C. Gag orders on participants
The Supreme Court has ruled that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976), and the cases which preceded it.” Gentile v. State Bar of Nev., 501 U.S.1030, 1074 (1991). In Gentile, the Court allowed a Nevada rule providing that “[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.”
The Supreme Court has not addressed proper standard for a gag order to issue on trial participants in general, and jurisdictions have adopted several different standards. For example, the Ninth Circuit held that in order to gag a criminal trial participant, a court must find “that: (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.” Levine v. District Court, 764 F.2d 590, 595 (9th Cir. 1985) (citations omitted).
The Fourth Circuit has held that gag orders must survive strict scrutiny, supported by reasoning that is “specific enough” to enable appellate review. In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018).
The Supreme Court has ruled that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), and the cases which preceded it.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991). In Gentile, the Court allowed a Nevada rule providing that “[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.”
A gag order is a prior restraint on speech. United States v. McGregor, 838 F. Supp. 2d 1256, 1260 (M.D. Ala 2012) (citing Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976). The Eleventh Circuit has recognized that the speech of participants in pending cases may be regulated under a less demanding standard than that established for the press. See News-Journal Corp. v. Foxman, 939 F.2d 1499, 1512 (11th Cir. 1991) (citing Gentile v. State Bar, 501 U.S. 1030 (1991).
In News-Journal Corp. v. Foxman, the Eleventh Circuit affirmed a restrictive order imposed on trial participants, where the court found that because the media was given its constitutional right to attend and to report all information regarding the case, and because interviews and subsequent reporting regarding the case evidenced the potential inability of impaneling an impartial jury, it was proper to impose a gag order on the trial participants. Id. at 1515.
When determining whether a gag order is properly granted, a court will engage in a rigorous First Amendment inquiry where it considers whether extrajudicial comments create a substantial likelihood of material prejudice to the proceedings. McGregor, 838 F.Supp.2d at 1267. If the court finds there is a substantial likelihood of material prejudice to the proceedings, a gag order must be narrowly tailored and can only be granted if less burdensome alternatives are ineffective. Id.
Also, the Eleventh Circuit has held—and the Supreme Court has affirmed—that grand jury witnesses may not be absolutely prohibited from disclosing their own testimony after termination of the investigation. See Smith v. Butterworth, 866 F.2d 1318 (11th Cir. 1989), aff’d, 494 U.S. 624 (1990).
The Supreme Court has ruled that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), and the cases which preceded it.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991). In Gentile, the Court allowed a Nevada rule providing that “[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.” The Supreme Court has not addressed the proper standard for a gag order to issue on trial participants in general, and jurisdictions have adopted several different standards.
With respect to protective orders during discovery, the First Circuit follows Seattle Times Co., 467 U.S. 20 (1984) (holding that the first amendment is not offended if three criteria are met: (1) there is a showing of good cause as required by Rule 26(c); (2) the restriction is limited to the discovery context; and (3) the order does not restrict the dissemination of information obtained from other sources). Anderson v. Cryovac Inc., 805 F.2d 1, 7 (1st Cir. 1986).
The First Circuit holds “[F]irst [A]mendment considerations cannot be ignored in reviewing discovery protective orders. . . . [T]he [F]irst [A]mendment is still a presence in the review process. Protective discovery orders are subject to [F]irst [A]mendment scrutiny, but that scrutiny must be made within the framework of Rule 26(c)’s requirement of good cause.” Anderson v. Cryovac Inc., 805 F.2d 1, 7 (1st Cir. 1986). A finding of good cause for a protective order “must be based on a particular factual demonstration of potential harm, not on conclusory statements.” Id.
The First Amendment criminal trial access right is violated by a gag order on counsel during trial unless prejudice would result from counsel’s disclosures to the press. See In re Application of N.Y. Times Co., 878 F.2d 67 (2d Cir. 1989). Furthermore, a judge may not impose a prior restraint based solely on incidents that occurred in a completely separate and unrelated, albeit temporally proximate, trial. United States v. Quattrone, 402 F.3d 304, 311 (2d Cir. 2005) (internal citations omitted).
The Supreme Court has ruled that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1074 (1991). In Gentile, the Court found constitutional a Nevada rule providing that “[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.” Id. at 1060, 1076.
The Court has not addressed the proper standard for a gag order to issue on trial participants in general, and jurisdictions have adopted several different standards. In United States v. Wecht, the Third Circuit addressed a local court rule prohibiting attorney speech that had a “reasonable likelihood of prejudic[ing]” a judicial proceeding. 484 F.3d 194, 201 (3d Cir. 2007). Rather than reach the constitutional issue (whether this standard conflicted with the “substantial likelihood of material prejudice” standard set forth in Gentile), the Court “exercise[d] its supervisory authority to require that district courts apply Local Rule 83.1 to prohibit only speech that is substantially likely to materially prejudice ongoing criminal proceedings.” Id. at 205 (emphasis added). The court noted that its holding “applies to the local rules of all the district courts in [the Third] Circuit.” Id. at 205 n.9.
In Rodgers v. U.S. Steel Corp., the Third Circuit reversed a district court order prohibiting the plaintiff’s counsel from disseminating certain documents. 536 F.2d 1001, 1008 (3d Cir. 1976). Viewing this order as a prior restraint, the Third Circuit held that the district court had failed to make any finding that disclosure of the information “would present an imminent threat to the administration of justice.” Id. (citations omitted).
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).
