Gag orders were originally used to keep facts about ongoing trials inside the courtroom. The goal was to ensure a fair trial.
But now, with the advent of 24-hour news programming, experts say judges are issuing more and more in an attempt to control publicity.
Gag orders can prohibit parties in a pending lawsuit from talking to the public, and they have been issued in some of the most high-profile cases: O.J. Simpson, Kobe Bryant, Scott Peterson and Michael Jackson.
Attorneys can ask for a gag order to be issued, but ultimately it’s up to a judge to make that decision. Normally, a gag order is placed on the attorneys or witnesses in a trial, and on some occasions, a judge may try to issue a gag order on the media.
THE HISTORY OF GAG ORDERS
On July 4, 1954, Dr. Sam Sheppard’s pregnant wife, Marilyn, was found fatally beaten at the couple’s home in Cleveland. Sheppard contended that her killer was at large and that he fought the intruder before being knocked unconscious in the struggle. Police were not able to find an intruder, and Sheppard was charged and prosecuted in his wife’s slaying.
The case attracted an unprecedented amount of publicity, and the trial court found Sheppard guilty of second-degree murder. The U.S. Supreme Court reversed the decision, holding that the excess media coverage prevented Sheppard from receiving a fair trial.
The Sheppard case favored the importance of a criminal defendant’s Sixth Amendment right to a fair trial over the public’s First Amendment right to free speech. However, members of the media seemed to prevail in the U.S. Supreme Court case Nebraska Press Association v. Stuart.
When six family members were slain, the case gained widespread media attention overnight. The county court entered a restrictive order that prohibited the media from publishing confessions made by the defendant. The Supreme Court held that freedom of expression is not absolute, but that a prior restraint on the media was unconstitutional.
Prior restraint is a restriction on speech or publication before it’s actually expressed. Although the Supreme Court has said that prior restraints “are the most serious … infringement on First Amendment rights,” it also has said prior restraint may be warranted in limited circumstances.
While Nebraska Press held that gag orders should not be placed directly on the media, the case failed to address one important issue: whether gag orders directed at trial participants constitute a prior restraint.
“We argue a gag order is a prior restraint on speech because it’s the government telling you, ‘You can’t say this,’ ” said Michael Seplow, an attorney who specializes in First Amendment and civil rights cases.
Attorneys and journalists agree that in some cases gag orders work. But as a case gains publicity, gag orders can be less effective. In the Kobe Bryant and Michael Jackson cases, sensitive information was leaked to the media despite the gag orders.
“You will never stop all of the information from coming out, so what you are doing is stopping a portion of it. Is that really going to increase the likelihood that the trial will be any more fair? I don’t think so,” Seplow said.
Gag orders create a problem for the media because the people who know what’s going on in the trial, such as the attorneys, police or witnesses, can’t talk to reporters.
Journalists also are forced to interview less qualified sources who speculate about trial events.
“If you have a very high profile case, you have a lot of reporters who still find someone to tell them something, and this may be someone with limited access to the real information,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “Experts will tell you what they think is going on rather than the people who actually know what is going on,” Dalglish said.
A GROWING PROBLEM
When Dalglish took over as executive director of the RCFP six years ago, she tried to keep track of the number of gag orders issued throughout the country. She found at least one case every day, but she soon discovered there was no real way to keep up with the number of court-imposed orders. In fact, there’s no statistical data that supports an increase in gag orders. However, many legal scholars and journalists say they have noticed a change.
So what’s responsible for the increase? Many believe it’s the television programs devoted to around-the-clock coverage of legal issues.
“There is no question the number of gag orders has exploded with the advent of cable television,” Dalglish said. “Judges absolutely hate criminal justice shows that turn the courtroom into entertainment.”
David Carlson, immediate past president of the Society of Professional Journalists, agrees.
“We are seeing 24-hour cable networks going to events that aren’t generating news on an hourly basis. These situations can become dangerous because it may be possible for reporters to get off topic and start speculating,” Carlson said.
