Media coalition: Gag order in 26 related NC lawsuits violates the press and public's First Amendment rights

Shawna Chen | August 10, 2018
The Reporters Committee for Freedom of the Press and 11 media organizations are asking the Fourth Circuit Court of Appeals to vacate a broad gag order barring parties, attorneys, witnesses, potential witnesses and courthouse personnel in 26 related civil cases in North Carolina from speaking to the press.
 
The cases involve lawsuits against Murphy-Brown, a subsidiary of Smithfield Foods that contracts farmers to raise hogs, by neighbors who allege that the company's hog farms create a nuisance. Specifically, the plaintiffs claim that Murphy-Brown's waste management practices — such as storing manure in open-air lagoons and spraying liquid waste on farmland — have negatively impacted the plaintiffs' health and quality of life.
 
In its friend-of-the-court brief, the Reporters Committee argues that the gag order has had a chilling effect on journalists' abilities to gather information to accurately and comprehensively report on judicial proceedings in these cases, which could significantly impact North Carolina's $2.9 billion hog industry and its environmental practices. 
 
Gag orders, a type of prior restraint, are sometimes applied in high-profile criminal cases to ensure an impartial jury, but for these civil lawsuits, the Reporters Committee argues, there is no evidence that a gag order is appropriate or warranted. At least two parties to the lawsuits — Murphy-Brown and a farmer who operates one of the hog farms at issue — have indicated a desire to speak publicly about the cases.
 
"Because journalists frequently seek to gather the news by interviewing parties and witnesses to judicial proceedings, gag orders on trial participants are prior restraints that undermine these foundational principles of openness," the brief states. "They are particularly offensive to the First Amendment, for they violate not only the rights of those individuals who have been restrained from speaking, but also the rights of the press and public to receive information from willing speakers."
 
According to the brief, if the gag order is allowed to remain, "the public will continue to be deprived of the perspective of trial participants, who know the most about these cases and are in the best position to identify potential legal errors and other problems as soon as they occur. Journalists will be forced to seek comment from non-trial participants who are less likely to have all the relevant information and may therefore be less reliable."
 
Three days after the media coalition filed its brief, the plaintiffs filed a motion with the district court on Aug. 9 requesting to narrow the scope of the gag order so that it applies to a limited number of cases, and only for the duration of those cases and to witnesses who have been notified. The district court has not yet ruled on the plaintiffs' motion.
 
The media coalition's full brief is available here.