Intense publicity surrounding a criminal proceeding that amounts to “trial by newspaper” is considered a significant and well-known danger to a fair trial. United States v. Brown, 218 F.3d 415, 423 (5th Cir. 2000). Courts have an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity. Id. The Fifth Circuit has thus held that in cases of intense media interest, preventing the taint of the jury pool can be a valid justification for a gag order that prohibits parties, lawyers, and potential witnesses from speaking to the media about anything that could interfere with a fair trial or prejudice any defendant, the government or the administration of justice. Id. at 423; see also United States v. Aldawsari, 683 F.3d 660, 666 (5th Cir. 2012) (upholding a district court’s order barring the parties, their representatives, and their attorneys of record from communicating with the news media about the case because of the possibility that extrajudicial commentary could compromise the defendant’s right to a fair trial); Davis v. Capital City Press, 78 F.3d 920, 928 (5th Cir. 1996). Such a gag order would include a ban on making a statement of innocence or a comment on the merits of the case but would not prevent discussions about the general nature of the allegations or defenses, information contained in the public record, scheduling information, any decision or order by the court that is a matter of public record, or the contents of any motion filed. Brown, 218 F.3d at 423.
In the Fifth Circuit there is a clear distinction between gag orders on the press and gag orders on trial participants, and the latter are evaluated under a less stringent standard. Therefore, instead of the “clear and present danger” standard applied to prior restraints on the media, the Fifth Circuit applies the standard that a gag order on participants may be justified if there is a “substantial likelihood of material prejudice” from a trial participant’s extrajudicial comments. Id. at 427. The order must still be narrowly drawn to eliminate only that speech having a meaningful likelihood of materially impairing the court’s ability to conduct a fair trial, and so that it is the least restrictive means to protect the interest. Id. at 429-31.
Change of venue, jury sequestration, ‘searching” voir dire, and “emphatic” jury instructions should be viewed as alternatives to gag orders, but a court does not have to consider and officially make findings regarding each option before imposing a gag order on participants. Id. at 431.
On jurors: A court can order jurors not to speak to anyone about jury deliberations, but likely cannot order jurors not to discuss the case or the verdict itself. United States v. Brown, 250 F.3d 907, 920–21 (5th Cir. 2001). Such an order would be considered overbroad. A court can, however, ask the jurors if they wish to remain anonymous and can instruct jurors that they are under no obligation to discuss the case with anyone. Id. at 921. Protecting jurors from post-verdict harassment and invasion of privacy is a legitimate concern, and thus narrowly tailored restrictions intended to prevent real threats to the administration of justice and subsequent prosecutions can be valid justifications. Id.
A gag order is appealable under the collateral order doctrine since it is (a) conclusive, (b) important and divorced from the merits of the underlying trial, and (c) unreviewable upon conclusion of the trial since a party would be unable to argue that the trial’s outcome was altered because of the order. Brown, 218 F.3d at 420.
In CBS, Inc. v. Young, the media intervened to challenge the district court’s order that “all parties concerned with this litigation, whether plaintiffs or defendants, their relatives, close friends, and associates are hereby ORDERED to refrain from discussing in any manner whatsoever these cases with members of the news media or the public.” 522 F.2d 234, 236 (6th Cir. 1975). The Sixth Circuit held that this was a prior restraint on speech that “to meet judicial approval, must pose a clear and present danger, or a serious or imminent threat to a protected competing interest.” Id. at 238 (citations omitted). Even if that standard was met after overcoming the heavy presumption against such an order being constitutional, “[t]he restraint must be narrowly drawn and cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment freedoms.” Id. (citations omitted).
The CBS court cautioned that “a more restrictive ban upon freedom of expression in the trial context would be difficult if not impossible to find,” and that “[a]lthough the news media are not directly enjoined from discussing the case, it is apparent that significant and meaningful sources of information concerning the case are effectively removed from them and their representatives. To that extent their protected right to obtain information concerning the trial is curtailed and impaired.” Id. at 239. The court found that the order was also both vague and overbroad. Id. “We find the order to be an extreme example of a prior restraint upon freedom of speech and expression and one that cannot escape the proscriptions of the First Amendment, unless it is shown to have been required to obviate serious and imminent threats to the fairness and integrity of the trial.” Id. at 240.
The court noted that there was “massive publicity” of the underlying events of the case and the litigation, but the newspaper articles that were submitted to the court in support of the order were generally “innocuous.” Id. As a result, the court held that there was “no substantial evidence to justify the conclusion that a clear and imminent danger to the fair administration of justice existed because of publicity,” and that the district court’s order was unconstitutional. Id. at 240–41.
The Sixth Circuit reached a similar conclusion when a criminal defendant had a broad gag order entered sua sponte against him that forbade him
from “making” any “extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication,” including any “opinion of or discussion of the evidence and facts in the investigation of the case,” any statement about a prosecuting attorney, any statement about “any alleged motive the government may have had in filing the indictment” or any statement “which relates to any opinions as to … the merits of the case.”
United States v. Ford, 830 F.2d 596, 597 (6th Cir. 1987). The court explained that “[t]he principles that underlie Young, a civil case, are even more forceful in the areas of criminal proceedings.” Id. at 599. In fact, “the accused has a First Amendment right to reply publicly to the prosecutor’s charges, and the public has a right to hear that reply, because of its ongoing concern for the integrity of the criminal justice system and the need to hear from those most directly affected by it.” Id. (quoting Freedman & Starwood, Prior Restraints on Freedom of Expression by Defendants and Defense Attorneys: Ratio Decidendi v. Obiter Dictum, 29 Stan. L. Rev. 607, 618 (1977)). Moreover, the court explained, in no uncertain terms,
[it] is the individual defendant to whom the Sixth Amendment guarantees a fair trial. It is the public to whom the First Amendment guarantees reasonable access to criminal proceedings. And it is individuals, not the government, to whom First Amendment interests attach. To the extent that publicity is a disadvantage for the government, the government must tolerate it. The government is our servant, not our master.
Id. at 600 (internal citations omitted). The order in the case was found to be “clearly overbroad” and to be lacking in factual support for this extreme remedy. Id.
The Sixth Circuit has also addressed whether a protective order on discovery may be constitutionally enforced when the material sought to be protected was revealed in open court with members of the public and press present. Nat’l Polymer Prods. v. Borg-Warner Corp., 641 F.2d 418, 420–21 (6th Cir. 1981). In that case, the vice president of one of the parties to the case used information that was subject to a protective order restricting its public use that had been revealed at the public trial. Id.
