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A. Media standing to challenge third-party gag orders

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  • 2nd Circuit

    Although the Second Circuit Court of Appeals has not directly addressed this issue, lower courts within the Second Circuit have determined that members of the media have standing to challenge third party gag orders. See, e.g., United States v. Simon, 664 F. Supp. 780, 786 (S.D.N.Y. 1987), aff'd sub nom. Application of Dow Jones & Co., Inc., 842 F.2d 603 (2d Cir. 1988); see also Conn. Magazine v. Moraghan, 676 F. Supp. 38 (D. Conn. 1987) (holding that a magazine, which was a nonparty and not subject to gag order issued in state court had standing to challenge order).

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  • 4th Circuit

    In Cent. S.C. Chapter, Soc. of Prof'l Journalists, Sigma Delta Chi v. U.S. Dist. Ct., 551 F.2d 559 (4th Cir. 1977), the Fourth Circuit initially held 2-1 that the media lacked standing to challenge a gag order, reasoning that the propriety of the order was not sufficiently clear to support a writ of mandamus, and that the media lacked an interest in the underlying criminal action sufficient to support intervention and an appeal.  Subsequently, in connection with the same underlying criminal action, the Fourth Circuit held that the media did have standing to challenge the gag order, and that mandamus is the preferred vehicle for appellate review. See Cent. S.C. Chapter, Soc. of Prof'l Journalists, Sigma Delta Chi v. Martin, 556 F.2d 706 (4th Cir. 1977).  It is now established that mandamus is the preferred method of challenging a gag order, and members of the media have standing to challenge a gag order that directly impairs the media’s rights under the First Amendment to gather news and to receive speech from willing speakers. See In re Wall St. Journal, 601 F. App’x 215 (4th Cir. 2015) (per curiam) (remanding with instructions to vacate gag order); In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir. 2018) (same).

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  • 5th Circuit

    The Fifth Circuit has held that media organizations have standing to challenge gag orders on third parties because such orders can impede the news agencies’ ability to discover newsworthy information from potential speakers. Davis v. Capital City Press, 78 F.3d 920, 927 (5th Cir. 1996). Furthermore, it is not necessary in every case to demonstrate the existence of a willing speaker in order to establish standing. A willing speaker will often be presumed, else there would be no need for a gag order. Id.

    The media does not have standing to challenge closure as a violation of a defendant’s right to a fair trial; that is a right that adheres solely to the defendant. Rovinsky v. McKaskle, 722 F.2d 197, 198 (5th Cir. 1984).

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  • 7th Circuit

    Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009) held that the only First Amendment concern raised by a protective order limiting disclosure of unfiled discovery is the effect such an order may have on a litigant's free-expression rights, which are limited where the information is only made available in discovery.  Id. at 1077 (journalist had no standing based on derivative First Amendment right to receive information where parties agreed to protective order and thus there was no “willing speaker”).  However, the Court acknowledged that “[m]edia challenges to trial-court gag orders have been allowed where the orders interfere with the right to receive information from parties and their attorneys who wish to disseminate it.”  Id. (citing In re Dow Jones & Co., 842 F.2d 603 (2d Cir. 1988); CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir. 1975)); see also Worrell Newspapers of Ind., Inc. v. Westhafer, 739 F.2d 1219 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985) (hearing press challenge to Indiana statute that specified “no person” may disclose the existence of sealed indictment prior to arrest or bringing of defendant into court custody, and authorizing contempt penalty for such disclosure).

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  • 8th Circuit

    There appears to be no Eighth Circuit case law discussing media standing to challenge third-party gag orders.

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  • Arizona

    The media may have standing to challenge gag orders.  See generally Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm’n, 160 Ariz. 350, 357, 773 P.2d 455, 462 (1989).

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  • California

    California courts have not expressly addressed media standing to challenge gag orders. However, one court recognized the right of a third party to challenge a gag order because of its interest in the case. Mary R. v. B. & R. Corp., 149 Cal. App. 3d 308, 196 Cal. Rptr. 871 (1983). Another court found standing to challenge a gag order in an unpublished opinion. Dixon v. Superior Court, 2007 WL 4227248, 36 Media L. Rep. 1505, *11-12 (Cal. Ct. App. 2007) (citing Craemer v. Superior Court, 265 Cal. App. 2d 216, 218 n.1, 71 Cal. Rptr. 193 (1968); In re Application of Dow Jones & Co., 842 F.2d 603, 607 (2d Cir. 1988)).

