Gag orders and the effect on newsgathering

By Ashley Gauthier

Gag orders on trial participants have become a significant threat to the First Amendment protection for the press. News organizations should make every effort to challenge even the most routine gag orders because they represent the slow but steady erosion of First Amendment rights.

"They have the best chance of surviving review and are routinely upheld," said C. Thomas Dienes, a professor at George Washington University Law School and author of "Trial Participants in the Newsgathering Process."

The proliferation of gag orders began after a 1976 U.S. Supreme Court decision in which the court ruled that an order barring the press from publishing information about a criminal case was improper. Since then, courts have understood that prior restraints on publication should not be imposed upon the press. Instead, they impose prior restraints on the sources of information, making an end-run around the rule that the press itself generally cannot be restricted. (Nebraska Press Association v. Stuart)

Courts have reasoned that prior restraints on individual trial participants are somehow less offensive than prior restraints on media organizations. The effect, however, is similar. The flow of information to the public is constricted.

Journalists often do not challenge gag orders on trial participants. Dienes said journalists believe they can still "get the story" because someone will voluntarily violate the gag order or they can obtain information from secondary sources. Journalists also believe they can cover what occurs in the courtroom and sacrifice interviewing the people involved in the case.

To many lawyers, however, gag orders on trial participants quickly erode fundamental First Amendment principles and present an ominous precursor to further infringements on media rights. "And I think it's going to become much more repressive," Dienes said.

Standing to challenge gag orders

Journalists could challenge the gag orders. Courts generally accept that media organizations or journalists have "standing" -- a sufficient interest in the matter to be allowed to make arguments to the court -- to challenge a gag order. However, not all arguments to support standing are successful.

First, the press may argue that it has standing to assert its own rights to gather information. This argument is almost always successful.

The Supreme Court has recognized that there is some newsgathering protection, although the extent of the protection has yet to be fully defined. In Branzburg v. Hayes, the Court stated that it does "not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated."

In Journal Publishing Co. v. Mechem, the U.S. Court of Appeals in Denver held that a newspaper had standing to challenge a gag order imposed on jurors. Specifically, the court said, "Journal Publishing alleged an injury in fact because the court's order impeded its ability to gather news, and that impediment is within the zone of interest sought to be protected by the First Amendment." Other cases where courts have held that the press has standing to challenge a gag order on trial participants include Radio & Television News Ass'n v. United States Dist. Ct. (9th Cir.); In re Express-News Corp. (5th Cir.); CBS, Inc. v. Young (6th Cir.); Connecticut Magazine v. Moraghan (D. Conn.); and In the Matter of NBC, Inc. v. Cooperman (New York).

Although most courts believe that the press has standing to challenge gag orders because of its right to gather news, some courts have issued restrictive rulings. For example, the U.S. Court of Appeals in Philadelphia (3d Cir.) ruled that the press would "have standing to challenge a gag order only when there is reason to believe that the individual subject to the gag order is willing to speak." Arguably, this statement requires the media to prove that the participant would speak to the press if the gag order were lifted. (FOCUS v. Allegheny Cty. Ct. of Common Pleas)

The Supreme Court of Michigan similarly imposed such a requirement, denying a newspaper's ability to challenge a gag order when the newspaper failed to identify an specific "willing speaker." (In re Detroit Free Press)

In re Detroit Free Press also calls into question the assumption that the press has a broad right to gather news. Justice Corrigan denied the Free Press' appeal of a gag order in a custody case and criticized the paper's argument that the order infringed on its rights: "Further, while the Free Press makes much of its special first amendment right to 'gather news,' . . . it fails to acknowledge the rather limited scope of this 'right.' It is axiomatic that the press has no greater right to access information than the public at large." Justice Corrigan reasoned that, if the press' right is equivalent to the right of the public, then there is no special "freedom of the press" right to access the information subject to the trial court's gag order.

