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B. Gag orders on the press

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  • 10th Circuit

    The 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 Association 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 a “most extraordinary remedy” that may be used only in “exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.” CBS Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citations omitted). Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property . . . [t]hose who see and hear what transpired can report it with impunity.” Craig v. Harney, 331 U.S. 367, 374 (1947).

    In Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court noted that a newspaper party could not publish information it obtained in discovery because “pretrial depositions and interrogatories are not public components of a civil trial.”

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  • 2nd Circuit

    The Second Circuit has held that “there is a fundamental difference between a gag order challenged by the individual gagged and one challenged by a third party; an order objected to by the former is properly characterized as a prior restraint, one opposed solely by the latter is not.” Application of Dow Jones & Co., Inc., 842 F.2d 603, 609 (2d Cir. 1988). There is a “heavy presumption” against the validity of a prior restraint, particularly as applied to reporting on criminal proceedings. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559-60 (1976). In United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005), the Second Circuit held that a trial court's order restraining the press from publishing the names of jurors sitting on a non-anonymous panel was an impermissible prior restraint on free speech. See also United States v. Corbin, 620 F. Supp. 2d 400, 404 (E.D.N.Y. 2009) (rejecting defendant’s request for a gag order because defendant had failed to establish that the publicity in this case would pose any difficulty in impaneling an impartial jury of twelve persons and alternates in this expansive, densely populated district).

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  • 4th Circuit

    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).

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  • 5th Circuit

    A gag order is a prior restraint that bears a heavy presumption against its constitutional validity. United States v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983). Prior restraints on the media are constitutionally disfavored nearly to the point of extinction. United States v. Brown, 250 F.3d 907, 914–15 (5th Cir. 2001). Such restraints on the media will be upheld only if the government can establish that the activity restrained either poses a clear and present danger or a serious or imminent threat to a protected competing interest. Id.

    On rare occasions, a gag order may be upheld based on a defendant’s Sixth Amendment right to a fair trial, since this right can trump the media’s First Amendment right of access and openness. United States v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983). In order for a gag order based on the defendant’s right to a fair trial to prevail, a court must determine from the evidence before it (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unconstrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. Id. The trial court must also consider the precise terms of the requested restraining order and craft the order so that it does not suppress more free speech than requested. Id. An order without any findings whatsoever is likely to be overturned.

    In determining whether pretrial publicity is a sufficient reason to justify a prior restraint, a court will review (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent threatened danger. United States v. Brown, 250 F.3d 907, 916 (5th Cir. 2001).

    Trial courts should employ methods short of prior restraints if possible, and gag orders on trial participants are preferred to gag orders on the press. United States v. Brown, 218 F.3d 415, 425–26 (5th Cir. 2000).

    Change of venue, jury sequestration, ‘searching” voir dire, and “emphatic” jury instructions should be viewed as court tools for ensuring a fair trial that are preferable to a gag order on the press. United States v. Brown, 218 F.3d 415, 431 (5th Cir. 2000).

    Pretrial publicity is less likely to be deemed inherently prejudicial to a defendant’s ability to get a fair trial if considerable time has elapsed since the public reports, and if the news reports are “factual accounts” and “straight news reports” rather than the sensational type that tend to “inflame ill will.” Willie v. Maggio, 737 F.2d 1372, 1387 (5th Cir. 1984). The constitutional standard of fairness requires only that the accused have a panel of impartial and “indifferent” jurors who base their decision solely on the evidence produced in court; it does not require that the jurors be wholly ignorant of the case. Id

    In an appeal of a gag order, the media must show either that it will probably succeed on the merits in its appeal or that it has presented a substantial case on the merits and that the balance of the equities weighs heavily in favor of granting a stay of the order. United States v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983).

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  • 7th Circuit

    In a challenge by a member of the press, the Seventh Circuit held the First Amendment was violated by Indiana statute that specified “no person” may disclose the existence of sealed indictment prior to arrest or bringing of defendant into court custody, and which authorized contempt penalty for such disclosure.  Worrell Newspapers of Ind., Inc. v. Westhafer, 739 F.2d 1219 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985).