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  • Colorado

    Colorado appellate courts have not addressed the media’s standing to challenge third-party gag orders.

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  • District of Columbia

    All parties, including the media, have a right to challenge third-party gag orders.  See, e.g., In re United States for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b), 2014 U.S. Dist. LEXIS 43950 at *14 (D.D.C. 2014) (noting, in a ruling involving the government’s application for a gag order against Twitter, that “Twitter has a Fifth Amendment right to be heard before being subjected to a gag order.”).

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  • Florida

    The media has standing to challenge gag orders on participants in court proceedings. E.g., Florida Freedom Newspapers v. McCrary, 520 So. 2d 32 (Fla. 1988); Sarasota Herald-Tribune v. Talley, 523 So. 2d 1163 (Fla. 2d DCA 1988) (per curiam); Times Publ’g Co. v. Pennick, 433 So. 2d 1281 (Fla. 2d DCA 1983) (per curiam). In fact, it is reversible error and a departure from the essential requirements of law to issue a gag order “without prior notice and opportunity to be heard by at least one member of the media.” Talley, 523 So. 2d at 1163.

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  • Georgia

    The right of the media to intervene in legal actions, where their newsgathering rights are burdened by court orders, is well established in Georgia. See, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 581 (1982); Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 170 (2004) (holding that the Atlanta Journal-Constitution and WSB-TV had standing to challenge a gag order entered against trial participants and witnesses).

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  • Idaho

    Media organizations are permitted to intervene in court proceedings for the limited purpose of opposing efforts to restrain their exercise of First Amendment rights.  See, e.g., Riggs v. Valdez, 2011 WL 1598630, at *8 (D. Idaho Apr. 27, 2011) (granting media organization’s motion to intervene for purpose of opposing gag order).  When faced with this issue, Idaho courts look to Ninth Circuit precedent for guidance.  Id.

    In Radio & Television News Ass’n of S. Cal. v. U.S. Dist. Ct., 781 F.2d 1443 (9th Cir. 1986), the Ninth Circuit considered a challenge to a trial court’s issuance of a gag order on its participants from discussing a high-profile criminal case with members of the media.  The media filed a writ of mandamus challenging the order as infringing upon its First Amendment right to seek and report the news.  The Ninth Circuit began by noting that there are two elements to standing.  “First, the plaintiff must allege an ‘injury in fact’ sufficient to show a ‘personal stake’ in the outcome of the legal action. . . . Second, the plaintiff must show that ‘the interest sought to be protected by the complainant is arguable within the zone of interests to be protected or regulated by the statue or constitutional guarantee in question.”  Id. at 1445–46.  The Court found that the media satisfied both elements of standing here because “[a]s the district court’s order impairs the media’s ability to gather news by effectively denying the media access to trial counsel, a concrete personal interest is affected,” id. at 1445, and “the RTNA asserts an interest that is at least ‘arguably’ protected by the first amendment.”  Id. at 1446.  Accordingly, the Ninth Circuit held that the media had standing to challenge the trial court’s gag order.

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  • Indiana

    There is little Indiana law on whether the media may challenge third-party gag orders. See S. Bend Tribune v. Elkhart Circuit Court, 691 N.E.2d 200, 201 n.3 (Ind. 1998) (“The order allowing intervention [by media outlets to quash a gag order preventing trial participants from speaking with the media] is unchallenged and confers standing. We express no opinion as to whether the Media generally has sufficient standing to make a challenge such as this.”).

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  • Kansas

    Kansas courts have not settled the issue of whether or when media have standing to challenge third-party gag orders.  In 2016, media organizations attempted to gain a ruling on the issue but were unsuccessful.  The attempt was made in connection with a high-profile case in Great Bend, Kansas, State v. Villegas, Case No. 2015 CR 388, District Court of Barton County, Kansas (2015).  The case resulted from a fatal shooting in a Great Bend residence in 2015. Three Charged in Deadly Barton County Shooting, KSAL (Dec. 3, 2015), https://www.ksal.com/3-charged-in-deadly-barton-county-shooting.  On January 8, 2016, the judge granted a defense request for a gag order on trial participants.  In response, the Great Bend Tribune, along with the two media organizations—the Kansas Press Association and the Kansas Association of Broadcasters—moved to intervene to challenge the gag order.  They argued that it was unconstitutionally broad.  They asserted that it “completely prohibits the parties, all law enforcement, all court personnel, court reporters, and all witnesses and potential witnesses from making any comments concerning this case.”  The Great Bend Tribunes Second Motion to Intervene  and for Relief from Protective Order Restricting Extrajudicial Comments, Case No. 2015 CR 388 (Jan. 15, 2016).

