Gag orders are not always prior restraints

The media are the backbones of the public. Therefore, they must be assertive and know when to interfere with the courts without fear that the government will infringe on the public's freedom of speech and press. For instance, if the court decides to close the doors of certain criminal trials to the public, the media should instantly contest with the court the public's right to know and the media's right to access information that shape story investigations. Without the proactive role of the media putting their foot in the door, the government ends up imposing prior restraints on the reporters' investigative pieces. This prevents the exposure of the truth hidden behind the caution-taped, closed door criminal trials. The government cannot withhold records that, once on file, are accessible to the public, and it certainly should not place gag orders on the press. These restrictions should not be attempted by the government because this action is unconstitutional and very rarely justified.

The courts can go as far as issuing a gag order on its defendants, victims, and witnesses to prevent them from speaking to reporters who publish trial predictions during the pre-trial hearings. Although gag orders are meant to stifle the pre-trial prejudice the public may develop through the media's interview with certain parties, the court is stepping over its boundaries by indirectly imposing a prior restraint (Prior). In other words, by taking away the source (i.e. defendants, victims or witnesses), the press no longer has access to vital information, which prevents them from uncovering prosecutions, cross-examinations, and judicial processes that were misconducted. Even if reporters interviewed their sources before the gag order, the court can order the press not to publish the information. This prior restraint is dangerous and unconstitutional because it places limitations on the press' ability to look into unconstitutional moves made during judicial processes and places the burden of what to publish on the speakers, not the government. In other words, the press becomes uncertain about which information the government will restrict, so they experience chilled speech. According to Chief Justice Warren Burger in the Nebraska Press Assn v. Stuart case (1976), he believes it is unconstitutional to execute gag orders on the press. Burger states that prior restraints on speech and publication are intolerable infringements on First Amendment rights. He adds that the risk of criminal sanctions after publication chills speech, but prior restraint may just as well freeze speech altogether (Prior).

A more recent example of a gag order is the Sheley case in Galesburg, Ill. Nicholas Sheley, who was accused of first degree murder and responsible for eight deaths, sat in Knox County jail and spoke with an Associate Press member on Sept. 23, 2008. Sheley commented to the press that the court was not fulfilling his Sixth Amendment rights to a speedy trial and his right to know the nature of his accusations, which he claimed the court never spoke to him about (Judge). Immediately, the Ninth Circuit Judge James Steward issued a gag order, which prevented Sheley from standing trial until he is fit for a hearing. Although the government didn't directly impede the AP from doing further research on this court case, the judge took away access to a vital source. Judge Steward seems to think the AP reporter mustered too much courage in Sheley to be uncooperative. That doesn't justify placing further restrictions on Sheley, who does have a point when he says the court did not follow through on his Sixth Amendment rights. In a way, it would make the judge look worse off because he placed a gag order on the alleged criminal who had revealed to the public that he had no basic trial rights. However because the defendant always has the chance to be brought back to the trial, the government is not completely denying Sheley his rights (Gag). The problem is, the press no longer controls the streamline of information between the defendant and the public after the court blocks access to Sheley. Removing sources' ability to speak to the press places more suspicion on the court's ability to oversee the criminal court system in a just manner.

In some instances, the court has the constitutional right to issue gag orders directed at the victims, defendants, witnesses and lawyers. Some judges and prosecutors may argue that a gag order is the only way to ensure a fair trial. A gag order can be a positive move if it protects the Sixth Amendment rights of the individual undergoing criminal proceeding. This saves the defendants from facing public misjudgments. For instance, United States District Judge Samuel Kent was the first judge to be indicted for sex crimes. The alleged victim wanted to manipulate the media coverage by openly telling the media a biased story (Court). However, once the court issued the gag order, no one involved in the criminal trial had the freedom to express their views other than in front of a public trial setting. This protected Judge Kent's assurance of a fair trial and prevented the public from forming misconceptions about the defendant before the court laid out the full scope of the trial. The court may also deny the press access to "rap sheets" because they invade personal privacy rights. In the Department of Justice v. Reporters Committee for Freedom of the Press (1989) case, the court pointed out that "rap sheets" are clearly private information that protects criminals.