Justice Corrigan also stated "there is no general First Amendment 'right to gather data,' " relying on Zemel v. Rusk, a case in which the U.S. Supreme Court rejected a First Amendment claim raised by a person denied a passport to Cuba. The person alleged that he had a First Amendment right to travel to Cuba to learn about its policies, but the Court concluded that "[t]he right to speak and publish does not carry with it the unrestrained right to gather information." Corrigan therefore concluded that "a mere restriction on 'data flow' does not raise serious First Amendment concerns." (In re Detroit Free Press)

However, Justice Corrigan's reasoning conflicts with many cases acknowledging that the public has a right to receive information and that the media creates an effective mechanism for the public to receive that information. In Globe Newspaper Co. v. Superior Ct., the U.S. Supreme Court noted that the public has a right of access to information about judicial proceedings for the sake of preserving our democracy. Then, in Gentile v. State Bar of Nevada, the Supreme Court recognized that most people acquire information about court cases from the media. A Supreme Court Justice had previously noted, "An informed public depends on accurate and effective reporting by the news media. No individual can obtain himself the information needed for the intelligent discharge of his political responsibilities. For most citizens the prospect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news the press therefore acts as an agent of the public at large. It is the means by which the people receive the free flow of information and ideas essential to effective self-government." (Saxbe v. Washington Post Co., Powell, J., dissenting)

The press may also try to argue that it has standing to challenge the First Amendment rights of the speakers who have been silenced, but some courts are less persuaded by that argument.

The Supreme Court has indicated that both speakers and listeners had an enforceable right. The Court stated, "freedom of speech presupposes a willing speaker. But where a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both." (Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.)

Some courts have allowed the press to challenge gag orders, following the notion that the listener has a right to hear a communication. For example, the U.S. Court of Appeals in Cincinnati (6th Cir.) ruled that a gag order on trial participants constituted "a direct prior restraint upon freedom of expression." The court noted that "[a]lthough the news media are not directly enjoined from discussing the case, it is apparent that significant and meaningful sources of information concerning the case are effectively removed from them and their representatives .... A more restricting ban upon freedom of expression in the trial context would be difficult if not impossible to find." (CBS, Inc. v. Young)

However, other courts have rejected the argument that the press has standing to argue that gag orders infringe the free speech rights of trial participants. The U.S. Court of Appeals in Miami (11th Cir.) found that "there is a fundamental difference between a gag order challenged by the individual gagged and one challenged by a third party." Similarly, the U.S. Court of Appeals in New York (2d Cir.) concluded that "the news agencies may not assert defendants' First Amendment rights when defendants refuse to challenge that infringement themselves." (News-Journal Corp. v. Foxman (11th Cir.); In re Dow Jones & Co., Inc. (2d Cir.))

The importance of challenging gags

While journalists often feel that it is not worth the time, effort or expense to challenge a particular gag order, media lawyers often agree that the perceived "lack of worth" is exactly why journalists should challenge the orders.

Gag orders allow courts to circumvent the First Amendment, slowly eroding the freedom of the press in a much more subtle manner than if they gagged the media directly. When the press fails to challenge an individual gag order because the order doesn't seem important, it becomes another brick in the wall. While each separate brick may not seem, in itself, to be a threat to the flow of information, the collective wall will be.

Dienes, the law professor, contended that U.S. v. Brown in Lousiana exemplifies the encroachment of gag orders on First Amendment rights. "The Brown case in the Fifth Circuit is just terrible," Dienes said. "It's a gag on a criminal defendant, and it was challenged by the criminal defendant rather than the media, and it was still upheld."

The Brown case involved the prosecution of former Louisiana Gov. Edwin Edwards and Louisiana Insurance Commissioner Jim Brown for alleged insurance fraud. Judge Edith Clement imposed a gag order on all trial participants, but Brown challenged the constitutionality of the order, claiming that it violated his First Amendment right to free speech. The U.S. Court of Appeals in New Orleans (5th Cir.) upheld the gag order and did not apply the strict scrutiny analysis typical in a First Amendment case. Instead, the court upheld the gag order based on a "substantial likelihood" that publicity could prejudice the court's ability to conduct a fair trial. There were no specific factual findings to support such a conclusion, and the court did not require an examination of less restrictive alternatives.

