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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, Defendants.

: : : : : : : : :

C.A.No.04-1394-GMS

PLAINTIFF'S ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS' RENEWED MOTION FOR AN ORDER LIMITING PREJUDICIAL PRETRIAL PUBLICITY AND FOR SANCTIONS

THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Dated: June 16, 2006 Attorneys for Plaintiffs

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TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDING .................................................................................... 1 SUMMARY OF THE ARGUMENT ......................................................................................................... 1 STATEMENT OF FACTS ......................................................................................................................... 1 A. B. C. Incorporation By Reference .............................................................................................. 1 The Present Matter ............................................................................................................ 1 The Unrelated Price Matter .............................................................................................. 2 1. D. The Conley Matter is Unrelated to the Price Matter ........................................... 2

The Price Trial - May 15 - May 31, 2006 ......................................................................... 2 1. The Widespread Media Coverage of the Price Trial ........................................... 2

E.

The Price Jury Verdict ...................................................................................................... 2 1. The Widespread Media Coverage of the Price Verdict ....................................... 3

F. G. H.

Counsel Reviews Rule 3.6 Prior to Speaking to the Media .............................................. 3 The Media Asks Counsel For Comment on the Price Verdict ......................................... 3 The Media Coverage About the Price Verdict Complained of By the Defense ............... 4 1. 2. 3. No Statements Were Made About the Conley Action ......................................... 4 No Statements Were Made About Defendant Chaffinch .................................... 4 Statements Were Only Made About Col. MacLeish, Who is Not a Defendant in this Matter ...................................................................................... 4

I. J. K.

Defendants Do Not Contest the Truth of Counsel's Statements ....................................... 4 No Public Statements Were Made About the Present Conley Matter .............................. 5 The Gag Order Imposed by the Court ............................................................................... 5 1. 2. The Oral Gag Order ............................................................................................. 5 The Written Gag Order ........................................................................................ 5

ARGUMENT .............................................................................................................................................. 5

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I.

THE OVERARCHING FIRST AMENDMENT CONTEXT IN WHICH THE DEFENSE MOTION TO PUNISH SPEECH CRITICAL OF GOVERNMENT MISCONDUCT MUST BE VIEWED ............................................................................. 5 A. The Defense Seeks To Silence Public Criticism of Their Misdeeds Which Violate Their Oaths As Police Officers as Well as the U.S. Constitution .......... 5 Speech on Public Issues Occupies the Highest Rung of First Amendment Protection .......................................................................................................... 6-7 Vehement, Caustic and Unpleasant Speech About Public Officials Receives Full First Amendment Protection ........................................................................ 7 1. The First Amendment Does Not Give the Defense a Listener's Veto ......................................................................................................... 9

B.

C.

D. E. F.

The First Amendment Needs Breathing Space to Survive .................................. 9 The Heightened Public Interest in the Actions of Police Officers .................... 10 Speech About Defendants' Wrongdoing is Core First Amendment Protected Activity .............................................................................................................. 11 Criticism of Government Misconduct Does Not Lose Its Protection Simply Because It Rightly Diminishes an Official's Reputation ................................... 14 The Timing of Speech is Key ............................................................................ 14

G.

H. II.

MODEL RULE 3.6 HAS NOT BEEN VIOLATED AS ALL STATEMENTS OF COUNSEL WERE WELL WITHIN ITS SAFE HAVENS AND THOSE OF THE FIRST AMENDMENT ................................................................................................... 15 A. B. The Law of Prior Restraints ............................................................................... 15 The Various Prior Restraint Tests ..................................................................... 16 1. 2. 3. C. D. The Scarfo Gag Order on an Attorney Test .......................................... 16 The Bailey Gag Order on a Party Test .................................................. 17 The Gag Order on Witnesses ................................................................ 17

Model Rule 3.6's General Rule .......................................................................... 17 Safe Haven Exceptions to Rule 3.6 ................................................................... 17 1. 2. "In the Matter" Limitation - Rule 3.6(a) ............................................... 17 Rule 3.6(b)'s Safe Havens ..................................................................... 19

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a. b. c. 3. E. F.

Information Contained in a Public Record .............................. 20 The Claim, Offense or Defense Involved ................................ 20 Result of Any Step in Litigation .............................................. 20

First Amendment Considerations Incorporated Into Rule 3.6 .............. 20

Due Process Notice Requirements are Lacking ................................................. 20 The Specific Statements Defendants Challenge ................................................ 21 1. 2. 3. DSP Leadership Threw Its Officers Under a Bus ................................. 21 MacLeish Should Resign ...................................................................... 22 The Defense in the Price Case Was a Coverup and a Pack of Lies By Men Without Honor ................................................................ 23 MacLeish is a Coward Who Would Not Protect His Men ................... 26

4. G. H. I. J.

Defendants Have Failed to Present a Proper Record ......................................... 29 The Scarfo Test Has Not Been Met ................................................................... 30 There is No Basis for Sanctions or Contempt ................................................... 31 The Jury Pool Was Not Tainted and the Extensive Voir Dire Did Not Result From Counsel's Statements ..................................................................... 32 The Defense Is Using the Gag Order as Both a Sword and a Shield ................. 33

K. III.

RULE 3.6 IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO OUR PRESENT CASE AND IMPOSING LIABILITY UNDER IT WILL VIOLATE THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE AND THE FIRST AMENDMENT FREE SPEECH CLAUSE ................................................................... 34 THE DEFENSE GAG ORDER VIOLATES THE FREE SPEECH AND PETITION CLAUSE RIGHTS OF PLAINTIFF, COUNSEL AND COUNSEL'S NUMEROUS OTHER STATE POLICE CLIENTS ............................................................................. 35 DEFENDANTS' ILLEGAL EFFORTS ALSO VIOLATE THE EXPRESSIVE ASSOCIATIONAL RIGHTS OF THE NEUBERGER FIRM AND ITS CLIENTS ..... 38 A. B. The Firm and Its DSP Clients Are An Expressive Association ......................... 38 The Gag Order Will Significantly Affect this Expressive Association's Ability to Advocate Its Viewpoint ..................................................................... 39 The State Has No Interest to Assert in the Balancing ....................................... 40 iii

IV.

