Davis vs. McKinney, MD (5th Cir. Feb. 21, 2008)

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 07-20184

CYNTHIA M. DAVIS
Plaintiff - Appellee
v.
MICHAEL McKINNEY, M.D., Being Sued Individually and In His Official
Capacity; and CHARLES G. CHAFFIN, Being Sued Individually and In His
Official Capacity,

Defendants-Appellants

Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, STEWART and OWEN, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendants Michael McKinney and Charles Chaffin bring this
interlocutory appeal challenging the denial of their summary judgment motion
seeking dismissal based on qualified immunity from plaintiff Cynthia Davis’ §
1983 suit for retaliatory discharge in violation of the First Amendment. For the
reasons set forth below, we affirm in part, reverse in part and remand to the
district court for further proceedings.

United States Court of Appeals
Fifth Circuit
F I L E D
February 21, 2008
Charles R. Fulbruge III
Clerk

Appeal from the United States District Court
for the Southern District of Texas

Before DAVIS, STEWART and OWEN, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:

Defendants Michael McKinney and Charles Chaffin bring this interlocutory appeal challenging the denial of their summary judgment motion seeking dismissal based on qualified immunity from plaintiff Cynthia Davis’ § 1983 suit for retaliatory discharge in violation of the First Amendment. For the reasons set forth below, we affirm in part, reverse in part and remand to the district court for further proceedings.

I.
Davis filed this suit against the above named defendants and the several arms of the University of Texas (“UT”) System. Prior to December 2003, Davis was the IS Audit Manager at the UT Health Science Center in Houston, Texas (“UTHSC-H”). As IS Audit Manager, Davis’ job duties included overseeing computer-related audits and creating audit summaries and reports. Defendant McKinney is the Senior Executive Vice-President and Chief Operating officer of UTHSC-H. Defendant Chaffin is the UT System’s Director of Audits and System-wide
Compliance Officer.

In June 2003, Davis learned that the UT System was considering restructuring certain aspects of the UTHSC-H Internal Audit department and adding an Assistant Director position. The position was officially announced in late June. Davis told Sharon Corum, the director of the UTHSC-H Internal Audit Department and her direct supervisor, that she would like the position. Thereafter, Corum sought and received permission from human resources and Dr. James Willerson (“Willerson”), UTHSC-H President, to waive the normal requirement that a search committee be used to find applicants for the job.

In August 2003, David Healey (“Healey”), UTHSC-H Vice President for Facilities Planning, approached the Internal Audit department and requested an audit of his department’s computer systems because he suspected that employees were viewing pornography on work computers. Davis, with the assistance of the IT Security department, investigated the computers in the Facilities department. An expanded UTHSC-H wide investigation began in late August. The investigation revealed that several computers had accessed pornographic material and that certain employees had intentionally accessed pornography. A log of internet activity was developed to establish probable cause for confiscating computers at the request of Tex Martin, an inspector with the UT System Office of the Director of Police. Martin provided the information to McKinney.

In late August 2003, Davis met with McKinney, Martin and Arline Staller. At the meeting, Davis presented evidence of 300 or more employees at UTHSC-H who were accessing pornography. McKinney authorized Davis to confiscate computers from employees if she had a clear indication that the access was intentional. McKinney expressed an intent to terminate the employees who had intentionally accessed the offending material and told Davis to schedule a meeting with him on September 2, 2003 to discuss the investigation.

After the meeting, Davis engaged IT Security and Information Service departments for assistance in confiscating computers from UT personnel. Eleven computers were identified that were believed to have intentionally accessed pornography. After further investigation, evidence in ten of the eleven computers strongly indicated that pornography had been intentionally accessed, including some material that Davis believed to be child pornography.

Davis attempted to meet with McKinney on September 2, 2003, as she had been directed, but McKinney was unavailable and never responded to Davis’ request to contact her. That same day, Davis received a call from Mike Jimenez, UTHSC-H Human Resources Manager, asking Davis to return several of the confiscated computers to physicians. Davis alleges that she heard that McKinney wished to terminate the investigation, even though her analysis of the confiscated computers was not complete.

In response to Jimenez’s request, Davis and the rest of the investigation team worked to copy the hard drives of the confiscated computers so they could be returned. Directory listings from the computers were provided to Human Resources. Davis noted that all of the users of the confiscated computers had signed acceptable use policy forms detailing the restrictions and permissible uses of the internet on work computers.

Davis continued the investigation and claims that she provided McKinney with lists of physicians whose computers contained pornography and included descriptions of the material that had been accessed. Davis also continued to ask McKinney to meet with her but he avoided any such meeting. She concluded that McKinney and others in upper management were turning a blind eye to the investigation. UTHSC-H physicians perceived the investigation as an intrusion into their privacy. Davis claims that several employees’ supervisors chastised her and that a physician sent a demeaning letter about her to McKinney. Davis also heard that McKinney was accusing her of botching the investigation. Corum told her that the Internal Audit department was receiving the brunt of employees’ disdain toward the investigation.

Around September 9, 2003, Davis asked Corum to be taken off the investigation because she felt it created a hostile work environment and the requirement that she review repugnant pornographic material denigrated her as a woman. Davis felt that she was receiving “heat” from other employees and that management was unresponsive to the findings of the inquiry.
On September 11, 2003, Davis applied for the newly created Assistant Director position for UTHSC-H’s Internal Audit department. Around the same time, she sought assistance from the Employee Assistance Program to cope with the stress of dealing with the pornography and receiving no support in the investigation from UTHSC-H or the UT System. Davis also contacted the EEOC about discriminatory behavior of UT’s upper management.

Davis claims that shortly thereafter her work responsibilities were reduced to mundane tasks. She heard from Corum that upper management, particularly Chaffin, were pressuring Corum to terminate Davis. Davis also claims that she heard that McKinney was threatening adverse action against the Quality Assurance Review team, which Davis had joined years earlier on Chaffin’s recommendation, if Davis was not terminated.

On October 12, 2003, Davis wrote a letter to Willerson, UTHSC-H President, accusing UTHSC-H and UT System upper management of several unethical and allegedly illegal activities (the “Complaint Letter”). A complete copy of the Complaint Letter is attached to this opinion as an Appendix. Davis sent copies of the letter to Corum and Mark Yudof, the UT System Chancellor. The Complaint Letter alleged that upper management had a pattern of sweeping pornography investigations under the rug and not terminating or disciplining offending employees. In the Complaint Letter, Davis detailed the most recent investigation and complained that McKinney had not taken corrective action. She also outlined a pattern of treating certain employees, white men, physicians and faculty members more leniently than black employees. Davis asserted that in the course of the investigation she, a female, under the direction of males, had been required to view horrific and deviant pornography that men had been viewing at work, and then men in supervisory positions excused the behavior. Davis also stated that as a result of the investigation, her reputation and credibility had suffered, even though she was doing her job.

The Complaint Letter also alleged that the president was creating an excessive number of highly paid upper management positions to the detriment of the division’s budget, demonstrating a pattern of favoritism towards white men and persons with political influence. Davis stated that she viewed Willerson’s failure to address the issues brought to him as a dereliction of his duties to the university, its students, employees, patients and Texas taxpayers.

Near the end of the Complaint Letter, Davis wrote that because she was no longer confident that the UT System could investigate itself, she had contacted the Federal Bureau of Investigation concerning possible child pornography on eight computers and the EEOC about discriminatory practices. 1 Willerson responded by outlining his response to the most recent pornography investigation. Other issues were not addressed.

In November 2003, Davis emailed Corum inquiring about the status of her application for the Assistant Director position. Corum had previously indicated to her that Davis was the most likely candidate to be selected for the position because she was the most qualified. In response to Davis’ inquiry, Corum advised her that McKinney had frozen the position and it would not be filled. Davis contends that this action was taken in retaliation for her Complaint Letter and related reports to the FBI and EEOC. McKinney asserts that he froze the position because he was considering outsourcing the entire internal audit function. He also alleges that he and Corum met in September and determined that if Davis were promoted to Assistant Director, she would still have to participate in pornography investigations after her request to be relieved from those duties.

In December 2003, feeling that her termination was imminent, Davis resigned from UTHSC-H. Davis had been diagnosed with depression and felt that her workplace conditions had grown so deplorable that she had been constructively discharged.

In February 2004, the FBI concluded its review of the hard drives of the ten confiscated computers and found no child pornography.

Davis filed suit in May 2005 against McKinney, individually and in his official capacity, and Chaffin, individually and in his official capacity. 2 Davis alleges that McKinney and Chaffin violated her civil rights, pursuant to the Fourteenth Amendment and § 1983, by retaliating against her for exercising her First Amendment free speech rights in her Complaint Letter and related communications to the FBI and EEOC. Davis contends that the defendants retaliated against her by failing to promote her and thereafter constructively discharging her from her position at UTHSC-H by subjecting her to a hostile work environment.

McKinney and Davis filed a motion for summary judgment arguing that the Complaint Letter was speech made pursuant to Davis’ official work duties and therefore not afforded First Amendment protections. They also argued that they are entitled to qualified immunity from all claims asserted against them in their individual capacities because there is no evidence that they violated Davis’ constitutional rights and their actions were objectively reasonable. The district court denied the motion. The district court found that the Complaint Letter “while constituting ‘mixed speech,’ predominantly addresses matters of public concern, rather than private concern, and that Plaintiff wrote the letter as a citizen, rather than an employee.” Accordingly, Davis’ speech was protected under the First Amendment. On the issue of qualified immunity, the district court found that Davis had raised a genuine issue of material fact regarding whether she was fired (or constructively discharged) for writing the Complaint Letter. In addition, the district court found that the defendants’ actions regarding Davis’ employment at UTHSC-H were not objectively reasonable and that they were not entitled to qualified immunity. The defendants appeal.

