Northrop Ad Ban Suspended on Appeal

A federal appeals court Friday issued an emergency stay of Federal District Judge Pamela Rymer’s Thursday order barring Northrop Corp. from airing television ads that she said could make it difficult to get an impartial jury in an upcoming criminal trial against the company.

Judges Mary Schroeder and David Thompson of the U.S. 9th Circuit Court of Appeals in San Francisco issued the stay late Friday afternoon in response to a motion that was faxed to them by Northrop lawyers from Los Angeles. Michael R. Doyen, a Northrop lawyer who stayed up all night Thursday working on the motion, declined comment but was clearly elated at the decision. A further hearing by the appeals court on the issue is expected shortly.

Northrop spokesman Tony Cantafio said: “We’re pleased the court of appeals recognizes the importance of the issue and issued the stay order.” He said the company had earlier in the day pulled all the commercials off the air to comply with Rymer’s order. He said Northrop could not get the ads back on the air this weekend and “hasn’t had the opportunity to assess when they can go back on the air.”

Meanwhile, Rymer’s decision was severely criticized Friday by several constitutional scholars and lawyers specializing in free speech cases but praised by some prosecutors.

Thursday afternoon, Rymer ordered Northrop to remove from the airwaves a series of image ads, featuring famous test pilot Chuck Yeager and a Northrop employee lauding the company’s commitment to high-quality work and product safety.

Judge Rymer said the central problem with the ads was “their calculated but subliminal influence on prospective or impaneled jurors’ perception of the character, reputation and state of mind of Northrop and its employees.”

Rymer said that her decision would cause “only minimal interference” with Northrop’s commercial speech.

A group of constitutional scholars and First Amendment lawyers generally expressed outrage at the decision. The television spots and Rymer’s opinion were described in detail to those interviewed before they were asked for comment.

“I’m real troubled by her ruling,” said Erwin Chemerinsky, a constitutional law professor at USC, who called the decision a “prior restraint on free speech.” The Supreme Court has said for many years, Chemerinsky added, that “prior restraints strike at the heart of free speech.”

Chemerinsky acknowledged that there were Supreme Court decisions and appellate court rulings upholding restraints on how lawyers could communicate with the media during a trial.

“I can understand why you don’t want the lawyers trying the case in the press. But it’s much harder for me to imagine that an image ad can influence a jury,” Chemerinsky added, disagreeing with the central point of Rymer’s decision.

He went on to say that there is no Supreme Court decision delineating any limitations that can be placed on image advertising as distinct from product advertising.

In her decision, Rymer cited as authority a 1986 Supreme Court decision upholding the right of Puerto Rico to prohibit gambling casinos from advertising on television there. The decision said, “The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.”

But Robert Sack, the First Amendment lawyer for the Wall Street Journal, said the Puerto Rico case did not “remotely address the issue of whether the lesser protection afforded commercial speech has any implications with respect to corporate defendants in criminal trials.”

Additionally, Sack said he thought that Judge Rymer’s decision was “inherently contradictory.”

He said that on the one hand, Rymer said Northrop’s advertisements were commercial speech and therefore subject to more restriction than political speech. But on the other hand, he said, the judge’s order said the ads could have an impact on a juror’s impression of Northrop’s character, which would mean the ads constituted political speech and therefore were entitled to greater protection under the First Amendment.

Floyd Abrams, the lawyer who represented the New York Times in the Pentagon Papers case, noted that it had been possible to pick impartial juries in cases where there had been considerably more publicity than there has been in the Northrop case. He cited the criminal trials of several Watergate defendants, including H. R. Haldeman and John Ehrlichman. He noted that virtually all of the Watergate defendants had contended that they could not receive a fair trial because of massive adverse pretrial publicity.

However, Abrams said, when potential jurors were questioned, it turned out that many of them had little knowledge of the Watergate affair. “Here, in the Northrop case,” Abrams went on, “the notion that the entirety of the central district of California has been so infected by these advertisements as to make it impossible to pick a fair jury seems to me unpersuasive and insupportable.”

On the other hand, Joseph Russionello, the U.S. attorney in San Francisco, found merit in the decision and Judge Rymer’s assessment of the “subliminal” impact of advertising.

“It is very difficult to draw up from a potential juror even the conscious bias or prejudice the person may have because of the reluctance to speak about it,” Russionello said. “They may be embarrassed to speak about it,” he added.

“When you have what looks like advertising calculated to improve image at a time when the company is subjected to adverse publicity because of the prosecution, there is a strong possibility persons will find their way to the jury who have been subtly influenced by the positive image that is being promoted in the ads,” Russionello said.

“Running these commercials at a time when the trial is about to commence or is in its initial stages is more than coincidence,” he added, echoing a point made by Asst. U.S. Attorney William Fahey in his argument urging Judge Rymer to ban the ads.

Russionello and other prosecutors interviewed said they had never confronted a situation like the one facing the prosecutors in the Northrop case here.

“I hope that this kind of advertising, this kind of strategy isn’t a precursor to something we are likely to see on a wider scale,” he said. On the other hand, he said he felt Rymer’s decision “constitutes some abridgement of free speech. . . . I think she must have been faced with an incredibly difficult choice here. I wouldn’t want to second-guess her because it is a unique situation.”

Of several scholars interviewed, only Philip Johnson of UC Berkeley’s law school said it was a close case. “It is an open question in my mind that you can say this advertising has so much effect on the jury pool that the normal processes of selection would not produce an impartial jury. To make an estimate of that kind of thing involves one in speculation; that’s what makes this a very hard case.”

The controversy stemmed from massive criminal fraud charges lodged against Northrop by the Justice Department last April. The company and five employees were accused of improperly testing components for the AV-8B Harrier jet, used by the Marine Corps, and of allegedly falsifying tests on components of nuclear-armed Cruise missiles. Judge Rymer split the case into two parts last November, and jury selection for the Harrier phase began Thursday.

Fahey said he had received word of the 9th Circuit action verbally. As soon as his office received a written version, he said, he would file an emergency motion for reconsideration.