B. Gag orders on the press

Overview

The Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976) that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Such an gag order is a “most extraordinary remedy” that may be used only in ”exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.” CBS Inc. v. Davis 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citations omitted). Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property …. Those who see and hear what transpired can report it with impunity.” Craig v. Harney, 331 U.S. 367, 374 (1947).

Indeed, courts have refused to gag coverage of court proceedings even when a media organization is a party to the underlying case. The court in Freedom Communications v. Superior Court, 167 Cal. App. 4th 150, 152 (2008) thus overturned “an order enjoining [a media company] from reporting on trial testimony in a case in which it is the defendant.” But in Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court noted that a newspaper party could not publish information it obtained in discovery because “pretrial depositions and interrogatories are not public components of a civil trial.”

6th Cir.