II.

This court does not ordinarily have jurisdiction to review a denial of a motion for summary judgment. However, the district court’s order denying qualified immunity is immediately appealable to the extent it turns on a question of law. Gobert v. Caldwell , 463 F.3d 339, 344 (5 th Cir. 2006). This panel thus has jurisdiction only to determine whether McKinney and Chaffin are entitled to qualified immunity as a matter of law, viewing all record evidence in the light most favorable to the plaintiff Davis. Kinney v. Weaver , 367 F.3d 337, 348 (5 th Cir. 2004)( en banc ).

To determine whether an official is entitled to qualified immunity, the court asks (1) whether the plaintiff has alleged a violation of a constitutional right, and (2) whether the defendant’s conduct was objectively reasonable in light of the clearly established law at the time of the incident.

Connelly v. Tex. Dep’t of Crim. Justice , 484 F.3d 343, 346 (5 th Cir. 2007). The threshold question in this case, whether Davis’s speech in the Complaint Letter is protected under the First Amendment, is a question of law, which we have jurisdiction to address. Connick v. Myers , 103 S.Ct. 1684, 1691 n.7 (1983).

III.

The defendants argue that the district court erred in denying their motion for summary judgment in which they asserted that they were entitled to qualified immunity from Davis’ claims. The defendants argue first that they did not violate Davis’ First Amendment rights since her Complaint Letter related to her job duties as an internal auditor at UTHSC-H and did not comment on matters of public concern.

The First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen on matters of public concern. Pickering v. Board of Educ. , 391 U.S. 563, 568 (1968). Prior to the Supreme Court’s most recent pronouncement on the First Amendment rights of public employees in Garcetti v. Ceballos , 126 S.Ct. 1951 (2006), this court applied two tests, sometimes in conjunction with one another, to determine whether speech relates to a public concern; both tests derive from Connick v. Myers , 461 U.S. 138, 75 L.Ed.2d 708, 103 S.Ct. 1684 (1983). The first is the content-form-context test: “whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole court record.” Id . at 147-48; see also Tompkins v. Vickers , 26 F.3d 603, 606 (5 th Cir. 1994).

The second “shorthand” test is the citizen-employee test: “when a public employee speaks not as a citizen on matters of public concern, but instead as an employee upon matters of only of personal interest,” the employee’s speech falls outside the parameters of speech involving matters of public concern. Connick , 461 U.S. at 147 (emphasis added); see also Schultea v. Wood , 27 F.3d 1112, 1120 (5 th Cir. 1994), superseded on other grounds by , 47 F.3d 1427 (5 th Cir. 1995) (en banc). The citizen-employee test can yield indeterminate results because “the existence of an element of personal interest on the part of an employee in the speech does not prevent finding that the speech as a whole raises issues of public concern.” Dodds , 933 F.2d at 273. Thus, “in cases involving mixed speech, we are bound to consider the Connick factors of content, context, and form, and determine whether the speech is public or private based on these factors.” Teague , 179 F.3d at 382. Kennedy v. Tangipahoa Parish Library Bd .of Control , 224 F.3d 359, 366 (5 th Cir. 2000).

Garcetti changed this analysis in ways not yet fully determined. In Garcetti , a supervising district attorney, Ceballos, reviewed a case in which defense counsel claimed the affidavit police used to obtain a critical search warrant was inaccurate. After determining that the affidavit made serious misrepresentations, Ceballos relayed that finding to his supervisors via a disposition memo recommending dismissal of the criminal case. There was no question in Garcetti that the plaintiff in that case wrote the disposition memo pursuant to his employment duties. 126 S.Ct. at 1961. Ceballos was required as part of his job as a prosecutor to write memos such as the one in question to assess the validity of searches and make recommendations related to the exercise of prosecutorial discretion. The Supreme Court concluded that the First Amendment did not protect Ceballos’ expressions in the disposition memo which were written pursuant to his official duties as an employee. Id . at 1960.

Because of Ceballos’ concession that he wrote the memo pursuant to his duties as a prosecutor, the Supreme Court did not have occasion in that case to “articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate.” Id . at 1961. However, the case provides some guidance, indicating that a formal job description is not dispositive, id ., nor is the fact that the speech relates tangentially to the subject matter of one’s employment. Id . at 1959. The case also lists examples of prototypical protected speech by public employees, namely “mak[ing] a public statement, discuss[ing] politics with a coworker, writ[ing] a letter to newspapers or legislators, or otherwise speak[ing] as a citizen.” Spiegla v. Hull , 481 F.3d 961, 967 (7 th Cir. 2007), citing Garcetti. at 1960, 1961.

While all implications of Garcetti have not been developed at this point, it is clear that Garcetti added a threshold layer to our previous analysis. Williams , 480 F.3d at 692. “Under Garcetti , we must shift our focus from the content of the speech to the role the speaker occupied when he said it.” Id . The Seventh Circuit has framed the new test in a manner we find persuasive, as follows:

Garcetti . . . holds that before asking whether the subject-matter of particular speech is a topic of public concern, the court must decide whether the plaintiff was speaking "as a citizen" or as part of her public job. Only when government penalizes speech that a plaintiff utters "as a citizen" must the court consider the balance of public and private interests, along with the other questions posed by Pickering and its successors, such as Waters v. Churchill , 511 U.S. 661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994); Connick v. Myers , 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); and Givhan v. Western Line Consolidated School District , 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979). Mills v. City of Evansville , 452 F.3d 646, 647-48 (7th Cir. 2006). An education law treatise describes the inquiry similarly as follows:

The inquiry whether the employee's speech is constitutionally protected involves three considerations. First it must be determined whether the employee's speech is pursuant to his or her official duties. If it is, then the speech is not protected by the First Amendment. Second, if the speech is not pursuant to official duties, then it must be determined whether the speech is on a matter of public concern. Third, if the speech is on a matter of public concern, the Pickering test must be applied to balance the employee's interest in expressing such a concern with the employer's interest in promoting the efficiency of the public services it performs through its employees. (Footnotes and citations omitted). Ronna Greff Schneider, 1 Education Law: First Amendment, Due Process and Discrimination Litigation § 2:20 (West 2007).

Accordingly, our first task is to determine whether Davis’ speech was part of her official duties, that is whether she spoke as a citizen or as part of her public job. Because Garcetti is a recent decision, lower courts have had limited opportunity to interpret it. This circuit has had occasion to apply Garcetti in one case, Williams v. Dallas Indep. Sch. Dist. , 480 F.3d 689 (5 th Cir. 2007). In that case, this court applied the Garcetti analysis to speech that was not necessarily required by the plaintiff’s job duties, but was closely related to his job duties. Williams, an Athletic Director, wrote a memo to his school principal and office manager requesting information about the use of funds collected at athletic events, including negative remarks about how the school allocated those funds. After reviewing pre- and post- Garcetti caselaw, we concluded that the cases “distinguish between speech that is ‘the kind of activity engaged in by citizens who do not work for the government and activities undertaken in the course of performing one’s job.’” Id . at 693 (internal citation to Garcetti omitted). Activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection. Id. We found that Williams wrote the memo in the course of performing his job because he needed account information from the principal and office manager so that he could perform his duties as Athletic Director, namely, taking students to tournaments and paying their entry fees. Id. at 694. His memo reflected his special knowledge about the situation gained as athletic director. In addition, his comment that the principal had established “a network of friends and house rules,” for use of these funds related to his concerns about his athletic program.

Cases from other circuits are consistent in holding that when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job. Spiegla , 481 F. 3d at 966 (Correction officer’s reports to assistant superintendent of the prison in which she worked regarding a possible security lapse which occurred at her assigned position at the main gate was part of her official responsibility as a correction officer to keep the prison secure.); Battle v. Bd. of Regents , 468 F.3d 755, 761 (11 th Cir. 2006)(University employee’s internal report which alleged improprieties in her supervisor’s handling of federal financial aid funds was made pursuant to her official employment responsibilities as a financial aid counselor.); Foraker v. Chaffinch , 501 F.3d 231 (3d Cir. 2007)(Instructors at Delaware State Police Firearms Training Unit were acting within their duties as employees by bringing health and safety concerns about the range up the chain of command and to the state auditor.) 3

If however a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen. Freitag v. Ayers , 468 F.3d 528 (9 th Cir. 2006). In Freitag , the plaintiff was a corrections officer at the Pelican Bay State Prison in California. She encountered a pervasive practice of male inmate exhibitionist behavior directed at female officers, including herself personally, over a period of several months. Id . at 532. Freitag’s complaint alleged that she was retaliated against and ultimately terminated due to her repeated complaints about the problem. Id . The court listed six examples of Freitag’s speech on the subject: (a) reports to agents of the California Department of Corrections within the Pelican Bay State Prison, formally and informally; (b) documenting Pelican Bay State Prison’s responses or failure to respond to her reports of sexually hostile inmate conduct; (c) informing the Director of the California Department of Corrections of the prison’s failure to respond; (d) informing a State Senator of the inmate conduct and the prison’s failure to respond; (e) reporting the same to the Office of the Inspector General; and (f) cooperating with the investigation conducted by the Office of the Inspector General. Id . at 544. As to items (d), (e) and (f), the Ninth Circuit found that Freitag was acting as a citizen when making those communications. “Her right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee.” Id . at 545. “It was certainly not part of her official tasks to complain to the Senator or the IG about the state’s failure to perform its duties properly.” Id . In contrast, her communications within the prison internally, in (a) and (b) above, were pursuant to her official duties as a correction officer and thus not in her capacity as a citizen. With regard to item (c), the Ninth Circuit was “unsure whether prison guards are expected to air complaints regarding the conditions in their prisons all the way up to the Director of the CDCR at the state capitol in Sacramento” and remanded the case to allow the district court to make that determination. Id . at 546.

