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Lesser standard allowed for gag orders on parties

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From the Summer 2000 issue of The News Media & The Law, page 38.

From the Summer 2000 issue of The News Media & The Law, page 38.

The U.S. Court of Appeals in New Orleans (5th Cir.) established a less restrictive standard for gag orders affecting trial participants in a July opinion in the on-going criminal case against current and former Louisiana public officials.

A three-judge panel of the court held that a trial court can impose a gag order on parties if it concludes there is a “substantial” or even “reasonable” likelihood that their comments outside of the courtroom will undermine a fair trial.


James Harvey Brown is the elected Insurance Commissioner for the State of Louisiana. In September 1999, Brown, former Louisiana Governor Edwin Edwards and four other co-defendants were indicted in federal court in Baton Rouge on numerous counts of conspiracy, mail and wire fraud, insurance fraud, making false statements and witness tampering. Brown’s case was one of three related trials involving improper use of political power in Louisiana. One of the trials already concluded with a guilty verdict against Edwards, among others. Brown’s trial was slated to begin on Aug. 21.

In a news conference after the indictment was issued, Brown declared his innocence as well as his belief that he was the victim of a “political drive-by shooting” at the hands of “an out-of-control prosecutor.”

That same day, the district court entered on its own motion a gag order prohibiting parties, lawyers and potential witnesses from giving to “any public communications media” “any extrajudicial statement or interview” about the trial that “could interfere with a fair trial or prejudice any defendant, the government, or the administration of justice.” The order provides that “statements or information intended to influence public opinion regarding the merits of this case are specifically designated as information which could prejudice a party.” The order allows the discussion, “without elaboration or any kind of characterization,” of the general nature of any allegations or defenses, information contained in the public record, scheduling information, any decision or order by the court that is a matter of public record and “the contents or substance” of any motion filed in the case, to the extent the motion is a matter of public record.

The district court temporarily lifted the gag order to avoid interfering with Brown’s re-election campaign. Shortly thereafter, various defendants released recordings and transcripts of telephone conversations to the public and conducted interviews. The district court then entered a limited order prohibiting the parties from releasing discoverable material. At a status conference, the court explained that it had entered the limited order “to stop an avalanche of both government and defendants picking out tapes and start playing all these tapes on radio and television.” The court also invited the parties to suggest modifications to the order.

On Nov. 18, 1999, the district court reimposed the original gag order effective at the close of the polls two days later. Brown objected, but the district court responded that it believed that the order was necessary because of pretrial publicity. The court stated again that it would consider modifications. Brown later proposed that the gag order should only apply to counsel, not parties or witnesses. The court denied Brown’s motion. Brown then appealed to the U.S. Court of Appeals in New Orleans (5th Cir.).

A three-judge panel of the appellate court unanimously rejected Brown’s appeal. In an opinion by Justice Will Garwood that was joined by Chief Justice Carolyn Dineen King and Justice Harold R. DeMoss, the court articulated a new, less restrictive standard for placing gag orders on trial participants.

The appellate panel first concluded that it could exercise its jurisdiction to hear the appeal of the gag order even though the underlying case had not yet been tried. It also explained that unlike the defendants in the concluded Edwards trial — who had unsuccessfully attempted to persuade a different Court of Appeals panel to take up their objection to the gag order in that case while it was still pending — Brown had objected immediately to the gag order and had pursued his objection vigorously.

The appellate court then analyzed Brown’s claim that the gag order violates his rights under the First Amendment.

“Intense publicity surrounding a criminal proceeding — what Justice Frankfurter referred to as ‘trial by newspaper’ — poses significant and well-known dangers to a fair trial,” particularly to the ability to obtain an unbiased jury, according to the court. But it added that a gag order exhibits the characteristics of a prior restraint — a “predetermined judicial prohibition restraining specified expression” — that can affect the First Amendment rights of trial participants just as they affect the media’s exercise of First Amendment rights.

The court noted the distinction in First Amendment protection afforded participants in the litigation and the general public, noting that gag orders on trial participants are evaluated under a less stringent standard than gag orders on the press. The court concluded that although the test for the media had been well established through a line of U.S. Supreme Court cases, the proper test to apply to a gag order affecting only trial participants varied throughout the federal circuits.

The court noted that “It seems plain that the ‘clear and present danger’ test, and the variants thereof, are appropriate for protecting the unique role of the press as the public’s ‘eyes and ears’ into the criminal justice system.” For trial participants in the Fifth Circuit, however, the court held that “if the district court determines that there is a ‘substantial likelihood’ (or perhaps even merely a ‘reasonable likelihood,’ a matter we do not reach) that extrajudicial commentary by trial participants will undermine a fair trial, then it may impose a gag order on the participants, as long as the order is also narrowly tailored and the least restrictive means available. This standard applies to both lawyers and parties.”

Having established this new standard, the court addressed the merits of the gag order. It concluded that the district court did identify a “substantial likelihood” that the extrajudicial comments of the trial participants would prejudice its ability to conduct fair trials in all three related cases. The appellate court noted that the district court had properly justified its denial of Brown’s attempt to modify the gag order because of fears that “[u]nrestricted statements by the participants in this trial would only serve to increase the volume of pre-trial publicity” and because pretrial publicity, especially in the form of extrajudicial comments by the parties, would taint the unsequestered jury already impaneled in the prior case involving Edwards as well as the pool from which the juries in the other two cases would be drawn.

The appellate court found that “the gag order in the present case is sufficiently narrow to eliminate substantially only that speech having a meaningful likelihood of materially impairing the court’s ability to conduct a fair trial.” The order allows for some “expression, including assertions of innocence, general statements about the nature of an allegation or defense, and statements of matters of public record,” and provides guidance about prohibited comments.

The court also determined that the gag order was the least restrictive means possible for the trial court to carry out its goals despite its decision not to discuss and reject less restrictive options first. “While it is undoubtedly good judicial practice for district courts to explicitly set forth on the record their consideration of such matters, we do not believe that this shortcoming requires us to vacate the present order,” the appellate court held. “The record sufficiently supports the district court’s clearly implied conclusion that the other measures suggested by [prior First Amendment jurisprudence] would be inappropriate or insufficient to adequately address the possible deleterious effects of enormous pretrial publicity on this case and the two related cases.”