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© 2016 - U.S. Legal Forms, Inc USLegal Pamphlet on Gag Orders I NTRODUCTION A gag order is type of order. It can either be a legal order by a court or government, or a private order by an employer or other institution, restricting information or comments from being made public. Judges often call gag orders "protective orders," and say they are necessary to protect a person's right to a fair trial, the fair administration of justice or the sanctity of jury deliberations. It can also be called a suppression order or prior restraint order. Because of the important First Amendment rights of free speech involved, gag orders must be the least restrictive means to protect the interests involved. Most, gag orders are used against participants involved in a lawsuit or criminal trial especially when it is a widely publicized or sensational case. It is also used to prevent media from publishing unwanted information on a particular topic. For example a criminal court can issue a gag order for the media if it believes that potential jurors will be influenced by the media reporting. In a widely-publicized or sensational case, the court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses likely to interfere with the rights of the accused to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters that the court may deem appropriate for inclusion in such an order. In such cases, it may be appropriate for the court to consult with representatives of the news media concerning the issuance of such a special order. T RIAL P UBLICITY If the interest asserted is the right of the parties to a fair trial, courts generally have required at a minimum that there be a showing that there is real and demonstrable risk that prejudicial publicity will make it difficult to impanel an impartial jury or impermissibly taint the trier of fact. Courts have prevented trial participants from speaking with the press to prevent prejudicing court proceedings. For example, the U.S. Court of Appeals in New Orleans (5th Cir.) affirmed a gag order prohibiting all trial participants from giving any public comments to the media other than matters of public record in a case involving the elected Louisiana Insurance Commissioner, James Harvey Brown, and the former Governor of Louisiana, Edwin W. Edwards. The court stated "that the gag order is constitutionally permissible because it is based on a reasonably found substantial likelihood that comments from the lawyers and parties might well taint the jury pool . . . is the least restrictive corrective measure available to ensure a fair trial, and is sufficiently narrowly drawn." Judges also may be able to control media’s contact with trial participants. For instance, a judge in one case ordered that all court personnel, counsel, witnesses and jurors refrain from speaking directly to the media during the trial. Contact was to be channeled through a court- appointed liaison. Courts even have prohibited interviews of jurors after the trial has ended. Comments by lawyers have been restricted. Several courts have ruled that such orders may prohibit lawyers’ statements on topics such as evidence to be introduced, the merits of the opponent's case and testimony future witnesses are expected to give. A total ban on lawyers' comments, however, would be unconstitutional. C HALLENGING A G AG O RDER Common grounds for contesting a gag order include that the court did not consider alternative, less restrictive measures, and did not narrowly tailor its order to achieve its objectives. Courts have consistently recognized that gag orders infringe upon the public's important constitutional interest in the free flow of information. In a challenge to a gag order, it may be argued that free speech rights outweigh the remote possibility that any further public comment by the attorneys, parties, witnesses, law enforcement agents, prosecutors, or others associated with the case might taint the jury pool or prejudicially affect the outcome of the proceedings. It may also be argued that the court should consider reasonable alternatives to a blanket gag order, and, if a gag order is imposed, it should be narrowly tailored. In some cases, it may be claimed that a blanket gag order will serve only to undermine the public's understanding of the judicial proceedings, by silencing the most reliable sources of information about the case. Although most courts believe that the press has standing to challenge gag orders because of its right to gather news, some courts have issued restrictive rulings. For example, the U.S. Court of Appeals in Philadelphia (3d Cir.) ruled that the press would "have standing to challenge a gag order only when there is reason to believe that the individual subject to the gag order is willing to speak." This statement appears to require the media to prove that the participant would speak to the press if the gag order were lifted. (FOCUS v. Allegheny Cty. Ct. of Common Pleas, 75 F.3d 834 (3d Cir.1996)) Federal appeals courts are divided on the standard for evaluating a gag order on trial participants. The Second, Fourth, Fifth and Tenth Circuits have held that a trial court may gag participants if it determines that comments present a "reasonable likelihood" or "substantial likelihood" of prejudicing a fair trial. Some states have followed the same rule. However, the Third, Sixth, Seventh and Ninth Circuits have imposed a stricter standard, rejecting gag orders on trial participants unless there is a "clear and present danger" or "serious and imminent threat" of prejudicing a fair trial.