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Gag order on grand jury witnesses is not prior restraint on media

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Gag order on grand jury witnesses is not prior restraint on media

  • A newspaper’s challenge of a government warning to grand jury witnesses not to talk about an investigation was rebuffed by an appellate court.

Sep. 22, 2004 — A prohibition on witnesses disclosing what they learn while testifying before a grand jury is not a prior restraint on the press, a California appeals court has held.

The California Court of Appeal in San Jose based its ruling on the fact that the “alleged” restraint is not directed to the media, but rather to those who actually testify. The court also noted “there is no First Amendment right of the public to access grand jury proceedings.”

A trial court previously denied a request from the San Jose Mercury News for an order allowing grand jury witnesses to talk to the media in connection with the criminal investigation of a local judge. The lower court ruled the gag order, imposed on all such witnesses following their testimony, was constitutional because it was limited to the questions asked, the answers given, and anything else the witness may have learned through testifying.

The appellate court, however, ruled Sept. 15 that while the newspaper had standing to challenge the gag order, there was no prior restraint, in part because the press — and not the witnesses themselves — filed the suit.

Attorney James Chadwick, who represented the Mercury News, said Thursday he was “flummoxed” by the seemingly contradictory decision.

“Anything that prohibits speech is a prior restraint,” Chadwick said. “The question is whether it is a justifiable one.”

He did not know if the newspaper would appeal to the California Supreme Court.

The Mercury News had claimed that a witness declined to talk to one of its reporters after a prosecutor told the reporter, within earshot of the witness, that anyone who spoke publicly about his testimony could be “thrown in jail.” Another prospective witness refused to be interviewed without the district attorney’s permission.

Although grand jury witnesses are free to talk to the press either before or after their testimony about anything they knew prior to testifying, Chadwick said “that doesn’t necessarily help a witness who has at least impliedly been threatened with contempt” by a prosecutor.

(San Jose Mercury News, Inc. v. Criminal Grand Jury of Santa Clara Cty; Media Counsel: Edward P. Davis, Jr., James M. Chadwick, Diana Ng, Gray Cary Ware & Freidenrich, East Palo Alto, Calif.) KK

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