B. Gag orders on the press

The Supreme Court repeatedly has made clear that courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976) that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. A gag order is a “most extraordinary remedy” that may be used only in “exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.” CBS Inc. v. Davis 510 U.S.1315, 1317 (1994) (Blackmun, J., in chambers). Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property. . . . Those who see and hear what transpired can report it with impunity.” Craig v. Harney, 331 U.S.367, 374 (1947).

Indeed, courts have refused to gag coverage of court proceedings even when a media organization is a party to the underlying case. The court in Freedom Communications v. Superior Court, 167 Cal. App. 4th 150, 152 (2008), thus overturned “an order enjoining [a media company] from reporting on trial testimony in a case in which it is the defendant.” But in Seattle Times Company v. Rhinehart, 467 U.S.20, 33 (1984), the Supreme Court noted that a newspaper party could not publish information it obtained in discovery because “pretrial depositions and interrogatories are not public components of a civil trial.”

The Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976), that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Such a gag order is a “most extraordinary remedy” that may be used only in “exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.” CBS Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citations omitted). Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property . . . [t]hose who see and hear what transpired can report it with impunity.” Craig v. Harney, 331 U.S. 367, 374 (1947).

In Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984), the Supreme Court noted that a newspaper party could not publish information it obtained in discovery because “pretrial depositions and interrogatories are not public components of a civil trial.”

A gag order is a prior restraint on speech. United States v. McGregor, 838 F. Supp. 2d 1256, 1260 (M.D. Ala 2012) (citing Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976)). The Supreme Court views prior restraints directed to the press with a heavy presumption against their constitutionality. Neb. Press Ass'n, 427 U.S. at 570. In Nebraska Press Association, the Court held that an order restraining the news media from publishing or broadcasting accounts of confessions or admissions made by defendant to law enforcement officers or third parties did not meet the heavy burden imposed as a condition to securing a prior restraint and was therefore invalid. Id. at 539.

“Of all the constitutional imperatives protecting a free press under the First Amendment, the most significant is the restriction against prior restraint upon publication. ‘[T]he chief purpose of [the First Amendment’s free press] guaranty [is] to prevent previous restraints upon publication.’”  Matter of Providence Journal Co., 820 F.2d 1342, 1345 (1st Cir. 1986).  “When, as here, the prior restraint impinges upon the right of the press to communicate news and involves expression in the form of pure speech—speech not connected with any conduct—the presumption of unconstitutionality is virtually insurmountable.”  Id. at 1348.  The First Circuit refused to enforce a transparently invalid prior restraint on publication of information about a reputed member of organized crime where the “only potential danger posed by the restrained speech was to an individual’s privacy right. That right can be adequately protected by a subsequent damages action.”  Id. at 1353.  Because the lower court’s order, which had been violated, was “transparently invalid”, the appellate court reversed a criminal contempt citation against a newspaper and its executive editor.

Although not a gag order case, the First Circuit ruled that a district court erred “in granting access to one media entity and not the other” since a “court may not selectively exclude news media from access to information otherwise made available for public dissemination. The danger in granting favorable treatment to certain members of the media is obvious: it allows the government to influence the type of substantive media coverage that public events will receive. Such a practice is unquestionably at odds with the first amendment. . . . [No] branch of the government can be allowed to affect the content or tenor of the news by choreographing which news organizations have access to relevant information.”  Anderson v. Cryovac Inc., 805 F.2d 1, 9 (1st Cir. 1986).

In United States v. Connolly, the trial court held that reporters called as witnesses were excused from a sequestration order since “the public interest in these reporters being able to cover this proceeding far outweighs any conceivable interest in excluding them from the trial of this case.”  204 F. Supp. 2d 138, 140 (D. Mass. 2002).

The Second Circuit has held that “there is a fundamental difference between a gag order challenged by the individual gagged and one challenged by a third party; an order objected to by the former is properly characterized as a prior restraint, one opposed solely by the latter is not.” Application of Dow Jones & Co., Inc., 842 F.2d 603, 609 (2d Cir. 1988). There is a “heavy presumption” against the validity of a prior restraint, particularly as applied to reporting on criminal proceedings. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559-60 (1976). In United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005), the Second Circuit held that a trial court's order restraining the press from publishing the names of jurors sitting on a non-anonymous panel was an impermissible prior restraint on free speech. See also United States v. Corbin, 620 F. Supp. 2d 400, 404 (E.D.N.Y. 2009) (rejecting defendant’s request for a gag order because defendant had failed to establish that the publicity in this case would pose any difficulty in impaneling an impartial jury of twelve persons and alternates in this expansive, densely populated district).

The Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Ass’n v. Stuart that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. 427 U.S. 539, 559 (1976). Such a gag order is a “most extraordinary remedy” that may be used only in “exceptional cases” where “the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.” CBS Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citations omitted). Prior restraints on covering court proceedings and records may indeed never be permissible, because “[w]hat transpires in the court room is public property . . . Those who see and hear what transpired can report it with impunity.” Craig v. Harney, 331 U.S. 367, 374 (1947).

To enjoin the press from publishing information disclosed in open court is the type of prior restraint condemned in Nebraska Press. See In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990).

The Fourth Circuit has suggested that a gag order that interferes with legitimate newsgathering activities would violate the First Amendment. See In re Murphy-Brown, LLC, 907 F.3d 788, 800 (4th Cir. 2018).

