What is a gag order?
Most likely we’ve heard the term “gag order” used in connection with
high-profile criminal trials.
Formally known as a non-dissemination order, a gag order is a court-imposed restriction on what information during trial or preliminary proceedings can be released to the public and what those involved in the case can say about it. Such orders often apply to everyone directly involved: lawyers, witnesses, defendants and plaintiffs. Sometimes they apply only to specific participants.
Such orders should be of concern anytime they are issued. The public and defendants have a First Amendment right and need to publicly review, critique and comment on the performance of the judicial system. This
holds courts accountable and sustains public support for their operations. But that right may run up against the Sixth Amendment right guaranteeing a fair trial.
Let’s look at what gag orders do, and when they may be appropriate limits on free speech.
What is the goal of a gag order?
The Sixth Amendment protects the right to “a speedy and public trial by an impartial jury.” This sometimes aligns with the First Amendment right to access and publish information, including about criminal trials. At other times, the two amendments come into conflict, as too much publicity surrounding a case can create unfairness:
- Potential jurors could be prejudiced by statements in the media or online.
- Witnesses could be threatened or harassed and even pressured to change their testimony.
- Confidential or proprietary trade secrets might be released.
A gag order seeks to prevent public statements that could cause harm to the overall case or people involved that cannot be undone.