The communications in this case require a similar analysis - that we look at Davis’ role both when she sent the Complaint Letter and when she communicated with the FBI and EEOC. As in Freitag , the Complaint Letter was sent not just up Davis’ chain of command to Dr. Willerson, the President of UTHSC-H, where Davis was employed, and to Sharon Corum, her immediate supervisor. Davis also sent copies to Mark Yudof, Chancellor of the UT System. Davis also complained to external, unrelated entities. She contacted the FBI concerning the possible child pornography she found and the EEOC on the discriminatory practices.

With respect to the content of the Complaint Letter, some of it clearly relates to Davis’ job as an internal auditor, other parts do not. Davis’ Complaint Letter has two main topics. The first topic concerns complaints about what she considered the inadequate response to her investigation of employees accessing pornography on university computers, including claims that the university ignored possible criminal activity and engaged in racial discrimination in its imposition of sanctions for computer use violations. The second topic is Davis’ complaints about the number and pay of executive vice presidents and vice presidents at UTHSC-H, raising issues of political favoritism and fiscal mismanagement, and the effect of these practices on employee morale.

In “mixed” speech cases, Freitag supports analyzing separately each aspect of a communication with multiple topics and recipients. Pre - Garcetti case law also supports analyzing mixed speech in a single communication by dividing the communication by topic and applying First Amendment analysis to each topic separately. In Connick v. Myers , an assistant district attorney unhappy with a proposed transfer to another department, circulated a survey to “fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.” 461 U.S. at 141. The Court viewed most of the topics in the survey as private matters, “mere extensions of Myers’ dispute over her transfer to another section of the criminal court.” Id . at 148. The Court treated differently, however, the aspect of the survey that questioned whether the staff felt pressured to work in political campaigns on behalf of office supported candidates. The Court concluded that this speech raised a matter of public concern. Id. At 149. Although Connick dealt with distinguishing matters of public concern from matters of private concern and not whether the speech was made as part of an employee’s official duties, which is the issue in this case, we believe that it can be read as support for considering separately discrete topics within a single communication for purposes of applying post- Garcetti

First Amendment analysis.

Dividing Davis’ speech, both in the Complaint Letter and in her other communications, into components as the Ninth Circuit did in Freitag discloses the following components:

(a) concerns about the inadequate response to Davis’ pornography investigation for the internal audit department directed to Dr. Willerson, president of UTHSC-H, and to Sharon Corum, Davis’ immediate supervisor;
(b) concerns about the excessive number and pay of vice presidents directed to Dr. Willerson and Sharon Corum;
(c) concerns about the inadequate response to Davis’ pornography investigation for the internal audit department directed to Mark Yudof, Chancellor of the UT System;
(d) concerns about the excessive number and pay of vice presidents directed to Mark Yudof, Chancellor of the UT System;
(e) concerns about the presence of possible child pornography on UTHSC-H computers directed to the FBI;
(f) concerns about racial discrimination at UTHSC-H directed to the EEOC.

The district court did not discuss the individual components of Davis’ speech listed above or consider whether each category of speech was related to plaintiff’s job duties. Instead, it treated the Complaint Letter and other communications as a whole. However, because the question of whether a communication is made as an employee or as a citizen is a question of law, we proceed with the analysis.

Item (a) above was clearly made as an employee. Although Davis had requested that she be removed from further pornography investigations, the letter related to her work within the internal audit department and to her core job description, “to oversee computer-related audits and create audit summaries and reports.” The communication was sent to her immediate supervisor, Sharon Corum, and the President of her division of the UT System, in other words, up the chain of command seeking redress for what she felt was an inadequate response to the findings of her investigation.

In contrast, item (b), the portion of her letter dealing with the number of vice presidents and related issues, was not written as part of her job duties as a internal auditor. The topic does not relate to computer use or the internal audit department specifically. There was no financial component to Davis’ position. Accordingly, that communication was made as a citizen.

Item (c), the Complaint Letter to the Chancellor of the UT System, is more difficult. It is comparable to Freitag’s complaints regarding conditions at the prison to the state director of prisons. Speech related to an employee’s job duties that is directed within the employee’s chain of command is not protected. The question is how high within an organization an employee’s reporting responsibilities extend. Fortunately, our review of the record reveals that Chancellor Yudof was indisputably within Davis’ chain of reporting responsibilities on internal audit issues. The UT System is made up of nine academic universities and six health institutions. The UTHSC-H division for which Davis worked is one of the six health institutions under the UT System. The record includes the following information about reporting within the UT System and by the audit departments in particular. Defendant Chaffin stated in an affidavit

To provide for the independence of the Internal Auditor function, auditors at the U.T. System component institutions do not report to U.T. System but report directly to the administration of their component institution as provided by the University of Texas System Business Procedures Memorandum 18.

Memorandum 18 states that in “Large Institutions” like the UTHSC-H with freestanding internal audit departments, the audit departments report to the president of the institution and meet with their institution’s internal audit committee at least quarterly. Reports from the audit committee are submitted to the Executive Vice Chancellor for Academic or Health Affairs and the System Audit Director. Audit reports with significant audit findings and recommendations are summarized for the Audit, Compliance, and Management Review Committee. The chancellor attends meetings of the Audit, Compliance, and Management Review Committee and provides direct communication between the System Audit Director, the committees and senior management. Memorandum 18 states that the chancellor is “Responsible for insuring the implementation of appropriate audit procedures for the system.” Davis viewed Chancellor Yudof as being in the chain of her reporting responsibilities as an internal auditor. In her deposition, she was asked if she had ever gone over the head of Dr. Willerson, president of her division, to report that McKinney was trying to stop her investigation. Davis answered that she had not. However, when asked to whom she would have gone, she answered, “I would have gone to Mr. Yudof.” Accordingly, we conclude that Davis’ communication of her complaints about the handling of internal audit investigations at UTHSC-H to the Chancellor of the UT System was made as an employee.

In contrast, her complaints to Chancellor Yudof relating to the number of vice presidents and related concerns, item (d), have nothing to do with her job function as an internal auditor and therefore were made as a citizen.

Items (e) and (f), the reports to the FBI and EEOC, were not made as an employee. Defendant Chaffin testified at his deposition that it was not within an auditor’s job function to communicate with outside police authorities or other agencies in an investigation. Davis’ supervisor Corum testified that it was highly unusual for an auditor to involve any outside authority with respect to matters occurring at UTHSC-H and she could not recall it ever happening in her 12 years with the division. This communication is comparable to Freitag’s communication to a State Senator and the State Inspector General.

Those aspects of Davis’ communications that were made as a citizen qualify for First Amendment protection if they raise a matter of public concern. The district court found that “the confluence of factors surrounding Plaintiff’s Complaint Letter militate in favor of a finding that the letter, while constituting ‘mixed speech,’ predominantly addresses matters of public concern, rather than private concern.” Although the defendants mention both aspects of the test in their brief to this court - citizen vs. employee and public vs. private concern - their argument focuses solely on whether Davis’ speech in the Complaint Letter was made as an employee rather than as a citizen - not whether it raised matters of public concern. Other than stating that the Complaint Letter does not raise matters of public concern, the Defendants do not brief the issue separately and do not discuss at all whether communications to the FBI or EEOC raise matters of public concern. On remand, the district court after briefing by the parties should consider whether the aspects of Davis’ speech we have concluded are not job related raise issues of public concern. To the extent any category of speech raises matters of public concern, the district court should apply the Pickering balancing test to such speech and deny or grant summary judgment based on its conclusions.

IV.

Both McKinney and Chaffin argue that the district court erred in denying them qualified immunity from all claims asserted against them in their individual capacities because their actions were objectively reasonable. Evaluating a claim for qualified immunity is a two-step inquiry. First, a court must decide whether the plaintiff’s allegations, if true, establish a violation of a clearly established right. Hare v. City of Corinth , 135 F.3d 320, 325 (5 th Cir. 1998)(en banc). Second, if the plaintiff has alleged a violation, the court must decide whether the conduct was objectively reasonable in light of clearly established law at the time of the incident. Id. Even if the government official’s conduct violates a clearly established right, the official is entitled to qualified immunity if his conduct was objectively reasonable. Id.

McKinney and Chaffin challenge the district court’s conclusions on the second prong - that their actions were not objectively reasonable. At the time of the alleged violation of Davis’ free speech rights, both Supreme Court and Fifth Circuit law clearly proscribed retaliation by a government employer against an employee for engaging in protected speech. Pickering , 391 U.S. at 568; Connick , 461 U.S. at 146-47; Teague v. City of Flower Mound , 179 F.3d 377, 380-82; Davis v. Ector County, Tex , 40 F.3d 777, 782 (5 th Cir. 1994).