A gag order is a prior restraint that bears a heavy presumption against its constitutional validity. United States v. McKenzie, 697 F.2d 1225, 1226 (5th Cir. 1983). Prior restraints on the media are constitutionally disfavored nearly to the point of extinction. United States v. Brown, 250 F.3d 907, 914–15 (5th Cir. 2001). Such restraints on the media will be upheld only if the government can establish that the activity restrained either poses a clear and present danger or a serious or imminent threat to a protected competing interest. Id.

On rare occasions, a gag order may be upheld based on a defendant’s Sixth Amendment right to a fair trial, since this right can trump the media’s First Amendment right of access and openness. McKenzie, 697 F.2d at 1226. In order for a gag order based on the defendant’s right to a fair trial to prevail, a court must determine from the evidence before it (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unconstrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger. Id. The trial court must also consider the precise terms of the requested restraining order and craft the order so that it does not suppress more free speech than requested. Id. An order without any findings whatsoever is likely to be overturned.

In determining whether pretrial publicity is a sufficient reason to justify a prior restraint, a court will review (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent threatened danger. Brown, 250 F.3d at 916.

Trial courts should employ methods short of prior restraints if possible, and gag orders on trial participants are preferred to gag orders on the press. United States v. Brown, 218 F.3d 415, 425–26 (5th Cir. 2000).

Change of venue, jury sequestration, ‘searching” voir dire, and “emphatic” jury instructions should be viewed as court tools for ensuring a fair trial that are preferable to a gag order on the press. Id. at 431.

Pretrial publicity is less likely to be deemed inherently prejudicial to a defendant’s ability to get a fair trial if considerable time has elapsed since the public reports, and if the news reports are “factual accounts” and “straight news reports” rather than the sensational type that tend to “inflame ill will.” Willie v. Maggio, 737 F.2d 1372, 1387 (5th Cir. 1984). The constitutional standard of fairness requires only that the accused have a panel of impartial and “indifferent” jurors who base their decision solely on the evidence produced in court; it does not require that the jurors be wholly ignorant of the case. Id

In an appeal of a gag order, the media must show either that it will probably succeed on the merits in its appeal or that it has presented a substantial case on the merits and that the balance of the equities weighs heavily in favor of granting a stay of the order. McKenzie, 697 F.2d at 1226.

The Sixth Circuit found that an automatic suppression order based on a state statute forbidding the publication of the names of both the alleged perpetrator and victim of criminal sexual conduct that also applied to the media was an unconstitutional prior restraint in WXYZ, Inc. v. Hand, 658 F.2d 420, 421 (6th Cir. 1981).  The court required a stringent showing to uphold the prior restraint:

[T]he First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result … Thus, only governmental allegation and proof that publication must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.

Id. at 426 (quoting New York Times Co. v. United States, 403 U.S. 713, 725–27 (1971) (Brennan, J. concurring).  The court held that “[t]here is nothing in the record before us which shows that any of the adverse effects cited by [the judge] would in fact result in this case.”  Id. (citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 569 (1976)).  The court also rejected the argument that the order was not “a ‘gag’ because it merely postpones the right to disclose information.”  Id. at 426 n.8 (citing Neb. Press Ass’n, 427 U.S. at 559).

The court reached a similar conclusion when a temporary gag order forbid the press from publishing the contents of documents that had been sealed by the district court upon the agreement of the parties was found to be unconstitutional in P&G v. Bankers Trust Co., 78 F.3d 219, 221 (6th Cir. 1996).   In that case, the publisher “obtained information from a confidential source and prepared a story on a matter of public concern… [and] sought comment from the parties and proceeded to take the story to print.”  Id. at 224.  Before the story could be published, the magazine received a court order barring publication.  Id. at 224–25.

The court explained that “‘prohibiting the publication of a news story … is the essence of censorship,’ and is allowed only under exceptional circumstances.”  Id. at 225 (citation omitted).  The court posed the question before it as “whether [the magazine’s] planned publication of these particular documents posed such a grave threat to a critical government interest or to a constitutional right as to justify” the prior restraint orders.  Id.  The answer was no.  Id.  “[T]he documents in question are standard litigation filings that have not been widely publicized.  The private litigants’ interest in protecting their vanity or their commercial self-interest simply does not qualify as grounds for imposing a prior restraint.  It is not even grounds for keeping the information under seal…”  Id.

Special considerations also come into play regarding emergency requests for injunctions that prohibit speech, which are “a different beast” than regular TRO’s.  Id. at 226.  First, while TRO’s under Federal Rule of Civil Procedure 65 are designed to preserve the status quo until the dispute can be resolved, “[w]here the freedom of the press is concerned, however, the status quo is to ‘publish news promptly that editors decide to publish.  A restraining order disturbs the status quo and impinges on the exercise of editorial discretion.’”  Id. (quoting In the Matter of Providence Journal Co., 820 F.2d 1342, 1351, modified on reh’g by 820 F.2d 1354 (1st Cir. 1986), cert. granted and dismissed on other grounds).  Second, “there is no place for [ex parte] orders in the First Amendment realm ‘where no showing is made that it is impossible to serve or to notify the opposing parties and give them an opportunity to participate.’”  Id. (quoting Carroll v. President and Comm’r of Princess Anne, 393 U.S. 175, 180 (1968)).  Finally, when a TRO is a prior restraint on speech, the standard to be applied is much higher: “publication must threaten an interest more fundamental than the First Amendment itself.  Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.”  Id. at 226–27.  Even the standard of review for temporary prior restraint orders is different than for other types of TRO’s.  The former is reviewed de novo whereas the latter is reviewed for abuse of discretion.  Id. at 227.

