Secret Justice:

Gag Orders
Gag orders related to criminal
trials kept Louisiana official
James Harvey Brown,
accused would-be-
bomber Sara Jane
Olson, and Terry
Nichols from talking
publicly about their
cases. A judge’s issuance of a
gag order is hardly
news these days, and
not many journalists
seem willing to
challenge them. But
the ease with which
they are obtained poses a
real threat to newsgathering,
and to the public’s
Spring 2001
understanding of the judicial
The Reporters Committee
For Freedom of the Press process.
 Secret Justice: Gag orders and the effect
A continuing series on newsgathering
The American judicial system has,
historically, been open to the public, By Ashley Gauthier First, the press may argue that it has
and the U.S. Supreme Court has con- Gag orders on trial participants have standing to assert its own rights to gather
tinually affirmed the presumption of become a significant threat to the First information. This argument is almost al-
openness. However, as technology Amendment protection for the press. News ways successful.
expands and as the perceived threat of organizations should make every effort to The Supreme Court has recognized that
violence grows, individual courts at- challenge even the most routine gag orders there is some newsgathering protection, al-
tempt to keep control over proceed- because they represent the slow but steady though the extent of the protection has yet
ings by limiting the flow of erosion of First Amendment rights. to be fully defined. In Branzburg v. Hayes,
information. Courts are reluctant to “They have the best chance of surviving the Court stated that it does “not question
allow media access to certain cases or review and are routinely upheld,” said C. the significance of free speech, press, or
to certain proceedings, like jury selec- Thomas Dienes, a professor at George assembly to the country’s welfare. Nor is it
tion. Courts routinely impose gag or- Washington University Law School and suggested that news gathering does not
ders to limit public discussion about author of “Trial Participants in the News- qualify for First Amendment protection;
pending cases, presuming that there is gathering Process.” without some protection for seeking out
no better way to ensure a fair trial. The proliferation of gag orders began the news, freedom of the press could be
Many judges fear that having cameras after a 1976 U.S. Supreme Court decision eviscerated.”
in courtrooms will somehow interfere in which the court ruled that an order In Journal Publishing Co. v. Mechem, the
with the decorum and solemnity of barring the press from publishing informa- U.S. Court of Appeals in Denver held that
judicial proceedings. Such steps, pur- tion about a criminal case was improper. a newspaper had standing to challenge a
portedly taken to ensure fairness, may Since then, courts have understood that gag order imposed on jurors. Specifically,
actually harm the integrity of a trial prior restraints on publication should not the court said, “Journal Publishing alleged
because court secrecy and limits on be imposed upon the press. Instead, they an injury in fact because the court’s order
information are contrary to the fun- impose prior restraints on the sources of impeded its ability to gather news, and that
damental constitutional guarantee of information, making an end-run around impediment is within the zone of interest
a public trial. the rule that the press itself generally can- sought to be protected by the First Amend-
The public should be the benefi- not be restricted. (Nebraska Press Association ment.” Other cases where courts have held
ciary of the judicial system. Criminal v. Stuart) that the press has standing to challenge a
proceedings are instituted in the name Courts have reasoned that prior restraints gag order on trial participants include Radio
of “the people” for the benefit of the on individual trial participants are some- & Television News Ass’n v. United States Dist.
public. Civil proceedings are available how less offensive than prior restraints on Ct. (9th Cir.); In re Express-News Corp. (5th
for members of the public to obtain media organizations. The effect, however, Cir.); CBS, Inc. v. Young (6th Cir.); Connect-
justice, either individually or on be- is similar. The flow of information to the icut Magazine v. Moraghan (D. Conn.); and
half of a “class” of persons similarly public is constricted. In the Matter of NBC, Inc. v. Cooperman
situated. The public, therefore, should Journalists often do not challenge gag (New York).
be informed — well informed — about orders on trial participants. Dienes said Although most courts believe that the
trials of public interest. The media, as journalists believe they can still “get the press has standing to challenge gag orders
the public’s representative, needs to story” because someone will voluntarily because of its right to gather news, some
be aware of threats to openness in violate the gag order or they can obtain courts have issued restrictive rulings. For
court proceedings, and must be pre- information from secondary sources. Jour- example, the U.S. Court of Appeals in Phil-
pared to fight to insure continued nalists also believe they can cover what adelphia (3d Cir.) ruled that the press would
access to trials. occurs in the courtroom and sacrifice inter- “have standing to challenge a gag order
In this series, the Reporters Com- viewing the people involved in the case. only when there is reason to believe that the
mittee takes a look at key aspects of To many lawyers, however, gag orders individual subject to the gag order is willing
court secrecy and how they affect the on trial participants quickly erode funda- to speak.” Arguably, this statement requires
newsgathering process. We will ex- mental First Amendment principles and the media to prove that the participant
amine trends toward court secrecy, present an ominous precursor to further would speak to the press if the gag order
and what can be done to challenge it. infringements on media rights. “And I think were lifted. (FOCUS v. Allegheny Cty. Ct. of
The first article in this indefinite it’s going to become much more repres- Common Pleas)
“Secret Justice” series, published in sive,” Dienes said. The Supreme Court of Michigan simi-
Fall 2000, concerned the growing larly imposed such a requirement, denying
trend of anonymous juries. This sec- Standing to challenge gag orders a newspaper’s ability to challenge a gag
ond installment covers gag orders on order when the newspaper failed to identify
participants in trials. Journalists could challenge the gag or- an specific “willing speaker.” (In re Detroit
ders. Courts generally accept that media Free Press)
This report was researched and writ- organizations or journalists have “stand- In re Detroit Free Press also calls into
ten by Ashley Gauthier, who is the 2000- ing” — a sufficient interest in the matter to question the assumption that the press has
2001 McCormick-Tribune Legal Fellow be allowed to make arguments to the court a broad right to gather news. Justice Corri-
at the Reporters Committee. — to challenge a gag order. However, not all gan denied the Free Press’ appeal of a gag
arguments to support standing are successful. order in a custody case and criticized the

