Court-Ordered Restrictions on Trial Participant Speech

By Pahl, Jonathan Eric | Duke Law Journal, February 2008 | Go to article overview

Court-Ordered Restrictions on Trial Participant Speech

Pahl, Jonathan Eric, Duke Law Journal


This Note considers court-ordered limitations on the extrajudicial speech of trial participants in high-profile cases. After providing a history of Supreme Court decisions, informative though not dispositive of the topic, it presents the divergent approaches lower courts take when faced with trial participants' extrajudicial speech. The Note highlights the extreme legal uncertainty facing trial participants who desire to speak publicly about court proceedings. Finally, it concludes that courts would better balance First Amendment and fair trial values by rejecting the reasonable likelihood of prejudice standard.


The American justice system ushered in the new millennium by playing host to some riveting drama: fraud perpetrated by Enron executives, the murder of pregnant Laci Peterson, the Michael Jackson child molestation case, and allegations of rape against Kobe Bryant and Duke University lacrosse players. September 2007 accusations of a commando style raid (1) refreshed the public's memory of the O.J. Simpson "trial of the century" just a decade earlier. While the American fascination with wrongdoing and punishment continues unabated, the established news media remain willing, if not eager, to wax knowledgeable about the acts and lives of those engaged in courtroom battles. CNN, Court TV, the twenty-four hour news cycle, and the Internet contribute to the quantity of information broadcast and published.

That this industry can fix its attention on legal proceedings is profoundly beneficial. Legal reporting increases public knowledge about the law and enhances deterrence. It may help marshal resources for an innocent but poor defendant or convince a reluctant witness to come forward. The freedom to speak about judicial proceedings enables criticism of government ineptitude, corruption, and malice, and it promotes a discussion about social change. (2)

   Secrecy of judicial action can only breed ignorance and distrust of
   courts and suspicion concerning the competence and impartiality of
   judges; free and robust reporting, criticism, and debate can
   contribute to public understanding of the rule of law and to
   comprehension of the functioning of the entire criminal justice
   system, as well as improve the quality of that system by subjecting
   it to the cleansing effects of exposure and public accountability.

Widespread familiarity with the details of court cases, however, threatens to prejudice the proceedings, particularly by influencing potential jurors. Jurors too familiar with the arguments and facts may be so predisposed to one outcome or another as to undermine the trial itself, violating the Sixth Amendment's guarantee of an impartial jury. (4) "[F]ree speech and fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between them." (5) Yet courts must make determinations--about the influence of speech on trials and what to do about it.

With the First Amendment precluding almost all gag orders on the press, (6) many courts limit publicity by demanding that attorneys and trial participants refuse to engage the public through the media. In four of the five cases already mentioned--the Laci Peterson, Kobe Bryant, Michael Jackson, and Duke Lacrosse cases--the trial judge ordered parties, witnesses, or their counsel to refrain from making extrajudicial statements. (7) In the fifth case, the Enron trial, the judge twice refused requests to impose a gag order. (8) Similar restraints on speech are not unusual; trial participant gag orders are applied with increasing regularity. (9) The Supreme Court, however, has never decided the constitutionality of these orders, (10) and the lower courts are divided three ways: some courts allow speech restrictions when a judge identifies a reasonable likelihood of prejudice, others demand a substantial likelihood of prejudice, and a third group of courts proscribes all restrictions on speech absent a clear and present danger of prejudice. …

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