Publicity: The US Perspective

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35.1 Restrictions in a criminal investigation or trial

35.1.1 Generally

The US Constitution guarantees defendants in criminal cases the right to a speedy and public trial. It also guarantees all Americans freedom of speech and freedom of the press. In the trial setting, these constitutional rights are sometimes in conflict. For instance, although freedom of the press is guaranteed, media reports about a case can taint a pool of potential jurors or might allow sworn jurors to learn about matters not in evidence. Accordingly, lawyers practising in the United States must be aware of the multiple, conflicting rights that affect judicial proceedings. These rights include the public’s right of access to trial proceedings,[2] the media’s right to report what occurs in court,[3] the litigants’ freedom of speech[4] and the defendant’s right to a fair trial.[5] No one right is absolute, and each is limited by various rules and regulations.[6]

A lawyer’s ethical obligations, for example, may limit the attorney’s First Amendment right to speak publicly about a case. Under the American Bar Association Model Rules of Professional Conduct, which have been adopted, in whole or in part, by the vast majority of US jurisdictions, a lawyer who has or is participating in a matter must not make an ‘extrajudicial statement’ that ‘will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter’.[7] In federal criminal cases, prosecutors must also comply with these rules, as well as those published in the Justice Manual, limiting the information a prosecutor may disclose or the issues he or she may comment on.[8]

Apart from the rules prohibiting a lawyer from publicly commenting on a pending case, a lawyer’s professional duty to keep client matters confidential may also prevent him or her from publicising information about a case.[9]

35.1.2 Investigatory and pretrial stage

During the investigative stage of the case, before charges have been filed, a court cannot limit an individual involved in an investigation from making public statements about the case. But because such statements can be used by a prosecutor against a defendant in a subsequent criminal proceeding (either as substantive evidence or to demonstrate that the individual waived his or her right to remain silent), lawyers often counsel their clients to exercise their free speech rights carefully, if at all. Prosecutors are more constrained, however. The Justice Manual provides that a prosecutor cannot make public statements about a case if there is substantial likelihood that the statement will materially prejudice an adjudicative proceeding.[10] Similarly, prosecutors, but not individual witnesses, are prohibited from disclosing any matters that occur before a grand jury.[11]

The execution of an FBI search warrant at Mar-a-Lago, the Florida residence of former President Donald Trump, illustrates the explosive impact that pretrial publicity can have on the conduct of an investigation. Search warrants and the factual bases underlying them are confidential documents filed under seal, and normally not publicly revealed until formal charges are filed and a trial occurs. However, in an unusual move, the former president issued a public statement about the search at his residence. Almost immediately, media companies sought to have the underlying affidavit in the search warrant released, and on 26 August 2022, the affidavit of probable cause was released in heavily redacted form.[12] Additional unsealing motions were made,[13] and a less redacted version was unsealed.[14] The fallout resulting from the search warrant dominated news coverage for weeks following the release of the warrant, as well as the unusual unsealing of photos of evidence seized as well as lists of property removed. The publicity surrounding the search warrant execution, as well as the notoriety of the former president, is likely to have contributed to subsequent decisions by a district court to appoint a Special Master to review the items seized and enjoin the government from continuing its review of the materials pending the completion of the Special Master’s review.[15] The appointment of the Special Master was overturned by the 11th US Circuit Court of Appeals on 1 December 2022.

Once charges have been filed, courts have greater ability to insulate their proceedings from the prejudicial effects of any publicity.[16] A judge’s failure to exercise this power may, under certain circumstances, violate a defendant’s right to a fair trial.[17] In widely publicised cases, the local rules may authorise the court to issue orders governing extrajudicial statements by parties, witnesses and attorneys, and the seating and conduct of spectators, as well as the sequestration of jurors and witnesses.[18] Sometimes, litigants can attempt to prevent the public disclosure of private or prejudicial information prior to trial by filing their documents under seal and pursuant to protective orders.[19] However, because the First Amendment guarantees the public’s right of access to governmental proceedings, sealed filings can only be made with the court’s permission and upon a showing of necessity or that unfair prejudice might result from public dissemination. Accordingly, motions to seal proceedings are not lightly granted, and government lawyers in particular are severely limited in their ability to file motions under seal or to consent to their opponent’s request to close proceedings.[20] Rather than seal proceedings or files, courts must consider whether a change of venue, jury sequestration or gag orders, among other techniques, would adequately protect the rights of the parties.

Courts sometimes issue gag orders to protect against undue pretrial publicity. For example, Judge Amy Berman Jackson, who presided over the criminal case against Paul Manafort (President Donald Trump’s former campaign manager), issued a gag order in the trial, barring anyone involved in the case from making public statements that might taint it. In her written order, Judge Jackson stated that she wanted to make sure the trial was fair and that potential jurors were not influenced by pretrial publicity.[21] It is far more common, however, for courts to deny gag orders, even in cases where the public interest in the case is quite high. For example, despite the negative publicity and strong public reaction surrounding former Jeffrey Epstein associate Ghislaine Maxwell’s sex-trafficking case, the court denied Ms Maxwell’s motion to prohibit ‘the Government, its agents and counsel for witnesses from making extra­judicial statements’ about the case, holding that the public comments cited to date had not impeded Ms Maxwell’s right to an impartial jury.[22] However, in July 2021, Judge Nathan ordered counsel associated with the case, whether or not they had filed a notice of appearance, to comply with Southern District of New York Local Criminal Rule 23.1, to refrain from making public statements that could interfere with a fair trial or otherwise prejudice the due administration of justice.[23]

