New opinion analogizes to class communications in striking down gag order: San Francisco Unified Sch. Dist. ex. rel. Contreras v. First Student, Inc.

In San Francisco Unified School District ex. rel. Contreras v. First Student, Inc., ___ Cal.App.4th ___ (Feb. 19, 2013), the Court of Appeal (First Appellate District) reversed an order prohibiting the named plaintiffs from communicating with the defendant's current employees. 

This was a False Claims Act case, not a class action, but the opinion has this passage of interest:

Paragraph 2of the January 2012 order also implicates the individual plaintiffs’ FirstAmendment rights.  “Orders which restrict or preclude a citizenfrom speaking in advance are known as ‘prior restraints,’ and are disfavoredand presumptively invalid.  Gag orders ontrial participants [for example] are unconstitutional unless (1) thespeech sought to be restrained poses a clear and present danger or serious andimminent threat to a protected competing interest; (2) the order isnarrowly tailored to protect that interest; and (3) no less restrictivealternatives are available.”  (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th1232, 1241, fns. omitted.)  Theseprinciples have been applied to orders that restrict parties’ communicationswith other parties or witnesses.  In Maggi v. Superior Court, the court heldthat orders restricting those plaintiffs’ counsel’s contacts with witnesses(and potential clients) was an unconstitutional prior restraint unjustified bya discovery violation.  (Maggi v. Superior Court (2004) 119Cal.App.4th 1218, 1223–1226.)  “Absent a‘protected competing interest’ on a level equivalent to the constitutionalguarantee of free speech, orders limiting speech are not appropriate sanctions.”  (Id.at p. 1226.)  In Bernard v. Gulf Oil Co., the UnitedStates Court of Appeal for the Fifth Circuit held that an order restrictingcommunications by named plaintiffs and their counsel with potential classmembers was an unconstitutional prior restraint.  (Bernardv. Gulf Oil Co. (1980) 619 F.2d 459, 463, 477.)  The Supreme Court affirmed onnonconstitutional grounds, while acknowledging the constitutional concern.  (GulfOil Co. v. Bernard (1981) 452 U.S. 89, 103–104 [“[a]lthough we do notdecide what standards are mandated by the First Amendment in this kind of case,we do observe that the order involved serious restraints on expression”]; seealso Parris v. Superior Court (2003)109 Cal.App.4th 285, 290 [precertification communication with potential classmembers is constitutionally protected speech].) These free speech concerns support the conclusion that rule 2-100must not be construed in a manner that will unduly interfere with the right ofparties to communicate with one another absent compelling evidence of abuse,which we do not find present here.

Slip op. at 29-30 (footnote omitted) (emphasis added).

The Gulf Oil case is an important one in this area of practice but hasn't been cited all that often by California's appellate courts.