782 F. 2d 853 - United States v. L Freeman R

Robert E. Lindsay, Alan Hechtkopf, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Stephen R. Sady, Portland, Or., John L. Freeman, Las Vegas, Nev., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before KENNEDY and NORRIS, Circuit Judges, and STEPHENS,* District Judge.

Our holding, 761 F.2d 549, that the jury must consider whether the crimes charged implicate elements of protected speech does not detract from the principle that both the trial and appellate court must examine the entire record, make an independent determination whether a First Amendment privilege exists, and, if so, dismiss the case. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 1961-65, 80 L.Ed.2d 502 (1984). We found no First Amendment privilege upon that examination, but, as we have held, on twelve of the counts the jury must make its own further determination, after consideration of all the evidence under proper instructions.

Rehearing is denied. No judge of the court having requested a vote on the suggestion for rehearing en banc, the suggestion for rehearing en banc is rejected.