How to challenge a gag order

Challenging a gag order does not need to be difficult, nor does it necessarily require an attorney. Of course, an attorney would be able to prepare a motion to challenge a gag order easily, and an attorney would be familiar with the procedural requirements for filing a motion. If you have access to an attorney, you should use one. But in an emergency, a reporter at the courthouse can challenge a gag order.

If you know that a party is seeking a gag order before the order is actually imposed, a reporter can file a motion to intervene. The motion should note:

1. the name of the reporter;

2. the reporter's employer (or, if the reporter is freelance, who would be expected to publish the story);

3. the fact that the reporter is filing the motion pro se;

4. that the reporter has learned that a party is seeking a gag order;

5. the fact that the reporter has an interest in the case. Specifically, the motion should say that the reporter has an interest in gathering the news, which includes speaking to the trial participants; the reporter has an interest in hearing what the speaker has to say; the public has an interest in learning about the case and hearing what the speaker has to say; and the reporter acts as a conduit to get information from the speaker to the public;

6. that the First Amendment provides the speaker the right to speak freely and provides the reporter some right to gather news;

7. when the First Amendment rights are compared to the interest in a fair, impartial, and efficient trial, the First Amendment rights should prevail because there is no proof that trial participants' speech would harm the fairness, impartiality or efficiency of the trial;

8. that less restrictive means should be considered and employed before a gag order is issued; and

9. that the reporter (or the organization) would like to intervene for the purpose of contesting the proposed gag order.

If you do not know what a motion should look like, peruse other court files to see samples of motions. A court clerk will not give you legal advice or explain what a motion should contain, but usually will let you look at public records and you can see samples of what other people have filed. A motion usually contains the name and location of the court, the name of the case, the title of the motion, and the name, address and telephone number of the person filing the motion.

Once the motion is filed, the court should let you know when the hearing will be held, and you may attend. Normally, if the court has granted your motion to intervene, you will be permitted to speak at the hearing and explain your position.

If you do not know about a gag order until after it has been issued, you may still make a motion to intervene and ask the court to repeal the gag order. The motion would contain the same information as above, except that you would note that a gag order has already been imposed rather than stating that a party is seeking a gag order.

If you live in a jurisdiction that has case law applying a strict standard of review to gag orders, you may note the relevant case in your motion. Jurisdictions with favorable case law include federal courts in the First, Second, Third, Sixth and Seventh circuits, and the following states: California, Florida, Hawaii, Kansas, Maryland, Massachusetts, New Mexico, New York, North Carolina, Ohio and Texas. (A list of cases, both favorable and unfavorable, can be found on the following pages.)

As always, if you would like additional information, call the Reporters Committee hotline at 800-336-4243.