C. Gag orders on participants
The Fourth Circuit permits gag orders on potential prosecution witnesses before and during trial. See In re Russell, 726 F.2d 1007 (4th Cir.), cert. denied, 469 U.S. 837 (1984).
Gag orders are subject to strict scrutiny and may only issue if (i) there is a likelihood that publicity, unchecked, would so distort the views of potential jurors that enough could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court; (ii) the restrictions constitute the least restrictive means to protected the perceived harm; (iii) the restrictions actually operate to prevent the threatened danger; and (iv) the restrictions are narrowly tailored to protecting the perceived harm. See In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018) (vacating gag order purporting to restrict all parties and their lawyers, representatives, and agents, as well as “all potential witnesses” from speaking publicly about twenty interrelated civil nuisance lawsuits).
In Riggs v. Valdez, 2011 WL 1598630 (D. Idaho Apr. 27, 2011), United States District Judge Edward Lodge denied a request by defendants in a prisoner civil rights case to enter an order prohibiting the parties and counsel from making extrajudicial statements to the media. Judge Lodge held “[t]he Court is not persuaded that a restraining order is necessary or advisable at this time. A sweeping order of the type that Defendants have proposed would be a prior restraint on free speech, see Levine v. U.S. District Court for the Central District of California, 764 F.2d 590, 595 (9th Cir. 1985), and Defendants have not justified the infringement that such an order would have on the First Amendment rights of the parties, counsel, the media, and the public. It is true that this case has garnered some media attention, but Defendants have not established that the coverage has been so pervasive or hostile to this point that their right to a fair trial is threatened absent a gag order.” Id. at *3.
As noted above, Idaho courts faced with the issue of gag orders often turn to the Ninth Circuit for guidance. To that end, Radio & Television News Ass’n is instructive. In that case, the Ninth Circuit upheld a district court’s gag order of its participants in a high-profile criminal matter after the media, not the participants, challenged the order. In upholding the order, the Ninth Circuit made it clear that the order before it was “significantly different from situations where the media is denied access to a criminal trial or is restricted in disseminating any information it obtains. We have invalidated as unconstitutional prior restraints on the reporting of events relating to a criminal proceeding. E.g., CBS, Inc. v. United States District Court, 729 F.2d 1174, 1178–78 (9th Cir. 1984); see Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) . . . . In contrast, the district court’s order in this case is not directed towards the press at all. On the contrary, the media is free to attend all of the trial proceedings before the district court and to report anything that happens.” Id. at 1446. Thus, the Ninth Circuit held, “[t]he district court having determined that the free speech rights of the trial counsel must be restrained, the media has no greater right than the public to hear that speech.” Id. at 1447. Because none of the participants restrained by the trial court’s order joined in the writ of mandamus, the Ninth Circuit held that the media group lacked standing to assert the trial participants’ First Amendment rights. Consequently, the court did not reach the issue of whether the gag order was constitutional under Levine v. United States District Court, 764 F.2d 590 (9th Cir. 1985).
In Levine, the Ninth Circuit upheld a trial court’s conclusion that a restraining order for trial participants was necessary to reduce prejudicial pretrial publicity impairing the fairness of a trial and threatening the integrity of the judicial system. But, the appeals court concluded that the district court’s order restraining counsel from making any public statement about “any aspect of the case that bears upon the merits to be resolved by the jury” was overbroad. Levine, 764 F.2d at 599. As such, the Ninth Circuit ordered the trial court to fashion an order specifying the proscribed types of extrajudicial statements which “pose a serious and imminent threat to the administration of justice” in the case. Id. By way of example, the Ninth Circuit noted that it would be appropriate to proscribe statements relating to six subjects:
- The character, credibility, or reputation of a party;
- The identity of a witness or the expected testimony of a party of a witness;
- The contents of any pretrial confession, admission, or statement given by a defendant or that person’s refusal or failure to make a statement;
- The identity or nature of physical evidence expected to be presented or the absence of such physical evidence;
- The strengths or weaknesses of the case of either party; and
- Any other information the lawyer knows or reasonably should know is likely to be inadmissible as evidence and would create a substantial risk of prejudice if disclosed.