PAGE 2 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2001
paper’s argument that the or- to find.” (CBS, Inc. v. Young)
der infringed on its rights: However, other courts
“Further, while the Free Press have rejected the argument
makes much of its special first that the press has standing to
amendment right to ‘gather argue that gag orders infringe
news,’ . . . it fails to acknowl- the free speech rights of trial
edge the rather limited scope participants. The U.S. Court
of this ‘right.’ It is axiomatic of Appeals in Miami (11th
that the press has no greater Cir.) found that “there is a
right to access information fundamental difference be-
than the public at large.” Jus- tween a gag order challenged
tice Corrigan reasoned that, if by the individual gagged and
the press’ right is equivalent one challenged by a third par-
to the right of the public, then ty.” Similarly, the U.S. Court
there is no special “freedom of Appeals in New York (2d
of the press” right to access Cir.) concluded that “the news
the information subject to the agencies may not assert de-
trial court’s gag order. fendants’ First Amendment
Justice Corrigan also stat- rights when defendants refuse
ed “there is no general First to challenge that infringement
Amendment ‘right to gather themselves.” (News-Journal
data,’ “ relying on Zemel v. Corp. v. Foxman (11th Cir.);
Rusk, a case in which the U.S. In re Dow Jones & Co., Inc. (2d
Supreme Court rejected a Cir.))
First Amendment claim raised
by a person denied a passport The importance of

AP PHOTO
to Cuba. The person alleged challenging gags
that he had a First Amend- While journalists often feel
ment right to travel to Cuba A far-reaching gag order imposed in 2000 in the California trial of that it is not worth the time,
to learn about its policies, but former Symbionese Liberation Army fugitive Sara Jane Olson effort or expense to challenge
the Court concluded that prevented parties, counsel and witnesses from discussing any a particular gag order, media
“[t]he right to speak and pub- issue in the case over an attempted car-bombing 25 years before. lawyers often agree that the
lish does not carry with it the It was later lifted after witness Patricia Hearst violated it. perceived “lack of worth” is
unrestrained right to gather exactly why journalists should
information.” Corrigan therefore conclud- Co., Powell, J., dissenting) challenge the orders.
ed that “a mere restriction on ‘data flow’ The press may also try to argue that it Gag orders allow courts to circumvent
does not raise serious First Amendment has standing to challenge the First Amend- the First Amendment, slowly eroding the
concerns.” (In re Detroit Free Press) ment rights of the speakers who have been freedom of the press in a much more subtle
However, Justice Corrigan’s reasoning silenced, but some courts are less persuaded manner than if they gagged the media di-
conflicts with many cases acknowledging by that argument. rectly. When the press fails to challenge an
that the public has a right to receive infor- The Supreme Court has indicated that individual gag order because the order
mation and that the media creates an effec- both speakers and listeners had an enforce- doesn’t seem important, it becomes anoth-
tive mechanism for the public to receive able right. The Court stated, “freedom of er brick in the wall. While each separate
that information. In Globe Newspaper Co. v. speech presupposes a willing speaker. But brick may not seem, in itself, to be a threat
Superior Ct., the U.S. Supreme Court noted where a speaker exists, as is the case here, to the flow of information, the collective
that the public has a right of access to the protection afforded is to the communi- wall will be.
information about judicial proceedings for cation, to its source and to its recipients Dienes, the law professor, contended
the sake of preserving our democracy. Then, both.” (Virginia State Bd. of Pharmacy v. that U.S. v. Brown in Lousiana exemplifies
in Gentile v. State Bar of Nevada, the Su- Virginia Citizens Consumer Council, Inc.) the encroachment of gag orders on First
preme Court recognized that most people Some courts have allowed the press to Amendment rights. “The Brown case in the
acquire information about court cases from challenge gag orders, following the notion Fifth Circuit is just terrible,” Dienes said.
the media. A Supreme Court Justice had that the listener has a right to hear a com- “It’s a gag on a criminal defendant, and it
previously noted, “An informed public de- munication. For example, the U.S. Court was challenged by the criminal defendant
pends on accurate and effective reporting of Appeals in Cincinnati (6th Cir.) ruled rather than the media, and it was still up-
by the news media. No individual can ob- that a gag order on trial participants consti- held.”
tain himself the information needed for the tuted “a direct prior restraint upon freedom The Brown case involved the prosecu-
intelligent discharge of his political respon- of expression.” The court noted that tion of former Louisiana Gov. Edwin Ed-
sibilities. For most citizens the prospect of “[a]lthough the news media are not directly wards and Louisiana Insurance
personal familiarity with newsworthy events enjoined from discussing the case, it is ap- Commissioner Jim Brown for alleged in-
is hopelessly unrealistic. In seeking out the parent that significant and meaningful surance fraud. Judge Edith Clement im-
news the press therefore acts as an agent of sources of information concerning the case posed a gag order on all trial participants,
the public at large. It is the means by which are effectively removed from them and their but Brown challenged the constitutionality
the people receive the free flow of informa- representatives .... A more restricting ban of the order, claiming that it violated his
tion and ideas essential to effective upon freedom of expression in the trial First Amendment right to free speech. The
self-government.” (Saxbe v. Washington Post context would be difficult if not impossible U.S. Court of Appeals in New Orleans (5th

