A. Media standing to challenge third-party gag orders

The Supreme Court has not addressed the issue, but lower courts have found that media organizations have standing to challenge gag orders on third parties. Thus, the court in CBS, Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir. 1975), was “not persuaded by the argument that petitioner lacks standing because it is not a party to the civil litigation. The fact remains that its ability to gather the news concerning the trial is directly impaired or curtailed. The protected right to publish the news would be of little value in the absence of sources from which to obtain it.” Likewise, the court in In re Dow Jones & Co., Inc., 842 F.2d 603, 607-08 (2nd Cir. 1988), found that “news agencies have standing as recipients of speech to prosecute this appeal,” in part because the record showed they were “potential recipients of speech.”

While the Eleventh Circuit Court of Appeals has not issued an opinion on whether the press has standing to challenge a third-party gag order, a lower court within the Eleventh Circuit has. A district court in Florida’s Southern District addressed the issue of whether the media has standing bring a lawsuit challenging a gag order in Dow Jones & Co., Inc. v. Kaye, 90 F.Supp.2d 1347 (S.D. Fla. 2000). The court held that to demonstrate standing, a party must show that it has been injured or threatened with injury and that the lawsuit is likely to redress that injury. Id. The court held that the newspaper publishers had standing to bring the lawsuit challenging the gag order because they demonstrated an injury to their First Amendment rights by showing that, but for the judge's gag order, parties to the litigation would talk to their reporters. Id. at 1352.

In general, the media has standing to challenge protective orders in civil cases.  The Boston Globe appealed from protective orders that prohibited the parties from divulging information obtained through discovery.  Although the protective order was vacated after jury selection, the issue was capable of repetition, yet evading review.  Anderson v. Cryovac Inc., 805 F.2d 1, 4–5 (1st Cir. 1986).

Although the Second Circuit Court of Appeals has not directly addressed this issue, lower courts within the Second Circuit have determined that members of the media have standing to challenge third party gag orders. See, e.g., United States v. Simon, 664 F. Supp. 780, 786 (S.D.N.Y. 1987), aff'd sub nom. Application of Dow Jones & Co., Inc., 842 F.2d 603 (2d Cir. 1988); see also Conn. Magazine v. Moraghan, 676 F. Supp. 38 (D. Conn. 1987) (holding that a magazine, which was a nonparty and not subject to gag order issued in state court had standing to challenge order).

The Supreme Court has not addressed the issue, but lower courts have found that media organizations have standing to challenge gag orders on third parties. The Third Circuit has held that a third party (such as a member of the press or public) has 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 and is being restrained from doing so.”  United States v. Wecht, 484 F.3d 194, 202 (3d Cir. 2007) (quoting FOCUS v. Allegheny Cty. Court of Common Pleas, 75 F.3d 834, 838–39 (3d Cir. 1996)).  This requirement ensures “that there is an injury in fact that would be redressed by a favorable decision.”  Id. at 203 (quoting FOCUS, 75 F.3d at 838). The fact that parties may have agreed to a gag order does not mean that an intervenor lacks standing to challenge it, as “consent of the parties to an order limiting speech is irrelevant as long as the third party can demonstrate that an individual subject to the order would speak more freely if the order is lifted or modified.”  Id.

In Cent. S.C. Chapter, Soc. of Prof'l Journalists, Sigma Delta Chi v. U.S. Dist. Ct., 551 F.2d 559 (4th Cir. 1977), the Fourth Circuit initially held 2-1 that the media lacked standing to challenge a gag order, reasoning that the propriety of the order was not sufficiently clear to support a writ of mandamus, and that the media lacked an interest in the underlying criminal action sufficient to support intervention and an appeal.  Subsequently, in connection with the same underlying criminal action, the Fourth Circuit held that the media did have standing to challenge the gag order, and that mandamus is the preferred vehicle for appellate review. See Cent. S.C. Chapter, Soc. of Prof'l Journalists, Sigma Delta Chi v. Martin, 556 F.2d 706 (4th Cir. 1977).  It is now established that mandamus is the preferred method of challenging a gag order, and members of the media have standing to challenge a gag order that directly impairs the media’s rights under the First Amendment to gather news and to receive speech from willing speakers. See In re Wall St. Journal, 601 F. App’x 215 (4th Cir. 2015) (per curiam) (remanding with instructions to vacate gag order); In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir. 2018) (same).

