Court: Court of Appeal of the State of California, Second Appellate District, Division 5
Date Filed: Oct. 20, 2020
Update: After the trial court lifted the gag order against Darrell Caldwell, the appeals court issued an order on Oct. 23, 2020, dismissing the petitioner’s appeal as moot.
Background: On March 6, 2020, a California trial court entered a sweeping “gag order” prohibiting Darrell Caldwell, known professionally as rapper “Drakeo the Ruler,” and his counsel from commenting on his trial on gang conspiracy and weapons charges until a verdict is reached. Among other things, the court ordered Caldwell and his counsel not to post about his case on social media and to remove previous posts, including one that said, “I have been in jail for 26 months for something I didn’t do,” and another stating, “Can someone please tell Oprah about my case.”
Caldwell appealed the gag order in October. A few days later, prosecutors informed the trial court that they would like to withdraw their request for the order and that the court could vacate the order. Nevertheless, the gag order currently remains in effect.
Our Position: The appeals court should direct the trial court to immediately vacate the gag order.
- This gag order inhibits newsgathering, leading to less accurate and complete reporting about this case and depriving the public of information.
- Gag orders on trial participants are a type of prior restraint and appropriate only in narrow circumstances not present here.
- California courts disfavor gag orders against trial participants.
- The gag order does not meet the California Court of Appeal, Second Appellate District’s three-part test for determining the constitutionality of gag orders on trial participants.
- The constitutionality of the gag order will not become moot if the trial court vacates the order prior to this Court’s decision.
The media coalition was represented in this brief by the UC Irvine School of Law Intellectual Property, Arts, and Technology Clinic.
Quote: “[W]hile this Gag Order may not halt news coverage of this case entirely — for journalists will continue to try to cover it, despite this order — [it] could very well lead to less accurate and reliable reporting that has a greater likelihood of misleading the public and possibly potential jurors, thus defeating the order’s purpose.”
Related: The Reporters Committee has filed a number of friend-of-the-court briefs arguing against gag orders and other unconstitutional prior restraints. In June, the Reporters Committee, joined by 14 media organizations, urged the U.S. Court of Appeals for the District of Columbia Circuit to vacate a district court’s decision dismissing a think tank’s challenge to a gag order imposed by the Securities and Exchange Commission.
In 2019, attorneys for the Reporters Committee and a coalition of 21 media organizations filed a friend-of-the-court brief in support of Microsoft’s challenge to a gag order restricting the company from disclosing government requests for data on its customers.
In 2015, the Reporters Committee and a coalition of 29 media organizations filed a friend-of-the-court brief in support of a petition to overturn a gag order and sealing order entered in connection with the criminal trial of Donald Blankenship, the former CEO of Massey Energy. A federal appeals court later invalidated the orders.