SPRING 2001 SECRET JUSTICE: GAG ORDERS PAGE 3

Cir.) upheld the gag or-
der and did not apply the
strict scrutiny analysis Cases cited:
typical in a First Amend-
ment case. Instead, the Bailey v. Systems Innovation, Inc., 852
court upheld the gag or- F.2d 93 (3d Cir. 1988)
der based on a “substan- Branzburg v. Hayes, 408 U.S. 665
tial likelihood” that (1972)
publicity could prejudice Breiner v. Takao, 835 P.2d 637 (Ha.
the court’s ability to con- 1992)
duct a fair trial. There CBS, Inc. v. Young, 522 F.2d 234 (6th
were no specific factual Cir. 1975)
findings to support such Chicago Council of Lawyers v. Bauer,
a conclusion, and the 552 F.2d 242 (7th Cir. 1975)
court did not require an Connecticut Magazine v. Moraghan, 676
examination of less re- F. Supp. 38 (D. Conn. 1987)
strictive alternatives. FOCUS v. Allegheny Cty. Ct. of Com-
The court in Brown mon Pleas, 75 F.3d 834 (3d Cir.1996)
was apparently not con- Gentile v. State Bar of Nevada, 501 U.S.
cerned that Brown was a 1030 (1991)
sitting office-holder who Globe Newspaper Co. v. Superior Ct.,
was not able to comment 457 U.S. 596 (1982)
on his job performance In re Detroit Free Press, 620 N.W.2d 10
or duties of office pend- (Mich. 2000)
ing the outcome of the In re Dow Jones & Co., Inc., 842 F.2d
trial. Considering that 603 (2nd Cir. 1988)
political speech has al- In re Express-News Corp., 695 F.2d 807
ways been given the (5th Cir. 1982)
greatest protection un- In re Russell, 726 F.2d 1007 (4th Cir.
der the First Amend- 1984)
ment, it seems odd that In the Matter of NBC, Inc. v. Cooper-
the court would dismiss man, 501 N.Y.S.2d 405 (Ct. App.
Brown’s First Amend- 1986)
ment claims and impose Journal Publishing Co. v. Mechem, 801
the rather weak “substan- F.2d 1233 (10th Cir. 1986)
AP PHOTO