The Fifth Circuit has held that media organizations have standing to challenge gag orders on third parties because such orders can impede the news agencies’ ability to discover newsworthy information from potential speakers. Davis v. Capital City Press, 78 F.3d 920, 927 (5th Cir. 1996). Furthermore, it is not necessary in every case to demonstrate the existence of a willing speaker in order to establish standing. A willing speaker will often be presumed, else there would be no need for a gag order. Id.

The media does not have standing to challenge closure as a violation of a defendant’s right to a fair trial; that is a right that belongs solely to the defendant. Rovinsky v. McKaskle, 722 F.2d 197, 198 (5th Cir. 1984).

In CBS, Inc. v. Young, a mandamus action, the Sixth Circuit found that the press had standing to challenge gag orders on the participants in litigation because “its ability to gather the news concerning the trial is directly impaired or curtailed” by the gag order and “[t]he protected right to publish the news would be of little value in the absence of sources from which to obtain it.  522 F.2d 234, 237–38 (6th Cir. 1975); see also United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987) (holding that a criminal defendant’s appellate challenge of a gag order against him was reviewable under the collateral order doctrine).

Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009) held that the only First Amendment concern raised by a protective order limiting disclosure of unfiled discovery is the effect such an order may have on a litigant's free-expression rights, which are limited where the information is only made available in discovery.  Id. at 1077 (journalist had no standing based on derivative First Amendment right to receive information where parties agreed to protective order and thus there was no “willing speaker”).  However, the Court acknowledged that “[m]edia challenges to trial-court gag orders have been allowed where the orders interfere with the right to receive information from parties and their attorneys who wish to disseminate it.”  Id. (citing In re Dow Jones & Co., 842 F.2d 603 (2d Cir. 1988); CBS Inc. v. Young, 522 F.2d 234, 237-38 (6th Cir. 1975)); see also Worrell Newspapers of Ind., Inc. v. Westhafer, 739 F.2d 1219 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985) (hearing press challenge to Indiana statute that specified “no person” may disclose the existence of sealed indictment prior to arrest or bringing of defendant into court custody, and authorizing contempt penalty for such disclosure).

There appears to be no Eighth Circuit case law discussing media standing to challenge third-party gag orders.

While no Alaska appellate court decisions expressly media standing, state and federal courts have repeatedly recognized the right, or standing, of the press to intervene and seek relief in these cases. See, e.g., Henry v. Municipality of Anchorage, No. 3:15-cv-187-RRB (D. Alaska); U.S. v. Anderson, No. 3:06-cr-00099-JWS (D. Alaska); U.S. v. Kott & Weyhrauch, No. 3:07-cr-00056-JWS (D. Alaska); U.S. v. Kohring, No. 3:07-cr-00055-JWS (D. Alaska); U.S. v. Wade, No. 3:07-cr-00111-RRB (D. Alaska); In re The Exxon Valdez, No. A89-095 Civ. (D. Alaska); In re Anaruk (Consolidated CAPA Guardianship Cases), No. 3AN-01-1052 P/C (Super. Ct., 3d Jud. Dist.); U.S. v. Kane & Security Aviation, No. 3:06-cr-00022-HRH (D. Alaska); Prevo v. Prevo, No. 3AN-10-8113 Civ. (Super. Ct., 3d Jud. Dist.); Kennedy & Feliciano v. Municipality of Anchorage, No. 3AN-10-8665 Civ (Super. Ct., 3d Jud. Dist.).

The media may have standing to challenge gag orders.  See generally Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm’n, 160 Ariz. 350, 357, 773 P.2d 455, 462 (1989).

