Magazine article Editor & Publisher

The Year of the Gag Order

Magazine article Editor & Publisher

The Year of the Gag Order

Article excerpt

ONE OBSERVER characterized 1994 as the year of the gag order.

"If you look back over the last year, what we've seen is really an explosion of gag orders," commented Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press.

"For me, this year, my court access and gag order files have expanded exponentially," she said. "This is the new frontier in media case law for the next few years.

"There will still be libel cases, but trends for the future are court access and gag orders. That's where the litigation will be," she said.

Among the cases she cited were a legal attempt by actress Elizabeth Taylor to stop a television movie about her life, which failed; a gag order against CBS prohibiting it from showing on "48 Hours" a videotape from a meatpacking plant, which was overturned by Supreme Court Justice Harry Blackmun; Paula Jones' failed attempt to stop Penthouse magazine from publishing revealing photographs of her; and the recent Dow Jones & Co. effort to get a sealed Whitewater report that resulted in a sealed appeals court decision.

"I'm very disturbed by this," Kirtley added. "I foolishly thought that, after Justice Blackmun acted so quickly in the CBS case, it would send the word that this is something you don't do."

Kirtley said this tendency toward gag orders, particularly from plaintiff's alleging economic harm, is a relatively new trend.

"We're not talking about gag orders issued in the context of a trial, like the O.J. Simpson case," she said. "None of them had anything to do with court proceedings. All were filed by someone who didn't like what was going to be written or broadcast about them."

The growing number of gag orders at all judicial levels partially can be attributed to the fact that many judges are unaware of the existing precedent, some of which dates back about 10 years, Kirtley said. They simply have not had to deal with these issues before.

"It's unfortunate that the trouble and expense of educating them falls to the news media," she added. "We really need to promote bench-bar-media conferences.

"The reality is, what happened to CBS could happen to any news outlet of any size. Let's not delude ourselves that it only happens to '60 Minutes.' It could happen to anyone," she said.

Another issue of concern is the growing tendency of plaintiffs to subpoena parties other than the press -- such as telephone records and credit card companies -- in an attempt to uncover sources.

"This gets me back to the Uniform Correction or Clarification of Defamation Act," Kirtley said. "I was concerned that this would be used by people who would file libel suits as a method of getting to sources. People will threaten lawsuits to do an end run around shield laws.

"I would point out that what Philip Morris and Brown & Williamson [who have used subpoenas this way] are doing is akin to that," she said. "It's the same kind of ploy."

"For those who thought my thinking was too Machiavellian," Kirtley added, "the creativity of plaintiff lawyers is never to be underestimated."

One bright spot is that some companies subpoenaed -- other than a few local phone carriers -- are competitive businesses.

"A number of companies, in response to concerns about people's records, have been issuing new policy statements about how to handle customer records," Kirtley said.

For example, she said American Express' policy is to notify the customer that his records have been subpoenaed and not to release the information before the customer has a chance to fight it. …

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