Gag orders and First Amendment rights

Perhaps the most talked-about gag orders in 2024 were those against former president (and current presidential candidate) Donald J. Trump. New York State Supreme Court Judge Juan M. Merchan, who presided over the New York v. Trump “hush money” criminal trial, issued an order limiting Trump from making statements or directing others to make statements about potential witnesses, the district attorney, employees of the district attorney’s office, family members of the district attorney, jurors, or prospective jurors. This came after the former president made numerous statements the judge considered inflammatory and was given several warnings to stop commenting on the case.

Trump’s legal team argued this broad gag order violates his right to engage in political speech on matters of public concern. Judge Merchan countered that the statements were necessary to preserve the administration of justice, and supporters of the order contend the gag order was narrowly tailored and justified under the circumstances. 

Judges commonly use gag orders to limit the speech of other trial participants, not just the former president and presumptive party nominee. Judges sometimes issue gag orders that prevent trial participants from making statements outside the court about the underlying legal proceedings or other matters before the court, in order to minimize harm from pervasive pre-trial publicity or to ensure litigants receive fair judicial proceedings. However, sometimes judges issue gag orders even against the media or other parties not before the court. In any of these instances, gag orders raise important First Amendment questions.

Gag orders against the media 

The most suspect gag orders are those levied against the press. The U.S. Supreme Court explained in Nebraska Press Association v. Stuart (1976) that gag orders against the press are prior restraints on speech — what Chief Justice Warren Burger called “the most serious and least tolerable infringements on First Amendment rights.” 

The case involved the murder trial of a man who allegedly killed six members of a family in the small town of Sutherland, Nebraska. Trial judge Hugh Stuart issued a gag order limiting the press from reporting on several aspects of the case, including:

• Whether the defendant had confessed to the police.

• Statements that the defendant had made to others.

• The contents of a note that the defendant had written the night of the crime.

• Certain aspects of medical testimony at the preliminary hearing.

• The identity of the victims of an alleged sexual assault committed before the killings. (It also prohibited reporting on the exact nature of the order.)

The press challenged the gag order as an impermissible prior restraint on speech in violation of the First Amendment. Ultimately, the Supreme Court agreed the gag order was too broad. It held that before issuing a gag order, a judge should consider less speech-restrictive alternatives, such as changing the venue or location of the trial, postponing the trial, questioning potential jurors during voir dire (the jury selection process), or making “emphatic and clear” jury instructions.

As the Court explained, these alternatives could lead to judicial proceedings sensitive to a criminal defendant’s fair-trial rights, without restricting speech like the gag order that Judge Stuart issued. 

“We cannot say on this record that alternatives to a prior restraint on petitioners would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint unnecessary,” the Court wrote. “Reasonable minds can have few doubts about the gravity of the evil pretrial publicity can work, but the probability that it would do so here was not demonstrated with the degree of certainty our cases on prior restraint require.”

Nebraska Press Association thus erects a high barrier to gag orders against reporters, particularly in criminal cases. Subsequent courts generally have required the government to show that any requested gag order is narrowly tailored and necessary to avoid a clear and present danger to the fair administration of justice. While not always using the term “gag order,” the rule from Nebraska Press Association in effect means such an order against the media is constitutional only if it meets strict scrutiny — the highest form of judicial review. 

As constitutional law scholar Erwin Chemerinsky has observed, the decision “has virtually precluded gag orders on the press as a way of preventing prejudicial pretrial publicity.” 

Gag orders on attorneys and trial participants 

While strict scrutiny is the high standard used to evaluate gag orders against the press, there is far less consistency in American jurisprudence on how to evaluate gag orders against attorneys and trial participants. Some courts still apply exacting scrutiny to such gag orders even against attorneys and trial participants. However, many courts use a much less demanding standard. 

That inconsistency is perhaps understandable given the Supreme Court has never decided a First Amendment case directly involving a gag order on an attorney or trial participant, unlike with gag orders against the media. Attorneys are considered officers of the court and are therefore subject to greater judicial control. Likewise, trial participants also are more under the control of the court than the reporting press. 

The Court did rule in Gentile v. State Bar of Nevada (1993) on whether a criminal defense attorney could be subject to professional discipline for statements made at a press conference months before trial. Attorney Dominic Gentile, in order to combat negative pretrial press coverage of his client, contended his client was innocent and that the real culprit in the case was likely a police officer. The Nevada Bar sought to discipline Gentile for violating a rule of professional conduct that prohibited lawyers from making public statements about active litigation that have a substantial likelihood of materially prejudicing the underlying court proceedings. 

All gag orders are not only prior restraints but content-based restrictions on speech. As such, they should be subject to rigorous review and must be narrowly drawn. 

This substantial likelihood standard is often known as “the Gentile standard.” In Gentile, a sharply divided Court upheld the constitutionality of the Nevada Bar’s professional conduct rule — even as it ultimately ruled in favor of Gentile, finding he reasonably could have believed his comments were justified under the rule’s safe harbor exception allowing lawyers to make statements to counter negative pretrial publicity against their clients. The Court held the safe harbor provision was too vague, and that the bar therefore could not discipline Gentile. 

As mentioned, some courts apply a very high standard for all gag orders. For example, the U.S. Court of Appeals for the Sixth Circuit invalidated a broad gag order issued by a federal district court in the criminal trial of sitting Rep. Harold Ford from Memphis, Tennessee, back in 1987. Ford faced mail and bank fraud charges, and the judge issued a broad gag order prohibiting Ford from discussing the merits of the case. The order even prohibited him from making any statements about the trial, including an “opinion of or discussion of the evidence and facts in the investigation or case.” 

The Sixth Circuit wrote in United States v. Ford (1987) that “such broadly based restrictions on speech in connection with litigation are seldom, if ever, justified.” It also explained that it is “true that permitting an indicted defendant like Ford to defend himself publicly may result in overall publicity that is somewhat more favorable to the defendant than would occur when all participants are silenced. This does not result in an ‘unfair’ trial for the government, however.” 

Ultimately, the Sixth Circuit held such gag orders are justifiable only if the government can show public comments about the trial pose a clear and present danger to the fair administration of justice. 

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Other courts use a much less demanding standard. These courts will often apply a standard similar to that discussed in the Gentile case — whether there is a substantial likelihood public statements about the trial would prejudice court proceedings. And some courts have used even a lower standard — whether there is a “reasonable likelihood” that public statements will prejudice an underlying proceeding. 

Gag orders featuring high profile defendants like the former President receive significant media attention. In the age of social media, everyone – including court participants – can reach a wider audience and this makes judges more sensitive to interference with court proceedings and more prone to issue gag orders. But as noted at the outset, in each case, they raise important constitutional considerations as they are a form of prior restraint.

The case law draws a distinction between gag orders against the media on the one hand and gag orders against trial participants, including attorneys, on the other hand. However, all gag orders are not only prior restraints but content-based restrictions on speech. As such, they should be subject to rigorous review and must be narrowly drawn. 

By David L. Hudson, Jr. (Last updated: June 20, 2024)