California courts have not expressly addressed media standing to challenge gag orders. However, one court recognized the right of a third party to challenge a gag order because of its interest in the case. Mary R. v. B. & R. Corp., 149 Cal. App. 3d 308, 196 Cal. Rptr. 871 (1983). Another court found standing to challenge a gag order in an unpublished opinion. Dixon v. Superior Court, 2007 WL 4227248, 36 Media L. Rep. 1505, *11-12 (Cal. Ct. App. 2007) (citing Craemer v. Superior Court, 265 Cal. App. 2d 216, 218 n.1, 71 Cal. Rptr. 193 (1968); In re Application of Dow Jones & Co., 842 F.2d 603, 607 (2d Cir. 1988)).

Colorado appellate courts have not addressed the media’s standing to challenge third-party gag orders.

In federal court, media will generally have standing to challenge speech restrictions on third parties if (1) the media has a bona fide desire to gather news by speaking with the subject of the order, and (2) the subject of the order wishes to speak with the media but cannot but for the gag order.  E.g., Spargo v. N.Y. Comm’n on Judicial Conduct, 351 F.3d 65, 83–84 (2d Cir. 2003).  That rule of standing is likely to be the same in a state court, because Connecticut’s courts have developed standing requirements very similar to the ones adhered to in the national courts.

Though not outright deciding the issue of standing to challenge a third-party gag order, a D.C. district court permitted the Washington Post to intervene and move to vacate a gag-order obtained by all parties during discovery proceedings. In re Korean Airlines Disaster of September 1, 1983, 597 F. Supp. 621 (D.D.C. 1984) (denying motion to vacate but modifying order to more clearly express the court's intent that only discovery information may not be released).

In criminal cases, LCrR 57.6 states that "any news organization or other interested person, other than a party or a subpoenaed witness, who seeks relief relating to any aspect of the proceedings in a criminal case, or relief relating to a criminal investigative or grand jury matter, shall file an application for such relief with the Court. The application shall include a statement of the applicant's interest in the matter as to which relief is sought, a statement of facts, and a specific prayer for relief. An application that pertains to a criminal case or matter to which a judge has been assigned shall be served on the parties and shall be referred by the Clerk to the assigned judge for determination. An application that pertains to a criminal investigative or grand jury matters to which no judge has been assigned shall be referred by the Clerk to the Chief Judge for determination.

All parties, including the media, have a right to challenge third-party gag orders.  See, e.g., In re United States for Nondisclosure Order Pursuant to 18 U.S.C. § 2705(b), 2014 U.S. Dist. LEXIS 43950 at *14 (D.D.C. 2014) (noting, in a ruling involving the government’s application for a gag order against Twitter, that “Twitter has a Fifth Amendment right to be heard before being subjected to a gag order”).

The media has standing to challenge gag orders on participants in court proceedings. E.g., Florida Freedom Newspapers v. McCrary, 520 So. 2d 32 (Fla. 1988); Sarasota Herald-Tribune v. Talley, 523 So. 2d 1163 (Fla. 2d DCA 1988) (per curiam); Times Publ’g Co. v. Pennick, 433 So. 2d 1281 (Fla. 2d DCA 1983) (per curiam). In fact, it is reversible error and a departure from the essential requirements of law to issue a gag order “without prior notice and opportunity to be heard by at least one member of the media.” Talley, 523 So. 2d at 1163.

The right of the media to intervene in legal actions, where their newsgathering rights are burdened by court orders, is well established in Georgia. See, e.g., R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 581 (1982); Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 170 (2004) (holding that the Atlanta Journal-Constitution and WSB-TV had standing to challenge a gag order entered against trial participants and witnesses).

In some circumstances it may be incumbent upon the media to demonstrate the existence of willing speakers.  See WXIA-TV v. State of Georgia, 303 Ga. 428 (2018) (noting but not deciding the issue).