Despite the apparent increase in gag orders, the media is doing nothing to stop the practice.
“There have been a lot more gag orders than challenges to gag orders,” said law professor Erwin Chemerinsky.
In many cases, news organizations don’t want to spend the money to challenge the orders, Dalglish said.
“Sure, media outlets challenge gag orders in major trials and big cases, but news organizations are strategic about it,” she said.
Challenging a gag order can become even more of a problem in less populated parts of the country, said media attorney Bruce Brown.
“As bad as gag orders are when they rob the public in large metropolitan areas of information about ongoing trials,” Brown said, “they may be even more pernicious in smaller towns, where local news is often of particular importance to the community and where the hometown newspaper may not have the financial wherewithal to challenge a judge’s decision to issue such an order.”
WHY SHOULD THE MEDIA BE CONCERNED?
About 95 million viewers tuned in to watch the low-speed car chase involving O.J. Simpson, and from the beginning, opinion polls indicated that a majority of Americans thought he was guilty. Regardless, the media attention didn’t land Simpson behind bars. In fact, defendants in several highly publicized criminal cases, such as Michael Jackson and Kobe Bryant, have been acquitted despite a phenomenal amount of negative media attention.
This begs the question: Does pretrial publicity lead to an unfair trial?
“We are discovering that many judges issue gag orders as a way of imposing control because they don’t like the reporters or the publicity,” Dalglish said.
Judges and attorneys are concerned about media attention before a trial and say extensive news coverage may prejudice the jury pool. But there’s still no evidence to support whether jurors are influenced by media attention.
The Scope of Gag Orders:
Gloria Allred is known as an outspoken attorney who has represented such high-profile clients as Scott Peterson’s mistress Amber Frey. Allred is representing another witness in a highly publicized murder case, but this time, you won’t hear her talking to the media. That’s because Allred is subject to a gag order even though she isn’t involved with the prosecution or defense. She is merely representing a witness.
In October 2005, 16-year-old Scott Dyleski was accused of killing Pamela Vitale, the wife of well-known defense attorney and television commentator Daniel Horowitz. Allred’s latest client is a former girlfriend of Dyleski. She is a witness but not a party in the case.
So why could Allred talk to the media in the Scott Peterson case, but not in this case?
Allred’s attorney, Michael Seplow, is baffled that his client would be lumped into the gag order.
“In the Scott Dyleski case, the gag order was so broad it said no one could talk about anything, not even what time the trial started,” Seplow said.
One of the most troubling reasons for the gag order was the need to “control criticism” about government officials.
“The district attorney was arguing this gag order stops (Allred) from making any critical statements about the government, but you should have a right to criticize how you feel about the prosecution or the police,” Seplow said.
One problem surrounding gag orders is that there is no national standard to identify when an order is necessary. There are three different standards that a federal court may apply: “clear and present danger,” “substantial likelihood of material prejudice” and “reasonable likelihood of material prejudice.”
“Clear and present danger” is the most demanding. It requires a judge to show that media attention will almost inevitably have a negative effect on the outcome of a trial, and this is difficult to prove.
“Reasonable likelihood of material prejudice” is the least demanding. Chemerinsky said a judge will not have to offer as much of an explanation before imposing a gag order, so the order should be considered suspect.
“Substantial likelihood of material prejudice” is the middle ground of the three standards. It is less demanding than “clear and present danger” and has been seen as a permissible way to balance the First and Sixth Amendments.
Legal scholars said using these three standards may encourage judges to issue more orders.
“Until the Supreme Court says there is a (universally accepted standard for issuing gag orders), there will be widespread use,” Chemerinsky said.
Krista Gesaman is the 2006 Society of Professional Journalists’ Pulliam/Kilgore intern at Baker Hostetler law firm in Washington, D.C. She is a 2007 J.D. candidate at Ohio Northern University College of Law. She earned a B.S. in journalism from Kent State University in 2004.