San Diego Criminal Lawyers Blog
The First Amendment guarantees the right to free speech in this country. Nonetheless, we hear about judges issuing gag orders in high-profile cases, clearly restricting the speech of individuals connected to both civil and/or criminal trials. What gives?
The Point of Gag Orders
Judges typically issue gag orders—sometimes called non-dissemination orders– to restrict people from talking about a case publicly. They can apply to witnesses, attorneys, plaintiffs, and defendants. Protecting the integrity of the court system is the goal of these orders, as judges strive to keep potential jurists from hearing about the case outside of the courtroom. Even so, they are quite controversial because limiting speech is contrary to the First Amendment.
Free Speech on the Ropes?
The American Civil Liberties Union (ACLU) has argued that gag orders are unconstitutional, most frequently because they are unwarranted or are too vague to understand and enforce. They have filed many briefs against such orders over the years believing they unconstitutionally restrict free speech.
According to the Supreme Court, issuing gag orders and restricting press coverage of any trial should be tolerated only under the most serious of circumstances. They should be employed as a last effort because they are such an extreme remedy to a problem. Courts necessarily must consider alternatives before issuing any gag orders, with evidence that the trial’s legitimacy would be severely compromised otherwise.
Requirements Related to Gag Orders
The Sixth Amendment provides for a speedy trial by an impartial jury. The issuance of gag orders requires balancing this with the right of free speech. Therefore, gag orders can be issued only after meeting high standards, which is why proponents believe they are appropriate in some situations. If public comments have a strong potential of biasing a jury, it endangers the legal system at large. Since statements made outside of court are not made under oath, there is a greater likelihood of spin and untruths that could influence potential jurors. Beyond that, when inflammatory statements are made that put the lives of those associated with the case at risk, an additional concern is that jurors might be afraid to serve.
Uncommonly Used
Gag orders can be very limited—when they ban statements related to a specific person involved in the case—or quite broad, prohibiting any comments about the case altogether. They can be issued for a single individual or for all those associated with the trial. judges are concerned about media coverage that could impact the outcome of the case, meaning these orders most often are associated only with high-profile situations that are in the public eye.
Are You Concerned About the Possibility of a Gag Order?
It is likely that most defendants will never have to worry about a gag order. In cases that are very public and with high media coverage, the potential for such an order is greater. In any case, the aggressive criminal defense attorneys at Boertje & Associates in San Diego will always fight for the best outcomes for you. To discuss your case, schedule a confidential consultation today.