In some cases, the prosecutors would issue a gag order to a third party to prevent the disclosure of documents related to investigations that need more time to examine. For instance, a county prosecutor investigating the sexual assault case on the University of Iowa campus informed Iowa administrators to withhold from the public copies of the subpoenas related to the investigation (Iowa) in November 2007. When newspapers requested copies of subpoenas Johnson County Attorney Janet Lyness said they couldn't obtain these documents because she was treating the case like a grand jury proceeding. The Iowa City Press-Citizen filed a lawsuit against the university because the school wouldn't provide them with the documents containing the judge's statement about the sexual assault investigation. In a sense, Lyness was not specific about her reasons for preventing Iowa from releasing the documents. In fact, this act of withholding is an indirect method of using prior restraint. Since the newspapers could not obtain the documents, which would be considered public records, the press lost its opportunity to delve deeper into an investigation that would inform and serve the public. In any case, the press couldn't exercise its freedom to report impartially on an issue because there was a vague restriction on those public documents. The court should refrain from overly vague reasons for issuing a gag order because this acts as an unnecessary barrier between the press and the court.

By taking proper procedures, the media has the right to obtain certain confidential reports and look deeper into criminal cases. This is not to say that the media has complete access to all information related to the criminal investigations. For instance, reporters cannot obtain a copy of a police warrant until the judge issues it, sends a copy to the person being searched, and information about the items seized and the officer's complaints have been filed in the clerk of court (Access). Likewise, there was a way for the media to obtain the copies of the subpoena in the Iowa case. The report mentioned that the university was a third party. Although court officials must abide by the order to seal subpoenas, the university doesn't have to comply (Iowa). Thus, the newspaper could have obtained the copies of subpoenas from the university instead of asking the court, and their actions would've been justified. However, the unfortunate government issuance of a gag order prevented the media from obtaining the information that would otherwise be readily accessible.

Although the press may not win every challenge, there are special cases where publishing the truth discourages the judges and prosecutors from issuing gag orders. More specifically, in Landmark Communications, Inc. v. Virginia (1978), the court protected a publication revealing factual information that served the public interest and examining the judicial proceedings. This was despite the fact that a Virginia statute called it a criminal offense to disclose information during pending judicial proceedings (Prior). This shows that the power of truth has potential to override existing laws.

Before 2000, Illinois had no statutory provision that allowed the media access to arrest reports (Access). In 2000, Illinois enacted a new statute that requires law enforcement agencies to make available information that identifies the person, lays out the charges related to the arrest, specifies the time and location of the arrest, reveals the name of the arresting authorities, informs the amount of bail or bond, and tells the time and date the arrested person was received, discharged or transferred from custody (Access). Changes in the law and precedence set by court cases are opening up access to a plethora of information for the public and making it harder for the government to force a prior restraint on the media.

The most important note to make about gag orders is that the government shouldn't use them as weapons against the press. The Court should not issue gag orders for trials where there is no evident danger nor should the media and public back down from their right to challenge the gag orders. As long as the interest of the public is at stake, the government must yield to the media's duty to serve that interest. However, the media relinquishes its rights to obtain confidential information in the face of imminent intrusions of privacy.


http://www.rcfp.org/newsitems/index.php?i=6976 (Court issues broad gag order in federal judge's sex-abuse trial)

http://www.firstamendmentcenter.org/news.aspx?id=19519 (Iowa prosecutor blocks release of files in sex-assault investigation)

http://www.galesburg.com/news/x1464869792/Judge-issues-gag-order-in-Sheley-case (Judge issues gag order on Sheley case)

http://legal-dictionary.thefreedictionary.com/gag+law (Gag order- Legal Dictionary)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=427&invol=539 (Nebraska Press Association v. Stuart 1976)

http://www.illinoisfirstamendmentcenter.com/pdf/Media_Law_Chap7.pdf (Access to courts and documents)

http://www.illinoisfirstamendmentcenter.com/pdf/Media_Law_Chap13.pdf (Prior restraint)