In another case charging former President Trump’s confidant Steve Bannon, the court again stopped short of issuing a gag order, even in light of a defendant’s comments on social media that the charges against him were a ‘witch hunt’ and that he and the other defendants were ‘political prisoners’. Rather, the court cautioned both sides that inappropriate public comments would not be tolerated and that it expected that both sides would be able to abide by its ruling.[24]

Upon a showing that pretrial publicity about the case will prevent the empanelment of an impartial jury or will otherwise prejudice the defendant, the defendant can move to have the case transferred to another district.[25]

In the Manafort matter, defence attorneys were concerned that the extensive pretrial press coverage of all aspects of the investigation and indictment would taint the jury panel. Mr Manafort moved for a change of venue, arguing that extensive media coverage of the investigation and subsequent indictment infected the jury pool in Alexandria, Virginia, where the indictment was brought. The court denied that motion, arguing that the media coverage surrounding the case had not turned it into a ‘carnival’ or ‘circus’ and had not disrupted the ‘judicial serenity and calm’ to which Mr Manafort was entitled.[26]

In addition to motions to change venue to countermand the impact of pretrial publicity, courts may craft alternate remedies. In the cases stemming from the attack on Congress on 6 January 2021, a district court judge in Washington, DC, delayed the trial of several alleged insurrectionists from August 2022 to December 2022, reasoning that there was good cause to delay the trial because: ‘(1) the prejudicial publicity stemming from the ongoing congressional hearings and (2) the chaos that would be caused if, as the Government expects, the [Select Committee to Investigate the January 6th Attack on the United States Capitol] releases a thousand potentially relevant interview transcripts to the public in early September, in the middle of the currently scheduled trial . . . there was good cause to delay the trial.’[27]

35.1.3 Trial and post-trial stage

Because the right to an impartial jury is also guaranteed by the US Constitution,[28] a defendant may question jurors about their exposure to pretrial publicity.[29] In one of the most highly publicised cases in modern history – the 1995 murder trial of football legend O J Simpson – it took nearly two months to seat an impartial jury not prejudiced by the near-constant media coverage of the case. During jury selection, jurors were prohibited from reading the papers, watching television or even awakening to a clock radio.[30] In the Manafort trial, Special Counsel Robert Mueller filed a motion to use a written juror questionnaire as a supplement for oral questions at jury selection to root out those jurors who might have formed biases or prejudged the evidence based on the extensive media coverage of the case.[31] Consistent with his claims of prejudice resulting from pretrial publicity in his motion to move his trial, Mr Manafort agreed with the government’s request to use a juror questionnaire as part of the jury selection. In widely publicised cases, courts frequently permit lawyers additional peremptory challenges (beyond the number normally allowed), which allow lawyers to summarily disqualify a potential juror without providing a reason to the court.[32] During the trial, jurors may be sequestered to protect them from the prejudicial effect of media reporting.[33] In this day and age, the court may instruct jurors not to read or post information about the trial on social media and other internet forums.[34] A failure to allow for a fair trial or to protect the impartiality of a jury will result in a mistrial and may require other post-trial remedies.[35] For example, the failure of a district court to adequately explore the impact of the extensive pretrial publicity in the 2015 trial of Dzhokhar Tsarnaev for the Boston Marathon bombings recently led the federal appellate court to vacate Mr Tsarnaev’s death sentence. Specifically, the First Circuit Court of Appeals found that the lower court had not adequately assessed the impact of pretrial publicity on potential jurors, nor had it adequately investigated the potential jurors’ use of social media expressing opinions about the case before and during trial. The court found that these errors resulted in a panel of jurors who had prejudged Mr Tsarnaev’s guilt. The penalty portion of the case was remanded to the lower court for a retrial.[36] Prosecutors petitioned for Supreme Court review, however, which reversed the appellate court’s decision, affirming Mr Tsarnaev’s death sentence.[37]

The 2021 trial and conviction of former Minneapolis police officer Derek Chauvin for the murder of George Floyd in police custody generated enormous publicity, including round the clock media coverage of his televised trial. Like in the Boston bombing matter, Mr Chauvin’s attorneys have appealed his conviction and 22.5-year sentence, arguing among other things that the trial should have been moved to another venue owing to the heavy publicity.[38] This appeal is ongoing.

35.1.4 Discovery of internal corporate communications

Issues of public access affect other areas of legal practice. Even where confidentiality of process and information is assumed, rules governing discovery in civil or criminal cases can lead to the disclosure of internal communications and records, even in sensitive investigations. The Federal Rules of Civil Procedure allow for pretrial discovery that is far more expansive compared to other jurisdictions.[39] Specifically, Rule 26(b)(1) allows parties to conduct discovery of ‘any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case’.[40] As a result, companies that find themselves subject to class-action or shareholder derivative lawsuits that result from internal investigations are often forced to hand over troves of potentially damaging internal corporate communications. For example, the shareholder derivative litigation against the board of the Walt Disney Company lasted more than eight years, and the extensive discovery produced a damaging factual record about the board’s corporate governance practices that ultimately forced Disney chief executive officer (CEO) and board member Michael Eisner to resign.[41] Although protective orders can limit disclosures to some extent during the discovery process, a presumption of public access arises once documents are filed in court in support of motions and as part of trial proceedings.[42]

Civil discovery is not the only means through which seemingly confidential internal communications and records can become public. Many companies are forced to initiate or expand the scope of internal investigations after a regulator issues a subpoena or civil investigative demand for internal records. Additionally, certain public institutions, such as colleges and universities, are subject to public records laws that may require the institutions to release or publish documents both during and after the investigation.[43] And, increasingly, large-scale document leaks thrust internal corporate documents into the public sphere without warning.[44] The practical reality is that any organisation undergoing an internal investigation must prepare for the possibility that it will have to produce internal documents at some point.