    In claiming standing to intervene, the movants stated that the gag order damaged the media’s ability to gather and report news about proceedings in State v. Villegas.  Because no Kansas precedent was directly on point, they relied on such cases such as Journal Publishing v. Mechem, 801 F.2d 1233 (10th Cir. 1986), in which a newspaper challenged a judge’s prohibition of post-trial interviews with jurors.  In that case, the Tenth Circuit said that a newspaper had standing because the paper alleged that the judge’s order “impeded its ability to gather news, and that impediment is within the zone of interest sought to be protected by the first amendment.”  Mechem, 801 F.2d at 1235.

    The movants in State v. Villegas, in claiming standing to intervene, also cited an array of decisions by the U.S. Supreme Court and lower courts.  Among precedents movants cited was Stephens v. Van Arsdale, 608 P.2d 972 (Kan. 1980).  In that case, the Kansas Supreme Court held that a newspaper and report had standing to challenge a court clerks’ denial of access to official court records because the denial “impair[ed] their ability to carry on their business, the collection and dissemination of information.”  Van Arsdale, 608 P.2d at 979.  The movants also cited Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001), in which the state supreme court held that the media had standing to challenge a court order to seal a record or close a proceeding, even in the absence of a statute allowing such intervention.  Owens, 27 P.3d at 883.

    Nevertheless, the judge in State v. Villegas denied the motion to intervene, and the Tribune, with the two state media organizations, petitioned the Kansas Supreme Court for a writ of mandamus.  They requested that the state supreme court direct the judge to set aside his gag order on trial participants.  However, the state supreme court responded by issuing a perfunctory order that comprised just four words: “Denied on present showing.”  The Great Bend Tribune, et al. v. Swaty, Case No. 115304, Kansas Supreme Court (May 20, 2016).

    More thorough consideration was given to the issue of standing in 1998 by a U.S. District Court judge in Kansas.  He analyzed the conditions under which the media may intervene in federal court.  The media sought to object to a gag order that he had issued against trial participants, and the judge acknowledged that the media had a right to intervene under certain conditions.  Koch v. Koch Industries, Inc., 6 F. Supp. 2d 1185, 1188 (D. Kan. 1998), aff’d, 203 F.3d 1202 (10th Cir. 2000).  He said that, in challenging a gag order, the media “must allege an injury in fact—that the court’s order impeded their ability to gather news and ‘that impediment is within the zone of interest sought to be protected by the first amendment.”’ Koch, 6 F. Supp. 2d at 1190 (quoting Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir. 1986)).  In addition, he indicated that the media’s standing to challenge a gag order banning advertising by parties to the case would depend on the ban’s impact on their financial interest.

    The judge emphasized First Amendment protection for press freedom, saying:

    "[A]ny inhibitions against news coverage of a trial carry a heavy presumption of an unconstitutional prior restraint.  If a court order burdens constitutional rights and the action proscribed by the order presents no clear and imminent danger to the administration of justice, the order is constitutionally impermissible.  A court may impose a prior restraint on the gathering of news about one of its trials only if the restraint is necessitated by a compelling governmental interest.  Moreover, the court must narrowly tailor any prior restraint and must consider any reasonable alternatives to that restraint which have a lesser impact on first amendment rights. These requirements apply for criminal trials as well as civil trials."

    Koch, 6 F. Supp. 2d at 1188–89 (citations omitted).

    The media argued that the gag order impaired their First Amendment interest in gathering and reporting news and engaging in commercial speech and also prevented them from gaining revenue from advertising sales.  The judge, however, ruled that the media did not have standing to intervene, although he made his decision only after balancing “the parties’ and public’s interest in a fair trial against the competing interest in freedom of speech.”  Koch, 6 F. Supp. 2d at 1189.  He found that the media lacked standing, in part, because the parties to the litigation had requested the gag order and said they did not want to talk to reporters.  The media has no standing to intervene, he concluded, if the affected parties are not willing to speak publicly and be sources of news.  He also decided to dissolve his ban on advertising.