Chaffin argues that he was a UT System employee with no direct supervisory authority over Davis and her supervisor Corum who were employed at UTHSC-H. Chaffin also argues that an unexecuted threat of termination is not an adverse employment action that could support a § 1983 First Amendment retaliation claim. Davis pled that Chaffin had actual authority over employment decisions at UTHSC-H, and supported that allegation with deposition testimony of herself and her supervisor Corum. In addition, Davis alleges constructive, not actual, termination, negating Chaffin’s argument about the effect of an unexecuted threat. The district court found that Davis presented evidence raising a genuine issue of material fact as to whether Chaffin retaliated against Davis for the speaking out on the issues presented in the Complaint Letter. Chaffin’s arguments challenge Davis’ versions of the events, raising questions of fact which we have no jurisdiction to consider at this time.

McKinney argues that his actions freezing the hiring for the position of Assistant Director of audit were objectively reasonable because he was considering outsourcing the entire Audit Department or other reorganization options. He also argues that this action was objectively reasonable because Davis asked to be relieved of viewing pornography and reviewing pornography investigations was part of the job duties of the proposed Assistant Director of Audit position. Again, these arguments challenge Davis’ version of the facts. Davis produced evidence that McKinney, who presided over Davis’ pornography investigation, never viewed the pornography found on the department’s computers. The district court found that there was a genuine issue of fact with regard to McKinney’s motivations for freezing the position. As these arguments raise questions of fact, we have no jurisdiction to consider them at this time.

V.

Accordingly, for the reasons set forth above, we reverse the district court’s denial of summary judgment in part on the issue of whether Davis’ speech was entitled to First Amendment protection insofar as it relates to those aspects of Davis’ speech that were made as an employee, rather than as a citizen. The district court’s judgment is affirmed in all other respects and this case is remanded for further proceedings consistent with this opinion.

AFFIRMED in part. REVERSED in part. REMANDED.

APPENDIX

MEMORANDUM

TO: Dr. Willerson, President
University of Texas Health Science Center at Houston

FROM: Cynthia M. Davis, IT Audit Manager
University of Texas Health Science Center at Houston (UT-Houston)

DATE: October 12, 2003

SUBJECT: UNETHICAL AND POSSIBLE ILLEGAL ACTIVITIES at UT-Houston

[Ms. Davis first describes the requires for her to investigate the use of state computers to view pornography. She then reviews the procedures she followed, and finally describes some of her findings. The letter continues as follows:]

The University continues to perpetuate a hostile working environment with its pattern of not handling pornography..

• Nothing was done in 1999 when a Family Practice physician was discovered to have child pornography on his computer. No reports were filed, the AMA was not alerted and the physician was allowed to resign with no sanctions whatsoever.

• Nothing was done in 2000 when I discovered and reported a faculty member producing pornographic videos of himself masturbating in his office and trafficking it on the Internet.

• In 2000, three young, black classified employees were terminated within weeks that the faculty member was investigated and unsanctioned.

• a highly visible white classified male was not terminated when it was discovered that he viewed pornography at work.

• in the most recent audit, 10 men were discovered viewing pornography, eight of them with possible child pornography on the computers, and the investigation has been stopped with no explanation, even after I told my superiors much of the information above and my complete disgust with the University’s approval of such behavior.

I am unable to perform my job without interference from management. My role is no longer effective at the University. In the case of [one physician], I received a memo directed to McKinney by [another physician] attacking me for doing my job. His excuses for [the first physician] are baseless and I am told that McKinney has responded to the letter, although I have not been provided a copy.

Once again, executive management has taken no definitive action against employees who use state resources to view pornography for personal purposes. Since little to nothing is done, I have been repeatedly subjected to pornographic material that degrades women and children. This has created a hostile working environment for me because my efforts go unsupported. Men viewed the pornography, men requested the investigation, I a female , was the only employee ordered to view the material, and men excused the behavior of their colleagues.

Once the decision was made to not terminate any of the employees, the focus of attention was switched from the real problem of employees viewing pornography to the investigation itself. I personally have been blamed for a “botched” investigation although procedures were correctly followed and decisions were made by Martin and McKinney. Neither of these men made any attempt to correct the misperception (and appear to be propagating it) nor gave me the opportunity to respond to these allegations.

Despite evidence that child pornography was accessed, the investigation was stopped with no explanation. I opted out of doing further investigation because the University forces me to view pornography, has taken no action to remedy the problem, and now appears to just want to sweep it under the rug.

Research at our own School of Public Health linking pornography to deviant behavior should increase the desire of the University management to diligently investigate these cases and take strong action. Management consistently protects the perpetrators and ignores the rest of those that put their trust in this the University – students and patients.

The University’s continuing track record of ‘doing nothing” implicitly endorses the use of state resources for unsavory and possibly illegal activity. The University posts policies about this kind of behavior but when their colleagues are actually caught violating the policy they defend them by saying that they weren’t explicitly told not to view pornography at work. We trust them to educate our future health care professionals and treat patients, they are outstanding researchers discovering cures for disease but they don’t know that they shouldn’t view pornography at work?

You should know that I selected only a very small sample of persons that view pornography at the University, the problem is much greater than 10 people. I have Internet logs which were run on 9/3/2003 which show a much greater population. You should review the material on these computers so you know how horrific this is. Most material is actual videos of sexual intercourse, some deviant, most of women and young girls being violated. I gave McKinney the evidence, he ignored it and instead turned the attention to me as an excuse for not dealing with the real issue which is terminating employees for regularly viewing pornography.

My reputation has suffered significantly since this investigation, my credibility has been questioned and my ability to continue to be effective at the University is serious damaged because I chose to perform my job duty at the direction of UT system and McKinney. I have even been forced to obtain help from the Employee Assistance Program (EAP) as a result of all of this. I would have continued to seek help from EAP but realized I can longer trust the University to protect my rights. I believe the University would use the emotional problems I was experiencing as a result of this investigation against me. I am seeking help elsewhere.

It has become quite clear to me that neither you or McKinney take Auditing & Advisory Services, Legal or Compliance seriously and the “new” management method is to either promote and pay exorbitant salaries for silence or terminate those that don’t agree with you. It should be noted that many of the staff and VPs you terminated were the Chief Legal Officer, Chief Compliance Officer and one-half of the Audit department. Since McKinney is currently admonishing Auditing for the pornography investigation, it appears that the remaining Audit department is now being scrutinized!

It has also been noted that you removed all external members from the Audit Committee. These actions create the appearance that the University has things to hide and doesn’t wish to involve outside parties, is not concerned about complying with laws, regulations and does not feel terribly responsible for protecting taxpayer’s assets. Ignoring advice from legal, audit and compliance is endangering the reputation of the University and appears to be ignoring the rights of all employees, students and patients.

This pattern of behavior is very disturbing. Besides the fact that you appear to condone male physicians and male employees’ viewing of pornography using state- owned resources, it appears that you show favoritism towards white men and persons that can help you politically . The number of executive vice president’s and vice president’s you have placed at the University is now up to eleven(11). I have looked into the matter and can’t see what help these appointments provide, other than political favoritism. Also, I am unable to find another UT component that has close to this amount of vice presidents. I, among most of the University, don’t understand how creating executive positions and paying them large sums of money contributes to an efficient and cost-effective administrative structure for the University. The appearance that McKinney created his own senior executive position and demands well in excess of a one-half million dollar salary is revolting. The additional fact is that two minorities in the President’s office used to hold executive positions but are now simply vice presidents. These are the facts and it does not look good.

It is apparent that you have an agenda to fulfill the University’s mission in education, research and service. What is not apparent is how overpaying executives is contributing to this mission. It would be extremely helpful if you would provide performance measures for the executive positions and other positions like [one specific] position. Perhaps explaining to the rest of the University and tax payers how these executives contribute to the growth of the University and generate revenue that exceeds their administrative costs, would further your cause more effectively than telling us at Management Forum that if we aren’t in sync with your vision we can just leave. That speech is not only arrogant but extremely demoralizing. It should be no surprise why our SECC campaign is at an all-time low. This is the true reflection of how your employees feel about this University.

The view of the University and its current management is extremely negative. My experience is that your employees have lost faith in the University’s ability to be equal and just. I believe you have the power to change that view by proving that what you are doing is ethical and responsible. Perhaps we just don’t understand that it takes more executive vice presidents to achieve your mission. All we see is layoffs of classified staff, discriminatory practices, the protection of men viewing pornography and elevating white men to high paying executive positions.

You have a legal, moral and ethical obligation to the University and the citizens of Texas. Auditing, Legal and Compliance are here to assist you minimize risk to this University and even your reputation. Your refusal to address the issues brought to you, even if they are “about” you is a dereliction of your duties and appears that you don’t take those obligations seriously.

Our employees, students and patients deserve to work, learn and be treated in a safe environment. The state of Texas taxpayers deserve to know that the money they give us is used thoughtfully and honestly. The patients that come to use for care deserve to know that the treatment we provide is provided by men and women who have high ethics and would not behave in any way that would endanger their safety. The taxpayers deserve to know the truth about unethical behavior at the University which occurs at their expense.

Since I am no longer confident that the University can investigate itself, I have elevated my concerns to external agencies in the hope that this institution can be restored to a place of integrity and honor. I have contacted the Federal Bureau of Investigation (FBI) concerning the possibly child pornography on the eight computers and I have contacted the Equal Employment Opportunity Commission (EEOC) on the discriminatory practices. Nothing has happened yet with these agencies except dialogue, but it is my sincere desire that you work with them to return the University to a place of integrity, honor, fair treatment of all of its employees, and ethical, moral physicians and men who are not endangering women and children because they are allowed to view pornography using state-owned resources.