V.

C.

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CONCLUSION ......................................................................................................................................... 40

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TABLE OF AUTHORITIES Case Page

Abu-Jamal v. Price, 154 F.3d 128 (3d Cir. 1998) ..................................................................................... 37 Alderman v. Phila. Hous. Auth., 496 F.2d 164 (3d Cir. 1974) ................................................................. 15 Alexander v. U.S., 509 U.S. 544 (1993) ................................................................................................... 16 Bailey v. Sys. Innovation, Inc., 852 F.2d 93 (3d Cir. 1988) ...................................................... 16-17,30-32 Baldassare v. State of N.J., 250 F.3d 188 (3d Cir. 2001) ......................................................................... 11 Bank of America Nat'l Trust and Savings Assoc. v. Hotel Rittenhouse Assoc., 800 F.2d 339 (3d Cir. 1986) ........................................................................................................ 19 Bd. of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) ....................... 38 Biggs v. Village of Dupo, 892 F.2d 1298 (7th Cir. 1990) ........................................................................ 37 Boy Scouts of America v. Dale, 530 U.S. 640 (2000) .............................................................................. 38 Brennan v. Norton, 350 F.3d 399 (2003) ............................................................................................. 36,39 Bridges v. State of Cal., 314 U.S. 252 (1941) ....................................................................................... 6,14 Butterworth v. Smith, 494 U.S. 624 (1990) .............................................................................................. 11 Cantwell v. Connecticut, 310 U.S. 296 (1940) .................................................................................... 10,28 Carey v. Brown, 477 U.S. 455 (1980) ........................................................................................................ 7 Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005) ............................................................................ 10 Circle Schools v. Pappert, 381 F.3d 172 (3d Cir. 2004) ........................................................................... 38 City of Houston v. Hill, 482 U.S. 451 (1987) ........................................................................................... 10 City of San Diego v. Roe, 543 U.S. 77 (2004)(per curiam) ..................................................................... 12 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ................................................................... 21 Cohen v. California, 403 U.S. 15 (1971) ............................................................................................ 8-9,29 Conley v. Chaffinch, 2005 WL 2678954 (D.Del. March 4, 2005) ....................... 3,8,15-18,21,27,30,32,35 Connick v. Myers, 461 U.S. 138 (1983) ................................................................................. 7,11-12,22-23 Cox v. Louisiana, 379 U.S. 536 (1965) ................................................................................................... 8-9

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Darchia v. Ashcroft, 101 Fed.Appx. 373 (3d Cir. 2004) .......................................................................... 30 Elrod v. Burns, 427 U.S. 347 (1976) ........................................................................................................ 37 FCC v. Pacifica Found., 438 U.S. 726 (1978) ............................................................................................ 9 First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ............................................................... 11,15 F.O.P., Lodge No. 5 v. City of Phila., 812 F.2d 105 (3d Cir. 1987) ......................................................... 10 Garrison v. Louisiana, 379 U.S. 64 (1964) ................................................................................................. 6 Garrity v. New Jersey, 385 U.S. 493 (1967) ............................................................................................. 37 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ...................................................... 6,17,19,25,30,34 Glenmede Trust Co. v. Thompson, 56 F.3d 476 (3d Cir. 1995) ............................................................... 19 Good News Club v. Milford Central Sch., 533 U.S. 98 (2001) .................................................................. 9 Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423 (1974) ....................................... 21 Grayned v. City of Rockford, 408 U.S. 104 (1972) .................................................................................. 34 Hustler v. Falwell, 485 U.S. 46 (1988) ....................................................................................................... 9 In re Cendant Corp., 260 F.3d 183 (3d Cir. 2001) .................................................................................... 19 John T. v. Del. County Intermediate Unit, 318 F.3d 545 (3d Cir. 2003) .................................................. 31 Johnson v. Campbell, 332 F.3d 199 (3d Cir. 2003) ............................................................................... 8,27 Kerman v. City of New York, 261 F.3d 229 (2d Cir. 2001) ..................................................................... 10 Kleindienst v. Mandel, 408 U.S. 753 (1972) ............................................................................................ 15 Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157 (3d Cir. 1993) ............................ 19 Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988) ......................................................................... 19,31 Martin v. City of Struthers, 319 U.S. 141 (1943) ..................................................................................... 15 McIntyre v. Ohio Elec. Commissions, 514 U.S. 334 (1995) .................................................................... 15 Miller v. Indiana Hospital, 16 F.3d 549 (3d Cir. 1994) ............................................................................ 19 Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) ..................................................................................... 13 NAACP v. Button, 371 U.S. 415 (1963) ..................................................................................... 7,10,36,39

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NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ................................................................... 7,14 Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) ....................................................................... 15-16 Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) .............................................................................. 15 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .......................................... 6-10,11,14,21,24,27-28 Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971) .................................................................... 12-13 Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) ................................................................ 19 Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) ........................................................................... 24 Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435 (3d Cir. 2000) .......................... 38-39 Planned Parenthood of Central N.J. v. Farmer, 220 F.3d 127 (3d Cir. 2000) .......................................... 34 Policemen's Benevloent Ass'n of N.J. v. Washington, 850 F.2d 133 (3d Cir. 1988) .............................. 10 Price v. Chaffinch, 2006 WL 1313178 (D.Del. May 12, 2006) ............................................................... 32 Publicker Indus., Co. v. Cohen, 733 F.2d 1059 (3d Cir. 1984) ................................................................ 19 Quinter v. Volkswagen of America, 676 F.2d 969 (3d Cir. 1982) ........................................................... 31 Republic of the Philippines v. Westinghouse Elec. Co., 949 F.2d 653 (3d Cir. 1991) ............................ 19 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ..................................................................................... 38-39 Rockwell Tech. LLC v. Spectra-Physics Lasers, Inc., 2002 WL 531555 (D.Del. March 26, 2002) ................................................................................ 21 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994) ............................................................... 36-37,39 Schenck v. U.S., 249 U.S. 47 (1919) .......................................................................................................... 7 Shingara v. Skiles, 420 F.3d 301 (3d Cir. 2005) ....................................................................................... 15 Street v. New York, 394 U.S. 576 (1969) ................................................................................................... 9 Swartzwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002) .................................................................... 37,40 Swineford v. Snyder County Pa., 15 F.3d 1258 (3d Cir. 1994) ................................................................ 11 Terminiello v. City of Chicago, 337 U.S. 1 (1949) ................................................................................. 8-9 Texas v. Johnson, 491 U.S. 397 (1989) ................................................................................................... 7-9 U.S. v. Associated Press, 52 F.Supp. 363 (S.D.N.Y. 1943) ..................................................................... 11 vii

