Gag Orders

[Page 719]A gag order prohibits an individual from speaking or publishing about a particular matter. Although gag orders can take numerous forms, the term is commonly used to describe a court order restricting speech about pending litigation. Gag orders can impact journalists’ reporting in two significant ways. First, a court may issue a gag order that directly prohibits members of the media from broadcasting or publishing information about a case. Such a direct restriction on the press is subject to a heavy presumption of unconstitutionality under the First Amendment and will rarely be upheld. Second, a court may issue a gag order that does not apply directly to speech by journalists but that restricts the speech of others—such as lawyers, parties, or witnesses—who journalists would ...