A survey of the law

The imposition of gag orders on trial participants is a relatively modern phenomenon in the law. Below is a circuit-by-circuit and state-by-state listing of cases that have directly addressed the issue of gag orders on trial participants. Only about half of all states have directly addressed the issue in reported cases.

FEDERAL COURTS

Supreme Court

Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1990) (a restriction on attorney speech could potentially be valid, although the specific restriction at issue was invalid).

Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (speech can be restricted to avoid prejudice to fair trial).

First Circuit

In re Perry, 859 F.2d 1043 (1st Cir. 1988) (gag order issued during administrative proceeding and applicable to union organizing efforts was improper under First Amendment standards).

Second Circuit

U.S. v. Salameh, 992 F.2d 445 (2nd Cir. 1993) (gag order that prevented any comments about the case invalid).

In re New York Times Co., 878 F.2d 67 (2nd Cir. 1989) (gag order invalid).

In re Dow Jones & Co., 842 F.2d 603 (2nd Cir. 1988) (affirming gag order where there were findings of substantial likelihood that fair trial would be prejudiced).

Third Circuit

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

Fourth Circuit

In re Russell, 726 F.2d 1007 (4th Cir. 1984) (gag order on witnesses was valid).

Fifth Circuit

U.S. v. Brown, 218 F.3d 415 (5th Cir. 2000) (trial court may impose gag order on trial participants based on substantial likelihood that extrajudicial commentary will undermine a fair trial).

Sixth Circuit

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

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

Seventh Circuit

Chicago Council of Lawyers v. Bauer, 552 F.2d 242 (7th Cir. 1975) (gag order invalid without serious or imminent threat to fair trial).

Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970) (gag order invalid without serious or imminent threat to fair trial).

Eighth Circuit

There are apparently no Eighth Circuit cases directly addressing the merits of gag orders on trial participants.

Ninth Circuit

Levine v. U.S. Dist. Ct., 764 F.2d 590 (9th Cir. 1985) (gag order overbroad; but note that second gag order, revised after remand, was upheld in Radio & Television News Assoc. v. U.S. Dist. Ct., 781 F.2d 1443 (9th Cir. 1986)).

Tenth Circuit

Journal Pub. Co. v. Mechem, 801 F.2d 1233 (10th Cir. 1986) (media had standing to challenge gag order on jurors).

U.S. v. Tijerina, 412 F.2d 661 (10th Cir. 1969) (gag order did not violate defendants' rights of free speech).

Eleventh Circuit

The News-Journal Corp. v. Foxman, 939 F.2d 1499 (11th Cir. 1991) (collateral federal court challenge of gag order issued by state court dismissed for lack of jurisdiction).

D.C. Circuit

There are apparently no D.C. Circuit cases directly addressing the merits of gag orders on trial participants.

STATE COURTS

Alaska

In re Dissolution of Marriage of Alaback, 997 P.2d 1181 (Alaska 2000) (gag order acceptable when it's in the "best interests of the child").

Arizona

KPNX Broadcasting v. Superior Court In and For Maricopa County, 678 P.2d 431 (Ariz. 1984) (gag order limiting direct contact to media and establishing a "media liaison" for the trial was valid method of preserving fair trial).

Arkansas

Arkansas Democrat-Gazette v. Zimmerman, 20 S.W.3d 301 (Ark. 2000) (gag order was too broad).

California

Hurvitz v. Hoefflin, 101 Cal.Rptr.2d 558 (Cal.App. 2000) (gag order impermissible; victim's privacy is insufficient reason to impose gag order).

Connecticut

State v. Grant, 1999 WL 773567 (Conn.Super. 1999) (gag order too broad; should prohibit only statements that raise a "reasonable likelihood of prejudicial impact").

Florida

Rodriguez ex rel. Posso-Rodriguez v. Feinstein, 734 So.2d 1162 (Fla.App. 1999) (gag order invalid where the court made no findings that it was necessary to ensure a fair trial and where the judge had not narrowly tailored the order to preclude only extra-judicial statements that are substantially likely to materially prejudice the trial).

Hawaii

Breiner v. Takao, 835 P.2d 637 (Ha. 1992) (gag order invalid where court failed to find serious threat to right of fair trial or consider other alternatives).