I honestly believe that you will alter your behavior and do the right thing because I think you take a lot of pride in your position and you do believe in the mission of the University. There are many misconceptions and the appearance of unethical and illegal activities being sanctioned by you and only you have the power to change that. I look forward to working with you and these agencies to make the University the best University in the world and a place to be proud of!

I would like to meet with you and Chancellor Yudof at the earliest opportunity to explore these issues. Please let me know when we can meet.

Cc: Sharon Corum
Mark Yudof

1 The record does not reveal precisely when Davis contacted these agencies or what she told them. We can infer from the record that she relayed to the FBI her suspicion that federal laws were being violated by the presence of child pornography on certain seized computers and that she relayed to the EEOC the charge that UTHSC-H was discriminating against women and African-Americans in its imposition of sanctions for violations of the University’s internet use policy.
2 Davis also named the UT System, UT Board of Regents and UTHSC-H as defendants. The UT entity defendants were dismissed by the district court in October 2005.
3 We recognize that it is not dispositive that a public employee’s statements are made internally. Williams , 480 F.3d at 694, n.1., citing Garcetti and Givhan v. Western Line Consold Sch. Dist. , 439 U.S. 410 (1979). However, as illustrated above, the caselaw is unanimous in holding that employee’s communications that relate to his own job function up the chain of command, at least within his own department or division, fall within his official duties and are not entitled to First Amendment protection.

Gag Order in Ashley Benton Teen Gang Slaying Case Lifted

Houston Appeals Court Justice Eva Guzman, a former family court judge, orders gag order in Ashley Benton murder case lifted; holds that criminal court judge abused her discretion in entering the order. Benton, a Houston teenager charged with stabbing a 15-year old boy to death in a gang fight, was certified to be tried as an adult. The first trial resulted in a jury deadlock and consequently a mistrial.

In Re: Ashley Paige Benton,

No. (Tex.App.- Houston [14th Dist.] Nov. 16, 2007)(Opinion by Eva M. Guzman)
Appeal from 177th District Court of Harris County

ORIGINAL PROCEEDING WRIT OF MANDAMUS

OPINION BY JUSTICE EVA GUZMAN

In this original proceeding, relator, Ashley Paige Benton, seeks a writ of mandamus ordering respondent, the Honorable Devon Anderson, to vacate the gag order entered against relator, the trial attorneys, and the attorneys' agents and employees in the underlying criminal case. We conditionally grant the writ.

I. Factual and Procedural Background

On June 6, 2006, members of two gangs known as MS-13 and Crazy Crew clashed in a Houston Park. During the ensuing fight, relator, who was then sixteen, stabbed fifteen-year-old Gabriel Granillo. Granillo died at the scene; relator was indicted for murder and certified to be tried as an adult.

On June 13, 2007, the State filed a motion for entry of a gag order. The State asked the respondent to take judicial notice of "(1) the unusually emotional nature of the issues involved in this case; (2) the extensive local media coverage this case has already generated; and (3) the various and numerous media interviews with the defendant and counsel for the defendant that have been published and broadcast by local media." Respondent did not grant the motion at that time. The case went to trial, and on June 29, 2007, respondent declared a mistrial after the jury was unable to reach a verdict.

Relator and the State then entered plea bargain negotiations. On Thursday, July 12, 2007, the following article about these negotiations appeared in the Houston Chronicle:
Ashley Benton's attorneys will try again to negotiate a plea bargain today for the stabbing death of gang leader Gabriel Granillo.

Attorney Rick DeToto said prosecutors made an offer Wednesday, which was rejected. He said he will make a counteroffer today but doesn't expect to reach an agreement. If negotiations break down, Benton will get a date for a retrial.

"We could go to trial tomorrow if we had to," DeToto said.

Benton, 17, who is charged with murder, was tried last month for stabbing the 15-year-old boy in the heart during a midafternoon gang fight in Ervan Chew Park in June 2006. The week-and-a-half-long trial ended in a mistrial after the jury deadlocked after almost 18 hours of deliberations.

DeToto refused to say what the offer was, except to say that Benton did not want to plead guilty to murder.

The following day, another story elaborating on the proposed plea bargain appeared in the Houston Chronicle:

Ashley Benton's lawyers rejected an offer from prosecutors that called for a murder plea with no prison time in the stabbing death of a gang member, one of her defense attorneys said Thursday.

Prosecutors presented a second offer Thursday morning, but defense lawyer Kent Schaffer said he would not discuss details of that deal.
. . .
Schaffer said the first offer from prosecutors included 10 years of deferred adjudication for the 17-year-old, a form of probation where defendants avoid conviction if they complete the terms.
He said Benton's camp is hoping for a lesser charge, such as aggravated assault, and a shorter probationary term.

At a hearing on Friday, July 13, 2007, relator informed respondent that she was rejecting the State's plea bargain. At that time, respondent set the case for retrial on January 4, 2008. Respondent also informed the parties that she would reconsider the State's motion for a gag order and instructed the attorneys not to discuss the particulars of the plea bargain negotiations.

On Saturday, July 14, 2007, the Houston Chronicle again reported on the plea bargain:

Ashley Benton will face a second trial Jan. 4 for last year's stabbing death of a gang member after she rejected a second plea agreement offer from prosecutors Friday.
Attorneys would not discuss details of the second offer.

The first offer, rejected in court Thursday, called for a murder conviction, no prison time and 10 years of deferred adjudication, one of her defense attorneys confirmed in interviews later that afternoon.

More than six weeks later, the trial court held a hearing on the State's motion for entry of a gag order. The State presented videotapes of television news reports and newspaper articles concerning Granillo's death, the charges against relator, relator's first trial, and the plea bargain negotiations. Relator presented five affidavits from attorneys who had represented defendants in other highly-publicized criminal trials. These included affidavits from (a) Allen Tanner, lead counsel for Angel Maturino Resendiz, "dubbed the 'Railcar Killer' by the local and national media";[1] (b) Stanley Schneider, co-counsel in the capital murder trial of Robert Angleton;[2] (c) Wendell Odom, Jr., co-counsel in both capital murder trials of Andrea Yates;[3] (d) Chip Lewis, co-counsel for Kenneth Lay in one of the "Enron trials"[4] and co-counsel in the murder trial of Robert Durst;[5] and (e) Dan Cogdell, who was involved as counsel in cases commonly referred to as the "Slave Ranch" case, the "Cadet Murders,"[6] the "Houston City Hall Bribery Trial," and another of the Enron trials.

In essence, each affiant stated, "In my opinion, there was as much if not more, publicity surrounding [the affiant's case] than there was in the Ashley Benton case. In spite of this, we had no problem seating a jury . . . and there was no gag order entered."[7] In his affidavit, attorney Chip Lewis further attested that when he acted as co-counsel in the Galveston murder trial of Robert Durst, Awe seated a jury . . . , even though Galveston County's jury pool is far smaller than the jury pool in Harris County, and there was no gag order entered . . . ."

Respondent excluded six additional affidavits that originally had been offered by the Harris County District Attorney's Office in an unrelated criminal trial as evidence in opposition to the accused's request for a change of venue. Among the items excluded was the affidavit of Karen Richards, Program Administrator for Voter Registration, who stated that in 2005, the list of potential jurors in Harris County included the names of 2,807,640 people.

Respondent granted the State's request for a gag order and entered the following Order

Restricting Extrajudicial Statements, which provides, in relevant part:

1. On August 8, 2006, the State charged the Defendant with murder. The State accused the Defendant of stabbing Gabriel Granillo to death in an ostensible gang fight. The Defendant's case generated substantial publicity from the date of the stabbing.

2. The Defendant pled not guilty to the State's allegations, and the case was tried before a jury. On June 29, 2007, the Court declared a mistrial and discharged the jury, because the jury was unable to reach a verdict.

3. The Defendant's case, before, during and after trial, generated extensive media coverage and publicity. The Court set the Defendant's case for a second trial in January 2008, with the hope that publicity surrounding the case would decline by that time and interfere less with the Defendant's right to a fair trial and impartial jury.

4. On more than one occasion, the Court has admonished trial counsel to try the case in court and not in the media. The Court made clear its expectations that counsel adhere to the letter and spirit of Texas Code of Professional Responsibility provisions governing extrajudicial statements to the media. The Court's expectations were not met.

5. Before, during and after the Defendant's trial, counsel for the Defendant exhibited an extraordinary willingness to grant interviews to the media. Various media outlets published numerous interviews with trial counsel and many stories about the Defendant's case.

6. Despite the Court's admonishments, before, during and after the Defendant's trial, counsel for the Defendant continued to make extrajudicial statements to the media that violated Tex. Disciplinary R. Prof'l Conduct 3.07, reprinted in Tex. Gov't Code, tit. 2 subtit[.] G app[.] A (Tex. State Bar R. art. 10, ' 9).

7. For instance, after the Defendant's trial, counsel for the Defendant discussed the parties['] attempts to reach a plea-bargain agreement with the media in detail. Counsel's extrajudicial statements included the explicit terms of the State's offer.

8. Counsel's continued, numerous, extrajudicial statements to the media increase the publicity surrounding the case, thereby potentially jeopardizing the Court's ability to seat an impartial jury in this case.

9. Counsel's apparent willingness to continue to make inappropriate and unethical extrajudicial statements to the media poses an obvious and specific, serious threat to the judicial process that is likely to interfere with the Defendant's fair trial rights and prejudice potential jurors.