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  • Arizona

    The Arizona Supreme Court has recognized that courts may not prohibit the media from reporting on what transpired in open court.  See Phoenix Newspapers v. Superior Court, 101 Ariz. 257, 260, 418 P.2d 594, 597 (1966).

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  • Arkansas

    A gag order is a restraint on the freedom of the press, and even if it is narrow in scope and duration, it is subject to the closest scrutiny. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301, 306 (2000). While prior restraints are not unconstitutional per se, any system of prior restraint bears a heavy presumption against its constitutional validity. Id.; see also Helena Daily World v. Simes, 365 Ark. 305, 308-09, 229 S.W.3d 1, 1-4 (Ark. 2006). A gag order restricting the news media from publishing something that transpired in open court is usually an unconstitutional prior restraint on speech. Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972); Helena Daily World v. Simes, 365 Ark. 305, 308-09, 229 S.W.3d 1, 1-4 (2006).

    Under Nebraska Press Assn v. Stuart, 427 U.S. 539 (1976), trial judges may not order reporters not to reveal lawfully acquired information once they have been admitted to the court room. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301, 307 (2000).

    Finally, the Arkansas Rules of Criminal Procedure say that no rule of court or judicial order shall be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case. Ark. R. Crim. P. 38.1.

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  • California

    Gag orders on the press are presumptively invalid and subject to constitutional strict scrutiny. Freedom Communications, Inc. v. Superior Court, 167 Cal. App. 4th 150, 153, 83 Cal. Rptr. 3d 861 (2008); S. Coast Newspapers, Inc. v. Superior Court, 85 Cal. App. 4th 866, 869-870, 102 Cal. Rptr. 2d 487 (2000); KGTV Channel 10 v. Superior Court, 26 Cal. App. 4th 1673, 1679, 32 Cal. Rptr. 2d 181 (1994); KCST-TV Channel 39 v. Municipal Court, 201 Cal. App. 3d 143, 146, 246 Cal. Rptr. 869 (1988).

    Even in connection with juvenile proceedings, a court may not restrict the press’s right to investigate and publish information it lawfully obtained. San Bernardino County Dep’t of Public Social Servs. v. Superior Court, 232 Cal. App. 3d 188, 206, 283 Cal. Rptr. 332 (1991).

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  • Colorado

    The Colorado Supreme Court upheld a prior restraint order prohibiting the media from publishing transcripts of a confidential evidentiary hearing in the Kobe Bryant rape case, which had been mistakenly circulated by the court reporter to the media.  People v. Bryant, 94 P.3d 624 (Colo. 2004).  The hearing concerned the sexual conduct of the alleged rape victim and was held for the trial court to determine whether such evidence would be admissible under Colorado’s rape shield statute, which deems such evidence presumptively irrelevant to the criminal trial.  Id. at 630, 636.  The court recognized that prior restraint was an extraordinary remedy, with a heavy presumption against its constitutional validity, but found that the state “has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the rape shield statute, because such hearings protect victims’ privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault.” Id. at 628, 632.  Although the media had already widely reported on the alleged victim’s sexual conduct, the court determined, after reviewing the transcripts, that publication “would cause great and certain harm to a state interest of the highest order” for three reasons: (1) the testimony concerned graphic detail that might be irrelevant to the trial and was under oath, which added a “level of official legitimacy and detail to the information that does not attend press reports,” (2) the state’s interests involved the victim’s privacy interest as well as the reporting and prosecution of this and other sexual assault cases, and (3) the transcripts were still private and had not been published by any media outlet.  Id. at 636–37.

    Three justices dissented, arguing that the majority “overemphasizes the abstract importance of the purposes served by the rape shield statute and minimizes the impact that the information already available to the public about this alleged victim’s past sexual conduct has on the alleged victim’s privacy interests, at least insofar as they are protected by the rape shield statute.”  Id. at 642 (Bender, J., dissenting).  The dissenters also stated that the majority “virtually ignores the First Amendment guarantee that in all but the most extreme circumstances the media must be free to decide what it may or may not publish. . . .”  Id. at 639.

