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The news media must keep fighting the ‘gag instinct’

From the Spring 2000 issue of The News Media & The Law, page 2. It started as a straightforward call…

From the Spring 2000 issue of The News Media & The Law, page 2.

It started as a straightforward call to the Reporters Committee from a Lubbock, Texas, newspaper reporter for comment for a story: Was it unusual that a federal judge routinely issued gag orders in nearly every case that came before him — a total of 219 cases in two years?

Until recently, it would have been astonishing.

But judges across the nation apparently have decided that the only fair jury is an ignorant jury.

There is a nationwide epidemic of protective orders preventing attorneys, parties and witnesses from discussing pending cases. Just as astonishing as the explosion in the number of gag orders is the fact that almost half have been issued in civil matters. Some have even been imposed in cases tried by a judge, where there clearly is not a concern that pre-trial publicity might contaminate a jury.

The Reporters Committee tracked 43 gag orders in 26 states and the District of Columbia between February 1 and April 20, 2000. Only a handful appeared to have been imposed following a hearing to determine whether a gag order was the only way to protect the Sixth Amendment right of a criminal defendant to a fair trial. Many appeared to have been imposed unilaterally by a judge without input from the parties.

A few examples:

• A judge in New London, Conn., issued a gag order in the trial of admitted murderer Michael Ross. The only jury issue was whether Ross should be executed or imprisoned for life for the murders of four teenage girls. The judge's order gagged all counsel and possible witnesses, including relatives of the victims.

• A Pittsburgh judge imposed a gag order in a civil case brought by a female contractor who alleged she was pressured to take money but do no work at the new PNC Park and Steeler Stadium so that the public sports authority would meet affirmative action goals.

• A Lake Zurich, Ill., judge placed a gag order on the parties regarding a settlement between the village and a gas station owner who objected when the village condemned the station to build a park.

• A federal judge in Baton Rouge, La., gagged all parties and their counsel in a series of corruption trials involving former Gov. Edwin Edwards and Insurance Commissioner Jim Brown. Brown, who remains in office, is prevented under the order from discussing his case in any way, even if it involves his on-going job performance.

• A broad-reaching gag order in the California case against former Symbionese Liberation Army fugitive Sara Jane Olson prevents parties, counsel and witnesses from discussing any issue in the 25-year-old attempted car-bombing case. The order extends to any comments made in Minnesota, where Olson has been living, even though the jury will be chosen in California.

Eighteen of the 43 gag orders were imposed in civil cases. Particularly disturbing were civil cases in Pennsylvania, South Carolina, Illinois, Connecticut and the District of Columbia where government entities were parties. As a result of these orders, public officials were precluded from commenting on cases of major public import, such as the alleged improprieties involving public stadiums in Pittsburgh and the Illinois eminent domain case.

The U.S. Supreme Court in Nebraska Press Association v. Stuart in 1973 made clear that gags on the media are unconstitutional. Protective orders against parties, their lawyers and witnesses are allowed, but limited. They should only be imposed after an evidentiary hearing has been held and a court finds that other alternatives, such as thorough voir dire of potential jurors, sequestration of jurors, a change of venue and instructions to the jury are not sufficient to protect a defendant's Sixth Amendment right to a fair trial.

It is difficult to envision a scenario in which a gag order would be necessary in a civil trial. It is impossible to conceive of the necessity for a gag order during a bench trial.

There are a few bright spots out there. Media that have challenged gag orders have been somewhat successful in getting them lifted — particularly in Florida. But not enough newsrooms seek to intervene in these cases. Reporters should be instructed to immediately report gag orders to their editors and newsrooms should immediately object to them. At a minimum, journalists should ask for a hearing.

Gag orders often are short sighted. The media is going to do a story regardless of whether the judge approves. By preventing the media from relying on parties and their lawyers, usually the most accurate sources of information in court stories, they force journalists to rely on rumors, leaks and innuendo. No one could argue that serves the public.

— Lucy Dalglish