Magazine article The Quill

In the Dark

Magazine article The Quill

In the Dark

Article excerpt

Gag orders were originally used to keep facts about ongoing trials inside the courtroom. The goal was to ensure a fair trial.

But now, with the advent of 24-hour news programming, experts say judges are issuing more and more in an attempt to control publicity.

Gag orders can prohibit parties in a pending lawsuit from talking to the public, and they have been issued in some of the most high-profile cases: OJ. Simpson, Kobe Bryant, Scott Peterson and Michael Jackson.

Attorneys can ask for a gag order to be issued, but ultimately it's up to a judge to make that decision. Normally, a gag order is placed on the attorneys or witnesses in a trial, and on some occasions, a judge may try to issue a gag order on the media.


On July 4, 1954, Dr. Sam Sheppard's pregnant wife, Marilyn, was found fatally beaten at the couple's home in Cleveland. Sheppard contended that her killer was at large and that he fought the intruder before being knocked unconscious in the struggle. Police were not able to find an intruder, and Sheppard was charged and prosecuted in his wife's slaying.

The case attracted an unprecedented amount of publicity, and the trial court found Sheppard guilty of second-degree murder. The U.S. Supreme Court reversed the decision, holding that the excess media coverage prevented Sheppard from receiving a fair trial.

The Sheppard case favored the importance of a criminal defendant's Sixth Amendment right to a fair trial over the public's First Amendment right to free speech. However, members of the media seemed to prevail in the U.S. Supreme Court case Nebraska Press Association v. Stuart.

When six family members were slain, the case gained widespread media attention overnight. The county court entered a restrictive order that prohibited the media from publishing confessions made by the defendant. The Supreme Court held that freedom of expression is not absolute, but that a prior restraint on the media was unconstitutional.

Prior restraint is a restriction on speech or publication before it's actually expressed. Although the Supreme Court has said that prior restraints "are the most serious ... infringement on First Amendment rights," it also has said prior restraint may be warranted in limited circumstances.

While Nebraska Press held that gag orders should not be placed directly on the media, the case failed to address one important issue: whether gag orders directed at trial participants constitute a prior restraint.

"We argue a gag order is a prior restraint on speech because it's the government telling you, 'You can't say this,' " said Michael Seplow, an attorney who specializes in First Amendment and civil rights cases.

Attorneys and journalists agree that in some cases gag orders work. But as a case gains publicity, gag orders can be less effective. In the Kobe Bryant and Michael Jackson cases, sensitive information was leaked to the media despite the gag orders.

"You will never stop all of the information from coming out, so what you are doing is stopping a portion of it. Is that really going to increase the likelihood that the trial will be any more fair? I don't think so," Seplow said.

Gag orders create a problem for the media because the people who know what's going on in the trial, such as the attorneys, police or witnesses, can't talk to reporters.

Journalists also are forced to interview less qualified sources who speculate about trial events.

"If you have a very high profile case, you have a lot of reporters who still find someone to tell them something, and this may be someone with limited access to the real information," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "Experts will tell you what they think is going on rather than the people who actually know what is going on," Dalglish said.


When Dalglish took over as executive director of the RCFP six years ago, she tried to keep track of the number of gag orders issued throughout the country. …

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