    [W]here truthful information of public importance is lawfully obtained by the media, a prior restraint may only be issued where publication will inevitably, directly, and immediately harm a state interest of the highest order.  This does not mean that if the interest the state asserts is compelling in the abstract the government may issue a prior restraint to protect it.  Rather, the government must prove that in the particular circumstances of a given case, the threat to a government interest is so great, so grave, and so certain that it cannot be protected by any means other than a prior restraint.  If publication of the information in question does not pose an immediate threat, a prior restraint amounts to nothing more than government censorship.

    Id. at 639. The dissenters recognized the state’s interest in encouraging the reporting, prosecution, and deterrence of sexual assault, but “reluctantly conclude[d] that the facts available to the public have irretrievably compromised this alleged victim’s privacy interests,” and that the “state cannot salvage its interest in encouraging future victims to report sexual assaults by restraining publication of the transcripts in this case.”  Id. at 643.  “Because the prior restraint issued in this case can accomplish nothing more than preventing, at best, incremental harm to the interests protected by the rape shield statute, I conclude that the district court has not overcome the heavy presumption against the constitutionality of prior restraints.”  Id.

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  • District of Columbia

    In 2010, a D.C. Superior Court judge issued a restraining order, preventing the National Law Journal from publishing information obtained from a public court file that was supposed to be sealed. The information concerned the name of the agency that was investigating the former client of a law firm, which was now involved in litigation with that client in the Superior Court. The judge withdrew the restraining order at the request of the law firm’s former client. The newspaper, joined by media amici, had appealed the prior restraint to the D.C. Court of Appeals. The case was POM Wonderful, LLC v. ALM Media Properties LLC, No. 10-cv-904.

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  • Florida

    The Florida Supreme Court has stated that gag orders on the press and other non-participants should only be permitted for comments that present a “clear and present danger of miscarriage of justice might arise” from the statements. State ex rel. Miami Herald Publ’g Co. v. McIntosh, 340 So. 2d 904, 910–11 (Fla. 1977). Gag orders against the media are extremely rare, even when the media is a party to a lawsuit.

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  • Georgia

    Pursuant to well-established law under the First Amendment to the United States Constitution and the Georgia Constitution, the entry of an order restricting speech about litigation can only be supported where: (1) record evidence establishes a serious, imminent threat to the administration of justice; and (2) the order is narrowly drawn to minimize that threat. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976). The Supreme Court of Georgia has affirmed the demanding standard articulated Nebraska Press must be met before a gag order may be entered. In R.W. Page Corp, 249 Ga. 576 (1982), the Supreme Court made it clear that Georgia courts “ha[d] sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings.” In reversing the closure of pretrial proceedings in the case, the court referenced Nebraska Press as the controlling authority on gag orders.

    Even when confronted with a “carefully and precisely drawn” order, the Supreme Court of Georgia held in Ga. Gazette Publ’g Co. v. Ramsey, 248 Ga. 528 (1981), that a gag order in a civil case was constitutionally prohibited as a matter of law. In Ramsey, the trial court had issued an order preventing the defendant newspaper, in an invasion of privacy case, from publishing information obtained in discovery without prior approval by the court. Although acknowledging that the trial court’s order was “carefully and precisely drawn,” the court ruled it facially invalid under the Georgia Constitution as an “unwarranted [prior] restraint upon the newspaper’s liberty of speech and of the press.” Id. at 530.

    In criminal cases, the Supreme Court of Georgia has repeatedly emphasized that the issue a trial court must consider with respect to a defendant’s rights to a fair trial is not publicity, but prejudice. In Miller v. State, 275 Ga. 730, 735 (2002), the court held that: “Even in cases of widespread pretrial publicity, situations where such publicity has rendered a trial setting inherently prejudicial are extremely rare. . . . We are inclined to agree with those prospective jurors who reported during voir dire that the pretrial publicity they had seen tended to make them feel empathy for both appellant and [the victim].” “‘A conclusory representation that publicity might hamper a defendant’s right to a fair trial is insufficient to overcome the protections of the First Amendment.’” Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 170–71 (2004) (quoting United States v. Noriega, 917 F.2d 1543, 1549 (11th Cir. 1990)).