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U.S. v. Carmichael, 326 F.Supp.2d 1267 (M.D.Ala. 2004) ...................................................................... 16 U.S. v. Criden, 648 F.2d 814 (3d Cir. 1981) ............................................................................................. 19 U.S. v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996) ......................................................................................... 8 U.S. v. Kosma, 951 F.2d 549 (3d Cir. 1991) .............................................................................................. 8 U.S. v. Martin, 746 F.2d 964 (3d Cir. 1984) ............................................................................. 19,30,32-33 U.S. v. Nat'l Treasury Employees Union, 513 U.S. 454 (1995) ............................................................... 36 U.S. v. Scarfo, 263 F.3d 80 (3d Cir. 2001) ..................................................................... 16-17,20-21,30-31 U.S. v. Smith, 776 F.2d 1104 (3d Cir. 1985) .................................................................................. 11,13,23 Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ........................................................................... 34 Whitney v. California, 274 U.S. 357 (1927) ............................................................................................... 7 Wilcher v. City of Wilmington, 60 F.Supp.2d 298 (D.Del. 1999) ........................................................... 10

Constitutions, Statutes and Rules U.S. Constitution Amendment I ......................................................................................................... passim U.S. Constitution Amendment XIV ................................................................................................... passim Sedition Act of 1798, 1 Stat. 596 ................................................................................................................ 6 D.Del. LR 7.1.3(a)(D) ............................................................................................................................... 20 D.Del. LR 7.1.3(c)(2) ................................................................................................................................ 21 ABA Model Rule of Professional Conduct 3.6 ................................................................................. passim ABA Model Rule of Professional Conduct 3.6(a) ........................................................... 17-19,21-23,26,29 ABA Model Rule of Professional Conduct 3.6(b) .................................................................................... 19 ABA Model Rule of Professional Conduct 3.6(b)(1) ..................................................................... 20,23,26 ABA Model Rule of Professional Conduct 3.6(b)(2) ........................................................... 19-20,22-23,26 ABA Model Rule of Professional Conduct 3.6(b)(4) .......................................................................... 20,23 ABA Model Rule of Professional Conduct 3.6, Comment 1 ..................................................... 20,22-23,26 ABA Model Rule of Professional Conduct 3.6, Comment 4 .................................................................... 19 viii

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ABA Model Rule of Professional Conduct 3.6, Comment 5, subsection (1) ........................................... 19

Other Sources Merriam Webster's Collegiate Dictionary 10th Edition (1996) ...................................................... 24-25,27 Principles of Professionalism for Delaware Lawyers: Preamble ............................................................. 21

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NATURE AND STAGE OF THE PROCEEDING The record consists of the Declaration of Thomas S. Neuberger ("Neuberger Decl."), which is the basis for the Statement of Facts and which also authenticates the media articles and other documents found in the Appendix. This is Plaintiff's Answering Brief in opposition to defendants' renewed Motion seeking sanctions and a gag order. SUMMARY OF THE ARGUMENT Neither the record evidence nor the law support defendant high public official's attempts to censor pure political speech and expression critical of their misconduct and corruption in public office. All speech challenged by the defense is protected by the First Amendment and falls within the safe havens of Rule 3.6, as interpreted by this Court's previous opinion in the matter. To adopt the interpretation of Rule 3.6 proffered by the defense results in Rule 3.6 being unconstitutionally vague as applied to our present case in violation of both the Fourteenth and First Amendments. Similarly, the defense efforts to silence all speech critical of them also violates the First Amendment speech, petition and expressive associational rights of plaintiff, the Firm and the Firm's numerous other State Police clients. STATEMENT OF FACTS A. Incorporation By Reference. In the interest of brevity and judicial economy, plaintiff adopts the extensive Statement of Facts contained within her earlier gag order Answering Brief (D.I. 22), where she laid out in great contextual detail the long history over the last four years of numerous lawsuits, costly settlements and even costlier jury verdicts against defendants Chaffinch and MacLeish since April 2002, as well as other similar matters. B. The Present Matter. The plaintiff in this Fourteenth Amendment equal protection gender discrimination in promotions lawsuit is Captain Barbara Conley. The only defendant is L. Aaron Chaffinch. At the Rule 16 scheduling conference in March 2005, the Court scheduled a 10 day trial to begin on May 31, 2006. (See D.I. 48 and subsequent "So Ordered"). The trial