10. There is a substantial probability that the Defendant's fair trial rights will be prejudiced by publicity that an order restricting extrajudicial commentary by trial counsel for the Defendant and the State would prevent. Further less restrictive alternatives to such an order cannot adequately protect the Defendant's fair trial rights.

11. The Court has a duty to preserve the Defendant's fair trial rights and a duty to ensure as much as possible that pretrial publicity does not impermissibly influence the jury.

12. An order restricting extrajudicial commentary by trial counsel for the Defendant and the State is necessary to protect the Defendant's rights and deal with this obvious[,] imminent and severe threat to the judicial process.

13. While the Court is mindful of the great contributions the media has made to our society and that the First Amendment is an important right afforded by our Constitution, freedom of expression must, under these circumstances, yield to the Defendant's right to a fair trial.

In light of the foregoing, the Court FINDS the following restrictions are necessary and designed to protect the judicial system's integrity and the Defendant's fair trial rights.

Accordingly, in the interest of justice and in light of the relevant facts and circumstances of this case, the Court ORDERS, ADJUDGES and DECREES that prior to and during the trial in cause number 1079641, the Defendant, all attorneys, and all attorney's staff, employees and/or agents associated with or participating in this case, shall refrain from making any extrajudicial statements relating to one or more of the following subjects:

1. The character, credibility, reputation, or criminal record of an attorney, a juror, a party, or a witness in the case;
2. The possibility of a guilty plea and the substance or details of any plea-bargain negotiations;
3. The identity of a witness or the expected testimony of a party or witness;
4. The contents of any pretrial confessions, admissions, statement, or examination given or taken by the defendant or the defendant's refusal or failure to make any statement;
5. Any opinion of the Defendant's guilt or innocence;
6. The identity or nature of physical evidence expected to be presented at trial or the absence of such physical evidence;
7. The jury's composition, any juror's identity, or the contents of any communications from or to the jury during deliberations;
8. The strengths or weaknesses of either party's case;
9. Any other information an attorney knows or reasonably should know is likely to be inadmissible as evidence and would create a substantial risk of prejudice if disclosed.

This Order shall NOT prohibit attorneys from communicating with the parties or their witnesses in order to prepare for trial. Nor shall this Order prohibit the public from attending any sessions before the Court or from publishing any information they obtain from observing proceedings in this case.

Nothing in this Order shall prohibit any individual from making any extrajudicial statements without elaboration or characterization relating to one or more of the following subjects:

1. The general nature of the case, an allegation or defense;
2. Information contained in the public record;
3. The scheduling or result of any step in this proceeding; or
4. The contents or substance of any motion or step in the proceeding, to the extent that such motion of [sic] step in the proceeding is a matter of public record.

Relator contends that the trial court's gag order violates the free speech guarantees of the Texas Constitution. She argues that respondent improperly based the gag order on the quantity of extrajudicial statements rather than on the content of those statements. Relator further asserts that respondent's findings and the evidence are insufficient to establish the likelihood of the required level of prejudice to the integrity of the judicial process or the imminence of any such harm. Moreover, relator contends that respondent's findings reflect a failure to adequately consider less restrictive alternatives. Relator also challenges the exclusion of several affidavits offered as evidence in opposition to the State's motion.

II. Mandamus Standard of Review

Mandamus is the appropriate method by which to challenge a gag order. San Antonio Express-News v. Roman, 861 S.W.2d 265, 266 (Tex. App.- San Antonio 1993, orig. proceeding). To demonstrate the right to mandamus relief, the relator must establish that (a) the trial court clearly abused its discretion, and (b) the relator has no adequate remedy by appeal. In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007); In re Houston Chronicle Publ'g Co., 64 S.W.3d 103, 106 (Tex. App.- Houston [14th Dist.] 2001, orig. proceeding). The trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

III. Priority of Review

Relator primarily argues that the trial court's gag order infringes on the State constitutional rights of those affected; however, she relies heavily on federal law. It is therefore helpful to discuss the protections provided under the federal as well as the state constitutions. Because an understanding of federal rights is helpful to understanding state rights, and because federal constitutional law affords at least as much protection to the right of free speech as the Texas Constitution, we place the state free speech guarantee in context by first considering the analogous federal right.[8]

IV. Federal Constitutional Requirements for Prior Restraint of Speech

When considering whether to issue a gag order affecting attorneys and parties, federal courts consider three factors. "First, the court must consider whether the requested order is narrowly tailored." United States v. Carmichael, 326 F. Supp. 2d 1267, 1293 (M.D. Ala. 2004) (collecting cases). Next, the court determines whether a gag order is the least restrictive means, or if less burdensome alternatives would achieve the same governmental objective. Id. Finally, the court applies the "threshold standard for imposing a prior restraint." Id.

But courts do not agree on the appropriate threshold standard. As summarized in Carmichael:
A three-way circuit split exists with respect to the third, and most important, factor to be considered: the threshold standard for imposing a prior restraint. The United States Courts of Appeals for the Sixth, Seventh, and Ninth Circuits have held that, before the court may issue an order restricting the speech of trial participants, it must find that the speech at issue presents a "clear and present danger" or a "serious and imminent threat" to a fair trial. The Courts of Appeals for the Third and Fifth Circuits have adopted the "substantial likelihood of material prejudice" standard. The Fourth and Tenth Circuits have held that the appropriate standard is "reasonable likelihood" of prejudice. Id. (citations omitted). And interestingly, the dispute between relator and the State concerning the state constitutional threshold for prior restraint of speech mirrors the split among the circuit courts concerning the federal constitutional threshold.
V. Proposed Standards for Reviewing Gag Orders

Under the Texas Constitution

A. Davenport v. Garcia

Relator urges us to review the order for a violation of state constitutional law by applying the standard set forth by the Texas Supreme Court in Davenport v. Garcia. 834 S.W.2d 4, 10 (Tex. 1992) (orig. proceeding). In Davenport, the Texas Supreme Court concluded that the Texas Constitution provides greater protection of speech than the United States Constitution and held that prior restraints on speech in a civil case are presumptively unconstitutional under Article I, Section 8 of the Texas Constitution. Id. at 7-9; compare U.S. Const. amend. I ("Congress shall make no law . . abridging the freedom of speech, or of the press.") with Tex. Const. art. I, ' 8 ("Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press."). The Davenport court concluded that a gag order in a civil proceeding will withstand state constitutional scrutiny only if there are specific findings supported by evidence that:

(1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and
(2) the judicial action represents the least restrictive means to prevent that harm.
Davenport, 834 S.W.2d at 10.

Although Davenport involved a gag order in a civil case, it has been applied to similar orders in criminal cases. See In re Graves, 217 S.W.3d 744, 753 (Tex. App.- Waco 2007, orig. proceeding) (holding, under Davenport, that the trial court abused its discretion by issuing a gag order without sufficiently specific findings to support the order under the Texas Constitution); San Antonio Express-News, 861 S.W.2d at 268 (holding the Davenport test applicable in determining the validity of a prior restraint of speech in a criminal proceeding). The Fourth Court of Appeals further concluded that the application of Davenport to criminal proceedings is an appropriate means of protecting the public's right of access to criminal trials and proceedings and free speech through the dissemination of public information. San Antonio Express-News, 861 S.W.2d at 268.

B. United States v. Brown

The State, on the other hand, argues that Davenport should be limited to civil cases because, in reaching its conclusions, the Davenport Court gave no consideration to the constitutional right of a defendant to a fair and impartial jury. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .").

The State further contends that "unfettered public discourse" by trial participants subject solely to the "imminent and irreparable harm" standard means the jury must be tainted before a gag order may issue. Relying primarily on the Fifth Circuit Court of Appeals' opinion in United States v. Brown,[9] the State urges us to conclude that prior restraints on the speech of participants in a criminal trial are available if there is a substantial likelihood that the extrajudicial comments will undermine a fair trial. In other words, the State urges us to apply the standard followed by the Fifth Circuit in reviewing alleged infringement of federal constitutional rights.[10] The State further argues that this standard has been satisfied in this case.

Although the United States Supreme Court has found that the "substantial likelihood of material prejudice" test protected an attorney's First Amendment rights under some circumstances, such language is subject to wide variance in interpretation. Gentile v. State Bar of Nev., 501 U.S. 1030, 1076, 111 S. Ct. 2720, 2745 (1991) (plurality op.).[11] Thus, writing separately in Gentile, Justice Kennedy stated, "Interpreted in a proper and narrow way . . . the phrase 'substantial likelihood of material prejudice' might punish only speech that creates a danger of imminent and substantial harm." Id. at 1036, 111 S. Ct. at 2725 (Kennedy, J., joined by Marshall, Blackmun, and Stevens, J.J.). And although there are significant differences between the instant case and Gentile, the latter is instructive on the necessity and scope of permissible speech, even under the lower standard recommended here by the State.

C. Gentile v. State Bar of Nevada

In Gentile, a lawyer held a press conference just hours after his client had been indicted on criminal charges, asserting that the State sought the indictment and conviction of an innocent person as a scapegoat and had not "been honest enough to indict the people who did it; the police department, crooked cops." Id. at 1033-34, 111 S. Ct. at 272-24. He referred to the "so-called other victims" as "known drug dealers and convicted money launderers" and named a police detective as the perpetrator of the crimes with which Gentile's client was charged. Id. at 1063, 111 S. Ct. at 2739. After his client was tried and acquitted on all counts, the State Bar reprimanded Gentile for violating Nevada Supreme Court Rule 177(1), which prohibits the dissemination of information that a lawyer knows or reasonably should know will have "a substantial likelihood of prejudicing an adjudicative proceeding." Id. (quoting Nevada SCR 177 (1)).[12] Thus, the standard analyzed by the Court - a substantial likelihood of material prejudice - necessarily was derived from the Rule that Gentile allegedly violated.