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  • Idaho

    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”).

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  • Indiana

    The Indiana Court of Appeals held that Judicial Rule 2.17, which prohibits broadcasting during court sessions, also prohibits broadcasting of courtroom recordings after the court proceedings have concluded. WPTA-TV v. State, 86 N.E.3d 442, 447 (Ind. Ct. App. 2017). The Indiana Court of Appeals also held that Judicial Rule 2.17 does not violate the First Amendment of the United States Constitution as an impermissible prior restraint. Id. at 449; see also Howard Publ’ns., Inc. v. Lake Michigan Charters, Ltd., 649 N.E.2d 129, 134 (Ind. Ct. App. 1995) (“We hold that protective orders may limit a third party’s use of information acquired from court records of discovery without violating the First Amendment, and the particular order entered in this case is valid in its scope. Furthermore, we find that such a protective order becomes effective when issued even though a third party secured access to the discovery materials before the order was entered.”). But see Howard Publ’ns., Inc. v. Lake Michigan Charters, Ltd., 658 N.E.2d 582, 583, 584 (Ind. 1995) (Sullivan, J. dissenting from the Supreme Court’s evenly-split denial of petition to transfer) (“[A]ny prior restraint of expression bears a heavy presumption against its constitutional validity. The interest advanced by the Court of Appeals, preserving the integrity of the judicial system by assuring the availability of protective orders to protect the discovery procedure, fails to overcome this presumption.”) (citations omitted).

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  • Iowa

    It is unlikely that a prior restraint on the press would be upheld in Iowa. In Des Moines Register & Tribune Co. v. Osmundson, the Iowa Supreme Court held an order restraining the press from publishing the names of jurors in a criminal trial to be unconstitutional. 248 N.W.2d 493 (Iowa 1976). Also, in Kleman v. Charles City Police Department, the grant of an injunction restraining the publication of information about the lawsuit was overturned by the Iowa Supreme Court. 373 N.W.2d 90, 96 (Iowa 1985). The court held that the grant of injunctive relief was a prior restraint that raised sensitive First Amendment issues. Id. In reversing the trial court, the Iowa Supreme Court recognized the Supreme Court’s holding in Nebraska Press Association v. Stuart, stating “such a prior restraint is ‘one of the most extraordinary remedies known to our jurisprudence.’” Id. (citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976)). In McCleary v. Kauffman, 2017 U.S. Dist. LEXIS 207273 (Iowa Dist. Ct. Dec. 7, 2017), as aff’d No. 17-1982 (Iowa Dec. 19, 2017), an Iowa District Court refused to enjoin a newspaper from publishing an article about the plaintiff because “such an order would violate the First Amendment.”

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  • Kansas

    The Kansas Supreme Court firmly declared its opposition to prior restraints against the media in a case that originated in 1993 in Atchison, Kansas.  State v. Alston, 887 P.2d 681 (Kan. 1994).  A newspaper reporter was attending a pre-trial criminal hearing in a local courtroom.  The hearing was open to the public, and the reporter’s presence was ordinary.  Nothing portended the confrontation that was about to occur.

    As the reporter watched, the judge considered a defense motion to suppress certain evidence.  The defense attorney argued that the prosecution should be barred from using or discussing the defendant’s criminal record or outstanding arrest warrants.  After granting the motion, the judge asked whether any other matter needed attention.  The attorney then pointed out the presence of the reporter, who worked for the Atchison Daily Globe, and expressed concern that the newspaper might publish a report about the hearing.  The judge immediately ordered the reporter to publish neither the defendant’s criminal history nor even the existence of the judge’s order itself.