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date was later changed to begin on June 6, 2006. (See unnumbered docket entry dated 5/16/06). (Neuberger Decl. ¶ 2; A74). C. The Unrelated Price Matter. The plaintiffs in the First Amendment retaliation Price and consolidated Foraker matters are Cpl/3 Kurt Price, Cpl/3 Wayne Warren and Sgt. Christopher Foraker. The defendants in those cases are L. Aaron Chaffinch and Col. Tom MacLeish. At the Rule 16 scheduling conference in February 2005, the Court ordered a trial to begin on May 15, 2006. The Price and Foraker matters were later consolidated for an 11 day trial beginning May 15, 2006. See C.A.No. 04-956-GMS; C.A. No. 04-1207-GMS. (Neuberger Decl. ¶ 3; A74). 1. The Conley Matter is Unrelated to the Price Matter. As the Court recently observed in an Order dated June 1, 2006, the present Conley action "is not related to any other case before this court." (D.I. 236). (Neuberger Decl. ¶ 4; A75). D. The Price Trial - May 15 - May 31, 2006. The Price trial began on May 15th and ultimately lasted 12 days, finally concluding on May 31st. (Neuberger Decl. ¶ 5; A75). 1. The Widespread Media Coverage of the Price Trial. There was widespread media coverage of nearly every day of the Price trial. This media coverage included numerous stories in the local News Journal and Delaware State News, as well as nationally in the Associated Press. There was local radio coverage as well. (A1-36). (Neuberger Decl. ¶ 6; A75). E. The Price Jury Verdict. On May 31st, the jury in Price returned a verdict, finding that Chaffinch and MacLeish had violated the First Amendment rights of Cpl/3 Warren, Cpl/3 Price and Sgt. Foraker. In addition to the liability finding, the jury continued and found that Chaffinch and MacLeish had acted "recklessly, maliciously, or intentionally" (Price and Warren Inter. # 6, 8; Foraker Inter. # 12, 14; A52-53,56-57,63) and exercised their discretion and awarded punitive damages to "punish and deter" them. (Price and Warren Inter. # 7, 9; Foraker Inter. # 13, 15; A52-53, 56-57, 63). The jury also made a specific factual finding that Chaffinch

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had defamed Sgt. Foraker and "published an untrue statement" about him. (Foraker Inter. # 4; A60). The jury continued and found that "Chaffinch knew the statement concerning [] Foraker was false or recklessly disregarded whether it was false" and so acted with actual malice. (Foraker Inter. # 5; A60. The careful jury awarded a total of $1,923,789 in damages to the three plaintiffs, a figure which included $443,442 in punitive damages against Chaffinch and MacLeish. (Price and Warren Inter. # 7, 9; Foraker Inter. # 13, 15; A52-53, 56-57, 63). (Neuberger Decl. ¶ 7; A75). 1. The Widespread Media Coverage of the Price Verdict. The Price verdict was by far the largest verdict against Chaffinch and MacLeish in any of the numerous recent lawsuits against them. Not surprisingly, given the size of the nearly $2.0 million verdict as well as the widespread media coverage during the trial, the media reported extensively on the jury verdict. The News Journal ran a front page story with the headline - "Troopers Awarded $2 Million in Lawsuit - State Police Leaders Were Accused of Retaliation." (A43). The Delaware State News picked up the story from the AP Wire and also ran a front page article with the headline - "Troopers Get $2M in Suit." (A40). The story on the AP Wire was headlined "Jury Says Firing Range Troopers Were Victims of Retaliation." (A37). (Neuberger Decl. ¶ 8; A7576). F. Counsel Reviews Rule 3.6 Prior to Speaking to the Media. As a matter of practice, counsel regularly reviews Model Rule 3.6 and attempts to stay abreast of related court decisions in order to assure that any public comments made about cases are within bounds of the Rule. Anticipating the verdict, counsel had reviewed Rule 3.6 and also its interpretation in light of the Court's earlier opinion in Conley v. Chaffinch, 2005 WL 2678954 (D.Del. March 4, 2005), which interprets and applies Rule 3.6. Counsel wanted to be sure that all of his comments were within the parameters of the Rule. (Neuberger Decl. ¶ 9; A76). G. The Media Asks Counsel For Comment on the Price Verdict. Not surprisingly

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given his status as plaintiffs' counsel, following the verdict, members of the news media asked counsel for comment on the $2 million jury verdict against Chaffinch and MacLeish for violating the First Amendment to the U.S. Constitution. (Neuberger Decl. ¶ 10; A76). H. The Media Coverage About the Price Verdict Complained of By the Defense. As discussed above, none of the media coverage complained of by the defense was generated by this court case - the Conley case. Instead, the media coverage complained of was generated by a separate, independent and unrelated matter - the Price case. (See A1-45). (Neuberger Decl. ¶ 11; A76). 1. No Statements Were Made About the Conley Action. Counsel did not make any statements relating to the Conley action. Instead, all of counsel's statements addressed only the Price action. Indeed, in keeping with their practice, counsel had ceased answering any substantive questions from the media about the Conley matter in the months leading up to the Conley trial so as not to affect the jury pool with public statements about the Conley case. (Neuberger Decl. ¶ 12; A76). 2. No Statements Were Made About Defendant Chaffinch. Out of an abundance of caution, in the aftermath of the Price verdict, counsel did not direct any public criticism towards Chaffinch who is a defendant in both the Price and Conley actions. Counsel consciously refrained from mentioning Chaffinch by name in his public statements about the Price verdict. (Neuberger Decl. ¶ 13; A77). 3. Statements Were Only Made About Col. MacLeish, Who is Not a Defendant in this Matter. Instead, all public criticism arising from the Price jury verdict was purposefully directed at Col. MacLeish. Although MacLeish was a defendant in the Price matter, he is not a defendant in the Conley case. (Neuberger Decl. ¶ 14; A77). I. Defendants Do Not Contest the Truth of Counsel's Statements. Notably, as the defense motion makes clear, the defense has not contested the truth of any of the statements

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about the Price verdict attributed to counsel in the local media. (Neuberger Decl. ¶ 15; A77). J. No Public Statements Were Made About the Present Conley Matter. Counsel has not made any public comments about the present Conley case, a case that was scheduled to go to trial the very next week - on June 6th. (Neuberger Decl. ¶ 16; A77). K. The Gag Order Imposed by the Court. Two gag orders were subsequently imposed by the Court. (Neuberger Decl. ¶ 17; A77). 1. The Oral Gag Order. On June 1, 2006, the Court ordered that a telephone conference be held to discuss the matter of media comments regarding the Price verdict. (D.I. 236). On June 2nd , the Court held the teleconference. (See the first unnumbered docket entry dated June 2, 2006). There is not a transcript of that teleconference. During the teleconference, the Court, in no uncertain terms, imposed an oral gag order on plaintiff's counsel, barring them from speaking to the media at all. The Court ordered that all communication with the media immediately cease. (Neuberger Decl. ¶ 18; A77). 2. The Written Gag Order. On June 5, 2006, the Court continued and issued a written gag order. (D.I. 241). The relevant portion of the order stated that: The parties, lawyers, and potential witnesses in this matter shall refrain from making to the media any extrajudicial statement or comment that is likely to interfere with a fair trial, or prejudice any party or the administration of justice. (D.I. 241). (Neuberger Decl. ¶ 19; A77-78). ARGUMENT I. THE OVERARCHING FIRST AMENDMENT CONTEXT IN WHICH THE DEFENSE MOTION TO PUNISH SPEECH CRITICAL OF GOVERNMENT MISCONDUCT MUST BE VIEWED. A. The Defense Seeks To Silence Public Criticism of Their Misdeeds Which Violate Their Oaths As Police Officers as Well as the U.S. Constitution. The defense motion is a transparent attempt by corrupt government officials to silence public criticism of their many misdeeds which violate both their oaths as police officers and the First Amendment to the U.S.