Illinois

In re J.S., 640 N.E.2d 1379 (Ill.App. 1994) (gag order acceptable to protect privacy of minor victim).

Indiana

South Bend Tribune v. Elkhart Circuit Court, 691 N.E.2d 200 (Ind.App. 1998) (gag order acceptable where court found that there was a reasonable likelihood that publicity would prejudice murder trial).

Kansas

State v. Alston, 887 P.2d 681 (Kan. 1994) (gag order invalid where judge did not make requisite finding of necessity).

Maryland

Keene Corp. v. Abate, 608 A.2d 811 (Md.App. 1992) (gag order on litigant advertising was unconstitutional; cannot ban speech unless there is a grave danger to a fair trial).

Massachusetts

Clermont v. Sheraton Boston Corp., 1993 WL 818763 (Mass.Super. 1993) (gag order denied where there was no showing that statements to media would prejudice trial).

Michigan

In re Midland Pub. Co., Inc., 362 N.W.2d 580 (Mich. 1984) (gag orders on defendant, victim, counsel and court personnel are permissible).

Montana

State ex rel. Missoulian v. Montana Twenty-First Jud. Dist. Ct., 933 P.2d 829 (Mont. 1997) (before issuing a gag order, the court must find that there is a substantial probability of harm to the trial).

New Jersey

Matter of Hinds, 449 A.2d 483 (N.J. 1982) (rejecting "clear & present danger" test in favor of "reasonableness" test for restrictions on attorney speech about a trial).

New Mexico

Albuquerque Journal v. Jewell, 17 P.3d 437 (N.M. 2001) (gag order was procedurally deficient).

Twohig v. Blackmer, 918 P.2d 332 (N.M. 1996) (gag order invalid where there was no factual foundation for finding a substantial likelihood of prejudice or clear and present danger to an impartial trial).

New York

People v. Buttafuoco, 599 N.Y.S.2d 419 (N.Y. Co. Ct. 1993) (an order directing attorneys to comply with ethical rule regarding pretrial publicity is not a "gag order").

New York Times Co. v. Rothwax, 533 N.Y.S.2d 73 (N.Y.A.D. 1988) (gag order was improper without factual showing of necessity).

People v. Fioretti, 516 N.Y.S.2d 422 (N.Y. Sup. 1987) (gag order may be upheld only if it is clearly established that there is a serious and imminent threat to a fair trial and order is narrowly drawn).

North Carolina

Sherrill v. Amerada Hess Corp., 504 S.E.2d 802 (N.C. App. 1998) (gag order was unconstitutional; no evidence that there was prejudice to fair trial).

Ohio

State Ex Rel. Nat'l Broadcasting Co., Inc. v. Court of Common Pleas, 556 N.E.2d 1120 (Ohio 1990) (gag order invalid without specific findings demonstrating that gag order is necessary to preserve compelling interest and is narrowly tailored to serve that interest).

Pennsylvania

Commonwealth v. Carter, 643 A.2d 61 (Pa. 1994) (pretrial publicity was entitled to a presumption of prejudice, but there was no need for a gag order when there was a 15-month "cooling off" period between prejudicial newspaper articles and trial).

South Dakota

Sioux Falls Argus Leader v. Miller, 610 N.W.2d 76 (S.D. 2000) (gag order did not violate First Amendment).

Tennessee

State v. Hartman, 703 S.W.2d 106 (Tenn. 1985) (gag order on attorneys was acceptable where judge was concerned about effect of statements on prospective jurors).

Texas

Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) (gag order unconstitutional in civil case where there was no finding of imminent harm).

Vermont

State v. Schaefer, 599 A.2d 337 (Vt. 1991) (order prohibiting lawyers and law enforcement officers from commenting on merits of case was unjustified without finding that officers and lawyers would make improper disclosure absent the order).

Virginia

Commonwealth v. Starkey, 1992 WL 884421 (Va. Cir.Ct. 1992) (court ordered that prosecutors and other law enforcement avoid comments on defendant and case, admonishing them to comply with ethical rule regarding pretrial publicity).

Washington

State v. Bassett, 911 P.2d 385 (Wash. 1996) (gag order invalid because it was overbroad; may only restrict statements that threaten a fair trial).