The court began by recognizing “the well-established principle of American jurisprudence that the release of information in open trial is a publication of that information and, if no effort is made to limit its disclosure, operates as a waiver of any rights a party had to restrict its further use.” Id. at 421. While recognizing that “litigants and their counsel stand in different shoes than other persons with respect to their rights to reveal information about pending cases,” the court explained that “at least in the ordinary case, that the mere status of involvement in a lawsuit, without more, is insufficient to justify the restriction imposed here.” Id. at 423.
The court explained that a court considering an injunction barring publication of material both learned in discovery and alleged to have been publicly revealed in trial should use a two-step approach. “First, the trial court should examine, in camera, if necessary, the materials produced by virtue of the protective order, the transcript at trial, and the matters revealed or intended to be revealed” to decide what was or was not revealed at trial, which was covered by the protective order.” Id. at 424. For any material that was revealed in open court, “[s]uch matter may not be restrained unless the court finds that the interests in preserving confidentiality of the material outweigh [the] interest in disseminating it and the legitimate interest others may have in receiving it,” keeping in mind the heavy presumption against the constitutionality of all prior restraints. Id. “Considerations that may weigh against that presumption are whether disclosure might jeopardize the defendant’s right to the fair administration of justice, whether disclosure will actually impair legitimate business interests of the defendants, and whether the purpose of disclosure would clearly constitute an abuse of the discovery process.” Id. (internal citations omitted).
“Judicial restraints on extrajudicial comments of lawyers about a pending proceeding—commonly referred to as ‘gag orders’—must be evaluated in the context of First Amendment jurisprudence. . . . Courts in this circuit require a showing of a ‘clear and present danger’ or a ‘serious and imminent threat’ to a fair a trial before restraining litigant speech.” Bianchi v. Tonigan, 2012 WL 5966543, at *6 n. 9 (N.D. Ill. Nov. 28, 2012) (holding movant “fails to meet the rigorous standard for a gag order”) (citing Chase v. Robson, 435 F.2d 1059 (7th Cir. 1970); Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 249 (7th Cir. 1975)).
Chase v. Robson held a district judge’s order that all counsel and every defendant make no statements regarding the case was, “as written and as applied . . . unconstitutionally overbroad” and was not “drawn narrowly so as not to prohibit speech which will not have an effect on the fair administration of justice along with speech which will have such an effect.” 435 F.2d at 1061. Bauer likewise held a local district court rule and ABA disciplinary rule relating to attorneys’ extrajudicial comments on criminal litigation were overbroad in imposing a standard of “reasonable likelihood of interference with a fair trial,” and that the proper standard should be “serious and imminent threat of interference. . . .” 522 F.2d at 249-52. See also In re Oliver, 470 F. 2d 15 (7th Cir. 1972); N.D. Ind. Local Crim. R. 53-2(a), (b) (attorneys and law enforcement “must not release, or authorize the release of, facts or opinions about the criminal case if: (1) a reasonable person would expect them to be disseminated by any means of public communication; and (2) the dissemination would pose a serious and imminent threat of interference with the fair administration of justice”). But see S.D. Ill. Local R. 83.6(a) (“reasonable likelihood” of interference).
Invalidating under the First Amendment an Indiana statute that specified “no person” may disclose the existence of a sealed indictment prior to arrest or bringing of defendant into court custody, the Seventh Circuit noted that, unlike the invalidated Indiana statute, Federal Rule of Criminal Procedure 6(e) “applies, by its terms, only to individuals who are privy to the information contained in a sealed document by virtue of their positions in the criminal justice system,” and that “if Rule 6(e) was construed to apply to witnesses who testify before grand juries it would violate the First Amendment.” Worrell Newspapers of Ind., Inc. v. Westhafer, 739 F.2d 1219, 1222-23 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985); see also S.D. Ill. Local R. 83.6(b) (“No personnel connected in any way with this Court or its operation, including, among others, marshals, deputy marshals, deputy clerks, bailiffs, secretaries, and court reporters, shall disclose to any person, without specific authorization by the presiding judge, any information relating to a pending criminal or civil case that is not a part of the public record. This prohibition applies specifically to the divulgence of information concerning arguments and hearings held in chambers or otherwise outside the presence of the public”).
However, the Court rejected an inmate’s First Amendment challenge to the Federal Bureau of Prisons’ policy barring death row/Special Confinement Unit inmates from giving face-to-face interviews to the media; “newsmen have no constitutional right of access to prisons or their inmates beyond that afforded to the general public.” Hammer v. Ashcroft, 570 F.3d 798, 799 (7th Cir. 2009) (en banc) (citing Pell v. Procunier, 417 U.S. 817, 834 (1974); Saxbe v. Washington Post Co., 417 U.S. 843 (1974)); see also Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 946 (7th Cir. 2015) (First Amendment "does not guarantee the press a constitutional right of special access to information not available to the public generally") (quoting Pell v. Procunier, 417 U.S. at 833).
Gag orders on participants and/or attorneys are considered a prior restraint and are presumptively unconstitutional. Ex parte Wright, 166 So. 3d 618, 631 (Ala. 2014). They must be narrowly tailored to balance the First Amendment rights of participants with the court’s constitutional duty to minimize the effects of prejudicial pretrial publicity. Wright, 166 So. 3d at 631.
Federal Local Criminal Rule 56.1, applicable to the U.S. District Court for Alaska provides, “In any criminal proceeding the Court, on motion of either party or on its own motion, may issue a special order governing:(1) extrajudicial statements by parties and witnesses substantially likely to interfere with the fairness of the trial; (2) the seating and conduct in the courtroom of spectators and news media representatives;(3) the management and sequestering of jurors and witnesses; and (4) any other matters that the Court may deem appropriate for inclusion in the order. Local Crim. R. 56.1(b). The Court on motion of either party or its own motion, may enter special orders relating to any matter that the court deems necessary to insure a fair trial by an impartial jury. Local Crim. R. 56.1(b).