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Constitution. Unfortunately for defendants, "[n]o suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression." Bridges v. State of Cal., 314 U.S. 252, 269 (1941). As the Supreme Court warned in another case in which government officials sought to punish an attorney for criticizing them, "history shows that speech is suppressed when either the speaker or the message is critical of those who enforce the law." Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 (1991).1 Defendants are high government officials in a democratic system of government. They seek to gag counsel from exercising their fundamental First Amendment right to criticize the government. They seek to censor speech which is critical of their poor performance. They seek to expunge from public discussion speech which reveals and continues to reveal fraud, corruption and illegality in an important government law enforcement agency. With their Gestapo tactics, they seek to hide their misdeeds behind a veil of secrecy and hold themselves above the law. But no one is above the law. Not the State Police. Not the current Colonel. Not the former Colonel. No one. Although they may admire the ability of Cuba, China and the former Soviet Union to stifle dissent - we live in America, where "speech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).2 B. Speech on Public Issues Occupies the Highest Rung of First Amendment

See also id. at 1034 (noting that the speech at issue - attorney speech criticizing governmental misconduct towards his client - was "classic political speech . . . critical of the government and its officials. . . His words were directed at public officials and their conduct in office.") (opinion of Kennedy, Marshall, Blackmun and Stevens, concurring in judgment). Unfortunately for defendants, the Sedition Act expired in 1801. See New York Times Co. v. Sullivan, 376 U.S. 254, 276 and n.16 (1964) ("Although the Sedition Act was never tested in this Court, the attack on its validity has carried the day in the court of history . . . [B]ecause of the restraint [the Act] imposed upon criticism of government and public officials, [it] was inconsistent with the First Amendment" and would have been struck down if it had not expired on its own terms).
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Protection. In their concurring opinion in Whitney v. California, 274 U.S. 357 (1927), Justices Brandeis and Holmes set forth the "classic formulation"3 of First Amendment jurisprudence "that public discussion is a political duty; and that this should be a fundamental principle of the American government." Id. at 375.4 "[S]peech on public issues occupies the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special protection." Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting NAACP v. Claiborn Hardware Co., 458 U.S. 886, 913 (1982) and Carey v. Brown, 477 U.S. 455, 467 (1980)). "The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard ... was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." N.Y.Times, 376 U.S. at 269 (internal punctuation omitted). C. Vehement, Caustic and Unpleasant Speech About Public Officials Receives Full First Amendment Protection. "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). "[C]onstitutional protection does not turn upon `the truth, popularity, or social utility of the ideas and beliefs which are offered.'" N.Y. Times, 376 U.S. at 271 (quoting NAACP v. Button, 371 U.S. 415, 445 (1963)). Our dedication to freedom of speech reflects our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it

3

N.Y. Times, 376 U.S. at 270.

The defense efforts to invoke Justice Holmes' famous words in Schenck v. U.S., 249 U.S. 47 (1919), fall flat due to their misquotation of those very words. Justice Holmes did not write that one cannot yell fire in a crowded theatre. Indeed, there may be circumstances where the theatre is actually on fire and such speech would be protected due to its addressing a paramount matter of public importance. Instead, Justice Holmes noted that the First Amendment "would not protect a man in falsely shouting fire in a theatre and causing a panic." Id. at 52 (emphasis added). The remainder of the defense First Amendment analysis is equally inaccurate.

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may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." N.Y. Times, 376 U.S. at 270 (emphasis added); accord Conley v. Chaffinch, 2005 WL 2678954, *2 (D.Del. March 4, 2005). The First Amendment "offers broad protection for speech, be it unpleasant, disputatious, or downright offensive." Johnson v. Campbell, 332 F.3d 199, 212 (3d Cir. 2003) (emphasis added); see U.S. v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996) ("the First Amendment does not permit the government to punish speech merely because the speech is forceful or aggressive. What is offensive to some is passionate to others."). It protects "not only learned political discourse but also vituperative verbal and written attacks on the President and other high government officials." U.S. v. Kosma, 951 F.2d 549, 553 (3d Cir. 1991) (emphasis added). "It is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions, and this opportunity is to be afforded for `vigorous advocacy' no less than `abstract discussion.'" N.Y. Times, 376 U.S. at 269 (internal punctuation and citation omitted) (emphasis added). Importantly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (emphasis added); accord Cox v. Louisiana, 379 U.S. 536, 551-52 (1965); Texas v. Johnson, 491 U.S. at 408-09. As the Supreme Court explained when discussing the protected nature of wearing a "Fuck the Draft" jacket in a courthouse: Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