Media organizations are permitted to intervene in court proceedings for the limited purpose of opposing efforts to restrain their exercise of First Amendment rights.  See, e.g., Riggs v. Valdez, 2011 WL 1598630, at *8 (D. Idaho Apr. 27, 2011) (granting media organization’s motion to intervene for purpose of opposing gag order).  When faced with this issue, Idaho courts look to Ninth Circuit precedent for guidance.  Id.

In Radio & Television News Ass’n of S. Cal. v. U.S. Dist. Ct., 781 F.2d 1443 (9th Cir. 1986), the Ninth Circuit considered a challenge to a trial court’s issuance of a gag order on its participants from discussing a high-profile criminal case with members of the media.  The media filed a writ of mandamus challenging the order as infringing upon its First Amendment right to seek and report the news.  The Ninth Circuit began by noting that there are two elements to standing.  “First, the plaintiff must allege an ‘injury in fact’ sufficient to show a ‘personal stake’ in the outcome of the legal action. . . . Second, the plaintiff must show that ‘the interest sought to be protected by the complainant is arguable within the zone of interests to be protected or regulated by the statue or constitutional guarantee in question.”  Id. at 1445–46.  The Court found that the media satisfied both elements of standing here because “[a]s the district court’s order impairs the media’s ability to gather news by effectively denying the media access to trial counsel, a concrete personal interest is affected,” id. at 1445, and “the RTNA asserts an interest that is at least ‘arguably’ protected by the first amendment.”  Id. at 1446.  Accordingly, the Ninth Circuit held that the media had standing to challenge the trial court’s gag order.

It is an open issue as to whether the press has standing to challenge protective “gag” orders prohibiting trial participants from speaking to the media, but not directly gagging the press, although there are cases suggesting that media should have the right to challenge such protective orders because a gag on participants acts as an indirect restraint on the press. See, e.g., People v. Kelly, 397 Ill. App. 3d 232, 265-66, 921 N.E.2d 333, 363, 336 Ill. Dec.719, 749 (Ill. App. Ct. 1st Dist. 2009) (noting that argument against standing was waived and citing In re J.S., 267 Ill. App. 3d 145, 640 N.E.2d 1379, 204 Ill. Dec. 30 (Ill. App. Ct. 2nd Dist. 1994) for the proposition that a gag order on participants “constitutes an indirect restraint on the press.”)

There is little Indiana law on whether the media may challenge third-party gag orders. See S. Bend Tribune v. Elkhart Circuit Court, 691 N.E.2d 200, 201 n.3 (Ind. 1998) (“The order allowing intervention [by media outlets to quash a gag order preventing trial participants from speaking with the media] is unchallenged and confers standing. We express no opinion as to whether the Media generally has sufficient standing to make a challenge such as this.”).

No reported cases or statutes specifically address the media’s standing to challenge a third-party gag order.

Kansas courts have not settled the issue of whether or when media have standing to challenge third-party gag orders.  In 2016, media organizations attempted to gain a ruling on the issue but were unsuccessful.  The attempt was made in connection with a high-profile case in Great Bend, Kansas, State v. Villegas, Case No. 2015 CR 388, District Court of Barton County, Kansas (2015).  The case resulted from a fatal shooting in a Great Bend residence in 2015. Three Charged in Deadly Barton County Shooting, KSAL (Dec. 3, 2015), https://www.ksal.com/3-charged-in-deadly-barton-county-shooting.  On January 8, 2016, the judge granted a defense request for a gag order on trial participants.  In response, the Great Bend Tribune, along with the two media organizations—the Kansas Press Association and the Kansas Association of Broadcasters—moved to intervene to challenge the gag order.  They argued that it was unconstitutionally broad.  They asserted that it “completely prohibits the parties, all law enforcement, all court personnel, court reporters, and all witnesses and potential witnesses from making any comments concerning this case.”  The Great Bend Tribune’s Second Motion to Intervene  and for Relief from Protective Order Restricting Extrajudicial Comments, Case No. 2015 CR 388 (Jan. 15, 2016).