In Natekin v. State, 2011 WL 5904467 (Alaska Ct. App. Nov. 23, 2011), a defendant appealed his conviction contending that the superior court violated his right to a public trial by holding two “confidential” hearings during his trial. Some of the language of this decision would be more problematic if the court’s decision had been dependent upon it, or if this were not an unpublished memorandum decision (meaning that it can be cited for its persuasive value in relation to an issue but not for precedent). The court purported to have a “confidential hearing,” apparently meaning that members of the public were not required to leave but could not talk about what transpired in the proceeding in questions. The motivating factor was preventing premature disclosure of facts coming out during court proceedings concerning attempted bribery of an anticipated witness. The court affirmed the defendant’s conviction without reaching some of the important issues raised by the facts of this case, finding that the trial attorney had not preserved the issues by objecting to the judge’s action at trial. Because of this, Natekin needed to show that the proceedings were marred by obvious error, but could not because, the court said, the record did not plainly show that the two challenged hearings were in fact closed to the public. The court found the language used by the trial judge to be “confusing,” and it distinguished between situations where the courtroom was or was not closed to the public. It found that the judge never asked anyone to leave the courtroom. The court said that “no one raised a ‘public trial’ issue in the superior court. It is perhaps conceivable that Judge Smith took measures to close the courtroom to the public. But the record in front of us suggests that no such measures were taken—and that Judge Smith confined himself to ordering any people who were present not to reveal what they heard in court.” It found that Natekin had not shown enough to overcome the presumption that court proceedings had been conducted in accordance with the law. It should be noted that the only question even raised (without preserving it for appeal) was whether the hearing had been closed or open. No one raised the propriety of purporting to tell individuals that they could not speak about what they heard or saw in the court proceedings, and the case should not be cited as precedent for or endorsement of this practice.
The Arizona Supreme Court has held that a “media liaison order,” which limited contact by the prosecution and the defense with the press, was not an infringement on the media’s First Amendment right to cover a high-profile murder trial. KPNX Broad. Co. v. Superior Court, 678 P.2d 431, 439-42 (Ariz. 1984).
Gag orders on trial participants are unconstitutional unless “(1) the speech sought to be restrained poses a clear and present danger or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available.” Hurvitz v. Hoefflin, 84 Cal. App. 4th 1232, 1241-1242, 101 Cal. Rptr. 2d 558 (2000). See also San Francisco Unified School Dist. ex rel. Contreras v. First Student, Inc., 213 Cal. App. 4th 1212, 1238, 153 Cal. Rptr. 3d 583 (2013); Maggi v. Superior Court, 119 Cal. App. 4th 1218, 1225, 15 Cal. Rptr. 3d 161 (2004). This rule applies even when a media company is a party to the case. Freedom Communications, Inc. v. Superior Court, 167 Cal. App. 4th 150, 83 Cal. Rptr. 3d 861 (2008).
In Steiner v. Superior Court, 220 Cal. App. 4th 1479, 1482, 164 Cal. Rptr. 3d 155 (2013), the court held that an order requiring plaintiff’s attorney to remove information from her website regarding prior verdicts in similar cases was an unconstitutional prior restraint even under the lesser standard for commercial speech.
Connecticut’s appellate courts have not yet addressed the appropriate legal standard for imposing a gag order on trial participants. As of this writing, the Connecticut Supreme Court is preparing to do so. See Order Certifying Appeal, State of Connecticut v. Dulos, S.C. 190077 (October 2, 2019), available at http://appellateinquiry.jud.ct.gov/DocumentDisplayer.aspx?AppId=2&DocId=Y3FqKozra6kQ89kEHGztNA%3d%3d.
The state’s appellate court has previously upheld a self-imposed gag order by parties. See Perricone v. Perricone, 292 Conn. 187, 216, 972 A.2d 666, 686 (2009) (upholding private confidentiality agreement signed by parties to divorce that prevented them from speaking publicly, over wife’s objection, as not implicating open court access under state constitution). It is deeply unlikely that such an agreement would be valid if one party to the litigation were a government agency or employee.
In both federal and state court, gag orders on anyone are governed by the First Amendment’s generally applicable speech protections, and would need to meet the most stringent standards, i.e., that the speech restriction (1) furthered a compelling government interest and (2) was the least restrictive means of meeting that interest. E.g., Beal v. Stern, 184 F.3d 117, 124–25 (2d Cir. 1999). That standard is unlikely to be met outside of sitting jurors and judges, and those witnesses who will testify to information that would qualify for courtroom closure (for example, the identity of a confidential informant, or a corporation’s internal assessment of its competitive weaknesses). The standard will never be met as applied to information that the trial participant learned through public documents or proceedings in an open courtroom, since anyone could have learned the same information.
District Court LCrR 57.7(b)(4) provides that “[d]uring a jury trial of any criminal matter, including the period of selection of the jury, no lawyer or law firm associated with the prosecution or defense shall give or authorize any extrajudicial statement or interview, relating to the trial or the parties or issues in the trial which a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that such dissemination will interfere with a fair trial, except that the lawyer or law firm may quote from or refer without comment to public records of the court in the case.” For example, the 9/11 detainees and their attorneys were not prevented from contacting members of the press. Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003).
District of Columbia
We are aware of only scant D.C. case law addressing issues related to gag orders. But for some discussion of related issues, see, for example, Roberson v. Bair, 242 F.R.D. 130, 132-24 (D.D.C. 2007) (applying Hubbard factors to a request that plaintiff be prevented from disclosing confidential information); Pub. Citizen Health Research Grp. v. FDA, 953 F. Supp. 400, 404-05 (D.D.C. 1996) (finding that order prohibiting plaintiff from disseminating certain information does not violate the First Amendment because the order is only temporary in nature and therefore is not a classic “prior restraint”).
