C. Gag orders on participants

Overview

The Supreme Court has ruled that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), and the cases which preceded it.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991). In Gentile, the Court allowed a Nevada rule providing that “[a] lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”

The Court has not addressed proper standard for a gag order to issue on trial participants in general, and jurisdictions have adopted several different standards. For example, the Ninth Circuit held that in order to gag a criminal trial participant, a court must find “that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest; (2) the order is narrowly drawn; and (3) less restrictive alternatives are not available.” Levine v. Dist. Court, 764 F.2d 590, 595 (9th Cir. 1985) (citations omitted).

6th Cir.