In a challenge by a member of the press, the Seventh Circuit held the First Amendment was violated by Indiana statute that specified “no person” may disclose the existence of sealed indictment prior to arrest or bringing of defendant into court custody, and which authorized contempt penalty for such disclosure.  Worrell Newspapers of Ind., Inc. v. Westhafer, 739 F.2d 1219 (7th Cir. 1984), aff’d, 469 U.S. 1200 (1985).

This is not addressed.

The Arizona Supreme Court has recognized that courts may not prohibit the media from reporting on what transpired in open court.  See Phoenix Newspapers v. Superior Court, 101 Ariz. 257, 260, 418 P.2d 594, 597 (1966).

A gag order is a restraint on the freedom of the press, and even if it is narrow in scope and duration, it is subject to the closest scrutiny. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301, 306 (2000). While prior restraints are not unconstitutional per se, any system of prior restraint bears a heavy presumption against its constitutional validity. Id.; see also Helena Daily World v. Simes, 365 Ark. 305, 308-09, 229 S.W.3d 1, 1-4 (Ark. 2006). A gag order restricting the news media from publishing something that transpired in open court is usually an unconstitutional prior restraint on speech. Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972); Helena Daily World v. Simes, 365 Ark. 305, 308-09, 229 S.W.3d 1, 1-4 (2006).

Under Nebraska Press Assn v. Stuart, 427 U.S. 539 (1976), trial judges may not order reporters not to reveal lawfully acquired information once they have been admitted to the court room. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301, 307 (2000).

Finally, the Arkansas Rules of Criminal Procedure say that no rule of court or judicial order shall be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case. Ark. R. Crim. P. 38.1.

Gag orders on the press are presumptively invalid and subject to constitutional strict scrutiny. Freedom Communications, Inc. v. Superior Court, 167 Cal. App. 4th 150, 153, 83 Cal. Rptr. 3d 861 (2008); S. Coast Newspapers, Inc. v. Superior Court, 85 Cal. App. 4th 866, 869-870, 102 Cal. Rptr. 2d 487 (2000); KGTV Channel 10 v. Superior Court, 26 Cal. App. 4th 1673, 1679, 32 Cal. Rptr. 2d 181 (1994); KCST-TV Channel 39 v. Municipal Court, 201 Cal. App. 3d 143, 146, 246 Cal. Rptr. 869 (1988).

Even in connection with juvenile proceedings, a court may not restrict the press’s right to investigate and publish information it lawfully obtained. San Bernardino County Dep’t of Public Social Servs. v. Superior Court, 232 Cal. App. 3d 188, 206, 283 Cal. Rptr. 332 (1991).

The Colorado Supreme Court upheld a prior restraint order prohibiting the media from publishing transcripts of a confidential evidentiary hearing in the Kobe Bryant rape case, which had been mistakenly circulated by the court reporter to the media.  People v. Bryant, 94 P.3d 624 (Colo. 2004).  The hearing concerned the sexual conduct of the alleged rape victim and was held for the trial court to determine whether such evidence would be admissible under Colorado’s rape shield statute, which deems such evidence presumptively irrelevant to the criminal trial.  Id. at 630, 636.  The court recognized that prior restraint was an extraordinary remedy, with a heavy presumption against its constitutional validity, but found that the state “has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the rape shield statute, because such hearings protect victims’ privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault.” Id. at 628, 632.  Although the media had already widely reported on the alleged victim’s sexual conduct, the court determined, after reviewing the transcripts, that publication “would cause great and certain harm to a state interest of the highest order” for three reasons: (1) the testimony concerned graphic detail that might be irrelevant to the trial and was under oath, which added a “level of official legitimacy and detail to the information that does not attend press reports,” (2) the state’s interests involved the victim’s privacy interest as well as the reporting and prosecution of this and other sexual assault cases, and (3) the transcripts were still private and had not been published by any media outlet.  Id. at 636–37.

Three justices dissented, arguing that the majority “overemphasizes the abstract importance of the purposes served by the rape shield statute and minimizes the impact that the information already available to the public about this alleged victim’s past sexual conduct has on the alleged victim’s privacy interests, at least insofar as they are protected by the rape shield statute.”  Id. at 642 (Bender, J., dissenting).  The dissenters also stated that the majority “virtually ignores the First Amendment guarantee that in all but the most extreme circumstances the media must be free to decide what it may or may not publish. . . .”  Id. at 639.

[W]here truthful information of public importance is lawfully obtained by the media, a prior restraint may only be issued where publication will inevitably, directly, and immediately harm a state interest of the highest order.  This does not mean that if the interest the state asserts is compelling in the abstract the government may issue a prior restraint to protect it.  Rather, the government must prove that in the particular circumstances of a given case, the threat to a government interest is so great, so grave, and so certain that it cannot be protected by any means other than a prior restraint.  If publication of the information in question does not pose an immediate threat, a prior restraint amounts to nothing more than government censorship.

Id. at 639. The dissenters recognized the state’s interest in encouraging the reporting, prosecution, and deterrence of sexual assault, but “reluctantly conclude[d] that the facts available to the public have irretrievably compromised this alleged victim’s privacy interests,” and that the “state cannot salvage its interest in encouraging future victims to report sexual assaults by restraining publication of the transcripts in this case.”  Id. at 643.  “Because the prior restraint issued in this case can accomplish nothing more than preventing, at best, incremental harm to the interests protected by the rape shield statute, I conclude that the district court has not overcome the heavy presumption against the constitutionality of prior restraints.”  Id.

The First Amendment to the United States Constitution all but forbids state or federal courts from imposing gag orders on the press.  E.g., United States v. Quattrone, 402 F.3d 304, 309–10 (2d Cir. 2005).