Although a detailed description of all the defensive measures available to companies is beyond the scope of this chapter, a basic list should include confidentiality agreements to cover sensitive communications with third parties, protective orders (where available) to limit the scope and permitted usage of produced materials, and the careful maintenance of the attorney–client and work-product privilege during investigations.

35.1.5 The effect of covid-19 on publicity of hearings and trials

As the covid-19 pandemic disrupted the world in 2020, courts were required to adapt to virtual hearings and trials. Remote hearings, available for the public to view from their homes, have brought transparency and increased scrutiny to proceedings that may have been ignored in the past. It is much easier to tune in to a virtual hearing on your laptop than travel to a courthouse. With increasing public access to the courtroom, issues of pretrial publicity or concerns about a litigant’s public comments may soon be a quaint vestige of a bygone era. The public will be able to see and judge for themselves what is happening in a particular matter or trial. It may become harder to shape the public view by spinning the story.

However, increased public access is not always ideal. For example, whereas in a live trial setting a court or prosecutor can seek to exclude spectators who might threaten or intimidate a witness, there is no ability to control public access in a live stream. In the highly public trial involving celebrities Amber Heard and Johnny Depp, Ms Heard testified about harassment and death threats she received during trial[45] which was televised on Court TV and rebroadcast on social media outlets around the clock.[46] In recognition of the dangers that might result from live broadcast of courtroom trials, the Pennsylvania Supreme Court recently halted live YouTube trial broadcasts.[47] Similarly, in the trial of Theranos founder Elizabeth Holmes, which took place in the Northern District of California, there was no live remote public access to the trial proceedings, although the court did allow an overflow room for public access to a live feed of the trial testimony. [48]

35.1.6 Consulting a public relations expert

Given the likelihood that the public may become aware of internal corporate communications relating to an investigation, many organisations (and some well-resourced individuals) resort to hiring a public relations expert to assist counsel during the course of an investigation. Public relations experts can serve a variety of functions, including preparing executives for public appearances during investigations, developing communications strategies around key investigation events (e.g., press conferences regarding investigation status), and planning for potential crises (e.g., a witness leaking the preliminary findings of an investigation prior to the investigation’s completion). For many organisations, hiring a public relations expert to advise them during an internal investigation can be a foregone conclusion in the relentless 24-hour news cycle. Volkswagen, for example, hired three public relations firms based in three different countries to advise during its investigation of alleged emissions cheating.[49] During an investigation into potential corporate misconduct, special considerations arise when the public relations specialist works closely with legal counsel for the company. Frequently, questions of whether the attorney–client privilege applies to protect communications between lawyers and public relations experts arise during an investigation. Although the attorney–client privilege normally requires that the protected communication occur between a lawyer and his or her client and exclude third parties, in some circumstances the privilege extends to communications between a non-lawyer consultant and the lawyer’s client. In United States v. Kovel, for example, the Second Circuit held that communications between and among the client, the consultant and the attorney are privileged if they are made in confidence and ‘for the purpose of obtaining legal advice’.[50]

Kovel, however, does not create a blanket privilege to protect communications between attorneys, their clients and public relations experts. Instead, after Kovel, courts determining whether to apply the attorney–client privilege to communications with consultants such as public relations experts have focused on whether the communications with the consultant were ‘imparted in connection with the legal representation’.[51] For example, when Martha Stewart and her attorneys hired public relations consultants to assist them in dealing with the media in her high-profile insider trading case, the court protected those communications under the attorney–client privilege because the communications were made for the purpose of giving or receiving advice directed at handling Ms Stewart’s legal problems.[52] Applying Kovel, the court explained:

[T]his Court is persuaded that the ability of lawyers to perform some of their most fundamental client functions – such as (a) advising the client of the legal risks of speaking publicly and of the likely legal impact of possible alternative expressions, (b) seeking to avoid or narrow charges brought against the client, and (c) zealously seeking acquittal or vindication – would be undermined seriously if lawyers were not able to engage in frank discussions of facts and strategies with the lawyers’ public relations consultants.[53]

In contrast, the court in Haugh v. Schroder Investment Management found that the attorney–client privilege did not apply to a public relations expert retained for the plaintiff when the plaintiff could not show that the expert’s services were ‘anything other than standard public relations services’ for the client, and were not necessary for plaintiff’s counsel to provide the plaintiff with legal advice.[54] The conclusion to be drawn from these two cases is simple.[55] To cloak communications with public relations experts advising clients in legal matters, the lawyer needs to retain the public relations expert, and the communications between the consultant and the client must be intended to assist the attorney in advising his or her client.

35.2 Social media and the press

35.2.1 Social media as an investigatory tool and as evidence

For better or for worse, social media is more than just a tool for friends and family to connect and communicate. The prevalence of social media has created a continuously updated record that is increasingly used to investigate wrongdoing and that can be admitted as evidence in judicial proceedings.

With respect to investigative activities, whether by the government or private parties, social media users generally do not have an expectation of privacy.[56] However, some of the typical features of social media – for example, the fact that social media users generally have password-protected accounts and various privacy settings to control what information other users can view – have created some legal distinctions. Courts have distinguished between public and non-public postings and focused on a user’s privacy settings when determining whether Fourth Amendment protections against unreasonable searches extend to social media content accessed by the government.[57] However, even where a user limited viewable postings to his or her ‘friend network’, the government is not precluded from seeking co-operation from one of the user’s friends authorised to view the user’s content.[58] Unlike investigators, private American lawyers are constrained by ethical rules in their use of social media. For example, the New York State Bar Association’s Committee on Professional Ethics has ruled that ‘friending’ an investigatory target or opposing party, or instructing a third party to do so on the lawyer’s behalf, is a prohibited act of deceptive conduct or making of a false statement.[59] Accordingly, for private lawyers, care needs to be taken in how social media content is collected and used.

