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Judge denies gag order in civil rights case

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A federal judge in Florida last week refused to issue a gag order against attorneys at the Southern Poverty Law…

A federal judge in Florida last week refused to issue a gag order against attorneys at the Southern Poverty Law Center and the plaintiffs they represent in a case involving alleged civil rights abuses, finding that the publicity generated from plaintiffs' and counsel's statements to date would not interfere with a fair trial.

The case concerns a private juvenile detention center, Thompson Academy, which is funded by the Florida Department of Juvenile Justice. The plaintiffs, current or former residents of the academy, have filed a 14-count class-action suit against: Youth Services International, the academy's managing company; two counselors of Thompson Academy; the facility administrator; and the secretary of the Department of Juvenile Justice.

The defendants claimed the need for a protective order prohibiting plaintiffs and their counsel from extrajudicial public statements, asserting that the Southern Poverty Law Center and the plaintiffs made public statements critical of the defendants to various media outlets and that these statements could interfere with a fair trial.

Magistrate Judge Andrea M. Simonton denied the defendants' motion, finding that she could not conclude that the publicity would contaminate public opinion at the time of the trial, scheduled for June. Noting that the majority of the challenged statements were made late last year, Simonton said in her order: "Defendants have not made a sufficient showing that the statements remain in active circulation, or have prejudiced or continue to prejudice the community against the Defendants, creating reasonable likelihood that Defendants cannot receive a fair trial."

The court recognized "that Defendants are dismayed by the extrajudicial statements at issue in this case, since such statements challenge the Defendants' business activities and actions." But, "such dismay does not amount to the legal requirement for this type of protective order," the order said.

Simonton's opinion noted "the timing of Plaintiffs' counsel's extrajudicial statements and the trial, in relation to any demonstrated prejudice." In consideration of this timing, Simonton said: "Defendants' fear that potential jurors can recall past statements . . . are more appropriately addressed at the time of trial." Simonton also noted that "Plaintiffs' counsel recognized the need to tailor their publicity efforts as the trial grows closer."

Steve Hanlon, a partner with Holland & Knight who represented the plaintiffs, rejected the notion that the publicity would contaminate the jury pool. "It is hard to imagine the entire venire contaminated," Hanlon said. "I think it would be very obvious if someone was trying to pollute the venire."

Hanlon noted that the tailored publicity efforts by the plaintiffs do not translate into complete silence. "It doesn't say you stop talking," he said. "It says that you make sure that it's clear where you're remarks are directed."

Simonton's order said the court was not foreclosing the defendants from re-seeking a protective order closer to trial. "On the state of the current record, however, a protective order is not appropriate," the order said.