Connecticut’s appellate courts have not directly addressed this issue under state law. However, protections against prior restraints (orders forbidding speech before it is said) are even stronger under Sections 4 and 5 of Article 1 of the Connecticut Constitution than under their federal counterpart. State v. Linares, 232 Conn. 345, 380-81 (1995). The Connecticut Supreme Court has, in dicta, referenced the history of Article I, Sections 4 and 5, and intimated that these sections taken together mean that prior restraints on publication are absolutely barred. Cologne v. Westfarms Associates, 192 Conn. 48, 63 n.9 (1985).

In 2010, a D.C. Superior Court judge issued a restraining order preventing the National Law Journal from publishing information obtained from a public court file that was supposed to be sealed. The information was the name of the agency that was investigating the former client of a law firm, which was now involved in litigation with that client in the Superior Court. The judge withdrew the restraining order at the request of the law firm’s former client. The newspaper, joined by media amici, had appealed the prior restraint to the D.C. Court of Appeals. The case was POM Wonderful, LLC v. ALM Media Properties LLC, No. 10-cv-904.

Gag orders against the media are extremely rare, even when the media is a party to a lawsuit. The Florida Supreme Court has stated that gag orders on the press and other non-participants should only be permitted for comments from which a “clear and present danger of miscarriage of justice might arise.” State ex rel. Miami Herald Publ’g Co. v. McIntosh, 340 So. 2d 904, 910–11 (Fla. 1976). Further, the threat to the administration of justice must be “immediate, not merely likely . . . . The danger must not be remote or even probable; it must immediately imperil.” Id. at 908.

Pursuant to well-established law under the First Amendment to the United States Constitution and the Georgia Constitution, the entry of an order restricting speech about litigation can only be supported where: (1) record evidence establishes a serious, imminent threat to the administration of justice; and (2) the order is narrowly drawn to minimize that threat. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976). The Supreme Court of Georgia has affirmed the demanding standard articulated Nebraska Press must be met before a gag order may be entered. In R.W. Page Corp, 249 Ga. 576 (1982), the Supreme Court made it clear that Georgia courts “ha[d] sought to open the doors of Georgia’s courtrooms to the public and to attract public interest in all courtroom proceedings.” In reversing the closure of pretrial proceedings in the case, the court referenced Nebraska Press as the controlling authority on gag orders.

Even when confronted with a “carefully and precisely drawn” order, the Supreme Court of Georgia held in Ga. Gazette Publ’g Co. v. Ramsey, 248 Ga. 528 (1981), that a gag order in a civil case was constitutionally prohibited as a matter of law. In Ramsey, the trial court had issued an order preventing the defendant newspaper, in an invasion of privacy case, from publishing information obtained in discovery without prior approval by the court. Although acknowledging that the trial court’s order was “carefully and precisely drawn,” the court ruled it facially invalid under the Georgia Constitution as an “unwarranted [prior] restraint upon the newspaper’s liberty of speech and of the press.” Id. at 530.

In criminal cases, the Supreme Court of Georgia has repeatedly emphasized that the issue a trial court must consider with respect to a defendant’s rights to a fair trial is not publicity, but prejudice. In Miller v. State, 275 Ga. 730, 735 (2002), the court held that: “Even in cases of widespread pretrial publicity, situations where such publicity has rendered a trial setting inherently prejudicial are extremely rare. . . . We are inclined to agree with those prospective jurors who reported during voir dire that the pretrial publicity they had seen tended to make them feel empathy for both appellant and [the victim].” “‘A conclusory representation that publicity might hamper a defendant’s right to a fair trial is insufficient to overcome the protections of the First Amendment.’” Atlanta Journal-Constitution v. State, 266 Ga. App. 168, 170–71 (2004) (quoting United States v. Noriega, 917 F.2d 1543, 1549 (11th Cir. 1990)).

There are no reported Idaho decisions on this issue, although an order prohibiting the press from publishing information which it lawfully obtained is likely to be held an unconstitutional prior restraint.  See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 558–59 (1976) (prior restraints are “presumptively unconstitutional”).

In In re A Minor, 127 Ill. 2d 247, 537 N.E.2d 292, 130 Ill. Dec. 225 (1989), the Chicago Tribune successfully challenged an Illinois trial court’s orders prohibiting it from publishing the name of a minor who had been charged in a shooting and barring it from the courtroom unless it complied. The Illinois Supreme Court held the gag order was an unjustified prior restraint because the defendant’s name had already been placed into the public realm and the state had failed to show any specific threat towards the defendants that would result from publication.

The Indiana Court of Appeals held that Judicial Rule 2.17, which prohibits broadcasting during court sessions, also prohibits broadcasting of courtroom recordings after the court proceedings have concluded. WPTA-TV v. State, 86 N.E.3d 442, 447 (Ind. Ct. App. 2017). The Indiana Court of Appeals also held that Judicial Rule 2.17 does not violate the First Amendment of the United States Constitution as an impermissible prior restraint. Id. at 449; see also Howard Publ’ns., Inc. v. Lake Michigan Charters, Ltd., 649 N.E.2d 129, 134 (Ind. Ct. App. 1995) (“We hold that protective orders may limit a third party’s use of information acquired from court records of discovery without violating the First Amendment, and the particular order entered in this case is valid in its scope. Furthermore, we find that such a protective order becomes effective when issued even though a third party secured access to the discovery materials before the order was entered.”). But see Howard Publ’ns., Inc. v. Lake Michigan Charters, Ltd., 658 N.E.2d 582, 583, 584 (Ind. 1995) (Sullivan, J. dissenting from the Supreme Court’s evenly-split denial of petition to transfer) (“[A]ny prior restraint of expression bears a heavy presumption against its constitutional validity. The interest advanced by the Court of Appeals, preserving the integrity of the judicial system by assuring the availability of protective orders to protect the discovery procedure, fails to overcome this presumption.”) (citations omitted).

