By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee
Delicate in neither name nor use, gag orders are becoming the judiciary’s favored means for controlling publicity about court proceedings.
Though gag orders take many forms, the most common is a trial judge’s order prohibiting the participants in a case — the parties, lawyers, law enforcement officials and witnesses — from talking to the news media. Although such orders infringe on the First Amendment rights of the persons gagged and of the media, the judges issuing and upholding them claim they are necessary to preserve parties’ rights to a fair trial.
The U.S. Supreme Court expressly approved gag orders on trial participants in 1966 in Sheppard v. Maxwell. In Sheppard, the Court ordered that Sam Sheppard, a physician convicted of murdering his wife, be released from custody because the massive publicity surrounding his case had denied him his Sixth Amendment right to a fair trial. In its opinion, the Court recognized gag orders as a legitimate means of controlling pretrial and trial publicity and criticized the Sheppard trial judge for not gagging the participants in that case. The Court, however, did not announce any standards for imposing gag orders. As a result, lower courts today do not apply a uniform test when deciding whether to enter gag orders. In some jurisdictions, gag orders are allowed when a “reasonable likelihood” of prejudice to a party exists without the order. In others, a “substantial likelihood of material prejudice” is needed. And in others, a gag order cannot be imposed unless a “serious and imminent threat” exists to a fair trial.
Even in cases in which gag orders have not been entered, attorneys in most states are gagged by bar-association disciplinary rules. In 1991, the U.S. Supreme Court, by a 5-4 vote, held in Gentile v. State Bar of Nevada that lawyers participating in a pending case can be prohibited from making statements that have a “substantial likelihood of materially prejudicing” the case. According to the Court, it is constitutionally permissible to subordinate the First Amendment rights of attorneys participating in a pending case to a party’s interest in obtaining a fair trial. Despite the fact that the Court also held that the “substantial likelihood” standard fairly balanced the competing interests at stake, some lower courts have upheld a lesser standard for regulating attorney speech, one that requires only a “reasonable likelihood” of prejudice.
An area of increasing attention is gag orders imposed on jurors. While courts are divided on the issue, the trend of more recent decisions is to allow trial judges to prohibit (1) news interviews with jurors about jury deliberations, (2) inquiries about specific votes or comments of jurors other than the juror being interviewed, and (3) repeated requests for interviews after a juror has expressed a desire not to be interviewed. The legal support for such orders is questionable, as the state’s interest in a fair trial seemingly is not prejudiced by news-media contact with jurors after the trial is completed.
By statute or court rule, gag orders are often placed on grand jury participants. Under the Federal Rules of Criminal Procedure, grand jurors, court reporters and government attorneys are prohibited from disclosing information they learn while conducting grand jury business.
Some states go further and prohibit grand jury witnesses from disclosing their testimony. In Butterworth v. Smith, the Supreme Court in 1990 ruled that Florida could not prohibit grand jury witnesses from discussing their testimony after the grand jury investigation was terminated. In 2003, the 10th U.S. Circuit Court of Appeals held in Hoffman-Pugh v. Keenan that the Butterworth decision did not prevent Colorado from forbidding grand jury witnesses to disclose information they gained through their grand jury participation, such as the questions that were asked and the specific answers given. Under Butterworth, however, witnesses cannot be prohibited from disclosing information they knew before they testified.
No question exists about the high standard that must be satisfied before a gag order can be imposed on the news media. Before a judge can prohibit the press from publishing information lawfully obtained, he or she must conduct a hearing and consider the nature and extent of the pretrial news coverage, whether other measures less restrictive than a gag order would mitigate the effects of unrestrained pretrial publicity, and whether a gag order would be effective in preventing the threatened danger.
This test, first announced in Nebraska Press Association v. Stuart, is designed to be almost impossible to satisfy and is consistent with the heavy burden the government must meet in other prior-restraint cases (see separate topic section). A gag order on the media, courts have held, is a last resort that can be considered only after other measures available to ensure a fair trial — such as a change of venue, sequestration of the jury, extensive questioning of potential jurors, postponement of the trial, emphatic jury instructions and gag orders on trial participants — are found inadequate to protect the parties’ rights.