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  • Kentucky

    The Kentucky Supreme Court has held that “the right to gather news is clearly entitled to First Amendment protection, otherwise freedom of the press would be severely compromised.”  Cape Publ’ns, Inc. v. Braden, 39 S.W.3d 823, 826 (Ky. 2001).  Restrictions upon the news media’s ability to gather news from participants in court proceedings are treated as a prior restraint on news gathering and must be “necessitated by a compelling governmental interest” and “narrowly tailored to serve that interest.”  Id.

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  • Louisiana

    Standing to challenge gag orders is not usually an issue in Louisiana. The news media typically file a motion to intervene. The Courts have given full consideration to motions by the news media for access even without granting intervention, however, and have allowed intervention in criminal cases even though there is no express authority to do so.

    State v. Lee, 787 So.2d 1020, 1037 (La. App. 2001), found standing for the news media and overturned a gag order prohibiting parties to proceedings from making any “extrajudicial statement relating to this proceeding.”

    A Louisiana Court of Appeal approved a District Court’s order that closed a preliminary hearing, sealed the court record, and placed a gag order on the trial participants in a murder case where the victim was an 18-month old child. The news media filed a writ application (equivalent to an interlocutory appeal) from the District Court’s order; a 2-1 majority of the Court of Appeal panel stated merely: “Writ denied. We find no error in the trial court’s ruling.” There was a vigorous dissent by Judge Sylvia Cooks, correctly stating that the District Court had based its decision on a “reasonable probability” of prejudice to fair trial rights, rather than the “substantial probability” standard of Press-Enterprise II and also relying on the Louisiana constitutional provisions discussed herein.

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  • Maine

    No reported Maine cases.

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  • Maryland

    In Maryland, the press has standing to intervene to oppose gag orders placed on trial participants. News Am. Div. (Hearst Corp.) v. State, 447 A.2d 1264, 1269 (Md. 1982) (non-party newspaper had standing to claim its First Amendment rights had been violated by a gag order prohibiting counsel, parties, witnesses and court personnel from making extrajudicial statements for dissemination by means of public communication relating to certain aspects of criminal case).

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  • Minnesota

    Minnesota courts have not directly addressed this issue. However, in the access context, the Minnesota Supreme Court recognized that the press has standing to challenge a trial court’s order to seal various documents in criminal cases. Nw. Publ’ns., Inc. v. Anderson, 259 N.W.2d 254, 256 (Minn. 1977). The Court explained that the press has standing as “the orders have the effect of either directly or indirectly interfering with their functions of collecting and disseminating the news.” Id. (citing CBS v. Young, 522 F.2d 234 (6th Cir. 1975) and State ex rel. Beacon Journal Pub. Co. v. Kainrad, 348 N.E.2d 695 (Ohio 1976)); see also Baloga v. MacCabee, 20 Media L. Rep. 2201, 2202 (Minn. Dist. Ct. Ramsey County 1992) (“Obviously intervenors’ protected right would clearly be impaired or impeded if the court’s records were sealed.”).

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  • Montana

    The media has standing to challenge a gag-order by means of supervisory control. Montana ex rel The Missoulian v. Montana Twenty-First Judicial District, 933 P.2d 829 (Mont. 1997).

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  • Nebraska

    No Nebraska law.

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  • Nevada

    District courts have permitted representatives of the media to challenge third-party gag orders but there is no precedent from the Nevada Supreme Court on this subject.

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  • New Hampshire

    The media has standing. Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710 (1979).

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  • New Mexico

    New Mexico has found that the press has standing to contest closure of the proceedings if closure would invade a legally protected interest of the press. See Does I through III v. Roman Catholic Church of Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ¶ 1, 122 N.M. 307, 924 P.2d 27; see also State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303 (“Cases from many jurisdictions make it clear that the news media has standing to question the validity of an order impairing its ability to report the news, even though it is not a party to the litigation below.”).​

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  • Oklahoma

    There is no Oklahoma appellate authority on this issue, but cases recognizing the standing of media to challenge closure of proceedings and records would presumably apply to media challenges to third–party gag orders.

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  • Pennsylvania

    A person seeking to challenge the legality of a gag order should file a petition with the trial court to intervene for that purpose. See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339 (Pa. 1984). Pennsylvania law allows a third party to intervene in a proceeding if “the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.” Pa. R. Civ. P. 2327(4); see Hutchison v. Luddy, 581 A.2d 578, 581, 585 (Pa. Super. 1990) (holding a trial court’s grant of a newspaper’s petition to intervene was not an abuse of discretion when the newspaper sought to secure its right of access to the pleading and pretrial proceedings in the case because any other holding would jeopardize the newspaper’s ability to enforce its right of access).