    The Globe, however, defied the order, publishing a report about what had happened in the courtroom.  For its defiance of the gag order, the Globe received a contempt citation, but the newspaper successfully appealed.  In Alston, the state supreme court reversed the gag order and the contempt citation.  The Kansas Supreme Court recognized that “those who see and hear what transpired in an open courtroom can report it with impunity,” and “once a public hearing has been held, what transpired there could not be subject to prior restraint.”  Alston, 887 P.2d at 688.

    At the same time, the Kansas Supreme Court embraced a line of precedent that preserved the media’s defense against “transparently invalid” gag orders.  Alston, 887 P.2d at 691 (citing In re Providence Journal Co., 820 F.2d 1342, 1347–48 (1st Cir. 1986), modified on reh’g, 820 F.2d 1354 (1st Cir. 1987)).  The Globe was subject to the general rule that persons must obey a judicial order even if they believe it is unconstitutional.  The state supreme court said:

    "In this case, the . . . order was transparently unconstitutional. The trial court failed to make the requisite … findings. The [newspaper had based its news report on information that was available from] the court’s records and in open court prior to the gag order. The order was issued without a full and fair hearing with all the attendant procedural protection."

    Alston, 887 P.2d at 690.

    The supreme court found that the Globe had disobeyed the gag order in good faith.  According to the court, “[o]nly where timely access to an appellate court is not available can the newspaper publish and then challenge the constitutionality of the order in contempt proceedings.”  Alston, 887 P.2d at 621.

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  • Kentucky

    There is no express authority under Kentucky law for gag orders on the press.  The Kentucky Supreme Court has held that “[m]embers of the press, in common with the public in general, are free to report whatever takes place in open court . . . .” Cape Publ’ns, Inc. v. Braden, 39 S.W.3d 823, 828 (Ky. 2001).

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  • Louisiana

    Gag orders are rare in Louisiana courts. The authors are aware of only one case concerning a gag order directed to the news media, rather than to the trial participants. In State v. Spillers, 813 So.2d 1184 (La. App. 2002), the District Court initially issued an order prohibiting publication of the defendant’s name and address “in any newspaper or public writing in Lafayette and St. Martin Parish.” The following day, the Court amended the order to prohibit only publication of the defendant’s address. The order stated that the defendant’s address was not to be disclosed because she had obtained a protective order in another pending case and the Court sought to prevent her being subject to “any type of foreseeable harm or violence.” A local newspaper filed a motion for reconsideration of the Court’s order. After the District Court denied the motion, the newspaper filed a writ application with the Court of Appeal; when that was denied, the newspaper filed with the Supreme Court, which granted the writ, and remanded the case to the Court of Appeal “for briefing, argument and opinion.” The Court of Appeal reversed the District Court’s order. It reached this decision, however, because the protective order from the other case was not in the record of this case. As such, the Court of Appeal did not know “if a protective order or a temporary restraining order was issued; the type or severity of Ms. Spillers’ allegations against the named defendant; when the order was issued or how long it was to remain in effect; whether it was contested or was issued by consent of the parties; where the named defendant lived at the time; whether Ms. Spillers had knowledge of his whereabouts; whether he had disobeyed the protective order; or why Ms. Spillers believed publication of her address in the newspaper would place her in harm’s way.” Thus, the Court could not ascertain “the likelihood of harm to Ms. Spillers in the event her address is published in the newspaper.” It is unknown whether the newspaper published the defendant’s address.

    In State v. Rittiner, 341 So.2d 307, 314 (La. 1977), the Supreme Court stated that the District Court had “properly denied” the defendant’s motion to “impose a ‘gag order’ restricting the two newspapers represented at the [pretrial] hearing from publishing the facts brought out at the hearing.”

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  • Maine

    No reported Maine cases.

