When Silence Isn’t Golden: How Gag Orders Can Evade First Amendment Protections
When O.J. Simpson came up for parole in the summer of 2017, 13 million viewers watched over eight different networks, ranging from ESPN to NBC to local Los Angeles news, with more watching via livestreams. People followed what was happening inside the courtroom with the same attention and eagerness that they would exhibit in watching one of O.J.’s football games, and the news media stoked that interest. This was no anomaly—trials, especially criminal trials, have always garnered attention. Whether it’s Serial recounting a murder investigation or a celebrity trial broadcast across the internet, courtrooms are places of drama, and the media knows and follows that. But trials must be conducted at law, rather than in the press, and courts sometimes feel the need to assert control of the outflow of information around judicial matters to preserve the fair trial rights of litigants. One way courts control information outflow is by entering gag orders.
Gag orders typically forbid individuals from talking about, publishing, or disseminating specified information. They can be imposed on parties to litigation to stop them from talking to the press, or on the press itself to stop it from publishing certain information.
Gag orders implicate the public’s and litigants’ First Amendment rights. On the one hand, they threaten the public’s First Amendment’s right of access to the courtroom. A courtroom is a presumptively open space. In the 1980s, over a series of cases, the Supreme Court declared a First Amendment-based right of access to the courtroom—Americans have a right to know what is going on in their courts.
Beyond this right to judicial openness, however, gag orders also function as prior restraints on speech. Prior restraints—judicial orders that proactively prohibit people from talking, rather than allowing for after-the-fact litigation over what was said—are presumptively unconstitutional. Not allowing a broad swath of speech is antithetical to the First Amendment—and further, such an approach is generally overbroad, because speech at the edges of the gag order might be chilled. This is in contrast to a post-trial defamation suit against that newspaper for what it published about the trial, which allows for more procedural protections and less chilling, and is therefore less susceptible to scrutiny under the First Amendment.
However, courts must also account for a countervailing constitutional right: the right to a fair trial. Media reporting can influence the jury pool, change witness testimony, or simply make for a chaotic courtroom. It can be harmful for minors or other crime victims that don’t want to talk about their experiences openly. It can impede discovery if the materials at stake concern trade secrets or commercial information. Judges have a constitutional responsibility to prevent these harms if they can. The Supreme Court has recognized that a judge can and must do what is necessary to control their own courtroom and keep it from devolving into chaos.
The occasionally competing First Amendment and fair-trial interests have to be weighed against one other when it comes to gag orders. Balancing the considerations requires conducting a fact-specific inquiry, depending on the exact gag order—what it’s protecting, who it restricts, and what the realities of the trial are.
In the 1976 case Nebraska Press Association v. Stuart, the Supreme Court created a three-part test to evaluate the constitutionality of a gag order that stopped a newspaper from publishing any confessions an accused murderer made to law enforcement: whether the publicity would harm the defendant’s right to a fair trial, whether the gag order is the least restrictive means possible to ensure that fairness, and whether the gag order will be effective. Requiring a gag order to satisfy each condition, the Court said, would ensure that both the First Amendment and the Sixth Amendment would be respected.
Apply the test, however, is not that simple. For one, the test in Nebraska Press Association was constructed with prior restraints on the media itself in mind, but a number of gag orders are on parties to the litigation, not the media, and forbid lawyers, parties, or witnesses from talking to the press. Because a gag order on the parties does not affect the media’s right of access, and is narrower than a blanket gag order on all the media, it’s considered a less restrictive means of protecting fair trial rights. Beyond that conclusion, there’s no consensus on the applicable test to assess the constitutionality of gag orders on the parties. The circuits have split between requiring a “substantial likelihood” of material prejudice to the trial, a “reasonable likelihood” of such prejudice, and applying an “imminent danger” or “clear and present danger” standard.
