Gag Orders in Judicial Proceedings

Gag orders are judicial commands that restrict the media’s right to publish stories about a case or a trial participant’s right to talk about the case outside the courtroom. The Supreme Court in Sheppard v. Maxwell, 384 U.S. 333 (1966), endorsed gag orders as a tool for combating prejudicial publicity, but media gag orders have rarely been used since 1976, when the Court in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), held that they are a form of prior restraint and presumptively unconstitutional. The Court ruled that media gag orders should be used only in exceptional circumstances; in order to issue such an order, a judge must show that the nature and extent of the publicity would jeopardize a fair trial, that the proposed gag order would be effective, and that there are no less restrictive alternative measures available to prevent the harm (such as change of venue, continuance, or jury sequestration).

After Nebraska Press Association, judges turned to more indirect ways to prevent prejudicial publicity by issuing gag orders limiting the out-of-court statements of parties, attorneys, witnesses, police officers, and other trial participants for the duration of the trial. The Supreme Court has not specifically addressed the constitutionality of participant gag orders, although in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), the Court ruled that out-ofcourt statements by attorneys may be punished after the fact if it can be shown that the statements posed ‘‘a substantial likelihood’’ of materially prejudicing a trial. The case involved not a gag order but a state ethics rule that barred attorneys from making prejudicial statements outside the courtroom. In finding that the rule’s ‘‘substantial likelihood of material prejudice’’ standard was a constitutionally permissible balance between an attorney’s free speech rights and a defendant’s right to a fair trial, the Court indicated that attorneys may enjoy reduced speech rights as officers of the court.

In the absence of clear guidance from the Supreme Court, no consensus exists among lower courts about the constitutionality of participant gag orders, nor even about the constitutional standard that should be used to examine them. Some courts have extended the reasoning of Gentile and allowed the imposition of participant gag orders in criminal and civil trials as long as the judge finds a ‘‘substantial’’ or ‘‘reasonable’’ likelihood of prejudice without them. Other courts have applied strict scrutiny, requiring a showing that the publicity represents a ‘‘clear and present danger’’ or ‘‘serious and imminent threat’’ to the fairness of the proceedings for a gag order to be imposed.

Lower courts are divided on whether participant gag orders violate the First Amendment rights of the press and public as recipients of speech. The Supreme Court has recognized some constitutional protection for newsgathering, and lower courts have generally granted standing to the media to challenge participant gag orders. Courts are split, however, on whether participant gag orders constitute a prior restraint on the media and whether the media can assert trial participants’ First Amendment rights when those directly affected have not challenged the gag order.

KATHLEEN K. OLSON

References and Further Reading

• Bernabe–Riefkohl, Alberto, Prior Restraints on the Media and the Right to a Fair Trial: A Proposal for a New Standard, Kentucky Law Journal 84 (1995/1996): 259–316.
• Chemerinsky, Erwin, The Sound of Silence: Reflections on the Use of the Gag Order: Lawyers Have Free Speech Rights, Too: Why Gag Orders on Trial Participants Are Almost Always Unconstitutional, Loyola of Los Angeles Entertainment Law 17 (1997): 311–331.
• Swartz, Michael E., Trial Participant Speech Restrictions: Gagging First Amendment Rights, Columbia Law Review Journal 90 (1990): 1411–1444.
• Todd, Rene L., A Prior Restraint by Any Other Name: The Judicial Response to Media Challenges of Gag Orders Directed at Trial Participants, Michigan Law Review 88 (1990): 1171–1208.

Cases and Statutes Cited

• Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)
• Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)
• Sheppard v. Maxwell, 384 U.S. 333 (1966)

See also Clear and Present Danger Test; Disciplining Lawyers for Speaking about Pending Cases; Free Press/Fair Trial; Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); Media Access to Judicial Proceedings; Nebraska Press Association v. Stuart, 427 U.S. 539 (1976); Prior Restraints; Standing in Free Speech Cases