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Cohen v. California, 403 U.S. 15, 25 (1971). Speech is "protected against censorship or punishment" unless it causes "a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Terminiello, 337 U.S. at 4 (emphasis added). "There is no room under our Constitution for a more restrictive view." Id. "[S]o long as the means are peaceful, the communication need not meet standards of acceptability." Cohen, 403 U.S. at 25. 1. The First Amendment Does Not Give the Defense a Listener's Veto. In light of these bedrock First Amendment principles, it should come as no surprise that the First Amendment does not give government officials a listener's veto to exercise over speech critical of their misconduct while holding public office. "[C]onstitutional rights may not be denied simply because of hostility to their assertion or exercise." Cox, 379 U.S. at 551. The Supreme Court has regularly and consistently rejected the idea of a listener veto in the free speech context. See Texas v. Johnson, 491 U.S. at 414; Hustler v. Falwell, 485 U.S. 46, 55-56 (1988); FCC v. Pacifica Found., 438 U.S. 726, 745-46 (1978); Street v. New York, 394 U.S. 576, 592 (1969); cf. Good News Club v. Milford Central Sch., 533 U.S. 98, 119 (2001) (declining to employ "a modified heckler's veto" in the Establishment Clause and Free Speech contexts). D. The First Amendment Needs Breathing Space to Survive. Acquiescing to the defense request for sanctions for public criticism of governmental misconduct will have severe and negative consequences for cherished First Amendment freedoms. As the Supreme Court has explained,"the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive." N.Y. Times, 376 U.S. at 278. Such an action "dampens the vigor and limits the variety of public debate ... [and] is inconsistent with the First and Fourteenth Amendments." Id. at 279. As has long been recognized, "[s]ome degree of abuse is inseparable from the proper use of every thing." Id. at 271. A speaker may

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resort[] to exaggeration, to vilification of men who have been, or are, prominent in ... state ... But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy. Id. (quoting Cantwell v. Connecticut, 310 U.S. 296, 310 (1940)) (emphasis added). That is why the Supreme Court has repeatedly held that the First Amendment requires "`breathing space' ... to survive." Id. (quoting NAACP v. Button, 371 U.S. at 433). E. The Heightened Public Interest in the Actions of Police Officers. The need for unvarnished freedom of speech is even more critical when police officers are involved. The Third Circuit has regularly "noted the `awesome and dangerous power' conferred to police officers and the `need in a democratic society for public confidence, respect and approbation of the public officials on whom the state confers that awesome power.'" Caver v. City of Trenton, 420 F.3d 243, 256 n.11 (3d Cir. 2005) (quoting Policemen's Benevloent Ass'n of N.J. v. Washington, 850 F.2d 133, 141 (3d Cir. 1988)); see Wilcher v. City of Wilmington, 60 F.Supp.2d 298, 304 (D.Del. 1999) (noting that policemen hold a unique status as public employees because they "work in a heavily regulated industry that is intertwined with the important social function of protecting and promoting public safety.").5 In light of this, is it not surprising that "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers," such as defendants. City of Houston v. Hill, 482 U.S. 451, 461 (1987); see Kerman v. City of New York, 261 F.3d 229, 242 (2d Cir. 2001) (individuals have a First Amendment "right to criticize the police without reprisal."). As a result of their illegal actions in the Price case, both MacLeish and Chaffinch have undermined public confidence in the DSP and the Rule of Law by their malicious violations of the First Amendment rights of three Troopers under their command. Such wrongdoing by high ranking police officials speaks to the

See also F.O.P., Lodge No. 5 v. City of Phila., 812 F.2d 105, 116 (3d Cir. 1987) ("There is obviously a strong public interest in avoiding corruption of the officers who investigate corruption"); id. ("There is also a strong public interest in assuring the effectiveness of the officers who investigate vice and corruption").

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heightened public interest in their misconduct. F. Speech About Defendants' Wrongdoing is Core First Amendment Protected Activity. Speech addresses an area of public concern when it can be "fairly considered as relating to any matter of political, social, or other concern to the community." Connick, 461 U.S. at 146. "Disclosing corruption, fraud and illegality in a government agency is a matter of significant public concern." Baldassare v. State of N.J., 250 F.3d 188, 196 (3d Cir. 2001); see U.S. v. Smith, 776 F.2d 1104, 1114 (3d Cir. 1985) (the "public has a substantial interest in the integrity or lack of integrity of those who serve them in public office"). As discussed, "[s]peech involving government impropriety occupies the highest rung of First Amendment protection." Swineford v. Snyder County Pa., 15 F.3d 1258, 1274 (3d Cir. 1994). Yet in this case, defendants seek "to punish the publication of information relating to [ ] governmental misconduct--speech which has traditionally been recognized as lying at the core of the First Amendment." Butterworth v. Smith, 494 U.S. 624, 632 (1990). But "[f]reedom of expression has particular significance with respect to government because it is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 777 n.11 (1978) (internal punctuation omitted). "[S]elfgovernment suffers when those in power suppress competing views on public issues from diverse and antagonistic sources." Id. at n.12 (internal punctuation omitted).6 As discussed in earlier briefing (D.I. 22 at 7-18), defendants' misconduct has been front and center in the public eye since 2002. In the interests of brevity, plaintiff will focus solely upon adverse jury verdicts, and ignore the numerous well-publicized cover-ups of Internal Affairs findings of wrongdoing against both Chaffinch and MacLeish during their tenure (D.I. 22

In the words of Judge Learned Hand, the First Amendment "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." N.Y.Times, 376 U.S. at 270 (quoting U.S. v. Associated Press, 52 F.Supp. 363, 372 (S.D.N.Y. 1943)).

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at 10-11, 13-14), and other matters that were discussed in earlier briefing - all of which help demonstrate the key overarching context in which this latest jury verdict against Chaffinch and MacLeish must be viewed. See Connick, 461 U.S. at 147-48 ("public concern" nature of speech "must be determined by the content, form and context of a given statement, as revealed by the whole record."). · In June 2003, a federal court jury ruled that defendant Chaffinch had violated the First Amendment free speech rights of Sgt. Foraker. In January 2004, another federal court jury ruled that defendant Chaffinch and Cabinet Secretary Ford had violated the Fourteenth Amendment equal protection rights of Sgt. William Bullen and Sgt. Jeffrey Giles.