tial likelihood” test. Levine v. U.S. Dist. Ct., 764 F.2d 590
Surely, the indifference (9th Cir. 1985)
In a case involving charges against Louisiana official Nebraska Press Association v. Stuart,
to Brown — an office
James Harvey Brown, the Fifth Circuit found that gag
holder — as a speaker is a orders are constitutional if there is a “substantial” or even 427 U.S. 539 (1976)
harbinger of even more “reasonable” likelihood of an effect on a fair trial, a lower News-Journal Corp. v. Foxman, 939
restrictive rulings in the standard than other federal appeals courts use. F.2d 1499 (11th Cir. 1991)
future. People v.Fioretti, 516 N.Y.S.2d 422
cil of Lawyers v. Bauer; Levine v. U.S. Dist. (N.Y. Sup. 1987)
A split among circuits Ct.) Radio & Television News Ass’n v. United
Over time, a split has arisen among fed- Hawaii and New York have followed States Dist. Ct., 781 F.2d 1443 (9th
eral appeals courts on the standard for eval- this standard as well. (Breiner v. Takao; Cir. 1986)
uating a gag order on trial participants. The People v. Fioretti) Saxbe v. Washington Post Co., 417 U.S.
Second, Fourth, Fifth and Tenth Circuits The “clear and present danger” test is 843 (1974)
have held that a trial court may gag partic- more appropriate for analyzing a First Sioux Falls Argus Leader v. Miller, 610
ipants if it determines that comments Amendment claim, as it reflects the “strict N.W.2d 76 (S.D. 2000)
present a “reasonable likelihood” or “sub- scrutiny” standard applied in other First State ex rel. Missoulian v. Montana
stantial likelihood” of prejudicing a fair Amendment cases, such as Nebraska Press Twenty-First Jud. Dist. Ct., 933 P.2d
trial. (In re Dow Jones & Co.; In re Russell; Association. In the spring issue of Communi- 829 (Mont. 1997)
U.S. v. Brown; U.S. v. Tijerina) cations Lawyer magazine, Dienes argued that U.S. v. Brown, 218 F.3d 415 (5th Cir.
Some states have followed the same rule. the “substantial likelihood” standard used 2000)
(Sioux Falls Argus Leader v. Miller; State ex by the Fifth Circuit is grossly flawed and U.S. v. Ford, 830 F.2d 596 (6th Cir.
rel. Missoulian v. Montana Twenty-First Jud. will lead to further trammeling on free 1987)
Dist. Ct.) speech rights. “One can only hope that [the U.S. v. Tijerina, 412 F.2d 661 (10th
However, the Third, Sixth, Seventh and “substantial likelihood” test] merely reflects Cir. 1969)
Ninth Circuits have imposed a stricter stan- the extremely political context of the cases Virginia State Bd. of Pharmacy v. Vir-
dard, rejecting gag orders on trial partici- that spawned it,” Dienes wrote. “It should ginia Citizens Consumer Council, Inc.,
pants unless there is a “clear and present be expected that appellate courts will at 425 U.S. 748 (1976)
danger” or “serious and imminent threat” least use standards for justifying such or- Zemel v. Rusk, 381 U.S. 1 (1965)
of prejudicing a fair trial. (Bailey v. Systems ders that reflect the important First Amend-
Innovation, Inc.; U.S. v. Ford; Chicago Coun- ment interests at stake.”

PAGE 4 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2001
A survey of the law Fourth Circuit
In re Russell, 726 F.2d 1007 (4th Cir.
1984) (gag order on witnesses was valid).
The imposition of gag orders on trial First Circuit
participants is a relatively modern phe- In re Perry, 859 F.2d 1043 (1st Cir. 1988) Fifth Circuit
nomenon in the law. Below is a circuit-by- (gag order issued during administrative pro- U.S. v. Brown, 218 F.3d 415 (5th Cir.
circuit and state-by-state listing of cases ceeding and applicable to union organizing 2000) (trial court may impose gag order on
that have directly addressed the issue of gag efforts was improper under First Amend- trial participants based on substantial like-
orders on trial participants. Only about half ment standards). lihood that extrajudicial commentary will
of all states have directly addressed the issue undermine a fair trial).
in reported cases. Second Circuit
U.S. v. Salameh, 992 F.2d 445 (2nd Cir. Sixth Circuit
1993) (gag order that prevented any com- U.S. v. Ford, 830 F.2d 596 (6th Cir.
FEDERAL COURTS ments about the case invalid). 1987) (gag order invalid).
In re New York Times Co., 878 F.2d 67 CBS, Inc. v. Young, 522 F.2d 234 (6th
Supreme Court (2nd Cir. 1989) (gag order invalid). Cir. 1975) (vacating gag order).
Gentile v. State Bar of Nevada, 501 U.S. In re Dow Jones & Co., 842 F.2d 603 (2nd
1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 Cir. 1988) (affirming gag order where there
Seventh Circuit
(1990) (a restriction on attorney speech were findings of substantial likelihood that
Chicago Council of Lawyers v. Bauer, 552
could potentially be valid, although the fair trial would be prejudiced). F.2d 242 (7th Cir. 1975) (gag order invalid
specific restriction at issue was invalid). without serious or imminent threat to fair
Sheppard v. Maxwell, 384 U.S. 333, 86 Third Circuit trial).
S.Ct. 1507, 16 L.Ed.2d 600 (1966) (speech Bailey v. Systems Innovation, Inc., 852 Chase v. Robson, 435 F.2d 1059 (7th Cir.
can be restricted to avoid prejudice to fair F.2d 93 (3rd Cir. 1988) (vacating gag 1970) (gag order invalid without serious or
trial). order). imminent threat to fair trial).