It is unlikely that a prior restraint on the press would be upheld in Iowa. In Des Moines Register & Tribune Co. v. Osmundson, the Iowa Supreme Court held an order restraining the press from publishing the names of jurors in a criminal trial to be unconstitutional. 248 N.W.2d 493 (Iowa 1976). Also, in Kleman v. Charles City Police Department, the grant of an injunction restraining the publication of information about the lawsuit was overturned by the Iowa Supreme Court. 373 N.W.2d 90, 96 (Iowa 1985). The court held that the grant of injunctive relief was a prior restraint that raised sensitive First Amendment issues. Id. In reversing the trial court, the Iowa Supreme Court recognized the Supreme Court’s holding in Nebraska Press Association v. Stuart, stating “such a prior restraint is ‘one of the most extraordinary remedies known to our jurisprudence.’” Id. (citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976)). In McCleary v. Kauffman, 2017 U.S. Dist. LEXIS 207273 (Iowa Dist. Ct. Dec. 7, 2017), as aff’d No. 17-1982 (Iowa Dec. 19, 2017), an Iowa District Court refused to enjoin a newspaper from publishing an article about the plaintiff because “such an order would violate the First Amendment.”

The Kansas Supreme Court firmly declared its opposition to prior restraints against the media in a case that originated in 1993 in Atchison, Kansas.  State v. Alston, 887 P.2d 681 (Kan. 1994).  A newspaper reporter was attending a pre-trial criminal hearing in a local courtroom.  The hearing was open to the public, and the reporter’s presence was ordinary.  Nothing portended the confrontation that was about to occur.

As the reporter watched, the judge considered a defense motion to suppress certain evidence.  The defense attorney argued that the prosecution should be barred from using or discussing the defendant’s criminal record or outstanding arrest warrants.  After granting the motion, the judge asked whether any other matter needed attention.  The attorney then pointed out the presence of the reporter, who worked for the Atchison Daily Globe, and expressed concern that the newspaper might publish a report about the hearing.  The judge immediately ordered the reporter to publish neither the defendant’s criminal history nor even the existence of the judge’s order itself.

The Globe, however, defied the order, publishing a report about what had happened in the courtroom.  For its defiance of the gag order, the Globe received a contempt citation, but the newspaper successfully appealed.  In Alston, the state supreme court reversed the gag order and the contempt citation.  The Kansas Supreme Court recognized that “those who see and hear what transpired in an open courtroom can report it with impunity,” and “once a public hearing has been held, what transpired there could not be subject to prior restraint.”  Alston, 887 P.2d at 688.

At the same time, the Kansas Supreme Court embraced a line of precedent that preserved the media’s defense against “transparently invalid” gag orders.  Alston, 887 P.2d at 691 (citing In re Providence Journal Co., 820 F.2d 1342, 1347–48 (1st Cir. 1986), modified on reh’g, 820 F.2d 1354 (1st Cir. 1987)).  The Globe was subject to the general rule that persons must obey a judicial order even if they believe it is unconstitutional.  The state supreme court said:

"In this case, the . . . order was transparently unconstitutional. The trial court failed to make the requisite … findings. The [newspaper had based its news report on information that was available from] the court’s records and in open court prior to the gag order. The order was issued without a full and fair hearing with all the attendant procedural protection."

Alston, 887 P.2d at 690.

The supreme court found that the Globe had disobeyed the gag order in good faith.  According to the court, “[o]nly where timely access to an appellate court is not available can the newspaper publish and then challenge the constitutionality of the order in contempt proceedings.”  Alston, 887 P.2d at 621.

There is no express authority under Kentucky law for gag orders on the press.  The Kentucky Supreme Court has held that “[m]embers of the press, in common with the public in general, are free to report whatever takes place in open court . . . .” Cape Publ’ns, Inc. v. Braden, 39 S.W.3d 823, 828 (Ky. 2001).

Gag orders are rare in Louisiana courts. The authors are aware of only one case concerning a gag order directed to the news media, rather than to the trial participants. In In re Matter Entitled State v. Spillers, 813 So.2d 1184 (La. App. 2002), the District Court initially issued an order prohibiting publication of the defendant’s name and address “in any newspaper or public writing in Lafayette and St. Martin Parish.” The following day, the Court amended the order to prohibit only publication of the defendant’s address. The order stated that the defendant’s address was not to be disclosed because she had obtained a protective order in another pending case and the Court sought to prevent her being subject to “any type of foreseeable harm or violence.” A local newspaper filed a motion for reconsideration of the Court’s order. After the District Court denied the motion, the newspaper filed a writ application with the Court of Appeal; when that was denied, the newspaper filed with the Supreme Court, which granted the writ, and remanded the case to the Court of Appeal “for briefing, argument and opinion.” The Court of Appeal reversed the District Court’s order. Id. It reached this decision, however, because the protective order from the other case was not in the record of this case. As such, the Court of Appeal did not know “if a protective order or a temporary restraining order was issued; the type or severity of Ms. Spillers’ allegations against the named defendant; when the order was issued or how long it was to remain in effect; whether it was contested or was issued by consent of the parties; where the named defendant lived at the time; whether Ms. Spillers had knowledge of his whereabouts; whether he had disobeyed the protective order; or why Ms. Spillers believed publication of her address in the newspaper would place her in harm’s way.” Thus, the Court could not ascertain “the likelihood of harm to Ms. Spillers in the event her address is published in the newspaper.” It is unknown whether the newspaper published the defendant’s address.

