When Do Judges Issue Gag Orders?
Free speech: the First Amendment guarantees this right in America. Even so, we know judges issuing gag orders in high-profile cases, plainly restricting the speech of individuals involved in both civil and/or criminal trials. How can both things be true?
Why Gag Orders are Issued
Typically judges issue gag orders—or non-dissemination orders—as a way to restrict individuals from discussing a case publicly. These orders may apply to all witnesses, attorneys, plaintiffs, and defendants, or may be limited to specific individuals. The goal is to protect the integrity of the court system, by keeping potential jurists from hearing about the case outside of the courtroom. Even so, they’re quite controversial because limiting speech is so contrary to the First Amendment.
Are They Unconstitutional?
According to the American Civil Liberties Union (ACLU), gag orders are unconstitutional, in most cases because they are unwarranted or too vague to understand and enforce. They’ve filed many briefs against such orders, including on behalf of celebrities like O.J. Simpson and Donald Trump.
The Supreme Court has said that there should be a very high threshold for issuing gag orders restricting press coverage of any trial. Such orders should be employed only as a last resort, since they are such an extraordinary remedy to a problem. That means courts have to consider alternatives before issuing a gag order, with evidence that the legitimacy of the trial would be seriously compromised without such an order.
Requirements Related to Gag Orders
The Sixth Amendment provides for a speedy trial by an impartial jury. Judges must weigh the right to an impartial jury with the right of free speech when considering gag orders. They must meet high standards, which is why proponents believe them to be an appropriate measure in some situations. When public statements threaten to bias a jury, the system at large is at risk, and because statements made outside of court are not made under oath, there is a greater possibility of potential jurors hearing misstatements and fabrications. On another level, when inflammatory statements are made that puts the lives of those associated with the case at risk, an additional concern is that jurors might be afraid to serve.
An Uncommon Solution
Gag orders can be extremely limited—such as those that bar statements related to a specific person involved in the case—or quite broad, prohibiting any comments and all about the case. A concern about media coverage that has the potential of impacting the outcome of the case is not applicable to most situations, making these orders associated primarily with high profile court cases.
Are You Concerned About the Possibility of a Gag Order?
It’s likely that most defendants will never have to worry about a gag order. In cases that are very public and with high media coverage, the potential for such an order is greater. In any case, the Miami criminal defense attorneys at The Law Office of Julia Kefalinos will always fight for the best outcomes for you. To discuss your case, schedule a confidential consultation today.
