B. Gag orders on the press
To enjoin the press from publishing information disclosed in open court is the type of prior restraint condemned in Nebraska Press. See In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990).
The Fourth Circuit has suggested that a gag order that interferes with legitimate newsgathering activities would violate the First Amendment. See In re Murphy-Brown, LLC, 907 F.3d 788, 800 (4th Cir. 2018).
There are no reported Idaho decisions on this issue, although an order prohibiting the press from publishing information which it lawfully obtained is likely to be held an unconstitutional prior restraint. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 558–59 (1976) (prior restraints are “presumptively unconstitutional”).
The press is free to publish that which transpires during a court case. Significantly, absent a state interest of the highest order, courts may not prevent or punish the publication of truthful information related to a matter of public concern, such as an ongoing case, that has been lawfully obtained. Even short-lived gag orders are reviewed cautiously out of concern that they may cause irreparable injury to First Amendment interests as long as they remain in effect. Indeed, gag orders on the press are “extremely difficult to justify” and would be upheld only in the most “exceptional cases.”Nebraska v. Press Ass’n v. Stuart, 427 U.S. 539, 591-92 (1976) (Brennan, J., concurring).
For example, in Commonwealth v. Genovese, 487 A.2d 364 (Pa. Super. 1985), the media challenged two gag orders issued by the trial judge in a murder trial. The first order prohibited the press from publishing the name of any juror and the second order prevented the media from contacting any potential juror. The trial judge stated the order was put in place to prevent jury harassment. On appeal, the Superior Court ruled that because evidence was lacking that the jury actually would be harassed, no equally effective alternatives to the order had been considered, and the voir dire was conducted publicly, the first gag order was an unconstitutional prior restraint. Id. at 368-69.The court struck down the second order on First Amendment grounds, holding that there was no evidence that such an order was necessary to protect the jurors or guarantee a fair trial. Id. at 369.
The U.S. Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 559 (1976) that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Such a gag order is “one of the most extraordinary remedies known to our jurisprudence.” Id. at 562; see also State v. Schaefer, 157 Vt. 339, 354, n.1, 599 A.2d 337, 346 (Vt. 1991) (Allen, C.J., concurring). In rescinding the only prior restraint order in Vermont history, a Superior Court in Vermont v. Morgan, No. S3-79Rc (Vt. Super. Ct., Jan. 17, 1980), recognized that under Nebraska Press Association v. Stuart, a newspaper could not be forbidden to print information already in its possession except under the most extreme and compelling circumstances. The case arose in the context of a related criminal prosecution.