Gag orders may only be entered when necessary to ensure a fair trial and must be narrowly tailored to preclude only extrajudicial comments that are substantially likely to materially prejudice the trial. Rodriguez v. Feinstein, 734 So. 2d 1162, 1164 (Fla. 3d DCA 1999). Any such order must be supported by “findings that it was necessary to ensure a fair trial.” Id. Moreover, a gag order must provide a “workable method” of preserving the fairness of the trial. Nebraska Press, 427 U.S. at 565; see Dippolito v. State, 225 So. 3d 233, 242 (Fla. 4th DCA 2017) (granting a gag order when the defendant opposing the order did not propose an alternative less restrictive than a gag order).
The Florida Supreme Court has approved a court order in which only the state attorney’s office and sheriff’s departments were limited in their comments based upon prior, public, prejudicial statements, but that rejected a broader prohibition on public comments as being too broad. See Florida Freedom Newspapers, 520 So. 2d at 33. Rather than entering an overly broad gag order restricting all extrajudicial comment, courts can simply admonish attorneys to adhere to Florida Rule of Professional Conduct 4-3.6. See State v. Evans, 31 Media L. Rep. 1346 (Fla. Cir. Ct. Dec. 9, 2002); State v. Davis, 19 Media L. Rep. 1121 (Fla. Cir. Ct. June 15, 1991). Rule 4-3.6 addresses the professional responsibilities of attorneys regarding prejudicial extrajudicial statements.
Even if a gag order is warranted, it must terminate once a jury is selected, because restrictions on extrajudicial comment beyond that point would be unnecessary. News-Journal Corp. v. Foxman, 559 So. 2d 1227, 1228 (Fla. 5th DCA. 1990) (per curiam). Therefore, even if a gag order is appropriate, it must expire once the jury is sworn.
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. See, e.g., Miller v. State, 275 Ga. 730, 735 (2002). Georgia courts have struck down gag orders on participants premised on insufficient findings of prejudice. See Atlanta Journal-Constitution v. State, 266 Ga. App. 168 (2004) (questioning “whether the pre-indictment publicity justified restraining the nonlawyers, i.e. the parties, experts, witnesses, and investigators”).
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, 427 U.S. 429, 562 (1976); R.W. Page Corp. v. Lumpkin, 249 Ga. 576, n.5 (1982) (citing Nebraska Press as the controlling authority for “gag orders”). However, in Atlanta Journal-Constitution v. State, 266 Ga. App. 168 (2004), the court found that gag orders imposed against non-media parties are subject to a lower standard: “Contrary to the media’s assertions, the order under consideration cannot be classified as a prior restraint because it is not directed at the media. Accordingly, the order is not subject to the same heavy presumption against its constitutionality as an order directing the media not to broadcast a confession or televise a trial. Insofar as it restricts extrajudicial comments by trial participants, the order is evaluated under the less stringent standard . . . the ‘substantial likelihood of material prejudice’ standard.’” Id. (citing Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991)).
In WXIA-TV v. State of Georgia, 303 Ga. 428 (2018), the Georgia Supreme Court struck down a gag order imposed on non-media parties based on its conclusion that even judged under the most deferential “reasonable likelihood of prejudice” standard it was error for the trial court to infer such a likelihood “from the mere fact that there has been significant media interest in a case.”
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.
In Illinois, gag orders on participants are generally disfavored, but they may be valid in some circumstances. A court-ordered ban on specified expression is considered a prior restraint. See Kemner v. Monsanto Co., 112 Ill. 2d 223, 242, 492 N.E.2d 1327, 1336, 97 Ill. Dec. 463 (1986). Prior restraints are not necessarily invalid, but they are presumed to be invalid because they are the most serious infringement on First Amendment rights. Id. at 243, 492 N.E.2d at 1326, 97 Ill. Dec. at 463. Thus, gag orders on participants in a trial are allowed, but only under limited circumstances. In Kemner, the Illinois Supreme Court held that a trial court can restrain parties and their attorneys from talking about a pending civil trial only if the court’s specific findings show that the participants’ conduct poses a “clear and present danger or a serious and imminent threat” to a fair trial. Id. at 244, 492 N.E.2d at 1337, 97 Ill Dec. at 464. The gag order cannot be vague or too broad. Id.
If the party supporting the gag order fails to identify an important or substantial government interest, then the gag order will not be upheld. See Cummings v. Beaton & Assocs., Inc., 192 Ill. App. 3d 792, 797, 549 N.E.2d 634, 638, 139 Ill. Dec. 908, 912 (Ill. App. Ct. 1st Dist. 1989). One Illinois appellate court has held that a party also may be prevented from revealing information gained from the opposing party in the course of preparing for trial, even if the information was received outside the discovery process, although the holding may be limited to the facts since it involves alleged victims of sexual abuse. See Bush v. Catholic Diocese of Peoria, 351 Ill. App. 3d 588, 592, 814 N.E.2d 135, 138, 286 Ill. Dec. 485, 488 (Ill. App. Ct. 3rd Dist. 2004).
In In re Paternity of K.D., the Indiana Court of Appeals held that a trial court order in a child custody proceeding was an invalid prior restraint on the mother’s free speech rights. 929 N.E.2d 863 (Ind. Ct. App. 2010). Although the part of the order that prohibited the mother from discussing the contents of the juvenile records was permissible under statutory law, the provision prohibiting the mother from speaking about the paternity case with anyone was overbroad. Id. at 874–75; see also Shallenberger v. Hope Lutheran Church, 449 N.E.2d 1152, 1157 (Ind. Ct. App. 1983) (setting aside restrictions on communications between putative class members before class certification).