When Kansas judges issue gag orders against trial participants, they may do so with reference to the Kansas Rules of Professional Conduct for attorneys, http://www.kscourts.org/rules/Rule-List.asp?r1=Rules+Relating+to+Discipline+of+Attorneys. Of particular importance is Rule 3.6(a), which states:
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
Rule 226/3.6 Advocate: Trial Publicity, http://www.kscourts.org/rules/Rule-Info.asp?r1=Rules+Relating+to+Discipline+of+Attorneys&r2=29
Also noteworthy is Rule 3.8(f), restricting comment by prosecutors. It states:
except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
Rule 228/3.8 Advocate: Special Responsibilities of a Prosecutor, http://www.kscourts.org/rules/Rule-Info.asp?r1=Rules+Relating+to+Discipline+of+Attorneys&r2=27
An illustrative gag order against trial participants was issued in 2010 by a Barton County, Kansas, judge in a high-profile murder case. The judge ordered:
that counsel for the state, the defense, their respective agents and employees and law enforcement personnel involved in this case shall make no extra-judicial statement that a reasonable person should know will have a substantial likelihood of materially prejudicing this criminal proceeding. The following matters, in particular, shall not be the subjects of extra-judicial statements concerning;
- The character, credibility, reputation or criminal record of the accused or any potential witness in this case or the expected testimony of any witness;
- Alleged criminal or bad acts whether charged or uncharged;
- The possibility of a plea of guilty to the offense;
- The existence of any written or oral statement given by the defendant or any witness or the defendant’s failure or refusal to give a statement;
- The result of any examination or test, or the nature or identity of any physical evidence to be presented;
- Any opinion as to the guilt or innocence of the defendant; and
- Any information likely to be inadmissible at trial, as evidence of such would create a substantial risk of prejudicing an impartial trial.
State v. Longoria, District Court of Barton County, Kansas, Order, Case No. 2010 CR 231 (Sept. 10, 2010).
The judge specified that the following kinds of statements were permissible:
- The general nature of the claim or defense;
- Information contained in a public record;
- That an investigation continues in progress;
- The identity of persons involved in the case;
- Scheduling issues;
- Results of hearings or trials;
- Requests for assistance in obtaining evidence and information necessary thereto;
- The identity, residence, occupation and family status of the accused;
- The fact, time and place of arrest; and
- The identity of investigating and arresting officers and agents.
Longoria, Barton County, Case No. 2010 CR 231.
Gag orders against trial participants have received relatively little attention from Kansas appellate courts. In one case, State ex rel. Tomasic v. Cahill, 567 P.2d 1329 (Kan. 1977), the Kansas Supreme Court, while upholding a trial court’s refusal to impose a gag order against the media, observed, without objection, that the trial court had imposed a gag on witnesses. Cahill involved an ouster of two members of a city utilities board on grounds that they had mishandled certain financial matters. The state supreme court upheld the ouster and said that the media were “quite properly permitted to report proceedings which took place in open court. The need for the public to know what is going on in an ouster proceeding is substantial, and certainly outweighs the remote possibility of prejudice to parties in this civil proceeding.” Cahill, 567 P.2d at 1336.
Federal courts have given significant attention to the standards under which gag orders appropriately may be issued against trial participants. In United States v. Walker, 890 F. Supp. 954 (D. Kan. 1995), a defendant had been charged with cocaine possession, and he requested an “order directing the United States Attorney, his assistants, law enforcement officers, and any other persons associated with the . . . case to refrain from making any extrajudicial statements about this case.” Walker, 890 F. Supp. at 956. The defendant said a gag was necessary because publicity “indicating that he was the leader of the Topeka Black Gangster Disciples gang jeopardized his ability to obtain a fair trial.” Walker, 890 F. Supp. at 956. The judge denied the request, however, saying:
Though the speech of an attorney participating in judicial proceedings may be subjected to greater limitations than could constitutionally be imposed on other citizens or on the press, the limitations on attorney speech should be no broader than necessary to protect the integrity of the judicial system and the defendant’s right to a fair trial. This Court has stated that before a district court issues a blanket prior restraint, it must, inter alia, “explore whether other available remedies would effectively mitigate the prejudicial publicity,” and consider “the effectiveness of the order in question” to ensure an impartial jury.