The court in Brown was apparently not concerned that Brown was a sitting office-holder who was not able to comment on his job performance or duties of office pending the outcome of the trial. Considering that political speech has always been given the greatest protection under the First Amendment, it seems odd that the court would dismiss Brown's First Amendment claims and impose the rather weak "substantial likelihood" test. Surely, the indifference to Brown -- an office holder -- as a speaker is a harbinger of even more restrictive rulings in the future.

A split among circuits

Over time, a split has arisen among federal appeals courts on the standard for evaluating a gag order on trial participants. The Second, Fourth, Fifth and Tenth Circuits have held that a trial court may gag participants if it determines that comments present a "reasonable likelihood" or "substantial likelihood" of prejudicing a fair trial. (In re Dow Jones & Co.; In re Russell; U.S. v. Brown; U.S. v. Tijerina)

Some states have followed the same rule. (Sioux Falls Argus Leader v. Miller; State ex rel. Missoulian v. Montana Twenty-First Jud. Dist. Ct.)

However, the Third, Sixth, Seventh and Ninth Circuits have imposed a stricter standard, rejecting gag orders on trial participants unless there is a "clear and present danger" or "serious and imminent threat" of prejudicing a fair trial. (Bailey v. Systems Innovation, Inc.; U.S. v. Ford; Chicago Council of Lawyers v. Bauer; Levine v. U.S. Dist. Ct.)

Hawaii and New York have followed this standard as well. (Breiner v. Takao; People v. Fioretti)

The "clear and present danger" test is more appropriate for analyzing a First Amendment claim, as it reflects the "strict scrutiny" standard applied in other First Amendment cases, such as Nebraska Press Association. In the spring issue of Communications Lawyer magazine, Dienes argued that the "substantial likelihood" standard used by the Fifth Circuit is grossly flawed and will lead to further trammeling on free speech rights. "One can only hope that [the "substantial likelihood" test] merely reflects the extremely political context of the cases that spawned it," Dienes wrote. "It should be expected that appellate courts will at least use standards for justifying such orders that reflect the important First Amendment interests at stake."

Cases Cited:

Bailey v. Systems Innovation, Inc., 852 F.2d 93 (3d Cir. 1988)

Branzburg v. Hayes, 408 U.S. 665 (1972)

Breiner v. Takao, 835 P.2d 637 (Ha. 1992)

CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975)

Chicago Council of Lawyers v. Bauer, 552 F.2d 242 (7th Cir. 1975)

Connecticut Magazine v. Moraghan, 676 F. Supp. 38 (D. Conn. 1987)

FOCUS v. Allegheny Cty. Ct. of Common Pleas, 75 F.3d 834 (3d Cir.1996)

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)

Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982)

In re Detroit Free Press, 620 N.W.2d 10 (Mich. 2000)

In re Dow Jones & Co., Inc., 842 F.2d 603 (2nd Cir. 1988)

In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982)

In re Russell, 726 F.2d 1007 (4th Cir. 1984)

In the Matter of NBC, Inc. v. Cooperman, 501 N.Y.S.2d 405 (Ct. App. 1986)

Journal Publishing Co. v. Mechem, 801 F.2d 1233 (10th Cir. 1986)

Levine v. U.S. Dist. Ct., 764 F.2d 590 (9th Cir. 1985)

Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)

News-Journal Corp. v. Foxman, 939 F.2d 1499 (11th Cir. 1991)

People v.Fioretti, 516 N.Y.S.2d 422 (N.Y. Sup. 1987)

Radio & Television News Ass'n v. United States Dist. Ct., 781 F.2d 1443 (9th Cir. 1986)

Saxbe v. Washington Post Co., 417 U.S. 843 (1974)

Sioux Falls Argus Leader v. Miller, 610 N.W.2d 76 (S.D. 2000)

State ex rel. Missoulian v. Montana Twenty-First Jud. Dist. Ct., 933 P.2d 829 (Mont. 1997)

U.S. v. Brown, 218 F.3d 415 (5th Cir. 2000)

U.S. v. Ford, 830 F.2d 596 (6th Cir. 1987)

U.S. v. Tijerina, 412 F.2d 661 (10th Cir. 1969)

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976)

Zemel v. Rusk, 381 U.S. 1 (1965)