Gag Orders

“Classic” Gag Orders

A typical gag order is issued by a trial judge during the pretrial stages of a criminal prosecution. It restricts trial participants, such as attorneys, law enforcement officials, or witnesses, from disclosing information which could be deemed prejudicial to the Sixth Amendment right of the defendant to a fair trial by undermining the ability of the court to impanel an impartial jury. This could include, for example, investigatory details such as the contents of wiretap transcripts or the fruits of a search that have not yet been admitted into evidence; the defendant's confession; the fact that a lie detector test has been taken (or refused) and its outcome; or the defendant's previous criminal record.

In 1966, in the wake of a notorious murder trial, the Supreme Court reversed Dr. Sam Sheppard's conviction, placing the responsibility for controlling prejudicial publicity squarely on the shoulders of the presiding judge. In addition to maintaining the dignity of the courtroom by controlling media conduct during the proceedings themselves, the high court also recommended that trial judges consider issuing orders proscribing extrajudicial statements by lawyers, parties, witnesses and court officials (Sheppard v. Maxwell, 384 U.S. 333 [1966]).

Controls on trial participants' speech, however, did not solve the perceived problem as long as the news media were free to report information that was leaked to them. Ten years after Sheppard, the Supreme Court considered the question of whether direct restraints on the press could be constitutional after a trial judge in Nebraska had ordered the news media to refrain from publishing specific details considered “strongly implicative” of the guilt of the individual accused of murdering six family members in a small rural community, including the confession of the prime suspect which had been introduced in open court during his arraignment. The high court found that the order was vague and overbroad and that it violated settled principles protecting the rights of the press to report events that transpire in a public hearing. Publication of information obtained [Page 654]legally from other sources, the Supreme Court found, could be restrained only if it posed a clear and present danger to the defendant's rights; if no alternative measure such as change of venue or extensive questioning of the jurors could avert the potential danger; and if the gag order demonstra-bly would protect the defendant's Sixth Amendment rights. Given the pervasive gossip that had already saturated the small community, the high court was skeptical that any restrictions on the news media would be effective (Nebraska Press Association v. Stuart, 427 U.S. 539 [1976]).

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