How to challenge a gag order

Challenging a gag order does not has to say; and the reporter acts as a conduit Once the motion is filed, the court
need to be difficult, nor does it neces- to get information from the speaker to the should let you know when the hearing
sarily require an attorney. Of course, an public; will be held, and you may attend. Nor-
attorney would be able to prepare a 6. that the First Amendment provides mally, if the court has granted your mo-
motion to challenge a gag order easily, the speaker the right to speak freely and tion to intervene, you will be permitted
and an attorney would be familiar with provides the reporter some right to gather to speak at the hearing and explain your
the procedural requirements for filing a news; position.
motion. If you have access to an attor- 7. when the First Amendment rights are If you do not know about a gag order
ney, you should use one. But in an compared to the interest in a fair, impartial, until after it has been issued, you may still
emergency, a reporter at the court- and efficient trial, the First Amendment make a motion to intervene and ask the
house can challenge a gag order. rights should prevail because there is no court to repeal the gag order. The mo-
If you know that a party is seeking a proof that trial participants’ speech would tion would contain the same information
gag order before the order is actually harm the fairness, impartiality or efficiency as above, except that you would note that
imposed, a reporter can file a motion to of the trial; a gag order has already been imposed
intervene. The motion should note: 8. that less restrictive means should be rather than stating that a party is seeking
1. the name of the reporter; considered and employed before a gag or- a gag order.
2. the reporter’s employer (or, if the der is issued; and If you live in a jurisdiction that has
reporter is freelance, who would be 9. that the reporter (or the organization) case law applying a strict standard of
expected to publish the story); would like to intervene for the purpose of review to gag orders, you may note the
3. the fact that the reporter is filing contesting the proposed gag order. relevant case in your motion. Jurisdic-
the motion pro se; If you do not know what a motion should tions with favorable case law include fed-
4. that the reporter has learned that look like, peruse other court files to see eral courts in the First, Second, Third,
a party is seeking a gag order; samples of motions. A court clerk will not Sixth and Seventh circuits, and the fol-
5. the fact that the reporter has an give you legal advice or explain what a lowing states: California, Florida, Ha-
interest in the case. Specifically, the motion should contain, but usually will let waii, Kansas, Maryland, Massachusetts,
motion should say that the reporter has you look at public records and you can see New Mexico, New York, North Caroli-
an interest in gathering the news, which samples of what other people have filed. A na, Ohio and Texas. (A list of cases, both
includes speaking to the trial partici- motion usually contains the name and loca- favorable and unfavorable, can be found
pants; the reporter has an interest in tion of the court, the name of the case, the on the following pages.)
hearing what the speaker has to say; the title of the motion, and the name, address As always, if you would like additional
public has an interest in learning about and telephone number of the person filing information, call the Reporters Commit-
the case and hearing what the speaker the motion. tee hotline at 800-336-4243.

SPRING 2001 SECRET JUSTICE: GAG ORDERS PAGE 5

Eighth Circuit to challenge gag order on jurors). STATE COURTS
There are apparently no Eighth Circuit U.S. v. Tijerina, 412 F.2d 661 (10th Cir.
cases directly addressing the merits of gag 1969) (gag order did not violate defendants’
orders on trial participants. rights of free speech). Alaska
In re Dissolution of Marriage of Alaback,
Ninth Circuit Eleventh Circuit 997 P.2d 1181 (Alaska 2000) (gag order
Levine v. U.S. Dist. Ct., 764 F.2d 590 The News-Journal Corp. v. Foxman, 939 acceptable when it’s in the “best interests of
(9th Cir. 1985) (gag order overbroad; but F.2d 1499 (11th Cir. 1991) (collateral fed- the child”).
note that second gag order, revised after eral court challenge of gag order issued by
remand, was upheld in Radio & Television state court dismissed for lack of jurisdic- Arizona
News Assoc. v. U.S. Dist. Ct., 781 F.2d 1443 tion). KPNX Broadcasting v. Superior Court In
(9th Cir. 1986)). and For Maricopa County, 678 P.2d 431
D.C. Circuit (Ariz. 1984) (gag order limiting direct con-
Tenth Circuit There are apparently no D.C. Circuit tact to media and establishing a “media
Journal Pub. Co. v. Mechem, 801 F.2d cases directly addressing the merits of gag liaison” for the trial was valid method of
1233 (10th Cir. 1986) (media had standing orders on trial participants. preserving fair trial).

