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Third Circuit Clarifies Speech Standard

The United States Court of Appeals for the Third Circuit has modified the standard under which Federal courts in the circuit may limit public comment or release of information by attorneys and parties on pending matters, requiring a more stringent standard to be met before such restrictions can be imposed.

The Court of Appeals took this action in the case of United States v. Wecht, No. 063098 (April 12, 2007) [opinion].  The court was considering a challenge as to whether Local Rule 83.1 of the United States District Court for the Western District, which prohibited parties from making extrajudicial comments if “there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice,”  was constitutional under the standards defined in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).  The Court declined to reach that question, but invoked its supervisory authority over Federal courts in the circuit to require that Local Rule 83.1 and comparable rules of other District Courts in Pennsylvania, including Local Rule of Criminal Procedure 53.1 in the Eastern District of Pennsylvania and Local Rule 83.2 in the Middle District of Pennsylvania, be applied only that poses a “substantial” as opposed to a “reasonable” likelihood of prejudice.