    The process for intervening in civil cases is outlined in Pa. R. Civ. P. 2328. An application for leave to intervene is to be made by a petition that should be in the form of a plaintiff’s initial pleading in a civil action and verified as such. Pa. R. Civ. P. 2328. The pleading should set forth the ground on which intervention is sought and a statement of the relief or defense the petitioner seeks to demand or assert. Attached to the petition to intervene should be any pleading that the petitioner will file in the action if permitted to intervene. Id. A copy of the petition should be served upon each party to the action. Id.

    If an order denying leave to intervene is entered, it is immediately appealable, and, if appropriate, the Supreme Court can exercise its plenary jurisdiction and stay proceedings pending its review under the collateral order doctrine. See Capital Cities Media, Inc., 483 A.2d at 1342.

    The Pennsylvania Supreme Court has never expressly ruled on whether the media has standing to challenge gag orders that only restrict the speech of trial participants. In Commonwealth v. Crawford, 789 A.2d 266 (Pa. Super. 2001), the Superior Court held that the media did not have standing to challenge a gag order prohibiting trial participants from making extrajudicial statements that could interfere with the defendant’s fair trial rights. The Superior Court concluded the media lacked standing in that case because (1) the media organizations challenging the order were never granted intervenor status at the trial court level, and (2) the gag order only restricted the speech of trial participants and therefore did not prevent the media from covering the proceedings. 789 A.2d at 269-70. However, in a different case, the Superior Court assumed, without expressly reaching the issue, that members of the media had standing to challenge a gag order that only restricted the speech of trial participants. See Commonwealth v. Lambert, 723 A.2d 684, 688 (Pa. Super. 1998). This is the view taken by the majority of courts in other jurisdictions. See, e.g.FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 824, 838-39 (3d Cir. 1996) (citing cases).

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  • South Dakota

    This is a permitted practice. See Argus Leader v. Miller, 610 NW2d 76 (SD 2000) (media outlets had standing to challenge trial court's gag order and court closures).

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  • Utah

    Members of media organizations have standing to challenge third-party gag orders. KUTV, Inc. v. Wilkinson, 686 P.2d 456, 461 (Utah 1984).

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  • Vermont

    The Vermont Supreme Court has held that “the media may directly intervene in a criminal proceeding for purposes of seeking access to proceedings or papers.”  State v. Schaefer, 599 A.2d 337, 342, 157 Vt. 339, 344 (Vt. 1991) (citing State v. Tallman, 148 Vt. 465, 468, 537 A.2d 422, 424 (Vt. 1987)).  Furthermore, the Vermont Supreme Court has recognized that “[o]nce representatives of the media intervene . . . they have standing to appeal to this Court from orders denying them access to papers or proceedings.”  Schaefer, 599 A.2d at 342, 157 Vt. at 344.

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  • Virginia

    The Fourth Circuit has held that members of the media have standing to challenge a gag order that directly impairs the media’s rights under the First Amendment to gather news, and to receive speech from willing speakers. See In re The Wall St. Journal, 601 F. App’x 215 (4th Cir. 2015) (per curiam) (remanding with instructions to vacate gag order); In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir. 2018) (same).

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  • West Virginia

    Media entities have a legally protected interest under the First Amendment to gather news. Branzburg v. Hayes, 408 U.S. 665, 681 (1972).  The Fourth Circuit has held that media organizations do have standing to challenge gag orders in actions in which they were not otherwise a party. Doe v. Public Citizen, 749 F.3d 246, 262 (4th Cir. 2014).  A media entity must show that they have a legally protected interest that has already been harmed or where harm of that interest is imminent, such as seeking and being denied access to information that they claim a right to inspect.  Id. at 263.  Seeking a writ of mandamus is the preferred method of challenging a gag order.  In re State–Record Co., Inc., 917 F.2d 124, 126 (4th Cir. 1990).

     

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  • Wisconsin

    See Wis. Stat. § 803.09:

    (2) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest related to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant’s ability to protect that interest, unless the movant’s interest is adequately represented by existing parties.

    (4) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.  The same procedure shall be followed when a statute gives a right to intervene.

    See, e.g., State ex rel. Bilder v. Delavan Township, 112 Wis. 2d 539, 334 N.W.2d 252 (Wis. 1983) (Members of news media generally have a right to intervene to challenge closure of courtroom and records).

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  • Wyoming

    The media is allowed to challenge third-party gag orders as representatives of the public.

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