Home Browse Media Law Resources Guides 5th Cir. - Open Courts Compendium XII. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

Overview

The Supreme Court has not addressed the issue, but lower courts have found that media organizations have standing to challenge gag orders on third parties. Thus, the court in CBS, Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir. 1975) was “not persuaded by the argument that petitioner lacks standing because it is not a party to the civil litigation. The fact remains that its ability to gather the news concerning the trial is directly impaired or curtailed. The protected right to publish the news would be of little value in the absence of sources from which to obtain it.” Likewise, the court in In re Dow Jones & Co., Inc., 842 F.2d 603, 607-08 (2nd Cir. 1988) found that “news agencies have standing as recipients of speech to prosecute this appeal,” in part because they record showed they were “potential recipients of speech.”

5th Cir.

The 5th Circuit has held that media organizations have standing to challenge gag orders on third parties because such orders can impede the news agencies’ ability to discover newsworthy information from potential speakers. Davis v. Capital City Press, 78 F.3d 920, 927 (5th Cir. 1996). Furthermore, it is not necessary in every case to demonstrate the existence of a willing speaker in order to establish standing. A willing speaker will often be presumed, else there would be no need for a gag order. Id.

The media does not have standing to challenge closure as a violation of a defendant’s right to a fair trial; that is a right that adheres solely to the defendant. Rovinksy v. McKaskle, 722 F.2d 197, 198 (5th Cir. 1984).