In reviewing the attorney's challenge to this Rule, the Court noted that "the criminal justice system exists in a larger context of a government ultimately of the people, who wish to be informed about happenings in the criminal justice system, and, if sufficiently informed about those happenings, might wish to make changes in the system." Id. at 1070, 111 S. Ct. 2742. Justice Kennedy elaborated on the important role played by the media in providing coverage of criminal proceedings:

The judicial system, and in particular our criminal justice courts, play a vital part in a democratic state, and the public has a legitimate interest in their operations.[13] "[I]t would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted."[14] Public vigilance serves us well, for "[t]he knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power . . . . Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account."[15] As we said in Bridges v. California,[16] limits upon public comment about pending cases are "likely to fall not only at a crucial time but upon the most important topics of discussion . . . .["][17]

"No 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."[18]

In Sheppard v. Maxwell,[19] we reminded that "[t]he press . . . guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Id. at 1035, 111 S. Ct. 2720, 2724-25 (citations moved to footnotes). Reading the Nevada rule narrowly, the Court concluded that the speech for which Gentile was sanctioned did not present a substantial likelihood of material prejudice.

D. Gentile Represents the State "Constitutional Minimum"

Gentile, of course, addresses speech protected by the First Amendment of the United States Constitution, and does not directly address speech protected by state constitutions. Under Texas law, however, the Gentile standard is treated as the "constitutional minimum." Benton, 980 S.W.2d at 431. As in Gentile, Texas courts apply this minimum standard when reviewing sanctions of an attorney's speech that violated an applicable state rule of professional conduct. Id. at 434. Thus, this standard applies to speech that has already occurred.

But Texas courts have consistently applied a higher standard when reviewing prior restraints of speech. Id. ("The cases in which this Court has held the Texas Constitution to create a higher standard than the First Amendment have involved prior restraints in the form of court orders prohibiting or restricting speech."); Ex parte Tucci, 859 S.W.2d 1, 19-26 (Tex. 1993); Davenport, 834 S.W.2d at 10; Graves, 217 S.W.3d at 753; San Antonio Express-News, 861 S.W.2d at 268.

Here, however, we need not determine whether the higher Davenport standard applies in this criminal case, because the record and the findings do not support the imposition of a gag order even under the lower standards articulated in Gentile and Brown. Specifically, the findings and the evidence do not establish, as a "constitutional minimum," that the order was narrowly-tailored[20] to avert a substantial likelihood of material prejudice.[21]

VI. Substantial Likelihood of Material Prejudice

A. Right to a Fair Trial

Although both the State and a criminal defendant have the right to a fair trial, respondent primarily focused on relator's right to a fair trial and an impartial jury. In fact, the order refers eight times to relator's right to a fair trial. And although the text of the Sixth Amendment addresses only the rights of the accused, in Texas "[i]t is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, not impair the presumption of innocence, and at the same time afford the public the benefits of a free press." Tex. Code Crim. Proc. Ann. art. 2.03(b) (Vernon 2005) (emphasis added). We therefore review the findings and the record for evidence that future extrajudicial statements by relator, counsel, or the employees or agents of counsel involved in the case are substantially likely to cause material prejudice to the judicial proceedings.

B. No Supported Finding of Prejudice

We first note that there is only one finding potentially identifying a matter that, discussed with the press, may have caused or could cause prejudice. Instead, it appears from the wording of the order that respondent presumed that publicity is inherently prejudicial to a criminal defendant. In language such as the following, respondent emphasized the quantity of publicity over its content or even its effects:

The Defendant's case generated substantial publicity from the date of the stabbing.
. . .
The Defendant's case, before, during and after trial, generated extensive media coverage and publicity.
. . .
Before, during and after the Defendant's trial, counsel for the Defendant exhibited an extraordinary willingness to grant interviews to the media. Various media outlets published numerous interviews with trial counsel and many stories about the Defendant's case.
. . .
Counsel's continued, numerous, extrajudicial statements to the media increase the publicity surrounding the case, thereby potentially jeopardizing the Court's ability to seat an impartial jury in the case. (emphasis added). But there has been no showing that such publicity is materially prejudicial. Even pervasive and concentrated publicity is not prejudicial per se. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 565, 96 S. Ct. 2791, 2805 (1976).

There is no requirement that qualified jurors be totally ignorant of the facts and issues involved in a case. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S. Ct. 2031, 2036 (1975); Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642-43 (1961); see also Etheridge v. State, 903 S.W.2d 1, 6 (Tex. Crim. App. 1994) ("Extensive knowledge in the community of either the crime or the defendant, without more, is insufficient to render a trial unconstitutional.") (citing Faulder v. State, 745 S.W.2d 327, 339 (Tex. Crim. App. 1987) (en banc)). Rather, publicity about the case must be so pervasive, prejudicial, and inflammatory that there is a substantial likelihood that prospective jurors' initial opinions cannot be set aside. See Etheridge, 903 S.W.2d at 6.

The previous disclosure of the details of a plea bargain negotiation has not been shown to be materially prejudicial to these proceedings. Respondent apparently concluded that counsel for relator passed this information to the press, and thereby violated Texas Disciplinary Rule of Professional Conduct 3.07. This Rule prohibits a lawyer from making "an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding." Tex. Disciplinary R. Prof'l Conduct 3.07. Thus, a violation occurs only if the lawyer (1) would have expected the information to be disseminated,[22] and (2) knew or reasonably should have known that the statement would pose a substantial likelihood of material prejudice. Here, there is no evidence supporting the second prong of the test. Regardless of how the information came to the attention of the press, the record does not support a finding that a single disclosure of plea bargain information or even publicity in general presented a substantial likelihood of material prejudice.[23]

Even if one assumes that disclosure of the details of plea bargain negotiations would be prejudicial when the disclosure occurs immediately before trial, these reports appeared approximately six months before relator's second trial, which was scheduled for January 2008. Considering the specific statements at issue, we see no substantial likelihood of material prejudice when such a significant period of time elapses between the statements and the seating of a jury. See, e.g., Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 2891, 81 L. Ed. 2d 847 (1984) ("[I]t is clear that the passage of time between a first and a second trial can be a highly relevant fact."); Levine v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 764 F.2d 590, 598 (9th Cir. 1985) (noting that publicity immediately prior to trial "has a greater potential for prejudice than publicity months in advance of trial"); Chase v. Robson, 435 F.2d 1059, 1061 (7th Cir. 1970) (holding that newspaper articles that were seven months old at the time of the gag order and the trial were insufficient to support "the proposition that the defendants' future first amendment utterances, if any, would interfere with the fair administration of the trial"). Respondent's order cites no other alleged violation of Rule 3.07 or any other improper extrajudicial statements, but, instead, offers only this one specific occurrence as an example.

The record does not demonstrate that defense counsel made additional disclosures or would make similar disclosures in the future. To the contrary, the Houston Chronicle reported that relator's counsel refused to discuss the details of a second plea bargain negotiation.

The State contends the July 2007 disclosure is but one instance of defense counsel's improper extrajudicial statements and refers us to two other statements that appeared in the Houston Chronicle. The first statement appeared in an article dated July 8, 2006. There, DeToto is quoted as stating, "Mr. Granillo [complainant] swung a bat at her, not once, but twice . . . That's when [relator] reacted. The idea that those young men were just strolling through the park picking flowers is bull[----]." The second article, dated July 14, 2006, contains the statement that DeToto "said Wednesday that he briefly saw a Houston police offense report in which Villatoro acknowledged he and the Granillo brothers were members of the violent MS-13 gang."

But these statements do not support the trial court's order. Defense counsel made these statements to the press nearly a year before relator's first trial, and more than a year before the trial court's order.[24]

Moreover, evidence about the gang membership of the decedent and various witnesses and the details of relator's and the decedent's respective roles in the fight were the subject of testimony during the first trial; thus, this material is now a matter of public record. No incremental increase in prejudice from future statements has been shown.

With the exception of the disclosure of one plea bargain negotiation purportedly made by defense counsel, our review of the news articles and broadcasts reveals nothing more than defense counsels' assertions of relator's innocence based on self-defense, reports of trial proceedings, and reasonable inferences from witness testimony. A number of newspaper articles are merely reports of the trial proceedings and contain no extrajudicial comments attributed to counsel.

In sum, the material does not present a substantial likelihood of material prejudice:

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
Irvin, 366 U.S. at 722-23, 81 S. Ct. at 1642-43.

Finally, despite respondent's exclusion of evidence of the number of potential jurors in Harris County, we are not unaware that Harris County, with its millions of residents, is the most populous county in Texas and one of the most populous counties in the entire nation.

We cannot say that the content of the publicity thus far, including the disclosure of details of a single plea bargain negotiation, could result in such prejudice that the trial court's ability to seat twelve impartial jurors would be jeopardized in the absence of a gag order. Cf. Neb. Press Ass'n, 427 U.S. at 563 n.7, 96 S. Ct. at 2805 n.7 ("[T]he combined population of Lincoln County and the adjacent counties is over 80,000 providing a substantial pool of prospective jurors."); Columbia Broad. Sys., Inc. v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 729 F.2d 1174, 1181 (9th Cir. 1984) ("[I]n a populous metropolitan area, the pool of potential jurors is so large that even in cases attracting extensive and inflammatory publicity, it is usually possible to find an adequate number of untainted jurors.").