Walker, 890 F. Supp. at 957.
The court noted that less restrictive alternatives to an injunction against speech include such possibilities as a change of venue, trial postponement, a searching voir dire, emphatic jury instructions, and sequestration of jurors. Walker, 890 F. Supp. at 957.
The same judge imposed a gag order with unusually broad scope against trial participants in a high-profile 1998 civil case, Koch v. Koch Industries, Inc., 6 F. Supp. 2d 1185 (D. Kan. 1998), aff’d, 203 F.3d 1202 (10th Cir. 2000). As the time for trial drew near, the judge issued a gag order that: prevented any parties, or their agents or representatives, “from contacting or polling, for any purpose, any person listed as a prospective juror”; precluded “all parties, counsel and witnesses from making extrajudicial statements to the news media”; forbade any party, or any business, association, entity or commission controlled by a party, from advertising through newspapers, radio, or television in the seventeen counties within the court’s jurisdiction; and required prospective jurors to make “every effort” to avoid reading newspaper or magazine articles, listening to any radio programs, or viewing any television programs that could relate to the case. Koch, 6 F. Supp. 2d at 1187.
The judge denied a motion by the media to intervene and object after he issued the gag order. Although he acknowledged that a judge should not impose a prior restraint on speech without first conducting a hearing, he characterized Koch as an “atypical” case. He said he had raised the subject of the gag order in open court during a status conference. Koch, 6 F. Supp. 2d at 1189–90. He further stated:
[A]ll parties agreed that the court had provided the relief that they had requested. Lead counsel for both sides expressed great enthusiasm for the order entered by the court, as the news media had previously been playing one side off the other in an effort to pry information from the litigants or their counsel. In short, all litigants eschewed any desire to talk with the news media about this case.
Koch, 6 F. Supp. 2d at 1190.
Gag Orders on Attorneys: Gag orders on attorneys are upheld in Pennsylvania when the order is necessary to prevent material prejudice to an adjudicatory proceeding or in order to prevent interference with a defendant’s right to a fair trial. Pennsylvania courts have allowed restrictions on public comment by attorneys when such comments will affect the right to a fair trial or such restrictions are consistent with the Professional Rule of Conduct, which seeks to ensure an individual’s right to a fair trial. Commonwealth v. Lambert, 723 A.2d 684 (Pa. Super. Ct. 1998).
Pennsylvania Rule of Professional Conduct 3.6 provides a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. It further outlines specific types of statements that are prohibited. Pennsylvania’s Superior Court has upheld the operative validity and constitutionality of orders prohibiting counsel from speaking outside of the parameters of this ethical obligation. See Lambert, 723 A.2d at 694-95.
In Lambert, 723 A.2d 684, a defendant filed a petition pursuant to the Post-Conviction Relief Act. The court, sua sponte, issued an order limiting publicity. The order directed that counsel for both parties and all persons assisting them should abide by an attorney disciplinary rule that prohibited public comment about the case except in accordance with the Rules of Professional Conduct. Two newspapers intervened and challenged the order. Id. The court held that “limitations on the speech of attorneys involved in pending litigation, even when such limitations are prior restraints on the attorneys’ First Amendment rights, will be constitutional if the prohibited speech is limited to that which contains a substantial likelihood of material prejudice to an adjudicatory proceeding.” Id. at 691. The court held that the Pennsylvania Rule of Professional Conduct that prohibited attorneys from making such public comments was constitutional and not void for vagueness. Id. at 694-95.
In Commonwealth v. Crawford, 789 A.2d 266 (Pa. Super. 2001), the court upheld a gag order imposed on all persons connected with a criminal trial. The media were denied standing to challenge the gag order since the order did not restrict media coverage of the trial or prevent the media from questioning counsel. The court found that the media lacked a substantial, immediate, and direct interest in the subject matter of the litigation. The court rationalized that the gag order did not restrict media coverage of the proceedings, prevent reporters from questioning the attorneys, or restrict attorneys from speaking to the media. Rather, the court held the order only prohibited attorneys from making extrajudicial statements likely to interfere with the defendant’s right to a fair trial. Therefore, the court stated that since the media lacked a substantial or direct interest and was unable to demonstrate an immediate injury caused by the order, they lacked standing to intervene.