Further, courts have held that gag orders on participants in a case are not impermissible prior restraints on the press. S. Bend Tribune v. Elkhart Circuit Court, 691 N.E.2d 200, 202 (Ind. 1998) (“We fail to see how the amount and type of publicity changes the holding that a gag order on trial participants does not constitute a prior restraint upon the press. . . . The Media is not prevented from covering the trial by this gag order. The only parties prevented from speaking are the trial participants and they are not parties to this appeal. We agree with Dow Jones and hold that a gag order placed solely upon trial participants does not constitute a prior restraint upon the press.”).
The Iowa Rules of Professional Conduct for lawyers impose restraints on attorneys with respect to trial publicity. Rule 32:3.6 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.” The Rules also provide guidance on areas that are appropriate for attorney comment. See Iowa R. of Prof’l Conduct 32:3.6(b), (c).
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.
There is not much Kentucky case law directly addressing gag orders on participants. The Kentucky Supreme Court’s decision in Roman Catholic Diocese v. Noble, 92 S.W.3d 724 (Ky. 2002), suggests that gag order on participants may be subject to scrutiny that is only slightly less exacting than the presumptively unconstitutional gag orders directed at the news media. See also Hill v. Petrotech Res. Corp., 325 S.W.3d 302 (Ky. 2010) (denying the trial court’s ability to preliminarily enjoin alleged libelous speech).
In State v. Lee, 787 So.2d 1020, 1037 (La. App. 2001), the court overturned a gag order prohibiting parties to proceedings from making any “extrajudicial statement relating to this proceeding.” The Court of Appeal held the gag order to be a prior restraint, justifiable only on “an imminent, not merely likely, threat to the administration of justice.”
Nonetheless, 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.
In Sanders v. Gore, 676 So.2d 866 (La. App. 1996), a gag order was issued sua sponte by a court in an action by a former client against an attorney for breach of a promise to marry (which was actually a promise to get a divorce and then marry plaintiff). The gag order was intended to be only temporary pending a hearing but was never withdrawn when the case was dismissed. The clear lack of merit in the case coupled with the obvious sensationalism of the story led the Court of Appeal to affirm the district court’s order.
In Massachusetts courts, “any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available.” Care & Protection of Edith, 659 N.E.2d 1174, 1177 (Mass. 1996).
The Supreme Judicial Court has held that an order prohibiting the father of children subject to a “care and protection petition” from discussing the proceedings with the media was an unconstitutional prior restraint, noting that the government had not advanced a sufficiently compelling interest. See id. at 1175–77.
The Mississippi Supreme Court has held that the “clear-and-present-danger” test applies to gag orders imposed on youth court participants where no governmental interested is implicated. In re R.J.M.B., 133 So. 3d 335, 345 (Miss. 2013). In In re R.J.M.B., the court distinguished the Fifth Circuit decision in United States v. Brown, 218 F.3d 415, 428 (5th Cir. 2000), which applied the less stringent substantial-likelihood-of-harm test because, unlike Brown, no governmental interest was implicated.
Missouri Court Operating Rule 16 states that it “should not be interpreted to prohibit a juror whose term of service is complete from voluntarily disclosing his or her identity to media after the judge has discharged the jury.”
In In re Interest of T.T., 18 Neb. App. 176, 779 N.W.2d 602 (2009), the Nebraska Court of Appeals reversed a gag order entered by the Juvenile Court, which prohibited the juvenile’s parents from publicly disclosing information about the juvenile, including his medical information, in the context of public debate concerning Nebraska’s “Safe Haven” law. The Court of Appeals held that there is a “heavy presumption of unconstitutionality of a prior restraint on speech,” and that there was “no evidence proving imminent harm to T.T. of a magnitude that justifies a prior restraint on speech.” Id. at 198, 779 N.W.2d at 621. The parents were parties to the adjudication involving the juvenile.
District courts have issued gag orders on the parties and their attorneys in 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).
The parties and witnesses: In re NB, 169 N.H. 205 (2016) (prior restraint are presumptively unconstitutional).
In New Mexico, parties seeking gag orders must demonstrate a substantial likelihood of prejudice or clear and present danger to a fair and impartial trial. A court issuing a gag order also must first consider alternatives to less restrictive speech prohibitions than an outright ban on all communications with the media. Twohig v. Blackmer, 1996-NMSC-023, ¶ 17, 121 N.M. 746, 749, 918 P.2d 332, 335 (citing N.M. Const. art. II § 17; N.M. R. Prof’l Conduct 16-306). The court “may not use a gag order to silence a willing speaker unless it makes detailed factual findings supporting the existence of a compelling state interest and concludes that less restrictive alternatives would not advance that interest.” Albuquerque Journal v. Jewell, 2001-NMSC-005, ¶ 7, 130 N.M. 64, 67, 17 P.3d 437, 440.
Rule 1-026(C) NMRA specifically contemplates protective orders for the purpose of “limiting the discovery of a trade secret or other confidential research, development or commercial information” for “good cause.” Rule 1-026(C)(8). Likewise, Rule 1-045 authorizes the court to quash or modify a subpoena which “requires disclosure of a trade secret or other confidential research, development or commercial information.” Rule 1-045(C)(3)(b)(i). The New Mexico Supreme Court has specifically stated that the trial court has discretion to decline to order the production of trade secret information, even with a protective order, in instances where a recipient has previously made unauthorized disclosures of trade secrets in other cases. Pincheira v. Allstate Ins. Co., 2008-NMSC-049, ¶ 68.
In criminal matters, “extrajudicial statements of attorneys may be subject to prior restraint by a trial court upon a demonstration that such statements present a ‘reasonable likelihood’ of a serious threat to a defendant's right to a fair trial.” Fischetti v. Scherer, 44 A.D.3d 89, 93, 840 N.Y.S.2d 575 (2007). “An attorney acting as counsel in a legal matter may be prohibited from making extrajudicial statements which are likely to materially prejudice the case. In such instances, the attorney's First Amendment rights are overcome by concern for the parties' fair trial rights.” Id. The party seeking to impose such a prior restraint, however, bears a heavy burden. People v. Fioretti, 135 Misc. 2d 541, 542, 516 N.Y.S.2d 422, 422 (Sup. Ct. 1987) (emphasizing “heavy burden” of party seeking to enjoin opposing counsel from making public statements and the “strong presumption” against the “Constitutional validity” of such a prior restraint); see also Jane Doe No. 1 v. Zeder, 5 Misc. 3d 574, 782 N.Y.S.2d 349 (Sup. Ct., Onondaga Cnty., 2004) (rejecting defendant’s request for “gag order restraining the plaintiff and her counsel . . . from talking about, or distributing materials or documents concerning this case with any members of the media”).
In Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm'rs, 184 N.C. App. 110, 116, 645 S.E.2d 857, 861 (2007), the Court of Appeals found the gag order put in place by the trial court failed constitutional standards.
Trial courts may issue protective orders to gag criminal trial participants when their statements are reasonably likely to prejudice the defendant’s right to free trial or to create a “carnival atmosphere.” See State ex rel. E.W. Scripps Co. v. Stillwell, 10 Media L. Rep. 1380 (Ohio Ct. App. 1983). Such gag orders are unconstitutional when there are reasonable alternatives. Id.
The Ohio Rules of Criminal Procedure prohibit any obligation of secrecy—such as an oath—on grand jury witnesses. See Beacon Journal Publishing Co. v. Unger, 532 F. Supp. 55, 59 (N.D. Ohio 1982).
Ohio courts cannot completely prohibit juror communications about criminal cases without violating the First Amendment. See State ex rel. Cincinnati Post v. Court of Common Pleas of Hamilton Cty., 570 N.E.2d 1101 (Ohio 1991); see also State ex rel. Beacon Journal Publ’g Co. v. McMonagle, 8 Media L. Rep. 1927 (Ohio Ct. App. 1982) (holding that the court can encourage juror silence, but cannot prohibit jurors from speaking about a case).
The Ohio Supreme Court requires “specific, on the record findings” showing that a gag order is “essential to preserve higher values and is narrowly tailored to serve that interest.” State ex rel. Nat’l Broad. Co. v. Court of Common Pleas of Lake Cty., 556 N.E.2d 1120, 1125 (Ohio 1990) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)). The court also requires press representatives and representatives of the public have the chance to be heard on the subject. Id. (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n.25 (1982)). The court, however, need not hold a hearing to ban discussion of pending and impending court proceedings with court personnel. Id. In this context, the court does not consider attorneys court personnel. Id.
In attempting to narrowly tailor a gag order, the Ohio Supreme Court suggests courts look to the Code of Professional Responsibility as a guide. In re T.R., 556 N.E.2d 439, 455 n.13 (Ohio 1990). The Code restricts attorneys from speaking on evidence involved in the case, character and credibility of the witnesses, results of any test, opinions on the merits of the case, and any other matter that would interfere with a fair trial. Id.
In Collier v. Reese, 2009 OK 86, 222 P.3d 966, an order of the trial court sealing all polygraph–related documents in a civil assault and battery case and prohibiting the dissemination of polygraph information by anyone to anyone was overturned as an unconstitutional prior restraint. The court said that a gag order could withstand constitutional attack only if it was narrowly drafted to suppress only that speech that presented a clear and present danger of resulting in serious, substantial evil.
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 Rules of Conduct, which seeks to ensure an individual’s right to a fair trial. Commonwealth v. Lambert, 723 A.2d 684 (Pa. Super. 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.
In S.B. v. S.S., 243 A.3d 90 (Pa. 2020), the Pennsylvania Supreme Court held that a gag order against an attorney and a parent in a child custody case – an order that prevented them from “speaking publicly about the case in a manner that would identify the child involved” – did not violate their rights under the First Amendment and the Pennsylvania constitution. Id. at 100. Unlike the cases discussed above, where the governmental interest at stake was the right to a fair trial, in S.B., the interest was in “protecting the psychological well-being and the privacy of the child at the center of the custody dispute.” Id. at 94.
In S.B., “[t]he impetus for issuance of the gag order was Appellants’ online press conference, which contained a link to pleadings from the custody case, a transcript of Child’s testimony, and a copy of Child’s forensic interview, setting forth, in Child’s own words, detailed allegations of sexual abuse by Father, which the trial court had found did not occur.” Id. at 109. The child’s name was not used at the press conference, but the mother was named, making it easy for the community to deduce the child’s identity. Id. “The trial court found that ‘the disclosure of the identity of [Child] in this case is harmful and clearly not in his best interest as there is clearly the potential for curious parents, teachers and students in his school [characterized elsewhere as a small private school] to read this information, which could subject him to undue scrutiny, ridicule and scorn.’” Id. at 97, 110 (quoting and relying upon the trial court’s findings of fact).
The Pennsylvania Supreme Court held that the gag order on the child’s mother and her attorney “constitutes a content-neutral restriction on the matter by which Appellants may convey their public speech, which was imposed for the exclusive purpose of protecting the psychological well-being and privacy of Child, and was not intended to, and, indeed, does not restrict Appellants’ message.” Id. at 106. The court accordingly applied intermediate constitutional scrutiny, and it did not take into account the attorney’s ethical duties, as in the cases above.
Applying intermediate scrutiny, the court stated that “the justifications for the speech restrictions contained in the gag order are, without question, important and substantial, and that Child’s right to psychological and emotional well-being and privacy outweigh Mother and Counsel’s right to free speech.” Id. at 108. The court held that the gag order in the case “furthers an important governmental interest where there is a substantial likelihood that the restrained speech has harmed or will imminently harm the child” and that the order was narrowly tailored to that end. Id. at 110-11.
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.
In S.B. v. S.S., 243 A.3d 90 (Pa. 2020), discussed in detail in the preceding section relating to gag orders on attorneys, the Pennsylvania Supreme Court held that a gag order against an attorney and a parent in a child custody case – an order that prevented them from “speaking publicly about the case in a manner that would identify the child involved” – did not violate their rights under the First Amendment and the Pennsylvania constitution because the interest in the child’s “right to psychological and emotional well-being and privacy” were “important and substantial” and outweighed the attorney and parent’s right to free speech. Id. at 100, 108.
