NEWS MEDIA UPDATE · RHODE ISLAND · Secret Courts · July 13, 2005
Court proposes gag rule for parties, lawyers, court workers
July 13, 2005 · Federal court employees, litigants, their attorneys and others would be barred from disclosing nonpublic information about cases pending in Rhode Island federal court under a proposed court rule.
Local Rule 110 would forbid any attorney, party, court employee, intern, court security officer, U.S. marshal or deputy U.S. marshal from disclosing or disseminating “to any unauthorized person information relating to any pending case that is not a part of the public record” without a judge’s permission. The proposed gag is part of a set of proposed court rules unveiled June 21 by the U.S. District Court in Providence, R.I.
Attorney Joseph V. Cavanagh Jr., who represents The Providence Journal, said he hoped “this was just a rough draft proposal,” and that he is “prepared to accept” that the court is open to suggestions.
“The rule can’t possibly mean that parties and counsel cannot comment on what’s happening in the proceedings,” Cavanagh, a partner at Blish & Cavanagh in Providence, said. “It would have to be modified to reiterate the importance of not talking about sealed information or matters subject to protective orders or the like.”
If that is the intent of the rule, he said, it is “not inconsistent” with the purpose of gag orders and sealing orders.
“If it goes beyond that, then I think there is a very serious First Amendment issue,” Cavanagh said.
Rhode Island Bar Association President Philip M. Weinstein said the proposed rule “strikes me as a reaction to the [Jim] Taricani matter,” the Journal reported.
Taricani, an investigative reporter for WJAR-TV in Providence, R.I., was sentenced in December to six months home confinement for refusing to reveal the source of a leaked FBI videotape that showed a Providence official taking a bribe from a government informant. Taricani was released after four months.
U.S. District Chief Judge Ernest C. Torres, who sentenced Taricani, said in an interview with the Journal that the proposed rule is not in response to the leaked FBI tape.
The 1991 U.S. Supreme Court decision in Gentile v. State Bar of Nevada allows courts to issue gag orders against attorneys if their out-of-court statements have a “substantial likelihood” of materially prejudicing a trial. Some federal appeals courts, however, impose a stricter standard for gagging trial participants; the U.S. Courts of Appeals for the Sixth, Seventh and Ninth circuits require a showing that such speech poses a “clear and present danger” or a “serious and imminent threat” to a fair trial before a gag order is granted.
The current Rhode Island rule, Rule 39, prevents lawyers from disclosing information about one of their criminal cases “if there is a reasonable likelihood that it imposes a serious and imminent threat of interference” with a fair trial. It also lists specific topics, such as a defendant’s prior record, that both prosecutors and defense lawyers are essentially prohibited from discussing publicly. During a criminal trial, lawyers are forbidden from speaking publicly about the case except to “quote from or refer without comments to public records.”
Attorneys are barred from making out-of-court statements about their civil cases “if there is a reasonable likelihood that such dissemination will interfere with a fair trial,” according to the current rule.
The new rule, which the Journal reported could be adopted this fall, articulates no such standard and makes no distinction between criminal and civil cases. The court is accepting public comment on the proposed rule until Aug. 12.