The Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976) that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Such an gag order is a “most extraordinary remedy” that may be used only in ”exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.” CBS Inc. v. Davis 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citations omitted). Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property …. Those who see and hear what transpired can report it with impunity.” Craig v. Harney, 331 U.S. 367, 374 (1947).
Indeed, courts have refused to gag coverage of court proceedings even when a media organization is a party to the underlying case. The court in Freedom Communications v. Superior Court, 167 Cal. App. 4th 150, 152 (2008) thus overturned “an order enjoining [a media company] from reporting on trial testimony in a case in which it is the defendant.” But in Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court noted that a newspaper party could not publish information it obtained in discovery because “pretrial depositions and interrogatories are not public components of a civil trial.”
A gag order is a prior restraint that bears a heavy presumption against its constitutional validity. U.S. v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983). Prior restraints on the media are constitutionally disfavored nearly to the point of extinction. U.S. v. Brown, 250 F.3d 907, 914-15 (5th Cir. 2001). Such restraints on the media will be upheld only if the government can establish that the activity restrained either poses a clear and present danger or a serious or imminent threat to a protected competing interest.Id.
On rare occasions, a gag order may be upheld based on a defendant’s Sixth Amendment right to a fair trial, since this right can trump the media’s First Amendment right of access and openness. U.S. v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983). In order for a gag order based on the defendant’s right to a fair trial to prevail, a court must determine from the evidence before it (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unconstrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. Id. The trial court must also consider the precise terms of the requested restraining order and craft the order so that it does not suppress more free speech than requested. Id. An order without any findings whatsoever is likely to be overturned.
In determining whether pretrial publicity is a sufficient reason to justify a prior restraint, a court will review (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent threatened danger. U.S. v. Brown, 250 F.3d 907, 916 (5th Cir. 2001).
Trial courts should employ methods short of prior restraints if possible, and gag orders on trial participants are preferred to gag orders on the press. U.S. v. Brown, 218 F.3d 415, 425-26 (5th Cir. 2000).
Change of venue, jury sequestration, ‘searching” voir dire, and “emphatic” jury instructions should be viewed as court tools for ensuring a fair trial that are preferable to a gag order on the press. U.S. v. Brown, 218 F.3d 415, 431 (5th Cir. 2000).
Pretrial publicity is less likely to be deemed inherently prejudicial to a defendant’s ability to get a fair trial if considerable time has elapsed since the public reports, and if the news reporters are “factual accounts” and “straight news reports” rather than the sensational type that tend to “inflame ill will.” Willie v. Maggio, 737 F.2d 1372, 1387 (5th Cir. 1984). The constitutional standard of fairness requires only that the accused have a panel of impartial and “indifferent” jurors who base their decision solely on the evidence produced in court; it does not require that the jurors be wholly ignorant of the case. Id
In an appeal of a gag order, the media must show either that it will probably succeed on the merits in its appeal or that it has presented a substantial case on the merits and that the balance of the equities weighs heavily in favor of granting a stay of the order. U.S. v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983).