Gag orders are a form of prior restraint that prohibit parties, lawyers, prosecutors, witnesses, law enforcement officials, jurors and others from talking to the press.1 Frequently such orders are sought by one party in a case, although judges may issue gag orders on their own initiative.
Judges often call gag orders “protective orders,” and say they are necessary to protect a person’s right to a fair trial, the fair administration of justice or the sanctity of jury deliberations.
Regardless of what judges call them or who initiates them, gag orders interfere with your efforts to gather and disseminate news. Orders prohibiting participants in a case from commenting to reporters or the public also infringe on the First Amendment rights of the individuals gagged.2 At least one court has ruled gag orders on trial participants are as serious as those on the press and subject to the same strict test for constitutionality.3
Courts have restrained trial participants from speaking with the press to prevent prejudicing court proceedings.4 The U.S. Court of Appeals in New Orleans (5th Cir.) affirmed a gag order prohibiting all trial participants from giving any public comments to the media other than matters of public record in a case involving the elected Louisiana Insurance Commissioner, James Harvey Brown, and the former Governor of Louisiana, Edwin W. Edwards.5 The court concluded “that the gag order is constitutionally permissible because it is based on a reasonably found substantial likelihood that comments from the lawyers and parties might well taint the jury pool . . . is the least restrictive corrective measure available to ensure a fair trial, and is sufficiently narrowly drawn.”6
Courts even have prohibited interviews of jurors after the trial has ended. In 2007, a judge in Galveston, Texas, ordered a jury to not talk to the media about how they would have voted in a civil suit over an explosion at a BP oil refinery after the suit was settled during the trial. The judge speculated that their comments could taint jurors in other civil litigation related to the explosion. At the time, BP faced hundreds of similar lawsuits over the explosion after settling about 4,000 more, according to a Houston Chronicle report.7 But the Texas First Court of Appeals reversed the gag order, finding there was no evidence that the “additional, incremental publicity from juror interviews would cause imminent and irreparable harm to the judicial process.”
In State v. Neulander, the New Jersey Supreme Court affirmed a decision barring the media from interviewing discharged jurors in the case of Fred Neulander, a rabbi whose first murder trial ended in a hung jury.8 The court prohibited media interviews of the discharged jurors on any topic and even prohibited those jurors who wanted to speak to the press from doing so. In affirming the gag order, the state Supreme Court reasoned that media interviews may give insight into the jury’s deliberations, thereby giving an advantage to the prosecution at Neulander’s retrial. However, it limited the duration of the gag order until after the return of the verdict in the second trial. The U.S. Supreme Court declined to review the case.
In 1997, the U.S. Court of Appeals in New Orleans (5th Cir.) held that a U.S. District Court order barring the news media from conducting post-verdict interviews with jurors in a criminal trial without first obtaining the judge’s permission was not unduly vague and did not violate the news media’s newsgathering rights.9 The appeals court said that the order was constitutional because it was narrowly tailored to prevent a “substantial threat to the administration of justice.” Specifically, the court noted that the order applied only to deliberations and not to the verdict, and that it applied only to interviews with the jurors and not those with jurors’ relatives or friends.
Orders prohibiting comment by lawyers in a case are another matter. Because the Supreme Court has faulted judges on several occasions for failing to control out-of-court statements by lawyers, trial judges are likely to limit lawyers’ comments in highly publicized cases.10 Police who investigated a crime may be barred from commenting on evidence as well.11
Several courts have ruled that such orders may prohibit statements on topics such as evidence to be introduced, the merits of the opponent’s case and testimony witnesses are expected to give. A total ban on lawyers’ comments, however, would be unconstitutional.12
A state bar’s code of ethics also may limit public statements by lawyers in a case. In 1991, the U.S. Supreme Court ruled in Gentile v. State Bar of Nevada that the standard for penalizing speech by lawyers involved in criminal cases can be lower than the standard for punishing speech by the media and the public.13 The high court held that the Nevada rule governing lawyer speech, which prohibits a lawyer from making extrajudicial statements that the lawyer knows or should know “will have a substantial likelihood of materially prejudicing an adjudicative proceeding,” does not violate the First Amendment.
However, restraining the speech of a client’s former attorney is a different matter. In 2001, the U.S. Court of Appeals in New Orleans (5th Cir.) held that a gag order prohibiting a criminal defendant’s former attorney from talking to the press about the case was unconstitutional.14 The court found that the former attorney’s comments to the press did not “pose a threat to the fairness of the trial or to the jury pool.”
What to do if a court issues a gag order
If a court issues a gag order in a case you are covering, the first thing you should do is obtain a copy. If it is a written order, the court clerk should be able to provide a copy. If not, you may have to pay to have the court stenographer transcribe the judge’s oral directive.
Find out who the order gags and what restrictions it places on the gagged individuals. What is the judge’s justification for issuing the gag? Nuances in the language of the order may greatly affect whether it will be upheld on appeal.
If your sources have been gagged, you will need advice on whether you can challenge the order or whether the person directly affected by it must bring the challenge. Here, too, you will need the help of legal counsel.
In some cases, a judge will lift or modify a gag order when told of the constitutional problems it poses. But a formal appeal may be necessary to protect your ability to cover a court case.
1. Gag orders also may refer generally to prior restraint orders that prohibit the press from publishing certain information. See Chapter 5: Prior Restraints.
2. See e.g., Montana ex rel Missoulian v. Montana Twenty-First Judicial Court, 933 P.2d 829 (Mont. 1997) (holding that a trial court violated the federal and state constitutions by gagging trial participants and sealing documents without making factual findings that such restrictions were necessary to protect the defendant’s fair trial rights).
3. Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992).
4. See e.g., Jones v. Clinton, No. LR-C-94-290 (E.D. Ark. order issued Oct. 27, 1997) (restraining litigants and counsel from discussing the timing and substance of discovery and identifying persons from whom discovery is sought); United States v. McVeigh, 964 F. Supp. 313 (D.Colo. 1997) (upholding trial court order restricting access and prohibiting all out-of-court comments by trial participants).
5. United States v. Brown, 218 F.3d 415 (5th Cir. 2000).
6. Id. at 423.
7. In re Hearst Newspapers Partnership, L.P., 241 S.W.3d 190, 36 Media L. Rep. 1297 (2007)
8. State v. Neulander, 801 A.2d 255 (N.J. 2002), cert. denied Philadelphia Newspapers, Inc. v. New Jersey, 123 S.Ct. 1281 (2003).
9. United States v. Cleveland, 128 F.3d 267 (5th Cir. 1997), cert. denied sub nom In re: Capital City Press, 523 U.S. 1075 (1998). But see Contra Costa Newspapers, Inc. v. Superior Court, 61 Cal. App. 4th 862 (1998) (holding that a trial court cannot issue a “blanket” order prohibiting the press from contacting jurors who have been discharged from their duties).
10. See Sheppard v. Maxwell, 384 U.S. 333 (1966).
11. See United States v. Salameh, 992 F.2d 445 (2d Cir. 1993) (striking order preventing attorneys and law enforcement officials involved in World Trade Center bombing case from speaking to the media; stating that courts may impose restrictions when necessary to protect the integrity of the judicial system, but holding that the order in Salameh was not narrowly tailored).
12. See Levine v. United States Dist. Court, 764 F.2d 590 (1985), reh’g denied, 775 F.2d 1054 (9th Cir. 1985).
13. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
14. United States v. Scarfo, 263 F.3d 80 (3d Cir. 2001).