·

Each of these aforementioned lawsuits and jury verdicts received widespread media attention throughout the State of Delaware. Following the Bullen verdict, counsel immediately issued a public call for Chaffinch's firing and censure. (See D.I. 24 at 94-95, 97-98, 106 - media articles in which counsel called for the firing of Chaffinch and legislative censure of Secretary Ford, as well as the legislative censure of Governor Minner for ordering the illegal actions at issue in Bullen). · Then on May 31, 2006, yet another federal court jury ruled that both Chaffinch and MacLeish had violated the First Amendment rights of Cpl/3 Warren, Cpl/3 Price and Sgt. Foraker and did so with recklessness or malice.

The widespread media coverage over the 12 days of the Price trial clearly attests to the great public interest in Chaffinch and MacLeish's never-ending flood of misconduct. See City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004) (per curiam) ("public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication."). The Supreme Court has repeatedly held that a public official's misconduct while holding public office is plainly relevant to their fitness to hold that office. See, e.g. Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 301 (1971) ("under any test we can conceive, the charge that a [public official] has been indicted for perjury in a civil rights suit is relevant to his fitness for

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office."); Monitor Patriot Co. v. Roy, 401 U.S. 265, 276 (1971) ("a charge of criminal conduct, no matter how remote in time or place, can never be irrelevant to an official's or a candidate's fitness for office."); cf. U.S. v. Smith, 776 F.2d at 1114 (the "public has a substantial interest in the integrity or lack of integrity of those who serve them in public office."). Thus, defendants' misconduct in violation of the First Amendment rights of three Troopers under their command clearly calls into question their fitness to hold the public positions they have held - as the Superintendent of the Delaware State Police. Their continuing and longstanding disregard for the constitutional rights of their employees is a serious matter of public concern. Moreover, it is precisely because of the timidity and fear of leveling public criticism against the DSP that is felt by many members of the public, members of the State Police and others in state government, that the State Police is currently mired in a plethora of lawsuits and internal affairs investigations. It is out of fear of angering Col. Chaffinch, Col. MacLeish and their powerful political allies such as State Senator Adams and Governor Minner that individuals are so hesitant to publicly criticize the illegality and corruption that has long festered under the reign of Chaffinch and MacLeish in the DSP. It is precisely because of this lack of public criticism that Chaffinch and MacLeish believe they are above the law and can do whatever they want. It is precisely because of this lack of public criticism that there has been a flood of lawsuits against Chaffinch and MacLeish over the last four years which have cost the taxpayers many millions of dollars. It is precisely because of this lack of public criticism that there have been three significant jury verdicts over the last three years, finding that Chaffinch and/or MacLeish have continued to flagrantly violate the U.S. Constitution and its Amendments. It is precisely because of this lack of public criticism that despite the aforementioned events, nothing has changed in the DSP. It is precisely because of this lack of public criticism that the two highest ranking police officials in the State have undermined the Rule of Law for all of us. When police officers violate the law, when they are not held accountable and when nothing

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changes despite all of their wrongdoing, the Rule of Law suffers for all of us. G. Criticism of Government Misconduct Does Not Lose Its Protection Simply Because It Rightly Diminishes an Official's Reputation. "Injury to official reputation [ ] affords no more warrant for repressing free speech that would otherwise be free than does factual error." N.Y. Times, 376 U.S. at 272. "If judges are to be treated as men of fortitude, able to thrive in a hardy climate, surely the same must be true of other government officials." Id. at 273 (internal punctuation and citations omitted). "Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations." Id.; see NAACP v. Claiborne Hardware Co., 458 U.S. at 910 ("Speech does not lose its protected character ... simply because it may embarrass others."). No doubt counsel's public statements about MacLeish's misconduct were irritating and most assuredly hurt his reputation to some extent. However, counsel's statements were true, accurate and well-deserved in light of the verdict of the conscientious jury in Price - that MacLeish had maliciously violated the First Amendment, not once (Cpl/3 Price), not twice (Cpl/3 Warren), but three times (Sgt. Foraker). H. The Timing of Speech is Key. As discussed earlier, "[n]o suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression." Bridges, 314 U.S. at 269. History has shown that bans on speech are "likely to fall not only at a crucial time but upon the most important topics of discussion" id. at 268, such as in the immediate aftermath of yet another jury finding of illegal and unconstitutional misconduct by the highest ranking police officials in the State of Delaware. Time is of the essence when it comes to discussion of important public events, such as the verdict against MacLeish and Chaffinch in Price for violating the constitutional rights of three troopers under their command. The time for comment is when the verdict comes down.

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Counsel's First Amendment right to speak will be effectively eviscerated by waiting to comment until weeks after the fact. Indeed, such a delay ensures that no one will hear the speech at issue because the news media will not report again on a matter which occurred weeks ago when they have reported on the story already. As the Third Circuit has explained when discussing the importance of timely reporting of the news, "[a]fter all, nobody wants to read yesterday's news." Shingara v. Skiles, 420 F.3d 301, 305 (3d Cir. 2005). "[T]ime is of the essence" in such a situation. Id. As the Supreme Court has explained, "[u]rgent, important, and effective speech can be no less protected than impotent speech, lest the right to speak be relegated to those instances when it is least needed." McIntyre v. Ohio Elec. Commissions, 514 U.S. 334, 347 (1995). The time to speak and publicly criticize MacLeish was when the verdict came down, not weeks later when the issue is long since past and forgotten by the very public which can force the government to be responsive to the legitimate concerns of its citizens.7 II. MODEL RULE 3.6 HAS NOT BEEN VIOLATED AS ALL STATEMENTS OF COUNSEL WERE WELL WITHIN ITS SAFE HAVENS AND THOSE OF THE FIRST AMENDMENT. A. The Law of Prior Restraints. It has long been established that "any system of prior restraints comes to a court bearing a heavy presumption against its validity." Alderman v. Phila. Hous. Auth., 496 F.2d 164, 169 (3d Cir. 1974); accord Conley, 2005 WL 2678954, *1. "Prior restraints on speech ... are the most serious and least tolerable infringement on First Amendment rights." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). "[I]t has been generally, if not universally, considered that it is the chief purpose of [the First Amendment] to prevent" prior

Notably, the public's right to receive timely information about newsworthy events and government wrongdoing also is at issue. See, e.g. First National Bank of Boston, 435 U.S. at 783 ("First Amendment ... afford[s] the public access to discussion, debate, and the dissemination of information and ideas"); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) (First Amendment encompasses "right to receive information and ideas"); Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (the framers "knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. This freedom embraces the right to distribute literature ... and necessarily protects the right to receive it.").

