Freedom of Speech Anyone? Royal Caribbean Tries to Muzzle Lawyer Representing Brain Injured Passenger
A drama is unfolding in the Miami-Dade County courthouse in a lawsuit filed on behalf of a seriously injured passenger against Royal Caribbean Cruises.
Royal Caribbean filed a motion for sanctions against a well known lawyer here in Miami who issued a press release in which he talked about the lawsuit.
The case at issue involves allegations that Royal Caribbean and its medical staff failed to timely and properly respond to a medical emergency involving a young woman, Preetha Amaran, who collapsed while exercising on a treadmill on the Royal Caribbean Enchantment of the Seas cruise ship. Ms. Amaran is represented by Miami lawyer Phil Gerson, who alleges that Ms. Amaran, who aspired to be a doctor herself, suffered permanent brain damage due to the negligence of the cruise line and Steiner Transocean Limited which operated the spa on the ship.
Ms. Amaran is now left severely incapacitated and unable to work or speak more than a few phrases. She needs round-the-clock supervision according to the press release and the allegations in the court records.
Royal Caribbean did not like the fact that Mr. Gerson issued a press release, which you can read here. It filed a motion for injunctive relief seeking to obtain a gag order against Mr. Gerson to prevent him from exercising his First Amendment right of freedom of speech. The cruise line also sought to punish Mr. Gerson and his disabled client, by seeking to dismiss the lawsuit and prevent a jury from listening to the facts of the case.
The case is one of the most ferociously fought cases I have ever seen. It has been pending since 2004 and has gone to the appellate courts already. In 2010, the appellate court ruled that Royal Caribbean hindered the injured passenger's search for the whereabouts of the ship’s doctor by providing an address in care of an employment agency in South Africa. In truth, the doctor had a residence in Florida, owned real property in Tampa, Florida, owned motor vehicles registered in Florida, and was actually working on the cruise line's own ships.
I reviewed Royal Caribbean's motion at the courthouse. It's light on the law to say the least. It fails to cite the most relevant cases addressing the issue whether attorneys somehow lose their freedom of speech to talk to the press about pending cases.
The leading cases in Florida are Rodriguez v. Feinstein, 734 So.2d 1162 (Fla. 3d DCA 1999) and Dupont de Nemours and Co. v. Aquamar, S.A., 33 So.3d 839 (Fla. 4th DCA 2010). These cases state that a "gag order" can be entered only where statements by counsel pose a "substantial or imminent threat to a fair trial." The mere presence of pretrial publicity, "even pervasive, adverse publicity," does not by itself indicate that an upcoming trial will be unfair.
The United States Supreme Court has held that a prior restraint against free speech is subject to “strict constitutional scrutiny” and carries “a heavy presumption against its constitutional validity.” Nebraska Press v. Stuart, 427 U. S. 539, 558 (1976); Carroll v. Princess Anne, 393 U.S. 175, 181 (1968); Austin v. Keefe, 402 U. S. 415, 419 (1971). As stated by Judge Learned Hand in United States v. Dennis, 183 F.2d 201, 212 (2nd. Cir. 1950) in considering whether to impose a prior restraint a court must determine if, “the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”
It is difficult to imagine how the press release in June is going to prejudice the trial of this case which is not scheduled until November.
Last year, Royal Caribbean filed a similar motion against me after I wrote about this cruise line's tendency to "lose" CCTV tapes of accidents and crimes on its fleet of cruise ships. You can read my article here. Royal Caribbean retaliated and filed a motion to sanction me and prevent me from blogging about it. It didn't bother to cite any leading cases addressing the difficulty of obtaining gag orders against attorneys. Needless to say, I didn't stop blogging and I filed a motion for sanctions against the cruise line. At the end of the day, Royal Caribbean backed down and withdrew its motion.
Attorneys like Mr. Gerson have an ethical obligation to advance their clients cases. Principled advocates have a moral obligation to bring awareness to injustices in an effort to improve safety of cruise passengers.
Several years ago, I met Mr. Gerson in Washington D.C. The President of the International Cruise Victims organization (ICV) asked him to help the organization discuss safety improvements with the Cruise Line International Association and Royal Caribbean Cruises. I participated in the meeting along with several members of the ICV at the offices of the National Center for Victims of Crime. Mr. Gerson took a leadership role in the meeting and effectively advocated proposals to make cruising safer for the public. I was impressed.
Press releases, web sites, and blogs are an effective way to educate the public about dangers on cruise ships. This is what socially conscious advocates for people do. Defense lawyers for corporations defend corporations and try and maintain the status quo. Plaintiff attorneys for people advance the rights of the disabled and try to disrupt the status quo in order to protect future victims.
Cruise lines like Royal Caribbean can't stand close scrutiny. Cruise lines like this will do anything to muzzle critics.
In Ms. Amaran's case, Royal Caribbean is asking the Court for an evidentiary hearing, where the judge would have to sift through all of the evidence and make a ruling whether the comments in Mr. Gerson's press release are accurate, as Mr. Gerson contends, or are false as the cruise line contends.
Determining factual disputes is not the province of judges. It is the job of the jury at trial. A trial, it seems, that this cruise line is trying to avoid at all costs.
June 30, 2011: Yesterday, the Court (Judge Jerald Bagley) did not grant the motion for injunctive relief or the motion for sanctions, but retained jurisdiction to consider additional evidence. I should point out that Royal Caribbean's co-defendant, Steiner, also filed similar motions to gag the plaintiff's counsel, which were not granted.