In claiming standing to intervene, the movants stated that the gag order damaged the media’s ability to gather and report news about proceedings in State v. Villegas.  Because no Kansas precedent was directly on point, they relied on such cases such as Journal Publishing v. Mechem, 801 F.2d 1233 (10th Cir. 1986), in which a newspaper challenged a judge’s prohibition of post-trial interviews with jurors.  In that case, the Tenth Circuit said that a newspaper had standing because the paper alleged that the judge’s order “impeded its ability to gather news, and that impediment is within the zone of interest sought to be protected by the first amendment.”  Mechem, 801 F.2d at 1235.

The movants in State v. Villegas, in claiming standing to intervene, also cited an array of decisions by the U.S. Supreme Court and lower courts.  Among precedents movants cited was Stephens v. Van Arsdale, 608 P.2d 972 (Kan. 1980).  In that case, the Kansas Supreme Court held that a newspaper and report had standing to challenge a court clerks’ denial of access to official court records because the denial “impair[ed] their ability to carry on their business, the collection and dissemination of information.”  Van Arsdale, 608 P.2d at 979.  The movants also cited Wichita Eagle Beacon Co. v. Owens, 27 P.3d 881 (Kan. 2001), in which the state supreme court held that the media had standing to challenge a court order to seal a record or close a proceeding, even in the absence of a statute allowing such intervention.  Owens, 27 P.3d at 883.

Nevertheless, the judge in State v. Villegas denied the motion to intervene, and the Tribune, with the two state media organizations, petitioned the Kansas Supreme Court for a writ of mandamus.  They requested that the state supreme court direct the judge to set aside his gag order on trial participants.  However, the state supreme court responded by issuing a perfunctory order that comprised just four words: “Denied on present showing.”  The Great Bend Tribune, et al. v. Swaty, Case No. 115304, Kansas Supreme Court (May 20, 2016).

More thorough consideration was given to the issue of standing in 1998 by a U.S. District Court judge in Kansas.  He analyzed the conditions under which the media may intervene in federal court.  The media sought to object to a gag order that he had issued against trial participants, and the judge acknowledged that the media had a right to intervene under certain conditions.  Koch v. Koch Industries, Inc., 6 F. Supp. 2d 1185, 1188 (D. Kan. 1998), aff’d, 203 F.3d 1202 (10th Cir. 2000).  He said that, in challenging a gag order, the media “must allege an injury in fact—that the court’s order impeded their ability to gather news and ‘that impediment is within the zone of interest sought to be protected by the first amendment.”’ Koch, 6 F. Supp. 2d at 1190 (quoting Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1235 (10th Cir. 1986)).  In addition, he indicated that the media’s standing to challenge a gag order banning advertising by parties to the case would depend on the ban’s impact on their financial interest.

The judge emphasized First Amendment protection for press freedom, saying:

"[A]ny inhibitions against news coverage of a trial carry a heavy presumption of an unconstitutional prior restraint.  If a court order burdens constitutional rights and the action proscribed by the order presents no clear and imminent danger to the administration of justice, the order is constitutionally impermissible.  A court may impose a prior restraint on the gathering of news about one of its trials only if the restraint is necessitated by a compelling governmental interest.  Moreover, the court must narrowly tailor any prior restraint and must consider any reasonable alternatives to that restraint which have a lesser impact on first amendment rights. These requirements apply for criminal trials as well as civil trials."

Koch, 6 F. Supp. 2d at 1188–89 (citations omitted).

The media argued that the gag order impaired their First Amendment interest in gathering and reporting news and engaging in commercial speech and also prevented them from gaining revenue from advertising sales.  The judge, however, ruled that the media did not have standing to intervene, although he made his decision only after balancing “the parties’ and public’s interest in a fair trial against the competing interest in freedom of speech.”  Koch, 6 F. Supp. 2d at 1189.  He found that the media lacked standing, in part, because the parties to the litigation had requested the gag order and said they did not want to talk to reporters.  The media has no standing to intervene, he concluded, if the affected parties are not willing to speak publicly and be sources of news.  He also decided to dissolve his ban on advertising.