From the standpoint of admissibility as evidence in a proceeding, social media content is not fundamentally different from other paper or electronic evidence. The same evidentiary considerations apply: to be admissible, the evidence must be relevant, have probative value outweighing its potential to unfairly prejudice, and be authentic and free of hearsay.[60] Some courts treat evidence from social media similarly to other types of evidence and require only a threshold showing of authenticity.[61] Other courts require evidence that affirmatively disproves the possibility that evidence from social media was sent or manipulated by anyone other than its putative creator.[62]

In 2018, business magnate Elon Musk put himself in a precarious situation when he tweeted: ‘Am considering taking Tesla private at $420. Funding secured.’[63] The United States Securities and Exchange Commission (SEC) sued him for the tweet, arguing that ‘[Mr] Musk had not even discussed, much less confirmed, key deal terms, including price, with any potential funding source.’[64] Mr Musk and Tesla settled with the SEC. They each paid a US$20 million fine and agreed to certain reforms, including oversight of Mr Musk’s social media usage.[65] As a result of the settlement, shareholders sued Tesla and Mr Musk, alleging that he defrauded shareholders due to volatility in Tesla’s stock price following the Tweet.[66]

Mr Musk’s tweets from 2018 came back into media focus when he agreed to purchase Twitter and take it private for $54.20 per share, subsequently attempted to back out of the deal and finally completed the acquisition in October 2022.[67] Even for one of the richest men in the world, social media can cause a wake of problems in a lawsuit and provide a wealth of evidence for opposing counsel to use – proving that the maxim ‘silence is golden’ may be painfully true, especially if a prolific social media user is also likely to find him or herself in court.

35.2.2 Social media and the jury

In jury trials, issues surrounding social media generally fall into two categories: lawyers using social media to screen potential jurors, and jurors using social media improperly during a proceeding.

In the pretrial process, lawyers are ethically permitted to screen jurors based on social media profiles. On 24 April 2014, the American Bar Association issued Formal Opinion 466, which clarified that the act of passively observing a potential juror’s public social media information is not improper ex parte contact with a juror or potential juror.[68] However, a lawyer may not send an invitation or request to friend or connect with a potential juror to gain access to the potential juror’s information. Social media websites that provide notifications to users when their information is viewed, such as LinkedIn, also do not constitute improper contact as long as the lawyer does not make an active request to view non-public information.[69] If defence counsel learns from internet research that a prospective juror has made misrepresentations during voir dire, counsel should bring this misconduct to the court’s attention. Failure to do so could potentially result in a waiver and an impairment of the defendant’s right to an impartial jury.[70]

During trial, jurors’ use of social media presents a risk of mistrial. To address this risk, counsel may request jury instructions on the use of social media prior to commencement of trial. Formal Opinion 466 also suggests that courts deliver jury instructions on the use of social media ‘early and often’ and even ‘daily in lengthy trials’.[71] This guidance comes as jurors have used social media to publicly discuss trial issues or access witnesses and litigants, which ultimately has resulted in remands, reversals and other judicial inefficiencies.

For example, in Dimas-Martinez v. State, a death row inmate’s murder conviction was reversed and remanded, in part because of a juror’s tweets during trial.[72] The jury received instructions at the beginning of the trial warning them not to tweet or use social media but a juror nonetheless tweeted at the conclusion of the evidence in the sentencing phase of the trial.[73] The defendant’s lawyer notified the court, and the court questioned the juror.[74] The juror admitted to the tweet and promised to discontinue use of social media for the duration of the trial.[75] But even though the juror tweeted at least two more times, the trial court refused a motion for a new trial, finding that the defendant suffered no prejudice from the tweets.[76] The Supreme Court of Arkansas disagreed, concluding that the juror’s tweets were impermissible public discussion of the case, and that the insubordination of the juror to the court’s instructions contributed to the defendant’s denial of a fair trial.[77] In contrast, some courts have found that the use of social media alone is not necessarily prejudicial to the defendant if juror misconduct and actual prejudice are not found. For example, in United States v. Aiyer, the court found that a juror’s mid-trial podcasts did not contain any evidence suggesting that the juror did not deliberate impartially. Having found that nothing in the podcasts suggested that the juror was biased against the defendant or that the defendant was prejudiced by the juror’s podcasts, and that the audience of the podcast was too small to meaningfully prejudice the defendant, the court declined to conduct any post-verdict inquiries.[78]

The 2019 trial of Roger Stone, a confidant of President Trump, for making false statements to Congress and witness tampering, demonstrates issues that can arise when social media is used by the defendant prior to or during a trial. In Mr Stone’s case, he routinely posted information about his case on Instagram. As a result of an Instagram photo of the judge presiding over his case with what appeared to be crosshairs in the background, the government sought to modify or revoke his pretrial bail status and to place strict limits on his right to speak publicly about the case. The Instagram post occurred just days after the court barred both counsel and Mr Stone from making statements to the media or the public that posed a threat of material prejudice to the case or that were intended to influence any juror, potential juror, judge or witness.[79] The court viewed the Instagram post as violating both its order on media comments and Mr Stone’s bail conditions. The court prohibited Mr Stone from any media contact, prevented him from speaking or posting about the case anywhere and barred Stone from using surrogates to comment on his behalf about the case. Further, jurors in Mr Stone’s case expressed fear after numerous tweets harassing and threatening the jury.[80] This unfortunate new trend demonstrates how social media has infiltrated the justice system. Social media has also been used to threaten judges and their families.[81] After a fatal attack on the family of US District Judge Esther Salas in July 2020, US courts requested Congress to pass legislation to protect disclosure of judges’ personal information.[82] Finally, in the weeks leading to the US presidential election, the FBI arrested and charged 13 men with threatening to kidnap and kill the governor of Michigan in response to her strict social distancing and covid-19 related policies.[83]