Good judges, denying gags

By Ashley Gauthier case, fearing it would lead to “frenzied violate its First Amendment right to gath-
Gag orders may sometimes seem like media interest.” Circuit Judge Timothy er news.
an inevitable part of a reporter’s life. In McCarthy denied the request and quipped, In 1995, Circuit Judge Robert Young,
hundreds of cases — high profile or not “you should have been here during the in Bartow, Fla, denied a gag order in the
— judges routinely issue gag orders in election.” case of a man accused of sodomizing and
the name of “preserving a fair trial” or Martin Reeder, an attorney for the Palm smothering to death an 8-year-old boy.
“ensuring an untainted jury pool.” In Beach Post, attended the hearing in West The judge held that “the record before
fact, a computer search turned up hun- Palm Beach and told the Reporters Com- the court does not yet show the kind of
dreds of cases in which gag orders were mittee that the judge did not believe it was pervasive and vilifying publicity which
issued, but in about 25 instances judges necessary to issue a gag order when the would justify the Draconian measures
denied a request to gag the participants. parties could, on their own initiative, sim- sought” by the defendant. The judge
Usually, judges issue gag orders be- ply refuse to answer questions from the cautioned the lawyers to comply with the
cause a criminal defendant has a Sixth press. The judge did not feel obligated to ethical rules regarding pretrial publicity,
Amendment right to a fair trial and the formally endorse the parties’ decision to but rejected the request to place a gag
judge fears that pre-trial publicity will avoid publicity, Reeder said. order on the sheriff’s officials who stated
jeopardize that right. However, gag or- Another recent case in Orlando, Fla., that “the public has a right to know what’s
ders should be imposed only when there involved the divorce of a descendant of going on.”
is a compelling reason — such as when John D. Rockefeller. A great-great-grand- Circuit Judge Richard Tombrink Jr.
the right to a fair trial is imminently son, George O’Neill, sought a gag order denied a gag order in a contentious 1994
threatened — and when no less restric- after his wife Amy O’Neill granted an inter- lawsuit between the Hernando County
tive means could prevent harm. A judge view to Vanity Fair magazine. Orange Coun- School Board and a contractor. The
has many less restrictive alternatives to ty Circuit Judge Jay Cohen denied the gag school board accused the contractor of
choose from, including extensive voir order, although he cautioned the parties shoddily constructing two schools, and
dire, changes of venue and admonish- that media attacks on each other could the contractor accused the school board
ments to the jury to stay away from news backfire when the court determines who of using news coverage to influence the
reports. Nevertheless, many judges gets custody of their children. outcome of the case. The judge denied
choose to impose gag orders. In 1997, Circuit Judge Sherra Winesett the gag order, apparently agreeing with
Judges in at least eight states have denied a gag order in a sexual abuse case arguments that the news coverage came
diverged from the common practice of brought in Punta Gorda, Fla., against a from regular school board meetings.
issuing gag orders. The small number of Catholic priest and the local diocese. The Gagging the parties would have not only
them make the decisions of these mem- church’s attorneys asked for a gag order, limited access to the public trial but also
bers of the bench noteworthy. but the judge ruled that there was no evi- to school board decisions.
The largest number of gag order de- dence of a “reasonable likelihood of preju- Gainesville Circuit Judge Stan Morris
nials found in our search was from Flor- dice.” Winesett reminded the lawyers to denied a gag order in the notorious 1992
ida. follow the ethical rules pertaining to pretri- case of Danny Rolling, who was charged
The most recent example involved al publicity. with killing five students. In asking for a
Kathie Lee Gifford’s lawsuit against the Similarly, in 1996, Circuit Judge Donald gag order, Rolling’s attorney said there
National Examiner. The Examiner claimed Pellecchia denied a gag order sought in the had already been massive media coverage
that Gifford’s 10-year old son was a “mon- murder case against Jason Simons because of the case and the defendant’s right to a
ster,” and Gifford sued for libel. he found no factual basis to support it. The fair trial was compromised. However,
Gifford sought a gag order barring the Sarasota Herald-Tribune had intervened in the judge ruled that the request was “too
parties from speaking publicly about the that case and argued that a gag order would broad and premature.”

PAGE 6 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2001
Arkansas Florida Illinois
Arkansas Democrat-Gazette v. Zimmer- Rodriguez ex rel. Posso-Rodriguez v. Fein- In re J.S., 640 N.E.2d 1379 (Ill.App.
man, 20 S.W.3d 301 (Ark. 2000) (gag order stein, 734 So.2d 1162 (Fla.App. 1999) 1994) (gag order acceptable to protect pri-
was too broad). (gag order invalid where the court made vacy of minor victim).
no findings that it was necessary to ensure
California a fair trial and where the judge had not Indiana
Hurvitz v. Hoefflin, 101 Cal.Rptr.2d 558 narrowly tailored the order to preclude South Bend Tribune v. Elkhart Circuit
(Cal.App. 2000) (gag order impermissible; only extra-judicial statements that are sub- Court, 691 N.E.2d 200 (Ind.App. 1998)
victim’s privacy is insufficient reason to stantially likely to materially prejudice (gag order acceptable where court found
impose gag order). the trial). that there was a reasonable likelihood that
publicity would prejudice murder trial).
Connecticut Hawaii
State v. Grant, 1999 WL 773567 Breiner v. Takao, 835 P.2d 637 (Ha. Kansas
(Conn.Super. 1999) (gag order too broad; 1992) (gag order invalid where court failed State v. Alston, 887 P.2d 681 (Kan. 1994)
should prohibit only statements that raise a to find serious threat to right of fair trial or (gag order invalid where judge did not
“reasonable likelihood of prejudicial impact”). consider other alternatives). make requisite finding of necessity).

