's Order prohibited ApolloMedia from even mentioning the existence of the Government's application or the Magistrate's Order "until authorized to do so by this Court." Now, seeking to defend this gag order on the ground that it had a compelling interest in placing a prior restraint on ApolloMedia's speech, the Government has provided ApolloMedia with only a "redacted" version of the brief it has presented to this Court, a version that omits all discussion of the Government's supposed compelling interest. Thus, ApolloMedia finds itself in the impossible position of fighting blindly against a gag order that continues to impose limitations on its First Amendment rights without even an inkling of the facts, if any, supporting the Government's alleged interest in secrecy.

Nonetheless, well-established Supreme Court and Fifth Circuit precedent compels the conclusion that Paragraph 7 of the Magistrate's Order is an unconstitutional prior restraint of speech. The cases that the Government cites in its brief do not support its extreme position. The gag order imposed on ApolloMedia should be lifted.

The Government argues in its response that Paragraph 7 of the Magistrate's Order was simply an application of 18 U.S.C. § 2705(B). The statute provides that a court may render an order that commands a provider of electronic communications "not to notify any other person of the existence of the warrant, subpoena, or court order" "for such a period as the court deems appropriate." 18 U.S.C. § 2705(B). But the statute must be construed consistently with the Constitution.

As discussed in ApolloMedia's brief, Section 2705(B) cannot authorize such a broad and unwarranted prior restraint on ApolloMedia's free speech. See Worrell Newspapers of Indiana, Inc. v. Westhafer, 739 F.2d 1219, 1222 (7th Cir. 1984)(striking down an Indiana state statute that prohibited public disclosure of a sealed indictment as an unconstitutional prior restraint). The gag order can only be upheld if the Government carries the burden of showing under the "most exacting scrutiny" that it has a "compelling" interest in accomplishing the prior restraint, and there is no less restrictive means of accomplishing the Government's compelling interest, with the "heavy presumption" that the order is unconstitutional. Id. (citing Smith v. Daily Mail Pub. Co., 443 U.S. 97, 101-02 (1979); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)). See also Davis v. East Baton Rouge Parish School Bd., 78 F.3d 920, 928 (5th Cir. 1996)("A prior restraint is constitutional only if the government demonstrates that the protected speech restrained poses a 'clear and present danger, or a serious or imminent threat to a protected competing interest.' ... Furthermore, '[t]he restraint must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms.")(citations omitted).

Even the limited facts available to ApolloMedia compel the conclusion that the Magistrate's Order is unconstitutional. Without the benefit of reviewing the Government's application or even the Government's argument to this Court, ApolloMedia cannot be expected completely to rebut the Government's asserted interest in preventing ApolloMedia's speech. But even without the record, the breadth and indeterminate duration of the gag order indicate that it was not the least restrictive means of accomplishing the Government's goals. Furthermore, the ease with which the Government obtained the Magistrate's Order strongly suggests that the Government's application did not receive the "most exacting scrutiny."

The Government likens Paragraph 7 of the Magistrate's Order to a protective order that prevents parties in a civil case from publicly disclosing information they have obtained in the course of discovery. On this basis, the Government argues that under Seattle Times Company v. Rhinehart, the gag order should be upheld so long as it furthers a governmental interest unrelated to the suppression of expression and the limitation of First Amendment freedoms is no greater than necessary to protect the governmental interest. The Government's analogy fails.

First, ApolloMedia is not a party to any case. The Seattle Times decision was premised on the fact that the Seattle Times had obtained information in the civil discovery process. The trial court had compelled the production of financial records and other private information to the Seattle Times in discovery but issued a protective order to prevent the Seattle Times from publicly disclosing that information. 467 U.S. 20, 27 (1984). The Supreme Court determined under those circumstances that the protective order was subject to First Amendment scrutiny but could not be considered to be an invalid prior restraint on speech. Id. at 31. The Court imposed a lower level of First Amendment scrutiny because it found that "judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination in a different context." Id. at 34. Here, in contrast, ApolloMedia is an innocent third party that was thrust into this controversy when it was served with the Magistrate's Order, and the order forbids it from telling anybody about either the controversy or the Order. It did not obtain independent information only "pursuant to a court order" and with the court's assistance, as in Seattle Times.

Second, Paragraph 7 of the Magistrate's Order imposes heavier restrictions on ApolloMedia's speech than the protective order in Seattle Times. The protective order in Seattle Times prevented the newspaper from "publishing or disseminating" information received during discovery but "[b]y its terms, ... did not apply to information gained by means other than the discovery process." Id. at 27. The Magistrate's Order, in contrast, does not merely prohibit ApolloMedia from disclosing private information, if any, that it received pursuant to the order. It also prevents ApolloMedia from speaking to anyone for an indeterminate amount of time about the unorthodox way in which the Government obtained the order and the very existence of the order itself.

In short, the Magistrate's Order infringes ApolloMedia's First Amendment rights to a far greater extent that the protective order at issue in Seattle Times. The Court must apply the highest level of scrutiny.

The Government also relies on cases involving the public right of access to nonpublic government information to attempt to lower the level of scrutiny that this Court should use in reviewing the gag order. Again, the analogy is not apt.