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restraints. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-14 (1931). "The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Alexander v. U.S., 509 U.S. 544, 550 (1993) (internal punctuation omitted). "[C]ourt orders that actually forbid speech activities -- are classic examples of prior restraints." Id. "More specifically, a trial court's order that prohibits or limits the speech of lawyers or parties before the court, a so-called `gag order,' is a prior restraint." U.S. v. Carmichael, 326 F.Supp.2d 1267,1291 (M.D.Ala. 2004). B. The Various Prior Restraint Tests. 1. The Scarfo Gag Order on an Attorney Test. A gag order on an attorney "is a restraint on speech that raises rights under the First Amendment." U.S. v. Scarfo, 263 F.3d 80, 92 (3d Cir. 2001); accord Conley, 2005 WL 2678954, *1. Importantly, such a prior restraint "must stand or fall on its own terms in the factual setting described in the record." Scarfo, 263 F.3d at 94. "To have full force and effect, the First Amendment may not be trimmed just because of appealing circumstances; the regulation of speech-connected activities must be carefully restricted." Id. at 91. For a court to impose such a draconian measure, it must "make specific factual findings supporting its decision" and "such findings are essential to any order restricting speech." Bailey v. Sys. Innovation, Inc., 852 F.2d 93, 99 (3d Cir. 1988). "If any method other than a prior restraint can effectively be employed to further the governmental or private interest threatened here, then the order is invalid." Id. "The moving party must ... demonstrate that the order is narrowly tailored and that other measures short of prior restraints cannot effectively address the perceived danger." Conley, 2005 WL 2678954, *1. Thus, a gag order or prior restraint must be the least restrictive means available. Bailey, 852 F.2d at 99-101; see Conley, 2005 WL 2678954, *3 (a "gag order [must be] the least restrictive means available to prevent the `evils' against which a gag order may appropriately apply").

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A gag order on attorney speech may only be justified if the gag order "prevented a [1] substantial likelihood [2] of material prejudice to the judicial proceeding." Scarfo, 263 F.3d at 93 (numeration added). "Any limitation on attorney speech must be [3] narrow and necessary, [4] carefully aimed at comments likely to influence the trial or judicial determination." Id. 2. The Bailey Gag Order on a Party Test. "The court ... cannot impose the ethical rules governing a lawyer's pretrial comments on litigants unless: (1) the litigant's pretrial comments are likely to interfere with the moving party's right to a fair trial; (2) other measures would not likely mitigate the effects of unrestrained pretrial publicity; and (3) the prior restraint would effectively prevent the perceived danger." Conley, 2005 WL 2678954, *2 n.3; accord Bailey, 852 F.2d at 99-100. Given that the defense has challenged no statements made by plaintiff Capt. Conley, the gag order and its application to Capt. Conley must be struck down as failing the strict Bailey test. 3. The Gag Order on Witnesses. Plaintiff respectfully submits that a gag order on all witnesses absent a strict showing of some kind also fails constitutional scrutiny. However, such an abridgement is not plaintiff's present concern. C. Model Rule 3.6's General Rule. Scarfo's "substantial likelihood of material prejudice" standard was taken from the Supreme Court's opinion in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), which was discussing Nevada's version of Model Rule of Professional Conduct 3.6. The current version of Rule 3.6(a) states that A lawyer who is participating ... in the ... litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know ... will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. D. Safe Haven Exceptions to Rule 3.6. As the Court has previously explained, Rule 3.6 contains numerous "safe harbors" from liability for speech, Conley, 2005 WL 2678954, *2. several of which are relevant to the present matter and are discussed below. 1. "In the Matter" Limitation - Rule 3.6(a). Rule 3.6(a) states, a "lawyer who

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is participating...in the...litigation of a matter shall not make an extrajudicial statement ...[that will prejudice a proceeding] in the matter." Counsel simply did not make any statements relating to the Conley matter. All of the speech challenged by the defense does not relate to the Conley matter. Instead, it addressed the Price case, a separate and independent matter that is "not related" (D.I. 236 - Order), to the present Conley action. Accordingly, no liability may attach to this speech. The Court has already had the opportunity to address, explain and elaborate upon this distinction in its earlier gag order opinion when the defense similarly moved to sanction counsel for publicly criticizing them. In the earlier briefing, much of the speech challenged by the defense addressed Chaffinch and MacLeish's misconduct in several unrelated Internal Affairs investigations and coverups, not the present Conley case. In those circumstances, counsel also had exercised their First Amendment free speech rights to publicly criticize that governmental misconduct and corruption. The Court explained that public criticism about those other matters could not be the basis for sanctions or other liability in the present case. In the Court's words, these statements including the alleged Internal Affairs coverups of the defendants, specifically Chaffinch and MacLeish, arise out of independent matters concerning alleged misconduct and abuse of office within the [DSP] and the Delaware government. These statements are protected by the First Amendment because they are criticisms of alleged governmental corruption, an issue of great public concern that lies at the core of the First Amendment. Conley, 2005 WL 2678954, *2 (emphasis added); see also id. at *3 n.9 (noting that one challenged news story "relates to the Internal Affairs investigation of Colonel Chaffinch, not the present case."). The public criticism discussed in the earlier opinion clearly addressed both Chaffinch and MacLeish. However, in accord with the plain terms of Rule 3.6(a) and the First Amendment framework within which Rule 3.6 must operate, the Court rightly drew the distinction between public comments and criticism relating to the present matter, and public comments and criticism

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relating to other matters outside the scope of the present Conley court case - even though that criticism addressed the very defendants in the present matter. Thus, Rule 3.6(a) has not been violated because all of the challenged statements address the Price case, a matter outside the scope of the present Conley action, the action within which the defense has mov