Gag Order

Author:David A. Anderson

Page 1179

"Gag order" is the press's pejorative term for a judicial order forbidding public comment, usually about a pending criminal case. Judges issue the order in an effort to prevent publicity that might make it impossible for a criminal defendant to receive a fair trial by an impartial jury. The orders came into use as a result of criticism by the American Bar Association (ABA) and others of press coverage of notorious cases such as the 1932 kidnap-murder of Charles Lindbergh's baby, the murder trial of Dr. Sam Sheppard in 1954, and the assassination of President JOHN F. KENNEDY in 1963. Each of those cases generated a torrent of publicity, much of it prejudicial to the accused's right to a fair trial.

The Supreme Court first discussed gag orders in Sheppard v. Maxwell (1966), when it reversed Sheppard's conviction on the ground that he had been denied DUE PROCESS OF LAW. Although the decision turned on the trial judge's failure to control "the carnival atmosphere at trial" rather than prejudicial pretrial publicity, the Court went out of its way to suggest that the judge "should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides."

This obiter dictum finally made pretrial publicity a constitutional, rather than merely ethical, issue. In 1968 an ABA committee promulgated new "Standards on Fair Trial and Free Press," endorsing prohibitions against release of information by lawyers and law enforcement officers. Gag orders then came into widespread use, usually over the vehement opposition of the press.

The ABA report distinguished between gag orders directed at lawyers and other trial participants and those directed at the press itself. It did not endorse the latter, fearing that restrictions on the press would violate the FIRST AMENDMENT. This distinction is still widely observed, even though gag orders against lawyers operate as prior restraints on speech just as surely as those against the press.

The constitutionality of gag orders reached the Supreme Court in NEBRASKA PRESS ASSOCIATION V. STUART (1976). In a multiple murder case a state trial judge had forbidden the local press to publish confessions or "other information strongly implicative of the accused as the perpetrator of the slayings." The Supreme Court treated the order as a prior restraint on publication, and held it unconstitutional because there was no...

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