The Kentucky Supreme Court has held that “the right to gather news is clearly entitled to First Amendment protection, otherwise freedom of the press would be severely compromised.”  Cape Publ’ns, Inc. v. Braden, 39 S.W.3d 823, 826 (Ky. 2001).  Restrictions upon the news media’s ability to gather news from participants in court proceedings are treated as a prior restraint on news gathering and must be “necessitated by a compelling governmental interest” and “narrowly tailored to serve that interest.”  Id.

Standing to challenge gag orders is not usually an issue in Louisiana. The news media typically file a motion to intervene. The courts have given full consideration to motions by the news media for access even without granting intervention, however, and have allowed intervention in criminal cases even though there is no express authority to do so.

In State v. Lee, 787 So.2d 1020, 1037 (La. App. 2001), the court found standing for the news media and overturned a gag order prohibiting parties to proceedings from making any “extrajudicial statement relating to this proceeding.”

A Louisiana Court of Appeal approved a District Court’s order that closed a preliminary hearing, sealed the court record, and placed a gag order on the trial participants in a murder case where the victim was an 18-month old child. The news media filed a writ application (equivalent to an interlocutory appeal) from the District Court’s order; a 2-1 majority of the Court of Appeal panel stated merely: “Writ denied. We find no error in the trial court’s ruling.” There was a vigorous dissent by Judge Sylvia Cooks, correctly stating that the District Court had based its decision on a “reasonable probability” of prejudice to fair trial rights, rather than the “substantial probability” standard of Press-Enterprise II and also relying on the Louisiana constitutional provisions discussed herein.

No reported Maine cases.

In Maryland, the press has standing to intervene to oppose gag orders placed on trial participants. News Am. Div. (Hearst Corp.) v. State, 447 A.2d 1264, 1269 (Md. 1982) (non-party newspaper had standing to claim its First Amendment rights had been violated by a gag order prohibiting counsel, parties, witnesses and court personnel from making extrajudicial statements for dissemination by means of public communication relating to certain aspects of criminal case).

Minnesota courts have not directly addressed this issue. However, in the access context, the Minnesota Supreme Court recognized that the press has standing to challenge a trial court’s order to seal various documents in criminal cases. Nw. Publ’ns., Inc. v. Anderson, 259 N.W.2d 254, 256 (Minn. 1977). The Court explained that the press has standing as “the orders have the effect of either directly or indirectly interfering with their functions of collecting and disseminating the news.” Id. (citing CBS v. Young, 522 F.2d 234 (6th Cir. 1975) and State ex rel. Beacon Journal Pub. Co. v. Kainrad, 348 N.E.2d 695 (Ohio 1976)); see also Baloga v. MacCabee, 20 Media L. Rep. 2201, 2202 (Minn. Dist. Ct. Ramsey County 1992) (“Obviously intervenors’ protected right would clearly be impaired or impeded if the court’s records were sealed.”).

The media has standing to challenge a gag-order by means of supervisory control. Montana ex rel The Missoulian v. Montana Twenty-First Judicial District, 933 P.2d 829 (Mont. 1997).

No Nebraska law.

District courts have permitted representatives of the media to challenge third-party gag orders but there is no precedent from the Nevada Supreme Court on this subject.

The media has standing. Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710 (1979).