In State v. Rittiner, 341 So.2d 307, 314 (La. 1977), the Supreme Court stated that the District Court had “properly denied” the defendant’s motion to “impose a ‘gag order’ restricting the two newspapers represented at the [pretrial] hearing from publishing the facts brought out at the hearing.”

There are no Maine cases that discuss he propriety of gag orders on the press at length. However, there was a 2015 controversy in which a Portland District Court judge issued an “unprecedented oral order” preventing the press from reporting statements made by a witness at a criminal proceeding, and the backlash resulted in that judge reversing what he later referred to as an “unlawful demand.” See, e.g., Seth Koenig, Maine Judge Apologizes for Controversial Gag Order on Reporters, Bangor Daily News (Jan. 7, 2015), https://bangordailynews.com/2015/01/07/news/maine-judge-apologizes-for-controversial-gag-order-on-reporters/.

In News American Division (Hearst Corp.) v. State, 447 A.2d 1264 (Md. 1982), the Court of Appeals held that the press had standing to assert its First Amendment rights in opposition to a gag order on the parties. Id. at 1269. Since the gag order at issue had expired, however, the court did not consider whether the order entered in that case was appropriate. Id. at 1268. In State v. Cottman Transmission Systems, Inc., 542 A.2d 859 (Md. Ct. Spec. App. 1988), the court held that a gag order providing that “‘there is to be no communications with the press’” by the Attorney General, the plaintiff in the civil suit, was “too sweeping.” Id. at 864–65 (citation omitted). Noting that “a valid distinction exists” between prior restraints of the press and “silencing the trial participants, especially counsel,” the court nevertheless agreed that “pretrial comments and news releases emanating from the Attorney General’s office would seriously undermine the administration of justice,” and therefore amended the gag order to prohibit “extra-judicial communications with the media relative to the merits of the case.” Id. at 860, 865; see also Mann v. State’s Attorney for Montgomery Cty., 468 A.2d 124, 127 (Md. 1983) (trial court erred in granting media the right to interview criminal defendant declared incompetent to stand trial and whose attorney objected to interviews on his behalf).

Gag orders suppressing the publication of the names of those in sexual conduct cases have been upheld. See, e.g., Midland Publ’g Co. v. Dist. Court Judge, 420 Mich. 148, 362 N.W. 2d 580 (Mich. 1984). In a criminal case, where the right to a public trial is at issue, a gag order may be justified if there is a “reasonable likelihood” that pretrial publicity will prejudice a fair trial. People v. Sledge, 312 Mich. App. 516, 536 (2015). A gag order is a prior restraint on speech and “cannot be upheld if reasonable alternatives are available having a lesser impact on First Amendment Freedoms.” Id. at 528-29 (quoting CBS, Inc. v. Young, 522 F.2d 234, 238 (6th Cir. 1975)).

The Minnesota Supreme Court has stated that “both Federal and state constitutional provisions guaranteeing freedom of the press are couched in terms of prohibition of prior restraints on publication.” Nw. Publ’ns., Inc. v. Anderson, 259 N.W.2d 254, 257 (Minn. 1977) (citing U.S. Const. amends. I, XIV; Minn. Const. art.1, § 3). Thus, prior restraints on speech and publication are generally improper, but this general presumption of impropriety can be overcome “where a clear showing is made that the exercise of First Amendment rights will interfere with the rights of the parties to a fair trial or that some restriction is otherwise necessary.” Id.; see also Minneapolis Star & Tribune Co. v. Lee, 353 N.W.2d 213, 214 (Minn. Ct. App. 1984) (“Prior restraints of speech have long been deemed unconstitutional except in the most drastic of situations”).

According to the Minnesota Court of Appeals, any prior restraint on the freedom of the press must be “necessitated by a compelling state interest, and … narrowly tailored to serve that interest.” Minneapolis Star & Tribune Co. v. Schmidt, 360 N.W.2d 433, 435 (Minn. Ct. App. 1985) (citing Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)); see also Lee, 353 N.W.2d at 215 (Minn. Ct. App. 1984). In Schmidt, the Minnesota Court of Appeals held that the possible traumatization of a child involved in juvenile court proceedings was not a “compelling state interest” sufficient to justify a gag order on the press. Schmidt, 360 N.W.2d at 435. As a result, the trial court’s order restraining the press from publishing any information relating to the particular proceedings in question was held to be unconstitutional. Id. at 436.

In contrast, the Minnesota Court of Appeals upheld as valid a trial court’s decision to allow news reporters into the courtroom during the testimony of juveniles on the condition that the reporters would not publish the names of the juveniles and would not divulge information pertaining to any confidential records that would be revealed during the testimony. Austin Daily Herald v. Mork, 507 N.W.2d 854 (Minn. Ct. App. 1993). The media representatives argued that the trial court had imposed “an impermissible prior restraint on the publication of information.” Id. at 856. The Court of Appeals disagreed with this argument and held that the trial court imposed valid restrictions on reporters who chose to attend a criminal trial which had been properly closed to the rest of the public. Id. at 856. The court recognized that generally, there is “a heavy presumption against the constitutional validity of restrictions on the publication of information obtained lawfully by the media.” Id. (citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)). In this case, however, rather than restraining news reporters from publishing information already in their possession, the court permitted members of the press to attend a closed criminal hearing, as long as the reporters agreed to forego the publication of certain information obtained during that hearing. Id.