35.3 Risks and rewards of publicity

35.3.1 Risks

High-profile criminal cases often generate media attention. And while courts may adopt judicial measures to limit the adverse effects of publicity, it may become so pervasive that it prejudices jurors’ opinions regarding the question of guilt. In such cases, a court may declare a mistrial to protect the defendant’s Sixth Amendment guarantee to have his or her case decided by an impartial jury.[84]

In other extraordinary situations, defence attorneys may face disciplinary measures – the most severe of which is disbarment – for improperly engaging the media in a manner that prejudices the proceedings.[85] Prosecutors are held to a higher standard than civilian attorneys under the professional rules.[86] For example, in June 2007, Michael B Nifong, the North Carolina prosecutor who pursued a false accusation of sexual assault against three Duke University lacrosse players, was disbarred by the State Bar Disciplinary Commission for making inflammatory statements to the media in violation of Rules 3.6 and 3.8(f) of the State Bar’s Rules of Professional Conduct, among other violations.[87]

Unpopular defendants can face extraordinary difficulties in managing publicity while seeking an impartial hearing, which can increase both the cost and complexity of the defence. An example of this situation is the prosecution of Martin Shkreli, a former pharmaceutical CEO and hedge fund manager who was convicted of securities and wire fraud violations stemming from losses suffered by investors in his funds and companies.[88] As the CEO of Turing Pharmaceuticals, Mr Shkreli unapologetically raised the price of a life-saving drug by 5,000 per cent[89] and became known in the media as ‘the most hated man in America’.[90] Mr Shkreli’s notoriety generated daily news coverage of his subsequent federal trial which, combined with his ill-advised attempts to personally manage the publicity, required the trial judge to issue orders addressing the media’s and Mr Shkreli’s potential influence on the jury.[91] Mr Shkreli was convicted on two counts of securities fraud and one count of conspiracy to commit securities fraud.[92]

Civil defamation claims may also follow highly publicised cases. When numerous women accused actor and comedian Bill Cosby of sexual assault, Mr Cosby and his team publicly denied the allegations and accused the women of lying.[93] Several of the alleged victims filed civil defamation suits against Mr Cosby. A federal judge in Pennsylvania dismissed one of the suits on the basis that Mr Cosby’s statements did not support a claim for defamation under state law,[94] while Mr Cosby settled a defamation suit that was pending in federal court in Massachusetts.[95]

35.3.2 Rewards

When properly executed, tactical media coverage during an investigation or trial can counter negative public impression and alleviate prosecutorial pressure to bring charges. The public relations consultants hired by Martha Stewart in connection with her insider trading case focused narrowly on neutralising the media coverage that reached the prosecutors and regulators responsible for charging decisions so that they could make their decisions without ‘undue influence from the negative press coverage’.[96] In ruling on the attorney–client privilege afforded to certain communications among Ms Stewart, her attorneys and the public relations firm, the Court recognised the necessity of developing a communications plan in high-profile cases:

Just as an attorney may recommend a plea bargain or civil settlement . . . so too an attorney may take reasonable steps to defend a client’s reputation and reduce the adverse consequences of indictment. . . . A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.[97]

Given the importance of advocating outside the courtroom, it may also be beneficial for an attorney to exercise the right to reply under the Model Rules of Professional Conduct. Notwithstanding the prohibition at Rule 3.6(a) against extrajudicial statements that are substantially likely to materially prejudice a fair trial, Rule 3.6(c) permits a lawyer to make extrajudicial statements that protect a client from the ‘substantial undue prejudicial effect’ of recent publicity that was not initiated by the lawyer or the client to the extent that they are necessary to mitigate the adverse publicity.


[1] Jodi Avergun is a partner and Cheryl Risell is an associate at Cadwalader, Wickersham & Taft LLP.

[2] Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575–81 (1980) (holding that the right of the public and the press to attend criminal trials is guaranteed under the First and Fourteenth Amendments, and that, absent an overriding interest established after a factual hearing, the trial of a criminal case must be open to the public). In 1986, the US Supreme Court extended its ruling in Richmond Newspapers to jury selection. Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986).

[3] Estes v. State of Tex., 381 U.S. 532, 541–42 (1965) (‘Reporters of all media, including television, are always present if they wish to be and are plainly free to report whatever occurs in open court through their respective media.’).

[4] Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074-75 (1991) (describing the bounds to which limitations may be placed on a lawyer’s First Amendment right to free speech).

[5] Press-Enter. Co. v. Superior Court of California, Riverside Cty., 464 U.S. 501, 508 (1984). (‘No right ranks higher than the right of the accused to a fair trial.’)

[6] See United States v. Gerena, 869 F.2d 82, 85 (2d Cir. 1989). (‘The district court must balance the public’s right of access against the privacy and fair trial interests of defendants, witnesses and third parties.’); United States v. Rajaratnam, 708 F. Supp. 2d 371, 374 (S.D.N.Y. 2010) (explaining that courts ‘must balance the right [to access criminal proceedings] against other important values, like the Sixth Amendment right of the accused to a fair trial’).

[7] Model Rules of Prof’l Conduct R. 3.6(a) (2019).