We recognize there may be cases in which the record shows that material prejudice from extrajudicial statements is so likely that the trial court could act within its discretion in imposing prior restraint on the speech of trial participants. See Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 1522 (1966) (stating trial courts should take steps to protect processes from prejudicial outside influences, and prosecutors, defense counsel, the defendant, witnesses, court staff, and law enforcement should not be permitted to frustrate that function).

However, it is only the occasional case that presents a danger of prejudice from pretrial publicity. Gentile, 501 U.S. at 1054 (Kennedy, J., concurring); see also In re Houston Chronicle Publ'g Co., 64 S.W.3d at 105 (refusing non-party newspaper's request to set aside gag order directed to trial participants in the intensely publicized Yates murder trial).[25] Thus far, this is not such a case. We therefore hold that respondent abused her discretion in entering the gag order under review.

VII. Conclusion

Because no appealable order has been entered, we conclude relator has no adequate remedy by appeal. See San Antonio Express-News, 861 S.W.2d at 267 (finding the relator had no adequate legal remedy because no appealable order had been entered, and relators could only test the gag order by violating it and subjecting themselves to contempt proceedings).[26] Accordingly, we conditionally grant the petition for a writ of mandamus directing the trial court to vacate its gag order. The writ will issue only if the trial court fails to act in accordance with this opinion.

/s/ Eva M. Guzman, Justice

Petition Conditionally Granted and Opinion filed November 16, 2007.
Panel consists of Justices Fowler, Guzman, and Hudson.*

[1] The facts of this case and evidence of extraneous offenses are discussed in Resendiz v. State. 112 S.W.3d 541 (Tex. Crim. App. 2003) (en banc).
[2] See Angleton v. State, 971 S.W.2d 65 (Tex. Crim. App. 1998) (en banc).
[3] See Yates v. State, 171 S.W.3d 215 (Tex. App.- Houston [1st Dist.] 2005, pet. ref'd.); Ex parte Yates, 193 S.W.3d 149 (Tex. App.- Houston [1st Dist.] 2006, no pet.) (mem. op.).
[4] A brief summary of events connected with Lay are addressed in In re Arthur Andersen, L.L.P. 121 S.W.3d 471 (Tex. App. - Houston [14th Dist.] 2003, orig. proceeding).
[5] See In re Durst, 148 S.W.3d 496 (Tex. App. - Houston [14th Dist.] 2004, no pet.) (maj. op. on reh'g).
[6] See Graham v. State, 3 S.W.3d 272 (Tex. App. - Fort Worth 1999, pet. ref'd); Zamora v. State, 998 S.W.2d 290 (Tex. App. - Fort Worth 1999, pet. ref'd)
[7] This language is taken from the affidavit of Allen Tanner; similar language is found in the remaining affidavits.
[8] We note that when deciding issues raised under both federal and state constitutional law, the Texas Supreme Court has followed varying approaches in determining which body of law to address first. In Davenport v. Garcia, the Court stated that "[b]asing decisions on the state constitution whenever possible avoids unnecessary federal review. This not only lessens federal interference into state issues, but also results in 'efficient judicial management.'" 834 S.W.2d 4, 17 (Tex. 1992) (quoting Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Tex. L. Rev. 977, 984 (1985)). The Court continued, "The soundest way to avoid such unnecessary review and delay for litigants is to rely on the state constitution in the first instance." Id. at 18. Subsequently, however, the Court has examined federal constitutional law first if the United States Supreme Court "has recently addressed the application of the First Amendment" in a similar context. Comm'n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 429-30 (Tex. 1998); Operation Rescue-Nat'l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 556 (Tex. 1998) (analyzing abortion protesters' First Amendment claim before Texas constitutional claim because the United States Supreme Court had recently written an opinion regarding the application of the federal constitution in an abortion protest context). Most recently, the Court has held, "No rigid order of analysis is necessary, despite occasional language to the contrary in some of our opinions." Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002).
[9] 218 F.3d 415 (5th Cir. 2000).
[10] The State alternatively advocates a "reasonable likelihood" standard, which some courts have applied to free speech claims under the First Amendment. See, e.g., In re Dow Jones & Co., 842 F.2d 603, 606 (2d Cir. 1988); In re Russell, 726 F.2d 1007, 1010 (4th Cir. 1984); United States v. Tijerina, 412 F.2d 661, 666 (10th Cir. 1969); S. Bend Tribune v. Elkhart Cir. Court, 691 N.E.2d 200, 202 (Ind. App. 1998); Sioux Falls Argus Leader v. Miller, 610 N.W.2d 76, 86 (S.D. 2000). But the Texas Court of Criminal Appeals has acknowledged that both it and the Texas Supreme Court have interpreted the Texas Constitution as providing greater protection in some instances thant does the federal constitution. Ex parte Mitchell, 977 S.W.2d 575, 580 (Tex. Crim. App. 1997); see also Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991) (quoting LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex. 1986)) ("The federal constitution sets the floor for individual rights; state constitutions establish the ceiling."). And the "substantial likelihood" standard connotes a stronger showing than the "reasonable likelihood" standard. Brown, 218 F.3d at 427. Because, as discussed infra, the "substantial likelihood" standard is the "constitutional minimum," the lower "reasonable likelihood" does not apply.
[11] This is a lower standard than that which applies to the media. Gentile, 501 U.S. at 1070-71, 111 S. Ct. at 2742-43.
[12] This rule is analogous to Texas Disciplinary Rule of Professional Conduct 3.07(a).
[13] Citing Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 838-39, 98 S. Ct. 1535, 1541-42 (1978).
[14] Quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575, 100 S. Ct. 2814, 2826(1980).
[15] Quoting In re Oliver, 333 U.S. 257, 270-71, 68 S. Ct. 499, 506-07 (1948).
[16] 314 U.S. 252, 62 S. Ct. 190, (1941).
[17] Citing Bridges, 314 U.S. at 268-69, 62 S. Ct. at 196-97.
[18] Id.
[19] 384 U.S. 333, 350, 86 S. Ct. 1507, 1515 (1966).
[20] The restraint on speech is narrowly tailored to achieve [governmental] objectives. The regulation of attorneys' speech is limitedCit applies only to speech that is substantially likely to have a materially prejudicial effect; it is neutral as to points of view, applying equally to all attorneys participating in a pending case; and it merely postpones the attorneys' comments until after the trial.
Gentile, 501 U.S. at 1076, 111 S. Ct. at 2745. Because relator does not specifically challenge the order as overly broad, we do not address this requirement further.
[21] Id. Relator also argues that the gag order is not the least restrictive means to fulfill the government's objective. Because we conclude that the findings and evidence are insufficient to demonstrate a substantial likelihood of material prejudice, we need not address the argument that such prejudice could be averted by less restrictive means.
[22] We note that Relator's counsel represented to the trial court that a defense attorney did not relay this information to the media, but instead, the information was obtained by or from a person who overheard a privileged conversation between an attorney and an investigator in a courthouse hallway. We further note that the trial court answered this statement by saying, "I will take you at your word as an officer of this court, Mr. DeToto." The State did not controvert this matter.
[23] Arguably, a greater threat to relator's right to a fair trial may arise from the gag order because, of all the witnesses to the fight and to Granillo's death, only relator is barred from speaking to the press. The order additionally expressly bars counsel for relator from publicly denying her culpability, despite the fact that relator's plea of "not guilty" is a matter of public record. See id., cmt. 3 ("[A]n otherwise objectionable statement may be excusable if reasonably calculated to counter the unfair prejudicial effect of another public statement.").
[24] If any prejudice resulted from these statements, one could expect that such prejudice would have made it difficult to empanel an impartial jury in the first trial. See Yount, 467 U.S. at 1032, 104 S. Ct. at 2889 ("In this case, the extensive adverse publicity and the community's sense of outrage were at their height prior to Yount's first trial . . . ."). Here, however, the State does not dispute that of 120 venire members, only a handful of jurors were removed for cause. Cf. id. at 1029, 104 S. Ct. at 2888 ("[Seventy-seven percent of venire members] admitted they would carry an opinion into the jury box."); Irvin, 366 U.S. at 727, 81 S. Ct. at 1645 (268 members of a panel of 430 potential jurors excused for cause). Moreover, the State does not contend (and the trial court did not find) that any excused venire person was prejudiced by extrajudicial statements by trial participants rather than by media reports of public information or of material independently obtained by journalists from other sources.
[25] In In re Houston Chronicle, the prior restraint on speech was not the subject of a constitutional challenge from any individual who was the subject of the order.
[26] Relator also contends that respondent abused her discretion in excluding six affidavits which relator offered into evidence at the hearing on the gag order. The six affidavits are the affidavits the Harris County District Attorney's Office introduced in support of its opposition to the defendant's request for a change of venue in the case of State v. Slade, Cause Nos. 1121606 & 1121607 (338th Dist. Ct., Harris County, Tex. July 16, 2007; July 17, 2007; July 31, 2007; July 26, 2007; & Aug. 2, 2007). Respondent sustained the State's objection that the affidavits were not relevant because they were submitted in an unrelated case on the issue of venue. We conclude the affidavits were, in fact, relevant because they are material to a fact in issue, i.e., that fair and impartial juries have been seated in highly publicized cases in Harris County, and they make that fact more probable than it would be without the affidavits. See Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001). Therefore, we also conclude respondent abused her discretion in excluding these affidavits from evidence.

* Senior Justice J. Harvey Hudson sitting by assignment.