Gag Order

The term “gag order” refers to an order issued by a court that restricts dissemination of information or making of comments about a case.

An order by a judge that restricts or precludes a citizen from speaking in advance to the public about issues involving a case to prevent the jury pool from being tainted.

A court order directing, among others, reporters, not to report on court proceedings.

A gag order is an extreme remedy as it constitutes a prior restraint.  In order to survive a constitutional challenge, a gag order must meet the standard set forth by the United States Supreme Court in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).  In that case, the Court established that, before issuing a gag order, a trial judge must examine the extent of possible prejudicial publicity, explore reasonable alternatives to the restriction of speech, and determine the potential effectiveness of a restraining order in the context of the particular case.  An order prohibiting trial participants from commenting on pending litigation does not violate freedom of the press, as long as the order is not aimed directly at the press and there is a “clear and present danger” to the fair administration of justice.  Therefore, a properly applied gag order can effectively limit the speech of trial participants and, perhaps, increase a defendant’s right to fair trial by preventing potentially prejudicial trial publicity.

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