Judge Tells Northrop to Stop Broadcasting Ads : Aerospace: The jurist says the TV spots could impair a fair trial in the huge fraud case now pending against the defense firm.
A federal judge in Los Angeles ordered Northrop Corp. on Thursday to stop running a series of television ads that she said could materially impair a fair trial in a major fraud case the U.S. government has lodged against the aerospace firm.
U.S. Circuit Court Judge Pamela A. Rymer heeded the pleas of lawyers from the U.S. Attorney’s Office that the Northrop ad campaign, dubbed “Hard Work” and featuring legendary test pilot Chuck Yeager, could influence potential jurors in the trial, which is scheduled to begin later this month.
Rymer spurned pleas from Northrop’s lawyers that her order would violate Northrop’s First Amendment rights. She also denied their request for a stay of her order pending appeal. She said she expected Northrop’s lawyers to tell company officials to pull the ads off the air immediately.
Two constitutional scholars said they thought the decision was surprising and highly unusual. “I don’t know of any kind of precedent for that kind of thing,” said Robert Post, a professor of constitutional law at UC Berkeley’s Boalt Hall School of Law. “There are a lot of things you could do short of stopping TV ads to guarantee a fair trial,” he added. “You’d have to go very far to convince me this kind of speech has to be repressed to guarantee a fair trial.”
“It does break new ground on the side of preventing parties (in a trial) from speaking,” said Kenneth Karst, a professor of constitutional law at UCLA. “I am surprised by the order but that doesn’t mean she won’t be upheld on appeal.”
Late Thursday afternoon, Northrop spokesman Tony Cantafio said the company would comply with the order but would appeal it immediately.
Judge Rymer denied the government’s request to impose a gag order on Northrop’s employees and attorneys from now until the end of the trial.
Thursday’s decision came as jury selection began in the case of U.S. vs. Northrop. Last April, a federal grand jury indicted Northrop and five current and former employees on fraud charges for allegedly falsifying tests on components of nuclear-armed Cruise missiles and for allegedly supplying equipment that they knew failed to meet government specifications.
The indictment also alleges that the company defrauded the government by improperly testing components for the AV-8B Harrier jet, used by the Marine Corps. In November, Rymer, who recently became a federal appeals court judge but retained this case that she had handled while a federal trial judge, broke the massive criminal case into two parts, with the Harrier phase going first.
The ads in question began running on the night of Jan. 22, a week before jury selection was originally set to begin in the Harrier jet trial, Rymer noted in her eight-page order. She said the company planned to run the spots 132 times between Jan. 22 and March 30.
“Although there is no evidence of market penetration, ratings or the like, it is obvious . . . that these spots have run on heavily watched programs, for example, ‘Good Morning America,’ the evening and late news, the Super Bowl post(game) show, ‘Night Court,’ ‘Growing Pains,’ ‘The Cosby Show’ and Lakers games. As many as eight spots have been run on a single program, with the average being about five on the news and features on two on the Lakers,” the judge added.
Each commercial, the judge noted, features Chuck Yeager, the test pilot who was featured in Tom Wolfe’s book, “The Right Stuff,” and in the movie of the same name. Yeager also has served as a spokesman for other companies.
Yeager introduces the commercial with a statement that he has been around aircraft people almost 50 years, Rymer noted. “Then he says to listen to how Northrop people think, and there follows a cameo by a Northrop employee,” which describes how the company spends years developing and testing planes and their components “so we can get it just right.”
Then the employee talks about how Northrop employees “want to make sure we make aircraft safe for the pilots who fly them,” Rymer went on, quoting the employee as saying: “If someone’s life depends on it we’ll do the best we can.”
Yeager finishes the spot with the tag line, “Now that’s the way Northrop people think. . . . That’s why Northrop products work,” over a picture of an aircraft in flight or landing.
Assistant U.S. Attorneys William Fahey and Julie Blackshaw argued in their legal brief that “the barrage of local television advertising by the Northrop Corp. is designed to and will influence the jury.” They added that the timing of the campaign pointed to “an extraordinary and unfair attempt to influence the thinking of prospective jurors on the eve of a significant criminal trial.”
Northrop lawyers Brad Brian and Michael Doyen argued in their brief that the statements in the commercials “have no relationship to the specific employees, divisions, processes or products at dispute in this action.”
They asserted that the government had failed to meet “the heavy burden” that is required for justifying such prior restraint on free speech.
The Northrop lawyers also asserted that Northrop had run similar print and television advertisements in Southern California for years and that they were designed to enhance the company’s reputation with its employees, suppliers and potential employees. They said the ads were used to compete with similar advertisements recently run by McDonnell Douglas, a Northrop competitor.
“I don’t see how the court can fashion an order that is constitutional under the First Amendment,” Brian said in court. “I don’t see how the court can prohibit Northrop from running ads about employees and quality.”
But Rymer responded: “This is the world’s most limited order. It doesn’t prohibit you from saying anything about Northrop or the case.” Rymer also said Northrop could run other ads promoting itself.
Rymer said in her opinion that she considered alternatives to compelling Northrop to take all the spots off the air until a verdict is reached in both the Harrier and Cruise trials.
However, she wrote that restricting runs of the spots to limited times did not reach “the central problem with the ‘Hard Work’ spots: their calculated but subliminal influence on prospective or impaneled jurors’ perception of the character, reputation and state of mind of Northrop and its employees, as well as the public’s perception of the fairness of the Northrop trial and the impartiality of the trial proceedings.”
She added, “No restraint on the press is implicated and only minimal interference with Northrop’s interest in commercial speech is involved.”
Rymer stressed that “these spots are particularly sophisticated and, like all advertisements, have the ability to influence on a subconscious level and to plant in the minds of the jurors, before they hear any evidence at all, the idea of how Northrop people think.”
“This form of partiality or prejudice is much more difficult to uncover” during jury pretrial selection of jurors “and is therefore more insidious than, for example, press releases by Northrop representatives proclaiming their defendants’ innocence.”