New Mexico has found that the press has standing to contest closure of the proceedings if closure would invade a legally protected interest of the press. See Does I through III v. Roman Catholic Church of Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ¶ 1, 122 N.M. 307, 924 P.2d 27; see also State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303 (“Cases from many jurisdictions make it clear that the news media has standing to question the validity of an order impairing its ability to report the news, even though it is not a party to the litigation below.”).​

Members of the media have standing to challenge gag orders.  In New York Times Co. v. Rothwax, 143 A.D.2d 592, 533 N.Y.S.2d 73, 74 (1st Dep’t 1988), NBC and others brought an action to prohibit enforcement of an oral ruling in a criminal action which directed all counsel in the action to refrain from communicating with members of the news media “on matters related to the case.”  The court held that “the restrictive order in question is constitutionally impermissible and, accordingly, the petition is granted to the extent of prohibiting enforcement thereof . . . . Absent this requisite showing of necessity for prior restraints, respondent's imposition of a gag order upon the attorneys and other participants in the trial is constitutionally impermissible.”  Id. 

Similarly, in NBC v. Cooperman, 116 A.D.2d 287, 289, 501 N.Y.S.2d 405, 406 (2d Dep’t 1986), the court explained that “NBC clearly has standing to question the validity of the respondent's directive” prohibiting counsel from communicating with the news media on any matters related to the pending trial.” The court explained that “a trial court must be mindful of the fact that prior restraints upon the rights of free speech and publication by the media bear a heavy presumption of constitutional invalidity which may only be overcome upon a showing of a ‘clear and present danger’ of a serious threat to the administration of justice.”  Id. (citing Bridges v. California, 314 U.S. 252, 263 (1941); Matter of Oliver v. Postel, 30 N.Y.2d 171, 180, 331 N.Y.S.2d 407, 282 N.E.2d 306 (1972)).

The media has standing to challenge gag orders against third parties because gag orders “indirectly restrict [the media’s] access to proceedings.”  State ex rel. Nat’l Broad. Co. v. Court of Common Pleas for Lake Cty., 556 N.E.2d 1120, 1124 (Ohio 1990).

There is no Oklahoma appellate authority on this issue, but cases recognizing the standing of media to challenge closure of proceedings and records would presumably apply to media challenges to third–party gag orders.

A person seeking to challenge the legality of a gag order should file a petition with the trial court to intervene for that purpose. See Capital Cities Media, Inc. v. Toole, 483 A.2d 1339 (Pa. 1984). Pennsylvania law allows a third party to intervene in a proceeding if “the determination of such action may affect any legally enforceable interest of such person whether or not he may be bound by a judgment in the action.” Pa. R. Civ. P. 2327(4); see Hutchison v. Luddy, 581 A.2d 578, 581, 585 (Pa. Super. 1990) (holding a trial court’s grant of a newspaper’s petition to intervene was not an abuse of discretion when the newspaper sought to secure its right of access to the pleading and pretrial proceedings in the case because any other holding would jeopardize the newspaper’s ability to enforce its right of access), aff’d in relevant part, rev’d in part, 594 A.2d 307 (Pa. 1991).

The process for intervening in civil cases is outlined in Pa. R. Civ. P. 2328. An application for leave to intervene is to be made by a petition that should be in the form of a plaintiff’s initial pleading in a civil action and verified as such. Pa. R. Civ. P. 2328. The pleading should set forth the ground on which intervention is sought and a statement of the relief or defense the petitioner seeks to demand or assert. Attached to the petition to intervene should be any pleading that the petitioner will file in the action if permitted to intervene. Id. A copy of the petition should be served upon each party to the action. Id.

If an order denying leave to intervene is entered, it is immediately appealable, and, if appropriate, the Supreme Court can exercise its plenary jurisdiction and stay proceedings pending its review under the collateral order doctrine. See Capital Cities Media, Inc., 483 A.2d at 1342.

The Pennsylvania Supreme Court has never expressly ruled on whether the media has standing to challenge gag orders that only restrict the speech of trial participants. In Commonwealth v. Crawford, 789 A.2d 266 (Pa. Super. 2001), the Superior Court held that the media did not have standing to challenge a gag order prohibiting trial participants from making extrajudicial statements that could interfere with the defendant’s fair trial rights. The Superior Court concluded the media lacked standing in that case because (1) the media organizations challenging the order were never granted intervenor status at the trial court level, and (2) the gag order only restricted the speech of trial participants and therefore did not prevent the media from covering the proceedings. 789 A.2d at 269-70. However, in a different case, the Superior Court assumed, without expressly reaching the issue, that members of the media had standing to challenge a gag order that only restricted the speech of trial participants. See Commonwealth v. Lambert, 723 A.2d 684, 688 (Pa. Super. 1998). This is the view taken by the majority of courts in other jurisdictions. See, e.g., FOCUS v. Allegheny Cty. Ct. of Common Pleas, 75 F.3d 834, 838-39 (3d Cir. 1996) (citing cases).