The Rhode Island Supreme Court has warned that “[w]hen issuing orders that may amount to a prior restraint on publication, we caution trial justices to follow the guidelines set forth in Nebraska Press and Cianci.” In re Court Order Dated October 22, 2003., 886 A.2d 342, 351 (R.I. 2005) (citing Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) and State v. Cianci, 496 A.2d 139 (R.I. 1985)). Rhode Island courts have relied on federal case law on this subject, following the Supreme Court’s statement that “‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity[.]’” State v. Berberian, 427 A.2d 1298, 1300 (R.I. 1981) (quoting Nebraska Press, 427 U.S. at 593).
The law regarding restrictive orders aimed at trial participants is less clear than that of orders aimed at the press. Generally, the consensus had been that courts have much broader power to limit what trial participants can say, compared to the press, about a case outside of court.
Gag orders on participants may be upheld due to the state interests in maintaining the integrity of the proceeding (trial or otherwise) and in protecting the constitutional rights of other participants, such as a defendant’s Sixth Amendment right to an impartial jury.
Recently, however, the Fourth Circuit has held that gag orders on trial participants are presumptively invalid. In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018). In a unanimous opinion, the court held that gag orders against trial participants are only valid when (i) there is a reasonable likelihood that a party would be denied a fair trial without the gag order, and the order actually operates to prevent the threatened danger; (ii) the order is the least restrictive means to protect that interest; and (iii) the order is narrowly tailored to serve its intended purpose. Id. Gag orders cannot be vague in outlining what is prohibited or to whom they apply.
See Argus Leader v. Miller, 610 NW2d 76 (SD 2000) (affirming gag order on trial participants).
Courts “may constitutionally restrict extrajudicial comments by trial participants, including lawyers, parties, and witnesses, when the trial court determines that those comments pose a substantial likelihood of prejudicing a fair trial.” State v. Carruthers, 35 S.W.3d 516, 563 (Tenn. 2000). In Carruthers, the gag order on participants, including the defendant who was pro se, was justified because of the “significant amount of media coverage” and “the problem of witness intimidation.” Id. “Under these unusual circumstances, the trial court was justified in employing heightened measures to ensure that a proper jury could be found and to prevent Carruthers from manipulating the media so as to intimidate witnesses.” Id. But “initial gag orders on trial participants should … allow trial participants to make general statements asserting innocence, commenting on the nature of an allegation or defense, and discussing matters of public record.” Id. at 564.
Gag orders are presumptively unconstitutional under the Texas Constitution, unless the court makes specific findings of fact supported by evidence that “(1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.” Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992). Davenport itself was a civil case, but the test has been applied to criminal cases as well. See In re Benton, 238 S.W.3d 587, 594 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
Thus, one Texas court of appeals ruled that a court’s order prohibiting jurors from speaking to the press about a trial that resolved in a settlement was unconstitutional. See In re Hearst Newspapers P’ship, L.P., 241 S.W.3d 190, 195–96 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding). That court reasoned that unless outweighed by a compelling interest, the press’s constitutional right “to gather news” includes the right to interview willing, discharged jurors. See id. Sufficient countervailing, compelling interests, which the court did not find present in Hearst, include “the need to protect the sanctity of jury deliberations, a juror’s right to privacy and to be free from harassment, or a defendant’s Sixth Amendment right to a fair trial.” Id.
Another Texas court of appeals ruled that a gag order against a defendant and defendant’s counsel was unconstitutional and an abuse of discretion where only one of the numerous public statements made by the defendant’s counsel was potentially prejudicial, but given the time between the statement and the scheduled trial, there was no substantial likelihood of material prejudice. See In re Benton, 238 S.W.3d at 599. That court acknowledged that, on facts indicating more serious, material prejudice, a gag order may be justified because of a defendant’s or his counsel’s public statements. See id. at 600.
More recently, a Texas court of appeals ruled that a gag order on the parties was unconstitutional because there were not facts supporting the order’s rationale. See In re Clendennen, No. 10-17-00390-CR, 2018 WL 1415558 (Tex. App.—Waco Mar. 21, 2018, orig. proceeding). In particular, the order did not reflect facts showing that public disclosure would inhibit the court’s ability to seat a fair and impartial jury, which was the order’s stated justification. See id. at *2; but see In re Houston Chronicle Publ’g Co., 64 S.W.3d 103, 108-09 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (finding that a gag order was not unconstitutional where the court took judicial notice of “the unusually emotional nature” of the case and the volume of media coverage).
No Utah authority specifically addresses gag orders on participants in a judicial proceeding. However, “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) (internal quotations omitted).
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).
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 orderpurporting 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).
A trial court order that forbids future communication is a prior restraint on the exercise of free speech that is presumptively unconstitutional. State v. Bassett, 128 Wn.2d 612, 615, 911 P.2d 385 (1996) (holding pretrial gag order against attorneys was unconstitutional prior restraint). Such a restriction is only permissible if the court finds at least a “reasonable likelihood that pretrial publicity will prejudice a fair trial.” Id. at 616.
The law regarding restrictive orders aimed at trial participants is less clear than that of orders aimed at the press. Generally, the consensus had been that courts have much broader power to limit what trial participants can say about a case outside of court. Recently, however, the Fourth Circuit has held that gag orders on trial participants are presumptively invalid. In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018). In a unanimous opinion, the court held that gag orders against trial participants are only valid when (i) there is a reasonable likelihood that a party would be denied a fair trial without the gag order, and the order actually operates to prevent the threatened danger; (ii) the order is the least restrictive means to protect that interest; and (iii) the order is narrowly tailored to serve its intended purpose. Id. Gag orders cannot be vague in outlining what is prohibited or to whom they apply.