Gag orders often grab headlines during high-profile cases, such as when one was ordered in Donald Trump’s election interference case. But what does a gag order actually do?
During a trial, gag orders are issued by a judge to prohibit individuals from publicly speaking about an ongoing case. Typically, this is done to protect the sanctity of the trial — often for fear of news coverage or public opinion spoiling the jury pool.
While the primary reasoning for gag orders is to protect the legitimacy of the court system, they remain highly controversial. This is because they limit freedom of speech typically protected by the First Amendment.
How Common Are Gag Orders?
“A gag order is when a judge says that you’re not allowed to talk about the substance of the trial outside of the courtroom, or not allowed to talk about certain aspects of it,” says Matthew J. Galluzzo, a criminal defense attorney in New York City.
These orders can be issued in civil and criminal cases. They can also be both broad and narrow in scope.
For example, a broad order might prohibit the defendant from making any statements about the case. A more narrow order, on the other hand, might prohibit the defendant from making statements specifically about the arresting officer in the case. Regardless, gag orders will typically last for the duration of the court case.
Gag orders tend to be more common in high-profile cases that attract media coverage, so they often seem more common than in actuality. Typically, judges will consider current media coverage and the likelihood that publicity will improperly impact a case.
“I think that the public thinks that these are applied willy nilly, and they really are applied rarely,” says Jody Madeira, a law professor at Indiana University’s Maurer School of Law. “There is a very high threshold to get one put in place.”
While gag orders typically refer to those issued by courts during trials, government agencies can also invoke them. Additionally, some consider things like nondisclosure agreements to be a form of gag order.
“That’s basically the same thing as a gag order,” Madeira says. “They allow one party to restrict another party’s ability to disclose information.”
Are Gag Orders Constitutional?
Free speech organizations such as the American Civil Liberties Union advocate against gag orders, claiming they infringe on First Amendment rights. The ACLU frequently files briefs — as it did in Trump’s election interference trial — arguing that gag orders are unconstitutional, often because they are too vague or not warranted at all
Though they should only be used in extreme cases, gag orders are largely considered to be constitutional.
In the 1976 landmark case Nebraska Press Association v. Stuart, the Supreme Court placed a high threshold for the use of gag orders to restrict press coverage of trials. In the decision, it stated that it should be a last resort and “one of the most extraordinary remedies known to our jurisprudence.”
This decision did not end the debate or litigation relating to the legality of gag orders, nor did it dictate which scenarios might constitute the extraordinary remedy. It did, however, ensure that judges must first consider alternatives and establish that without a gag order, the legitimacy of the trial will be severely in question.
To be constitutional, gag orders must meet certain requirements, typically revolving around the ability to secure a fair trial. In these cases, the court must believe that the circulation of information may bias a jury, even if the jury is told to ignore the news or ordered to be sequestered.
Gag orders can be particularly important because statements made outside of court are wholly different from those made in court. Statements to the public or press are not under oath and will not be subjected to requirements as statements made during trial.
“A gag order is supposed to prevent that kind of information about a case getting out and tainting the potential jurors,” Galluzzo says.
Violations of Gag Orders
Gag orders are rare, so violations of gag orders are even more rare. Ultimately, it is up to the court to decide what will happen if one is violated.
Violators can face warnings, fines and even jail time. This typically will depend on the level of egregiousness, frequency of occurrence and presence of malicious intent.
Attorneys who violate gag orders can face additional consequences. Professional disciplinary proceedings may occur, potentially leading to them being disbarred.
“If they think that someone is deliberately disrespecting the court and tainting the jury pool and all those things … then the judge could do a lot of things,” Galluzzo says.
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What Is a Gag Order? originally appeared on usnews.com
