Journalist may intervene to challenge gag order in terrorism trial

A federal appellate court ruled Monday that a Texas journalist had standing to challenge a lower court’s gag order in an alleged terrorist’s criminal trial, but the court still upheld the order barring those involved in the case from communicating with the media.

James Clark, a producer at television station KCBD in Lubbock, Texas, wants to speak with individuals involved in the trial of Khalid Ali-M Aldawsari, a Texas resident accused of attempting to use a "weapon of mass destruction" on the home of former President George W. Bush. But because of a district court's gag order, no journalists are allowed to speak with Aldawsari and other parties involved with his trial. The station is not involved in the appeal.

“Aldawsari’s prosecution on terrorism charges is unquestionably newsworthy and of public interest,” according to the U.S. Court of Appeals in New Orleans (5th Cir.), adding that the district court wrongly denied Clark’s right to intervene in the matter. “We agree with Clark that the gag order affected his right to gather news and that he has standing to challenge it.”

In this case, United States v. Aldawsari, the three-judge appellate panel, applying the "willing speaker doctrine," rejected the government's claim that Clark, in order to have standing to challenge the gag order, must prove that he knew a particular individual involved in the case who is willing to speak with him but was restrained from doing so by the order. Because of the trial’s inherent newsworthiness, a willing speaker is presumed, the court ruled.

But it upheld the gag order, finding that it does not intervene in a journalist’s right to earn a living and is not “overly broad” in limiting the freedom of the press in favor of Aldawsari’s right to a fair trial.

“The order has not hindered the press,” the appellate court said. “The news media has continued its coverage, drawing on public hearings and information in the public record.”

Representing himself pro se, meaning he appeared in court without an attorney, Clark has learned to maneuver the sometimes-complex workings of the federal court, which originally dismissed his motion to intervene on procedural grounds but allowed him another avenue to appeal the case.

He said in an interview that he respects the Fifth Circuit's ruling but worries that it “gives the district court more latitude and less restrictions in terms of putting limits on constitutionally protected speech.”

Kathy Colvin, public information officer for the U.S. Attorney’s Office in Dallas, could not be reached for comment.

Aldawsari’s trial is scheduled to begin June 21 in federal court in Amarillo, Texas.

Related Reporters Committee resources:

· The First Amendment Handbook: Introduction — What to do if a court issues a gag order