Beyond determining what standard to apply, lower courts also have to account for a number of other factors that also affect the constitutionality of a gag order. The facts of the trial matter—i.e. whether there will be publicity and whether that publicity would actually prejudice the trial? And then there is the question of the gag order itself—i.e. does it cover all speech, or does it concern some combination of discovery, facts of the trial, or any extrajudicial comment? All of these considerations have to factor into the analysis of a gag order’s constitutionality.
When a judge takes these considerations into account and properly weighs all the rights at stake in that particular instance, gag orders can be useful tools in courtroom management. However, it’s often the parties who agree on a gag order. These gag orders, generally part of protective orders, can serve the purpose of encouraging parties to be more forthcoming with discovery when they are assured that the materials will go no farther than the litigation. They can also get defendants to agree to higher settlements. The First Amendment rights of the public do not disappear when the parties themselves agree to gag orders. However, those rights are more difficult to enforce in such cases.
While a party-agreement gag order effectively resolves some of the issue of gag orders functioning as unconstitutional prior restraints (though a party-stipulated gag order can still restrain the speech of others, such as witnesses), it does not resolve the issue of a First Amendment right of access to the courts. But because such issues are much less likely to be represented and raised in a hearing over a gag order, a court is less likely to have considered them in granting such an order. In our adversarial system, the parties are relied upon to bring the important facts to the notice of the judge. But when both parties want the gag order, then no one is incentivized to bring the interests of the public before the judge before the gag order is granted, and so those interests can be lost beside pressing needs of judicial economy and efficiency.
And after the gag order is in place, it becomes very difficult for third parties to challenge the order. Mechanically, such a challenge is possible. As a judicial order, the gag order can be overturned by the courts. And media reporters have standing to challenge an order, with the ‘injury in fact’ being the harm to their newsgathering. They can thus intervene and collaterally appeal, or in the alternative, ask for a writ of mandamus. However, in practice, challenging party-agreement gag orders on constitutional grounds becomes much more difficult. While parties to the litigation are aware of the gag order and can appeal the order or ask for mandamus, by the very nature of the gag order it is difficult for a third party to learn about it if they were not already following the case—the parties cannot tell the prospective intervenor about it. Of course, if the reporter is already following the case, then they can view and challenge the order. But if the order is entered early in the discovery process, or before the implications of a trial have gotten out, then it is unlikely that anyone but the most enterprising reporter trawling court dockets would find the case and think to challenge the gag order. And in those cases, it is the public who loses out.
None of these concerns stop gag orders from being issued. But simply because information is hidden behind a gag order does not mean that a trial court has fully considered the stringent, fact-specific test to make that gag order constitutional, or that the information is not accessible under the First Amendment. That is the difficult challenge for third party intervenors in such cases—to find where the public’s First Amendment rights have lapsed, and to bring that failure to light.
 Joe Otterson, O.J. Simpson Parole Hearing Draws 13 Million Viewers, Variety (July 22, 2017, 8:05 AM PT), http://variety.com/2017/tv/news/oj-simpson-parole-hearing-ratings-1202503573/.
 E.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
 Nebraska Press Association v. Stuart, 427 U.S. 539, 562-69 (1976).
 Sheppard v. Maxwell, 384 U.S. 333, 362 (1966).
 Id. at 357-63.
 Nebraska Press Association, 427 U.S. at 561.
 Id. at 561.
 Gentile v. State Bar of Nevada, 501 U.S. 1030, 1072-73 (1991).
 See U.S. v. Brown, 218 F.3d 415, 427 (5th Cir. 2000) (examining the different circuit standards for gag orders).
 See Marceaux v. Lafayette City-Parish Consol. Gov’t, 731 F.3d 488, 494 (5th Cir. 2013).
 See Seattle Times v. Rhinehart, 467 U.S. 20, 33-34 (1984).
 See, e.g., Andrew D. Goldstein, Sealing and Revealing: Rethinking the Rules Governing Public Access to Information Generated through Litigation, 81 Chi.-Kent L. Rev. 375, 379 (2006).
 United States v. Aldawsari, 683 F.3d 660, 665 (5th Cir. 2011).
 Id. at 663.