[8] U.S. Dep’t of Justice, Justice Manual, § 1-7.000 (Confidentiality and Media Contacts Policy), available at

[9] See, e.g., Sealed Party v. Sealed Party, No. 04-2229, 2006 U.S. Dist. LEXIS 28392 (S.D. Tex. 4 May 2006) (finding breach of fiduciary duty where attorney published a press release disclosing the terms of a confidential settlement).

[10] U.S. Dep’t of Justice, Justice Manual, § 1-7.000 (Confidentiality and Media Contacts Policy), available at

[11] Rule 6(e)(2) prohibits a grand juror, interpreter, court reporter, operator of a recording device, person who transcribes recorded testimony, attorney for the government, or person to whom a proper disclosure is made under Rule 6(e)(3)(a)(ii) or (iii) from disclosing a matter occurring before the grand jury. Fed. R. Crim. P. 6(e). The rule does not impose any obligation of secrecy on witnesses.

[12] United States of America v. Sealed Search Warrant, No. 9:22-mj-08332-BER (S.D. Fla. filed 26 Aug. 2022), ECF No. 99 (Order to Unseal); Id., ECF No. 102 (Notice of Filing of Redacted Search Warrant Affidavit and Redacted Ex Parte Memorandum of Law Concerning Proposed Redactions).

[13] Id., ECF No. 126 (Media Intervenors’ Motion for Further Unsealing of Search Warrant Affidavit).

[14] Id., ECF No. 130 (Order to Unseal); Id., ECF No. 125 ((Unsealed) Sealed Document/Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize).

[15] Donald J. Trump v. United States of America, No. 22-cv-81294-AMC, (N.D. Fla., filed 15 Sep. 2022), ECF No. 89 (Order Denying Motion for Partial Stay Pending Appeal); Id., ECF No. 91 (Order Appointing Special Master). Judge Cannon’s order enjoining the Department of Justice from reviewing the items seized pending the Special Master’s review was reversed by the Court of Appeals in short order. Donald J. Trump v. United States of America, No. 22-13005, 2022 WL 4366684, (11th Cir. 21 Sep. 2022).

[16] See, e.g., Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) (holding that a court may enter a ‘gag’ order prohibiting the reporting of evidence adduced at an open preliminary hearing if it finds ‘a clear and present danger that pre-trial publicity could impinge upon the defendant’s right to a fair trial’).

[17] Sheppard v. Maxwell, 384 U.S. 333 (1966) (holding that failure of a state trial judge to protect the defendant in a murder prosecution ‘from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom’ deprived the defendant of a fair trial consistent with the Due Process Clause of the Fourteenth Amendment).

[18] See, e.g., L. Cr. R 57.7(c): S.D.N.Y. L. Cr. R 23.1(h).

[19] Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 (D.C. Cir. 1991) (noting that, in permitting a party to file a document under seal, should consider ‘(1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced’); see also Strauss v. Credit Lyonnais, S.A., No. 06-CV-702, 2011 WL 4736359, at *4 (E.D.N.Y. 6 Oct. 2011) (approving a protective order that governs the filing of documents under seal as well as the public filing of documents).

[20] 28 C.F.R. § 50.9.

[21] United States of America v. Manafort et al., No. 1:17-CR-00201-ABJ (D.D.C. filed 8 Nov. 2017), ECF No. 38.

[22] United States v. Maxwell, 20-CR-00330, Order, ECF No. 28 (D) (S.D.N.Y., 23 Jul. 2020).

[23] U.S. v. Maxwell, No. 1:20-CR-00330-AJN (S.D.N.Y. filed 30 Jul. 2021) ECF No. 315.

[24] Pete Brush, Bannon Gets Trial Date For Alleged Wall Funding Fraud, Law360 (31 Aug. 2020), -funding-fraud.

[25] Fed. R. Crim. P. 21(a); see also Sheppard, 384 U.S. at 363 (requiring the defendant to show ‘a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial’).

[26] United States of America v. Manafort, No. 1:18-cr-00083-TSE (E.D. Va. filed 17 Jul. 2018), ECF No. 138.

[27] United States of America v. Nordean et al., No. 21-cr-00175-TJK (D.D.C. filed 24 Jun. 2022), ECF No. 419.

[28] U.S. Const. amend. VI.

[29] United States v. Blanton, 719 F.2d 815 (6th Cir. 1983) (holding that the court produced an impartial jury and fair trial by, at voir dire, through ‘extensive questioning concerning prior media impact and juror associations, coupled with many dismissals based on even hints of possible prejudice, . . . very substantial increases in the number of peremptory challenges available to each defendant . . . [and] reliance on defendants’ use of detailed questionnaires concerning all potential jurors coupled with sensitive responses by the court to any of defendants’ challenges arising from such use’).

[31] United States of America v. Manafort, No. 1:18-cr-00083-TSE (E.D. Va. filed 21 Jun. 2018), ECF No. 87.

[32] See, e.g., United States v. Campa, 459 F.3d 1121, 1135 (11th Cir. 2006) (noting that the district court twice granted the defendants’ requests for additional peremptory challenges due to the publicity regarding the trial).

[33] See, e.g., United States v. Cacace, 321 F. Supp. 2d 532, 536 (E.D.N.Y. 2004) (partly sequestering the jurors in a murder trial to reduce the risk that they may be prejudiced against the defendant, the acting boss of the Colombo crime family, by exposure to press reports of both charged and uncharged murders); Geders v. United States, 425 U.S. 80, 87 (1976). (‘The judge’s power to control the progress and, within the limits of the adversary system, the shape of the trial includes broad power to sequester witnesses before, during, and after their testimony.’) The decision whether to sequester jurors is within the ‘sound discretion’ of the district court; e.g., United States v. Porcaro, 648 F.2d 753 (1st Cir. 1981).