Each of the public access cases that the Government cites - Nixon v. Warner Communications, American Civil Liberties Union v. Mississippi, and Times Mirror Co. v. United States - involved private citizens seeking access to materials in the possession of the courts. In such situations, the Supreme Court has established that courts have discretion to limit the public's common law right to inspect and copy court records, and the First Amendment does not grant the press a right of access to information that the courts have not made public. Nixon v. Warner Communications, 435 U.S. 589, 597-99 (1978). These cases have no bearing on this controversy because ApolloMedia is not seeking access to private government information. ApolloMedia is merely seeking to speak freely about information that it has already learned.

Similarly, the Government's discussion of U.S. v. $9,041,598.68 is inapposite. That case involved the court's power to receive in camera the Government's evidence regarding corruption at the highest levels of the Mexican attorney general's office. 163 F.3d 238, 244-45, 251 (5th Cir. 1998). In the context of the forfeiture proceedings at issue, the Court determined that the Government's interest in protecting the confidentiality of its sources outweighed the claimant's interest in viewing the evidence that the Government used to obtain its seizure order. Id. at 251. Again, this case involved access to evidence, not a prior restraint on speech.

Finally, the Government's citation to McGehee v. Casey - a case involving limitations on an ex-CIA agent's right to publish secrets learned during his employment - is inapposite because that case explicitly turned on the Government's interest as an employer in regulating the speech of employees. 718 F.2d 1137, 1141 (D.C. Cir. 1983) ("[T]he State has interests as employer in regulating the speech of employees that differ significantly from those it possesses in connection with regulation of speech of the citizenry in general."). Such prepublication review restrictions on former CIA agents are contractually or otherwise voluntarily assumed and therefore have been excluded from the prohibition against prior restraints. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980).

In its brief, the Government acquiesces to the redaction and release of the Magistrate's Order. This demonstrates that the Government has no compelling interest in prohibiting ApolloMedia from speaking about it.

The Government's rendition of its offer to redact the Magistrate's Order in the proceedings before the District Court is inaccurate, and shows that the Court should treat the Government's Response with skepticism. The Government's redacted brief states,

The United States advised the court that it "offered to discus s the publication of a redacted version of Magistrate Judge Crone's June 16, 1999, Order with counsel for Apollo in a telephone message to counsel for Apollo on August 27, 1999," and "[t]hat offer remains open."

(Redacted Brief of Plaintiff-Appellee, at 7 fn.3.) The Government thereby restates a similar prior statement to the district court. (RE of Plaintiff-Appellee at Tab 1, p.5 fn.1.) The truth, however, is that both statements are erroneous and that Assistant U.S. Attorney J. Richard Berry, after making the erroneous statement to the district court, wrote to ApolloMedia's counsel to apologize and stated "I apologize for any suggestion in my pleading that you had ignored my earlier telephone call regarding the release of a redacted version of Magistrate Judge Crone's Order. I may have misdialed the number or I may have been much less than clear in my message. In any event, I apologize if I implied that you or your client had ignored my offer to release a redacted version of the order." (See Sealed Appellant's Motion to Augment the Record and to Strike, Exhibit A.) Notwithstanding the Government's apology, however, the Government elected not to correct the record in the district Court and to repeat its misstatements in this court, knowing they were wrong.

The Government's misrepresentation of these basic procedural facts is especially troubling because ApolloMedia has not had the opportunity to scrutinize the entire record and the argument made in the Government's unredacted brief.

As ApolloMedia stated in its opening brief and its Motion to Expedite, the constitutional issues raised by the gag order merit oral argument. This Court agreed in its Order expediting this appeal and designated this matter for oral argument before the first available oral argument panel. Order Dated November 24, 1999.

In its continuing effort to put wraps on this proceeding, the Government contends that "Oral argument should be denied because (1) the facts and legal arguments are adequately presented in the briefs and record and (2) the decisional process would not be significantly aided by oral argument." To eliminate any doubt about ApolloMedia's position, ApolloMedia restates its request for oral argument. Consistently with its position that these proceedings should be unsealed, ApolloMedia also requests that the oral argument in this case be in open court in accordance with the Court's customary procedures.

Secret proceedings, ex parte evidence, and gag orders are the instruments

of a totalitarian regime. They are intolerable in a free country. The Government has abused ApolloMedia's rights under the First Amendment and under the Due Process Clause. It has aggravated that abuse in this court with a secret brief, undisclosed to ApolloMedia.

This Court should remedy the violations of the Constitution as follows:

1. By a published order reversing the gag order and instructing the court below to vacate it.

2. By a published order unsealing the proceedings in this Court, including the secret brief of the Government, and further ordering the court below to unseal all proceedings affecting ApolloMedia, including the Government's initial application in the court below for an order requiring ApolloMedia to respond to the Government's demands for information.

3. By a published order requiring the Government forthwith to deliver to ApolloMedia true and exact copies of its secret brief in this Court and such secret initial application for an order in the court below.

4. By a published opinion that discloses the violations of constitutional rights that occurred in this case and that demonstrates beyond question that the Court will not tolerate the tactics that the Government has employed.

5. By a published order instructing the court below to provide ApolloMedia with any and all additional relief that is fair and proper in the circumstances.

Dated: January 18, 1999 Respectfully submitted,

Mark L.D. Wawro
SUSMAN GODFREY LLP

William Bennett Turner
ROGERS, JOSEPH, O'DONNELL & QUINN

Michael Traynor
Lori R.E. Ploeger
J. Timothy Nardell
COOLEY GODWARD LLP

By:_________________________________
Michael Traynor

ATTORNEYS FOR APOLLOMEDIA CORP.