Arizona judges also seem to give con- not as they see fit. They cannot, however, with killing a gay black man. Circuit
sideration to First Amendment concerns. ask the court to take over their public rela- Judge Rodney Merrifield said, “I have
Gag orders were denied in two high- tions work by entering a prior restraint not and will not issue a gag order.” Mer-
profile cases last year. order gagging all parties and their counsel,” rifield also met with reporters to explain
Special Master Eino Jacobson refused he wrote. trial procedure and rules for attending
to issue a gag order in a fight between In 1993, Maricopa County Judge John the trial.
large utility companies. Southwest Gas Sticht twice denied a gag order in a lawsuit In Atlanta, Georgia, last October, the
and Southern Union Co. were parties in between two state employees. Donna Beletz murder trial of Wesley Harris was kept
a Phoenix lawsuit over the control of alleged that she was fired from her job with open. Superior Court Judge Melodie Snell
Southwest Gas. Attorneys for Southwest the Department of Education because she Conner allowed the media to attend the
Gas sought a gag order because someone would not do campaign work on state time trial and refused to enter a gag order,
was anonymously posting information for Superintendent of Public Instruction C. despite requests from defense counsel.
about the case on the Internet and be- Diane Bishop. Bishop’s lawyers contended In Beaumont, Texas, a lawsuit was
cause Southern Union had issued press that Beletz gave discovery information to filed in federal court against Compaq
releases about the case. Southwest Gas the media and requested a gag order. Sticht Computer that alleged the company
was particularly concerned about the refused to issue an order and also refused to knowingly made computers with a flaw
release of discovery information to the seal the depositions. that might corrupt data stored on disks.
public. Gag orders were denied in other high- Compaq sought a gag order restricting
Jacobson noted that discovery infor- profile cases in other states: all public statements about the case, but
mation is generally not protected by the In California, the Cannabis Buyer’s Club U.S. District Judge Thad Heartfield de-
First Amendment, but he nevertheless case, which was argued before the U.S. nied the request.
ruled that one must still show “good Supreme Court this term, was initially filed Finally, in 1997, a judge in New York
cause” before imposing a prior restraint in Alameda County Superior Court in Oak- denied a gag order sought by defense
on the media or preventing the parties land. The attorney general sought a gag counsel in a burglary case. The defense
from discussing the case. Jacobson ruled order claiming that pretrial publicity could lawyer argued that the prosecutor was
that no “good cause” was shown and prejudice potential jurors. However, Judge speaking to the media to drum up public
therefore refused to issue the gag order. Larry Goodman denied the gag order be- support for a severe sentence. The lawyer
Another recent case in Phoenix in- cause there was no evidence of any preju- asked the judge to impose a gag order on
volved the death of Arizona State Uni- dice to the jury pool. The judge also noted the prosecutor. Nassau County Judge
versity student John Jardine IV. Jardine’s that the attorney general had publicized the Paul Kowtna reasoned that a judge may
family sued various defendants, claiming case, which perhaps weakened the attorney not issue a prior restraint unless there is
that Jardine died because he was hand- general’s plea. a “showing of necessity for such restraint.”
cuffed and suffocated during an epileptic A Bentonville, Arkansas, judge denied a The judge found that there was no reason
seizure. Newspapers had written exten- gag order in the case against Davis Carpen- for a gag order because there had been no
sively about the case and the ABC pro- ter for murder and rape. Carpenter and his “public clamor” against the defendant.
gram “20/20” taped a segment discussing lover, Joshua Brown, were arrested for rap- Furthermore, the judge correctly noted
the incident. The defendants sought a ing and killing a 13-year-old boy. Brown that the sentencing would be determined
gag order to prevent the Jardine family admitted to the crimes, but claimed Car- by a judge, and the Rules of Judicial
from speaking to the media, but Judge penter forced him to do it. Circuit Judge Conduct require a judge to make deci-
Barry Schneider denied the request. David Clinger denied a gag order that would sions without regard to partisan interest,
The family’s attorney claimed in mo- have prevented all parties from speaking to public clamor, or fear of criticism. The
tion papers that the defendants were seek- the media about the case. judge therefore believed that the prose-
ing a gag order as an excuse to not talk to Similarly, a West Virginia judge in Fair- cutor’s efforts would not make a differ-
the media about the case. “Defendants mont denied a gag order in the August 2000 ence. The case, People v. Hepworth, was
can either respond to (media) inquiries or murder trial of two 17-year-olds charged reported in the New York Law Journal.

