On Friday, February 15, 2019, a federal judge imposed a gag order in the case of Roger Stone, the Republican political consultant who was recently arrested during an early morning raid by the FBI.
The specific order requires lawyers and others in the case to not discuss it publicly in any way which might ‘pose a substantial likelihood of material prejudice.’ They cannot use the area immediately outside the court in Washington D.C. for these statements – namely to the media.
Gag orders, or suppression orders, are used primarily in cases that could garner substantial publicity. They are designed to preserve the parties’ rights to a fair trial, including the ability of the court to impanel an impartial jury.
They are used in both civil and criminal cases, although the Supreme Court expressly allowed the use of gag orders in a criminal case in 1966 called Sheppard v Maxwell. Sam Sheppard was a doctor who had been convicted of murdering his wife. On appeal, he argued that his Sixth Amendment right to a fair trial had been violated due to the massive (negative) publicity surrounding his case.
The Court agreed and ordered Mr. Sheppard be released from custody as a result. In the opinion, the trial judge was criticized for failing to impose a gag order; however, they did not go into any detail about standards for gag orders. So, even today, there is not a uniform standard or method for imposing suppression orders in ongoing cases – various jurisdictions have differing approaches.
Attorneys will usually already have a ‘gag order’ imposed on them by their respective bar association rules. Most lawyers participating in a pending case will not be able to make any public statements which would have a substantial likelihood of materially prejudicing the case.
But gag orders take it a step further, applying to parties, witnesses – and even jurors, often after the trial is completed. More recently, judges have expressly prohibited jurors from having news interviews about deliberations, inquiries of specific votes on jurors, and bans on repeated requests for interviews after jurors have expressed a desire to not be interviewed.
There is some question about the legal sufficiency of such a ruling as, arguably, the state’s interest in a fair trial is no longer in jeopardy after the conclusion of a trial. Participants involved in grand jury proceedings are barred from disclosing information learned under the Federal Rules of Criminal Procedure.
Some states also bar grand jury witnesses from discussing their testimony even upon completion of grand jury investigations. Notably, however, they cannot be prevented from discussing information that they already knew prior to the testimony. Of course, gag orders often conflict with the principles of freedom of speech.
That is why there is a fairly high standard to be satisfied before a judge can impose a gag order on the media. Before judges can prevent lawfully obtained information from being published, there must be a hearing to determine the effect of the news coverage on the pretrial, and whether or not there can be other measures aside from a gag order that can be used to mitigate these effects.
Finally, there must be some consideration as to whether a gag order would be effective in preventing any prejudice. The Supreme Court has held that a gag order on the media is the last resort that should be ordered only after there have been other measures to preserve a fair trial (change of venue, jury sequestration) found to be inadequate to protect the rights of the parties.