[34] See, e.g., Bushmaker v. A. W. Chesterton Co., No. 09-CV-726-SLC, 2013 WL 11079371, at *12 (W.D. Wis. 1 Mar. 2013) (instructing the jury not to post on Twitter or Facebook); Judicial Conference Committee, Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate About a Case (Jun. 2012), available at

[35] e.g., Pearson v. Rock, No. 12-CV-3505, 2015 WL 4509610, at *2 (E.D.N.Y. 24 Jul. 2015) (granting a mistrial after concluding that the jury had been ‘incurably tainted’).

[36] United States of America v. Dzhokhar A. Tsarnaev, No. 16-6001, 2020 WL 4381578 (1st Cir. 31 Jul. 2020).

[37] United States v. Tsarnaev, 142 S. Ct. 1024 (2022).

[38] State of Minnesota v. Derek Chauvin, No. A-21-1228, (Minn. Ct. App., Appellant’s Brief filed 25 Apr. 2022)

[39] See, e.g., Stephan N Subrin, ‘Discovery in Global Perspective: Are We Nuts?’, 52 DePaul L. Rev. 299 (2002).

[40] Fed. R. Civ. P. 26(b)(1).

[41] Érica Gorga and Michael Halberstam, ‘Litigation Discovery and Corporate Governance: The Missing Story About the “Genius of American Corporate Law”’, 63 Emory L. J. 1383, 1401–05 (2014).

[42] Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).

[43] In 2014, after the University of North Carolina at Chapel Hill released a public report of an investigation into academic irregularities at the university, media organisations made requests through the North Carolina Public Records Law for the nearly 1.7 million electronic records that were collected and analysed during the investigation. The University of North Carolina at Chapel Hill, ‘University reports final expenses to bring NCAA and related issues to a close’ (13 Aug. 2018), -to-public-records-requests-for-legal-communications-firm-expenses/.

[44] For example, in 2007, an employee at HSBC Suisse surreptitiously downloaded client data from approximately 30,000 accounts and provided that data to French authorities. A portion of these files were then obtained through an international collaboration of news outlets and published in 2015 by the International Consortium of Investigative Journalists. See David Leigh et al., ‘HSBC files show how Swiss bank helped clients dodge taxes and hide millions’, The Guardian (8 Feb. 2015), -expose-swiss-bank-clients-dodge-taxes-hide-millions?CMP=share_btn_tw.

[45] Edward Helmore, ‘Amber Heard tells jury of death threats during trial as testimony ends’, The Guardian (27 May 2022), available at

[46] Gene Maddaus, ‘Why Was Depp-Heard Trial Televised? Critics Call It “Single Worst Decision” for Sexual Violence Victims’, Variety (27 May 2022),

[47] Crime and Justice News, ‘PA Supreme Court Halts Live YouTube Trial Broadcasts’, The Crime Report (18 Sep. 2020), -youtube-trial-broadcasts/.

[48] United States v. Elizabeth A. Holmes, et al. 18-CR-00258-EJD; Davila, Edward, J., ‘Notice re: Press and Public Access to Jury Trial Proceedings’,

[49] Danny Hakim, ‘VW’s Crisis Strategy: Forward, Reverse, U-Turn’, N. Y. Times (26 Feb. 2016), available at -strategy-forward-reverse-u-turn.html.

[50] 296 F.2d 918, 922 (2d Cir. 1961) (protecting the communications from an accountant to the client that were made in confidence for the purpose of obtaining legal advice from the lawyer, not for the purpose of obtaining the accountant’s advice).

[51] United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989).

[52] In re Grand Jury Subpoenas, 265 F. Supp. 2d 321 (S.D.N.Y. 2003).

[53] Id. at 330.

[54] No. 02-CIV- 7955, 2003 U.S. Dist. LEXIS 14586, at *8 (S.D.N.Y. 25 Aug. 2003) (‘Plaintiff has not shown that Murray was “performing functions materially different from those that any ordinary public relations” advisor would perform.’); see also Scott v. Chipotle Mexican Grill, 94 F. Supp. 3d 585 (S.D.N.Y. 2015) (holding a factual report from a human resources consultant to employer’s counsel was not protected by the attorney–client privilege because the employer did not show that it or counsel engaged consultant for anything more than factual research and to assist employer in making a business decision).

[55] There is a circuit split as to how to handle these cases. Compare NECA-IBEW Pension Tr. Fund v. Precision Castparts Corp., 2019 U.S. Dist. LEXIS 168088 (D. Or. 27 Sep. 2019) (denying plaintiff’s motion to compel proxy documents sent from in-house counsel to employees of defence’s public relations firm because the public relations firm was ‘functionally an employee’ of the defendant and the public relations firm was clearly receiving legal advice to guide its work), with Universal Std. Inc. v. Target Corp., 331 F.R.D. 80 (S.D.N.Y. 6 May 2019) (sharing privileged communications with a public relations firm destroyed that privilege because the public relations firm was hired for business purposes, rather than to assist counsel in a legal task, the public relations firm did not improve counsel’s understanding of the plaintiff’s request for legal advice and an exception to waiver of the privilege was not found).

[56] U.S. v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004).

[57] See, e.g., People v. Harris, 949 N.Y.S.2d 590, 592 (N.Y. Crim. Ct. 2012).

[58] See, e.g., U.S. v. Meregildo, 883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012).

[59] Robert H Giles and Jason I Allen, ‘“Will You Be My Friend?” – Ethical Concerns for Prosecutors and Social Media’, Child Sexual Exploitation Program Update (National District Attorneys Association), 9 to 12 October 2012, at 2, available at

[60] See, generally, Fed. R. Evid. Authentication of evidence from social media is generally the biggest hurdle for admission, and two approaches are predominant.

