The California Court of Appeal yesterday ordered a lower court to vacate an unprecedented order that prevented The Orange County Register from reporting on testimony in a lawsuit involving its parent company, Freedom Communications, Inc.
The unanimous panel said the gag order must immediately be vacated because Freedom’s right to publish was "so obvious that no purpose could be served" by lengthier consideration of the issue.
A trial court judge presiding over the case, Gonzalez v. Freedom Communications, Inc., issued the gag order on September 19 to prevent potential witnesses from reading about the suit. The order prohibited all parties, including The Register and other Freedom properties, from discussing any non-expert testimony given at the trial. It included “all means and manner of communication whether in person, electronic, through audio or video recording, or print medium.”
The unusually broad order surprised many media organizations and prompted a "broad coalition to come together in the space of just 48 hours to support The Register’s position,” said Christopher Beall of Levine Sullivan Koch & Schulz, which represented the Reporters Committee and 26 other media organizations in a friend-of-the-court, or amicus, brief. If permitted to stand, Beall said, such a gag order would “be used as a weapon in other cases against the amici’s own coverage of trials in which they are involved, giving their critics a powerful tool to silence the amici’s editorial freedom."
The unanimous appellate panel overturned the gag order just 10 days after the lower court issued it, following a scurry from the parties to weigh in with briefs. The court ruled that, as a prior restraint on speech, the gag order constituted the “most serious and the least tolerable infringement on First Amendment rights.”
Prior restraints might be permissible in exceptional cases, the court said, such as to prevent the dissemination of information about troop movements during wartime or to prevent a nuclear holocaust. But “the danger the trial court sought to avert by its prior restraint here – the risk that witnesses in a civil trial might be influenced by reading news reports of the testimony of other witnesses – cannot possibly justify the censorship imposed,” the decision said.
Even if there had been a compelling justification, the court added, a gag order would still have been improper in Gonzalez because less restrictive alternatives are available: “The trial court could admonish witnesses not to read press accounts of the trial,” an option that "would go farther in preventing the tainting of witness testimony because the gag order applies only to The Register and not to other newspapers that cover the trial.”
Kelli Sager, of Davis Wright Tremaine, which represented The Register, praised the court’s fast reaction.
“We are gratified that the Court of Appeal acted so quickly and decisively in overturning this prior restraint,” she said. For their part, attorneys for the plaintiffs told The Register that they expect the trial court will admonish potential jurors to avoid stories about the trial, as suggested in the decision of the Court of Appeal.