Rhode Island courts have not directly addressed the issue of media standing to challenge third-party gag orders.

Standing to intervene in a case for the limited purpose of challenging a third-party gag order will usually be allowed if the media outlet or its journalist’s ability to access the proceeding is hampered, the judge prohibits access under the state’s open records laws, or if the judge gags the media outlet or its individual journalists from publishing information gathered about the case.

This is a permitted practice. See Argus Leader v. Miller, 610 NW2d 76 (SD 2000) (media outlets had standing to challenge trial court's gag order and court closures).

In Tennessee, an interested person or media representative must seek permission to intervene in order to have standing to contest a prior restraint, like a gag order. State v. Montgomery, 929 S.W.2d 409, 411 (Tenn. Crim. App. 1996).  Aggrieved parties or entities can seek appellate review pursuant to Tenn. R. App. P. 10 if they were previously permitted to intervene and the trial court refused to dissolve the prior restraint. Id. at 411.

Texas courts have not ruled on media standing to challenge gag orders on third parties to litigation.

Members of media organizations have standing to challenge third-party gag orders. KUTV, Inc. v. Wilkinson, 686 P.2d 456, 461 (Utah 1984).

The Vermont Supreme Court has held that “the media may directly intervene in a criminal proceeding for purposes of seeking access to proceedings or papers.”  State v. Schaefer, 599 A.2d 337, 342, 157 Vt. 339, 344 (Vt. 1991) (citing State v. Tallman, 148 Vt. 465, 468, 537 A.2d 422, 424 (Vt. 1987)).  Furthermore, the Vermont Supreme Court has recognized that “[o]nce representatives of the media intervene . . . they have standing to appeal to this Court from orders denying them access to papers or proceedings.”  Schaefer, 599 A.2d at 342, 157 Vt. at 344.

The Fourth Circuit has held that members of the media have standing to challenge a gag order that directly impairs the media’s rights under the First Amendment to gather news, and to receive speech from willing speakers. See In re The Wall St. Journal, 601 F. App’x 215 (4th Cir. 2015) (per curiam) (remanding with instructions to vacate gag order); In re Murphy-Brown, LLC, 907 F.3d 788, 796 (4th Cir. 2018) (same).

Media entities have a legally protected interest under the First Amendment to gather news. Branzburg v. Hayes, 408 U.S. 665, 681 (1972). The Fourth Circuit has held that media organizations do have standing to challenge gag orders in actions in which they were not otherwise a party. Doe v. Public Citizen, 749 F.3d 246, 262 (4th Cir. 2014). A media entity must show that they have a legally protected interest that has already been harmed or where harm of that interest is imminent, such as seeking and being denied access to information that they claim a right to inspect. Id. at 263 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)). Seeking a writ of mandamus is the preferred method of challenging a gag order. In re State-Record Co., Inc., 917 F.2d 124, 126 (4th Cir. 1990).

See Wis. Stat. § 803.09:

(2) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest related to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant’s ability to protect that interest, unless the movant’s interest is adequately represented by existing parties.

…

(4) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.  The same procedure shall be followed when a statute gives a right to intervene.

See, e.g., State ex rel. Bilder v. Delavan Twp., 112 Wis. 2d 539, 334 N.W.2d 252 (Wis. 1983) (explaining that members of news media generally have a right to intervene to challenge closure of courtroom and records).

The media is allowed to challenge third-party gag orders as representatives of the public.