[61] See, e.g., Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).

[62] See, e.g., Griffin v. Maryland, 19 A.3d 415, 423–24 (Md. 2011).

[63] Elon Musk (@elonmusk), Twitter (7 Aug. 2018, 12:48pm),

[64] United States Securities and Exchange Commission v. Elon Musk, No. 18-cv-08865 (S.D.N.Y. filed 27 Sep. 2018), ECF No. 1.

[65] Press Release, Securities and Exchange Commission, Elon Musk Settles SEC Fraud Charges; Tesla Charged With and Resolves Securities Law Charge, (29 Sep. 2018),

[66] In Re Tesla, Inc. Securities Litigation, No. 18-cv-04865-EMC, (N.D. Cal. filed 10 Aug. 2018), ECF No. 1.

[67] Fred Lambert, ‘Leaked Elon Musk text messages confirm what everyone knew about Tesla’s take-private deal’, Electrek (25 Apr. 2022), available at -elon-musk-text-messages-confirm-tesla-take-private-deal/.

[68] ABA Comm. on Prof’l Ethics & Grievances, Formal Op. 466 (2014).

[69] Id.

[70] See United States v. Parse, 789 F.3d 83, 114 (2d Cir. 2015) (holding that defence counsel did not knowingly waive the defendant’s right to an impartial jury where, even though a Westlaw report indicated a juror may have in fact been a suspended attorney with the same name, the juror ‘lied [so] comprehensively in voir dire and “presented herself as an entirely different person”’ that defence counsel could have reasonably relied on her representations).

[71] Id.

[72] 385 S.W.3d 238 (Ark. 2011).

[73] Id. at 247–48.

[74] Id. at 246.

[75] Id. at 246–47.

[76] Id. at 247.

[77] Id. at 249.

[78] United States v. Aiyer, 433 F. Supp. 3d 468, 477 (S.D.N.Y. 2020).

[79] United States of America v. Stone, No. 1:19-cr-00018-ABJ (D.D.C.), ECF No. 36.

[80] Zach Montague and Sharon LaFraniere, ‘Judge in Roger Stone Case Warns About Attacks on Juror by Trump and Others’, N. Y. Times (25 Feb. 2020), 2020/02/25/us/politics/roger-stone-jury-bias.html.

[81] Ann E Marimow, ‘Judges in D.C. Threatened, Harassed after High-profile, Political Legal Battles’, Washington Post (18 Sep. 2020), legal-issues/judges-in-dc-threatened-harassed-after-high-profile-political-legal-battles/ 2020/09/18/acece6e2-f8e9-11ea-be57-d00bb9bc632d_story.html.

[82] Todd Ruger, Federal Judges Want Safety Protections from Congress, Roll Call (15 Sep. 2020),

[83] Nicholas Bogel-Burroughs, Shalia Dewan and Kathleen Gray, ‘F.B.I. Says Michigan Anti-Government Group Plotted to Kidnap Gov. Gretchen Witmer’, N. Y. Times (8 Oct. 2020),

[84] See Sheppard, 384 U.S. at 363; see also Arizona v. Washington, 434 U.S. 497, 505–06 (1978) (mistrial is reserved for those special cases in which there is a ‘manifest necessity’).

[85] See, e.g., Model Rules of Prof’l Conduct R. 3.6 (Trial Publicity) (prohibiting a lawyer from making an ‘extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter’).

[86] See, e.g., Model Rules of Prof’l Conduct R. 3.8(f) (Special Responsibilities of a Prosecutor) (prohibiting a prosecutor from making extrajudicial comments that have a ‘substantial likelihood of heightening public condemnation of the accused’).

[87] Id.

[88] Superseding Indictment, United States v. Shkreli, No. 1:15-cr-637 (E.D.N.Y. 3 Jun. 2016), ECF No. 60.

[89] Andrew Pollack, ‘Drug Goes from $13.50 a Tablet to $750, Overnight’, N. Y. Times (20 Sep. 2015), available at -overnight-increase-in-a-drugs-price-raises-protests.html.

[90] Phil McCausland, ‘Fraud Trial for Martin Shkreli, “Most Hated Man in America”, Begins Monday’, NBC News (25 Jun. 2017), available at

[91] Docket Order, United States v. Shkreli, No. 1:15-cr-637 (E.D.N.Y. 5 Jul. 2017) (following Mr Shkreli’s courthouse visit with reporters covering his trial, when he remarked on evidence and the credibility of a witness, prosecutors moved for a gag order to prohibit Mr Shkreli from making any public statements about the case. Two days later, the court issued a limited gag order prohibiting Mr Shkreli from making ‘comments to the press regarding the case, evidence or witnesses within the courthouse or the courthouse perimeter’).

[92] Verdict, United States v. Shkreli, No. 1:15-cr-637 (E.D.N.Y. 4 Aug. 2017), ECF No. 305.

[93] See Mike Nunez, ‘Bill Cosby to FLORIDA TODAY: I won’t mention allegations’, Florida Today (22 Nov. 2014), available at bill-cosby-to-florida-today-i-wont-mention-allegations/19367957/.

[94] Hill v. Cosby, No. 15-1658, 2016 U.S. Dist. LEXIS 7300 (W.D. Pa. 21 Jan. 2016).

[95] Green v. Cosby, No. 3:14-cv-30211 (D. Mass. filed 10 Dec. 2014).

[96] In re Grand Jury Subpoena, 265 F. Supp. 2d at 323–24.

[97] Id. (quoting Gentile v. State Bar of Nevada, 501 U.S. 1030, 1043 (1991) (Kennedy, J, plurality opinion)).

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