Gag Order on Parties to a Judicial Proceeding: In Pennsylvania, courts assessing the legality of a gag order on parties or third parties to a judicial proceeding must consider whether restricting pretrial publicity or public comments is necessary to ensure defendants have a fair trial, to permit the selection of an impartial jury, and to prevent any improper influence on the course or outcome of judicial proceedings.
For example, four decades ago, in Philadelphia Newspapers, Inc. v. Jerome, 387 A.2d 425 (Pa. 1978), a number of Pennsylvania newspapers filed petitions challenging the constitutionality of gag orders issued by judges. The orders in question closed the pre-trial hearing to three criminal trials and prohibited participants in the proceedings from discussing, disclosing, or disseminating evidence of which the admissibility was to be determined by the court. The court held that restricting pretrial publicity ensured a defendant’s right to have unconstitutionally seized evidence suppressed because it lessened the risk that such information would become public and later affect the selection of an impartial jury. It therefore denied the newspapers’ request for relief from the gag orders. The court stated that the orders directing participants not to discuss the pretrial proceedings were designed to prevent harm to the accused’s right to a fair trial and ensure the public interest in prompt, orderly, and final administration of criminal justice. Such a “gag order” was necessary to effectuate the court’s other orders regarding pretrial publicity. Furthermore, the gag orders were narrowly tailored to meet the problem of prejudicial disclosure from suppression hearings. Id. at 512; but cf. Commonwealth v. Hayes, 414 A.2d 318 (Pa. 1980) (holding closure may not be ordered where some other available procedural device can fully protect the defendant’s right in a given instance). The decision in Jerome would likely be deemed unconstitutional under more recent precedent.
In In re Griffin, 690 A.2d 1192 (Pa. Super. 1997), a court issued an order prohibiting foster parents from discussing or referring to the case in any public context or forum. The parents appeared on several nationally televised talk shows and discussed the case. The Superior Court held them in contempt. The parents, in defense, challenged the constitutionality of the order, but the court barred their challenge on procedural grounds since they had failed to challenge the order following its entry by the trial judge.
Upon the completion of the first criminal trial of well-known entertainer Bill Cosby, which ended in a mistrial, the presiding judge released juror names, but instructed the jurors that they should not disclose to the media the substance of their deliberations, recognizing that Mr. Cosby could be retried.
The Vermont Supreme Court has recognized that lower courts can "impose a ‘gag order’ limiting public disclosure of the names of the informants by plaintiffs or plaintiffs’ counsel.” Douglas v. Windham Superior Court, 157 Vt. 34, 46, 597 A.2d 774, 781 (Vt. 1991). However, the Vermont Supreme Court also held that an order prohibiting lawyers and law enforcement officers from commenting on the merits of the case or from making statements “as to any evidence which has been secured in connection with this matter or any other matters that are not of record in the court” was overly broad and unjustified without a finding that the persons involved would make improper disclosures in the absence of the order. State v. Schaefer, 157 Vt. 339, 353-54, 599 A.2d 337, 346 (Vt. 1991) (noting attorneys are restricted by ethical rules from making extrajudicial statements and the order’s intrusion into the rights of the parties and their counsel). In reversing the gag order, the Court also held that such orders “must be narrowly tailored to cover only the improper disclosure that would occur in the absence of the order.” Id.
The Vermont Rules of Professional Conduct prohibit lawyers who are participating or have participated in the investigation or litigation of a matter (or their associates) from making “an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Vt. Prof. Cond. Rule 3.6(a). Notwithstanding this prohibition, lawyers may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, age, and occupation of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
Vt. Prof. Cond. Rule 3.6(b). Moreover, “a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.” Vt. Prof. Cond. Rule 3.6(c).