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  • Maryland

    In News American Division (Hearst Corp.) v. State, 447 A.2d 1264 (Md. 1982), the Court of Appeals held that the press had standing to assert its First Amendment rights in opposition to a gag order on the parties. Id. at 1269. Since the gag order at issue had expired, however, the court did not consider whether the order entered in that case was appropriate. Id. at 1268. In State v. Cottman Transmission Systems, Inc., 542 A.2d 859 (Md. Ct. Spec. App. 1988), the court held that a gag order providing that “‘there is to be no communications with the press’” by the Attorney General, the plaintiff in the civil suit, was “too sweeping.” Id. at 864–65 (citation omitted). Noting that “a valid distinction exists” between prior restraints of the press and “silencing the trial participants, especially counsel,” the court nevertheless agreed that “pretrial comments and news releases emanating from the Attorney General’s office would seriously undermine the administration of justice,” and therefore amended the gag order to prohibit “extra-judicial communications with the media relative to the merits of the case.” Id. at 860, 865; see also Mann v. State’s Attorney for Montgomery Cty., 468 A.2d 124, 127 (Md. 1983) (trial court erred in granting media the right to interview criminal defendant declared incompetent to stand trial and whose attorney objected to interviews on his behalf).

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  • Minnesota

    The Minnesota Supreme Court has stated that “both Federal and state constitutional provisions guaranteeing freedom of the press are couched in terms of prohibition of prior restraints on publication.” Nw. Publ’ns., Inc. v. Anderson, 259 N.W.2d 254, 257 (Minn. 1977) (citing U.S. Const. amends. I, XIV; Minn. Const. art.1, § 3). Thus, prior restraints on speech and publication are generally improper, but this general presumption of impropriety can be overcome “where a clear showing is made that the exercise of First Amendment rights will interfere with the rights of the parties to a fair trial or that some restriction is otherwise necessary.” Id.; see also Minneapolis Star & Tribune Co. v. Lee, 353 N.W.2d 213, 214 (Minn. Ct. App. 1984) (“Prior restraints of speech have long been deemed unconstitutional except in the most drastic of situations”).

    According to the Minnesota Court of Appeals, any prior restraint on the freedom of the press must be “necessitated by a compelling state interest, and … narrowly tailored to serve that interest.” Minneapolis Star & Tribune Co. v. Schmidt, 360 N.W.2d 433, 435 (Minn. Ct. App. 1985) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)); see also Lee, 353 N.W.2d at 215 (Minn. Ct. App. 1984). In Schmidt, the Minnesota Court of Appeals held that the possible traumatization of a child involved in juvenile court proceedings was not a “compelling state interest” sufficient to justify a gag order on the press. Schmidt, 360 N.W.2d at 435. As a result, the trial court’s order restraining the press from publishing any information relating to the particular proceedings in question was held to be unconstitutional. Id. at 436.

    In contrast, the Minnesota Court of Appeals upheld as valid a trial court’s decision to allow news reporters into the courtroom during the testimony of juveniles on the condition that the reporters would not publish the names of the juveniles and would not divulge information pertaining to any confidential records that would be revealed during the testimony. Austin Daily Herald v. Mork, 507 N.W.2d 854 (Minn. Ct. App. 1993). The media representatives argued that the trial court had imposed “an impermissible prior restraint on the publication of information.” Id. at 856. The Court of Appeals disagreed with this argument and held that the trial court imposed valid restrictions on reporters who chose to attend a criminal trial which had been properly closed to the rest of the public. Id. at 856. The court recognized that generally, there is “a heavy presumption against the constitutional validity of restrictions on the publication of information obtained lawfully by the media.” Id. (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)). In this case, however, rather than restraining news reporters from publishing information already in their possession, the court permitted members of the press to attend a closed criminal hearing, as long as the reporters agreed to forego the publication of certain information obtained during that hearing. Id.

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  • Mississippi

    The Mississippi Supreme Court has noted that information obtained legally from a public proceeding or document cannot be restrained. Jeffries v. State, 724 So.2d 897, 900 (Miss. 1998). In Jeffries, a circuit court judge ordered a reporter not to publish information about the defendant’s juvenile record, which was discussed in open court. Id. at 898. The reporter chose to publish in violation of the order. Id. at 899. The judge issued an arrest warrant for the reporter for contempt of court. Id. However, the Mississippi Supreme Court ruled that the circuit court’s order barring the reporter from writing about the defendant’s juvenile record was a prior restraint and was therefore presumptively invalid. Id. “Once [the circuit court judge] made the matter public, those in attendance, including the press, had a right to further disseminate the information. Therefore, the prior restraint was an invalid interference with Jeffries's [F]irst [A]mendment rights.” Id. at 899-90.