SPRING 2001 SECRET JUSTICE: GAG ORDERS PAGE 7

 Ohio
State Ex Rel. Nat’l Broad-
casting Co., Inc. v. Court of Com-
mon Pleas, 556 N.E.2d 1120
(Ohio 1990) (gag order invalid
without specific findings dem-
onstrating that gag order is
necessary to preserve compel-
ling interest and is narrowly
tailored to serve that interest).

Pennsylvania
Commonwealth v. Carter,
643 A.2d 61 (Pa. 1994) (pre-
trial publicity was entitled to a
presumption of prejudice, but
there was no need for a gag
order when there was a 15-
month “cooling off” period be-
tween prejudicial newspaper
articles and trial).

South Dakota
Sioux Falls Argus Leader v.
Miller, 610 N.W.2d 76 (S.D.
2000) (gag order did not vio-

AP PHOTO
late First Amendment).

In November 1994, the U.S. Court of Appeals in Washington, D.C., not only denied The Wall Street
Tennessee
Journal access to a final report by Whitewater special counsel Robert Fiske, above, but it also State v. Hartman, 703
barred the newspaper from reporting that access had been denied. The court lifted the prohibition S.W.2d 106 (Tenn. 1985) (gag
a month later when it unsealed the order. The Journal did not know whether such a report existed, order on attorneys was accept-
but assumed Fiske filed one when he was replaced by Kenneth Starr. able where judge was con-
cerned about effect of
Maryland New Mexico statements on prospective jurors).
Keene Corp. v. Abate, 608 A.2d 811 Albuquerque Journal v. Jewell, 17 P.3d
(Md.App. 1992) (gag order on litigant ad- 437 (N.M. 2001) (gag order was procedur- Texas
vertising was unconstitutional; cannot ban ally deficient). Davenport v. Garcia, 834 S.W.2d 4
speech unless there is a grave danger to a Twohig v. Blackmer, 918 P.2d 332 (N.M. (Tex. 1992) (gag order unconstitutional
fair trial). 1996) (gag order invalid where there was no in civil case where there was no finding
factual foundation for finding a substantial of imminent harm).
Massachusetts likelihood of prejudice or clear and present
Clermont v. Sheraton Boston Corp., 1993 danger to an impartial trial). Vermont
WL 818763 (Mass.Super. 1993) (gag order State v. Schaefer, 599 A.2d 337 (Vt.
denied where there was no showing that New York 1991) (order prohibiting lawyers and
statements to media would prejudice trial). People v. Buttafuoco, 599 N.Y.S.2d 419 law enforcement officers from comment-
(N.Y. Co. Ct. 1993) (an order directing ing on merits of case was unjustified
Michigan attorneys to comply with ethical rule re- without finding that officers and lawyers
In re Midland Pub. Co., Inc., 362 N.W.2d garding pretrial publicity is not a “gag or- would make improper disclosure absent
580 (Mich. 1984) (gag orders on defendant, der”). the order).
victim, counsel and court personnel are New York Times Co. v. Rothwax, 533
permissible). N.Y.S.2d 73 (N.Y.A.D. 1988) (gag order Virginia
was improper without factual showing of Commonwealth v. Starkey, 1992 WL
Montana necessity). 884421 (Va. Cir.Ct. 1992) (court or-
State ex rel. Missoulian v. Montana Twen- People v. Fioretti, 516 N.Y.S.2d 422 (N.Y. dered that prosecutors and other law
ty-First Jud. Dist. Ct., 933 P.2d 829 (Mont. Sup. 1987) (gag order may be upheld only enforcement avoid comments on defen-
1997) (before issuing a gag order, the court if it is clearly established that there is a dant and case, admonishing them to
must find that there is a substantial proba- serious and imminent threat to a fair trial comply with ethical rule regarding pre-
bility of harm to the trial). and order is narrowly drawn). trial publicity).

New Jersey North Carolina Washington

Matter of Hinds, 449 A.2d 483 (N.J. 1982) Sherrill v. Amerada Hess Corp., 504 S.E.2d State v. Bassett, 911 P.2d 385 (Wash.
(rejecting “clear & present danger” test in 802 (N.C. App. 1998) (gag order was un- 1996) (gag order invalid because it was
favor of “reasonableness” test for restric- constitutional; no evidence that there was overbroad; may only restrict statements
tions on attorney speech about a trial). prejudice to fair trial). that threaten a fair trial).

PAGE 8 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2001