In fact, the Code of Professional Responsibility, which was referred to by the respondent, specifically states, inter alia, that: "[d]uring the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial" (Code of Professional Responsibility, DR 7-107 [D]). While attorneys have a professional responsibility to protect the fairness and integrity of the judicial process, this does not mean that lawyers surrender their 1st Amendment rights as they exit the courtroom (see, In re Halkin, 598 F.2d 176, 186; Matter of Markfield v Association of Bar, 49 A.D.2d 516). Orders restraining extrajudicial comments by parties and attorneys have, in certain cases, been held to be impermissible restrictions of fundamental 1st Amendment rights (see, CBS, Inc. v Young, 522 F.2d 234, supra; Chase v Robson, 435 F.2d 1059). Courts, however, have upheld similar restraints on extrajudicial statements of attorneys and parties upon a showing of a "reasonable likelihood" of a serious and imminent threat to the administration of justice. This standard was recognized by the Seventh Circuit in Chase v Robson (supra), was specifically adopted by the Tenth Circuit in United States v Tijerina ( 412 F.2d 661, cert denied 396 U.S. 990), and was also applied by the court in People v Dupree ( 88 Misc.2d 780), in which this issue was discussed at considerable length (but see, Chicago Council of Lawyers v Bauer, 522 F.2d 242, cert denied 427 U.S. 912; Matter of Markfield v Association of Bar, 49 A.D.2d 516, supra).
The law is clear that the disciplinary rules cannot be literally applied. Chicago Council of Lawyers v. Bauer (7th Cir. 1975), 522 F.2d 242; Markfield v. Association of the Bar of the City of New York (1975), 49 A.D.2d 516, 370 N.Y.S.2d 82, appeal dismissed, 37 N.Y.2d 794, 337 N.E.2d 612, 375 N.Y.S.2d 106. Per se violations of the disciplinary rule quoted above cannot form the basis of an ethical charge without interfering with free speech rights. The question in the case is whether the disciplinary rules should be interpreted so as to make them constitutional and, if so, what kind of limiting standards should be applied.
Speech may neither be forbidden nor penalized and is protected from censorship unless shown likely to produce a "clear and present danger of some serious substantive evil that rises far above public inconvenience, annoyance, or unrest( 16A Am. Jur. 2d §515 Constitutional Law; Rosenberg Diamond Development Corp., v. Appel, 290 A.D.2d 239, 735 N.Y.S.2d 528 [1. Dept. 2002]). In the context of a trial the right to free speech may only be restricted where the extra judicial statements present a clear and present danger to the fair administration of justice (Matter of Markfield v. Association of the Bar of City of New York, 49 A.D.2d 516, 370 N.Y.S.2d 82 [1. Dept. 1975]; Sheppard v. Maxwell, 384 U.S.333, 86 S.Ct. 1507, 16 L.Ed.2d 600 [1966]). Courts have the power to restrain extra judicial statements of attorneys, parties, witnesses, jurors and court personnel whenever in the opinion of the court such statements have a reasonable likelihood of tending to prevent a fair trial, free of prejudice ( People v. Dupree, 88 Misc.2d 780, 388 N.Y.S.2d 203 [N.Y. Sup. 1976]). Judges in discharging their responsibility to secure a defendant's right to a fair trial may not, except in extra ordinary circumstances employ gag orders or prior restraints, but must rely instead on other protective measures ( Nebraska Press Association v. Stewart, 427 U.S.539, 96 S.Ct. 2791, 49 L.Ed.2d 683 [1976]).
Accordingly, W.N.B.C. — T.V. has standing to challenge any order which would impair its ability to gather news. While prior restraint orders must be subject to the closest scrutiny, a "gag" order, such as the one requested herein, may be upheld, but only when it is clearly established that there are serious and imminent threats to the fairness of the trial (see, CBS Inc. v Young, supra; Matter of Markfield v Association of Bar, 49 A.D.2d 516); or when the order is narrowly drawn (In re Hakin, 598 F.2d 176, 193) and less restrictive alternatives are not available (see, Nebraska Press Assn. v Stuart, 427 U.S. 539). However, there exists here a third ingredient which is unique in the history of cases requiring First Amendment and Sixth Amendment balance.