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  • Montana

    46-11-701 MCA contemplates that a court may request the media to cooperate in restricting dissemination of some material to preserve trial fairness, but no gag orders may be enforced against the press.

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  • Nebraska

    No third parties may intervene in criminal proceedings. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975). The news media may challenge a gag order via an original mandamus action in the Nebraska Supreme Court. Id. The Nebraska Supreme Court’s opinion approving a narrowed gag order imposed on the press in State v. Simants was reversed by the U.S. Supreme Court in Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).

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  • Nevada

    District courts have issued gag orders on the press related to pending cases. Las Vegas Review-Journal v. Eighth Judicial Dist. Court in & for Cty. of Clark, 412 P.3d 23, 26 (Nev. 2018) (noting that a prior restraint or “gag” order is only justified when “(1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) less restrictive alternatives are not available”) (internal quotations omitted).

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  • New Hampshire

    Gag orders are considered to be prior restraints on the press and are presumptively unconstitutional. Keene Publishing Corp. v. Cheshire County Superior Court119 N.H. 710 (1979).

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  • New Mexico

    Gag orders are not common in New Mexico. To this end, speculation that publication of juror names might expose them to intimidation during the trial is insufficient to justify prior restraint. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303 (“There is no question that the jury list is a public record and that the Media was entitled to inspect and publish it.”). In determining the constitutionality of the gag order, New Mexico courts must make their own inquiry into the imminence and magnitude of danger said to flow from particular utterances and then balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. Twohig v. Blackmer, 1996-NMSC-023, ¶ 13, 121 N.M. 746, 749, 918 P.2d 332, 335 (recognizing that a “prior restraint requires special judicial attention” because of a “heavy presumption against its constitutional validity.”).

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  • Oklahoma

    A trial court order that prohibited the media from publishing the name or photograph of an eleven–year–old child accused of second degree murder was upheld in Oklahoma Publishing Co. v. District Court of Oklahoma County, 1976 OK 145, 555 P.2d 1286, but that decision was reversed by the United States Supreme Court, 430 U.S. 308 (1977).

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  • Pennsylvania

    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.

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  • Utah

    In general, “any prior restraint on expression bears a heavy presumption against its constitutional validity, and the government thus carries a heavy burden of showing justification for the imposition of such a restraint.”  KUTV, Inc. v. Conder, 668 P.2d 513, 522 (Utah 1983) (reversing district court’s order barring news media from publishing words “Sugarhouse rapist” or disseminating any information on past convictions of criminal defendant during his trial) (internal quotations omitted).

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  • Vermont

    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.

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  • Virginia

    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).

    The First Amendment does not permit the criminal punishment of a newspaper for divulging or publishing accurate information regarding confidential proceedings of the Judicial Inquiry and Review Commission. See Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829 (1978).

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  • Washington

    The Washington Supreme Court has recognized that “the United States Constitution … prohibits prior restraints against publication or broadcast of information lawfully obtained from court records or proceedings.”  State v. Coe, 101 Wn.2d 364, 380, 679 P.2d 353 (1984).

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  • West Virginia

    Gag orders on the press are a prior restraint on the press and, as such, are presumptively invalid and subject to strict scrutiny.  State ex rel. Daily Mail Publishing Co. v. Smith, 161 W.Va. 684, 690, 248 S.E.2d 269, 272 (1978), aff'd, 443 U.S. 97, 99 S. Ct. 2667 (1979).

    The Supreme Court has held 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. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

    Regarding pre-trial publicity, a restrictive order that limits the press will only be upheld when there is intense and pervasive publicity about the case, there are no other alternatives to mitigate the effects of the pretrial publicity, and the restrictive order will, in fact, effectively prevent prejudicial publicity from reaching jurors.  Id. at 562.

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  • Wyoming

    Gag orders are not permitted unless the media is a party and the order limits the ability to publish information it learned in discovery.

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