The Mississippi Supreme Court has noted that information obtained legally from a public proceeding or document cannot be restrained. Jeffries v. State, 724 So.2d 897, 900 (Miss. 1998). In Jeffries, a circuit court judge ordered a reporter not to publish information about the defendant’s juvenile record, which was discussed in open court. Id. at 898. The reporter chose to publish in violation of the order. Id. at 899. The judge issued an arrest warrant for the reporter for contempt of court. Id. However, the Mississippi Supreme Court ruled that the circuit court’s order barring the reporter from writing about the defendant’s juvenile record was a prior restraint and was therefore presumptively invalid. Id. “Once [the circuit court judge] made the matter public, those in attendance, including the press, had a right to further disseminate the information. Therefore, the prior restraint was an invalid interference with Jeffries's [F]irst [A]mendment rights.” Id. at 899-90.

46-11-701 MCA contemplates that a court may request the media to cooperate in restricting dissemination of some material to preserve trial fairness, but no gag orders may be enforced against the press.

No third parties may intervene in criminal proceedings. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975). The news media may challenge a gag order via an original mandamus action in the Nebraska Supreme Court. Id. The Nebraska Supreme Court’s opinion approving a narrowed gag order imposed on the press in State v. Simants was reversed by the U.S. Supreme Court in Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).

District courts have issued gag orders on the press related to pending cases. Las Vegas Review-Journal v. Eighth Judicial Dist. Court in & for Cty. of Clark, 412 P.3d 23, 26 (Nev. 2018) (noting that a prior restraint or “gag” order is only justified when “(1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) less restrictive alternatives are not available”) (internal quotations omitted).

Gag orders are considered to be prior restraints on the press and are presumptively unconstitutional. Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710 (1979).

Gag orders are not common in New Mexico. To this end, speculation that publication of juror names might expose them to intimidation during the trial is insufficient to justify prior restraint. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303 (“There is no question that the jury list is a public record and that the Media was entitled to inspect and publish it.”). In determining the constitutionality of the gag order, New Mexico courts must make their own inquiry into the imminence and magnitude of danger said to flow from particular utterances and then balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. Twohig v. Blackmer, 1996-NMSC-023, ¶ 13, 121 N.M. 746, 749, 918 P.2d 332, 335 (recognizing that a “prior restraint requires special judicial attention” because of a “heavy presumption against its constitutional validity.”).

Courts have recognized that “any direct limitations on the freedom traditionally exercised by the news media” is not “a permissible restraint.”  N.Y. Times Co. v. Starkey, 51 A.D.2d 60, 67, 380 N.Y.S.2d 239, 246 (1976) (concurrence) (stressing that the court was “dealing with an attempt to impose a direct ‘gag’ on the press and not with the issuance of a restrictive order directed against court personnel, or attorneys, or others directly involved in the judicial process”) (citing Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)).

Even an indirect exclusionary order cannot be sustained where it “is entered merely as a substitute for a ‘gag order’ which would otherwise place a direct restraint on what the press can publish, [as] such exclusionary order infringes upon protected First Amendment rights.”  Gannett Co. v. DePasquale, 55 A.D.2d 107, 111, 389 N.Y.S.2d 719, 722 (1976) (“An exclusionary order is merely a substitute for a direct prior restraint where, as here, the sole purpose behind the order is to prevent the publication of what transpires in the courtroom during a pretrial hearing.”), modified sub nom. Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 372 N.E.2d 544 (1977), aff'd sub nom. Gannett Co. v. DePasquale, 443 U.S. 368 (1979).

To issue a gag order on the press, the circumstances must be imperative, a defendant’s right to trial will be clearly jeopardized without the order, and there is no other method for the court to protect that right.  State ex rel. Beacon Journal Publ’g Co. v. Kainrad, 348 N.E.2d 695, 697 (Ohio 1976).  The court must hold a hearing and make findings showing the above before it can issue this order.  Id.  As stated by the Ohio Supreme Court, “[W]here the constitutional right of a criminal defendant to a fair trial can be protected by the traditional methods of voir dire, continuance, change of venue, jury instructions or sequestration of the jury, . . . no order can be made which prohibits the publishing of news reports about statements made or testimony given during such proceedings.”  Id.

A gag order preventing the press from publishing information about one trial until the jury is selected for another trial is an unconstitutional prior restraint on the media.  See State ex. rel Toledo Blade Co. v. Henry Cty. Court of Common Pleas, 926 N.E.2d 634, 640 (Ohio 2010).

A trial court order that prohibited the media from publishing the name or photograph of an eleven–year–old child accused of second degree murder was upheld in Oklahoma Publishing Co. v. District Court of Oklahoma County, 1976 OK 145, 555 P.2d 1286, but that decision was reversed by the United States Supreme Court, 430 U.S. 308 (1977).

The press is free to publish that which transpires during a court case. Significantly, absent a state interest of the highest order, courts may not prevent or punish the publication of truthful information related to a matter of public concern, such as an ongoing case, that has been lawfully obtained. Even short-lived gag orders are reviewed cautiously out of concern that they may cause irreparable injury to First Amendment interests as long as they remain in effect. Indeed, gag orders on the press are “extremely difficult to justify” and would be upheld only in the most “exceptional cases.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 591-92 (1976) (Brennan, J., concurring).

For example, in Commonwealth v. Genovese, 487 A.2d 364 (Pa. Super. 1985), the media challenged two gag orders issued by the trial judge in a murder trial. The first order prohibited the press from publishing the name of any juror and the second order prevented the media from contacting any potential juror. The trial judge stated the order was put in place to prevent jury harassment. On appeal, the Superior Court ruled that because evidence was lacking that the jury actually would be harassed, no equally effective alternatives to the order had been considered, and the voir dire was conducted publicly, the first gag order was an unconstitutional prior restraint. Id. at 368-69. The court struck down the second order on First Amendment grounds, holding that there was no evidence that such an order was necessary to protect the jurors or guarantee a fair trial. Id. at 369.

The Rhode Island Supreme Court has warned that “[w]hen issuing orders that may amount to a prior restraint on publication, we caution trial justices to follow the guidelines set forth in Nebraska Press and Cianci.”  In re Court Order Dated October 22, 2003, 886 A.2d 342, 351 (R.I. 2005) (citing Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); State v. Cianci, 496 A.2d 139 (R.I. 1985)).  Rhode Island courts have relied on federal case law on this subject, following the Supreme Court’s statement that “‘[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity[.]’”  State v. Berberian, 427 A.2d 1298, 1300 (R.I. 1981) (quoting Nebraska Press, 427 U.S. at 593).

Gag orders on the press carry a presumption of unconstitutionality. A court asked to review its own gag order or another judge’s gag order must balance the constitutional rights guaranteed to the media under the First Amendment against the constitutional rights the court is purportedly trying to preserve through the entry of its gag order. Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).

A gag order prohibiting the media from publishing the name of a witness who testified in open court using his real name was found to be unconstitutional.   State v. Montgomery, 929 SW 2d 409, 413-14 (Tenn. Crim. App. 1996).  “The law is crystal clear: the media may publish the names and testimony of witnesses testifying in open court during a public trial with impunity.  Any restraint placed on this right is violative of the First Amendment.”  Id.  “If the gag order is directed to the press, the constitutional standard is very stringent.”  State v. Carruthers, 35 S.W.3d 516, 560 (Tenn. 2000) (citing Montgomery, 929 S.W.2d at 414).

Gag orders are presumptively unconstitutional under the Texas Constitution, unless the court makes specific findings of fact supported by evidence that “(1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.”  Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992).  Davenport itself was a civil case, but courts have applied the test to criminal cases as well.  See, e.g., In re Benton, 238 S.W.3d 587, 594 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

In Fort Worth Star-Telegram v. Walker, the Supreme Court of Texas ruled that a newspaper, which was a defendant in a civil suit for invasion of privacy due to its coverage of a criminal proceeding, could not be enjoined from publishing a testifying witness’s name once it has become part of the trial court’s public record. 834 S.W.2d 54, 56–58 (Tex. 1992) (“[A] trial court is without power to prohibit the publication of testimony presented during the trial of a criminal case.” (citing Ex parte Foster, 71 S.W. 593, 596 (Tex. Crim. App. 1903))).  The Court determined that orders limiting the press’s freedom to publish what was in public records failed the first step of the Davenport test, and accordingly are unconstitutional.  See id. at 58.

In general, “any prior restraint on expression bears a heavy presumption against its constitutional validity, and the government thus carries a heavy burden of showing justification for the imposition of such a restraint.”  KUTV, Inc. v. Conder, 668 P.2d 513, 522 (Utah 1983) (reversing district court’s order barring news media from publishing words “Sugarhouse rapist” or disseminating any information on past convictions of criminal defendant during his trial) (internal quotations omitted).

The U.S. Supreme Court repeatedly has made clear that the courts may rarely, if ever, prevent the press from reporting on court proceedings and documents. The Court ruled in Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 559 (1976) that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Such a gag order is “one of the most extraordinary remedies known to our jurisprudence.”  Id. at 562; see also State v. Schaefer, 157 Vt. 339, 354, n.1, 599 A.2d 337, 346 (Vt. 1991) (Allen, C.J., concurring).  In rescinding the only prior restraint order in Vermont history, a Superior Court in Vermont v. Morgan, No. S3-79Rc (Vt. Super. Ct., Jan. 17, 1980), recognized that under Nebraska Press Association v. Stuart, a newspaper could not be forbidden to print information already in its possession except under the most extreme and compelling circumstances. The case arose in the context of a related criminal prosecution.

The Fourth Circuit has suggested that a gag order that interferes with legitimate newsgathering activities would violate the First Amendment. See In re Murphy-Brown, LLC, 907 F.3d 788, 800 (4th Cir. 2018).

The First Amendment does not permit the criminal punishment of a newspaper for divulging or publishing accurate information regarding confidential proceedings of the Judicial Inquiry and Review Commission. See Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829 (1978).

The Washington Supreme Court has recognized that “the United States Constitution … prohibits prior restraints against publication or broadcast of information lawfully obtained from court records or proceedings.”  State v. Coe, 101 Wn.2d 364, 380, 679 P.2d 353 (1984).

Gag orders on the press are a prior restraint on the press and, as such, are presumptively invalid and subject to strict scrutiny.  State ex rel. Daily Mail Publ’g Co. v. Smith, 161 W. Va. 684, 690, 248 S.E.2d 269, 272 (1978), aff'd, 443 U.S. 97, 99 S. Ct. 2667 (1979).

The Supreme Court has held that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” and are presumed to be unconstitutional. Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

Regarding pre-trial publicity, a restrictive order that limits the press will only be upheld when there is intense and pervasive publicity about the case, there are no other alternatives to mitigate the effects of the pretrial publicity, and the restrictive order will, in fact, effectively prevent prejudicial publicity from reaching jurors.  Id. at 562-63.

Gag orders are not permitted unless the media is a party and the order limits the ability to publish information it learned in discovery.