Gagging attorney speech: ensuring fair trials or prohibiting free speech?

Friday, September 21, 2001

In high-profile cases, criminal or civil, trial judges frequently restrict the speech of attorneys in the name of ensuring a fair, impartial proceeding. In the O.J. Simpson civil case, the Oklahoma City bombing case and the Microsoft case, to name a few of the more noteworthy cases, trial judges issued gag orders limiting attorney speech.

“Absolutely, no question about it, there are more gag orders being issued to trial participants, usually attorneys, in the past few years,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. She attributes this trend to “the Lance Ito syndrome”: “More and more judges do not wish to be perceived as having a lack of control over their courtrooms as Judge Ito was perceived to have had in the O.J. Simpson criminal case.”

Some of these gag orders were breathtakingly broad. In the trial of those accused of bombing the World Trade Center in 1993, federal trial judge Kevin Duffy issued the following gag order:

There will be no more statements issued by either side or their agents. The next time I pick up a paper and see a quotation from any of you, you had best be prepared to have some money. The first fine will be $200. Thereafter, the fines will be squared.

In the O.J. Simpson civil case, Judge Hiroshi Fujisaki issued the following order:

The Court makes an oral order that no counsel may discuss anything connected with this trial with the media or in public places. This order encompasses all parties, attorneys and witnesses under the control of counsel. Counsel may inform the media and the public of the order.

Some argue that gag orders on trial participants are necessary to protect other important values, such as the Sixth Amendment right to a fair trial before an impartial jury or other important information — company trade secrets, confidential information, private personal matters and other harmful publicity. They cite the Supreme Court’s statement that “a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.”1 One commentator writes that “gag orders against trial participants, although not a perfect solution, are an important mechanism by which trial courts can minimize the most damaging pretrial and trial publicity.”2

Many First Amendment advocates argue that these gag orders on trial participants restrict the public’s right to know and violate the Constitution. They characterize these speech muzzles as prior restraints on expression. They argue that by prohibiting attorneys from communicating directly to the press, the press will have to rely more on leaks and less accurate sources of information. They also contend that the public’s First Amendment right to receive information and ideas will be lessened.

These gag orders limit the press and the public’s access to important information on matters of public concern. But, proponents of attorney speech restrictions insist that the paramount concern of a trial judge should be to ensure a fair proceeding that is not tainted by outside biases.

Limiting attorney speech is not treated the same as directly limiting what the press may publish. In the famous Sam Sheppard case, the United States Supreme Court set aside a criminal defendant’s conviction because of a “carnival-like” atmosphere at trial. In the decision, the high court wrote: “Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.”3

Several years later, the United States Supreme Court set a very high standard when it comes to prior restraints on the press. In its 1976 decision in Nebraska Press Association v. Stuart, the U.S. Supreme Court wrote that a prior restraint is “one of the most extraordinary remedies known to our jurisprudence” and “the most serious and the least tolerable infringement on First Amendment rights.”4

Under Nebraska Press, a trial judge can issue a prior restraint on media publication only if the judge conducts a hearing and determines: (1) the nature and effect of pre-trial publicity; (2) whether other measures, such as sequestering the jury and changing the location of the trial, would solve the concerns over publicity; and (3) whether a restraining order on publication would effectively prevent the dangers associated with publicity.

Many legal commentators have argued that Nebraska Press sets an almost insurmountable bar against gagging the press. For example, C. Thomas Dienes, a law professor at George Washington Law School, writes: “Although Nebraska Press did not adopt a per se rule invalidating all gag orders on the media, it did erect a near-absolute rule of invalidity.”5

However, there is a degree of legal uncertainty about gag orders on trial participants, particularly when challenged by the press. Proponents of these gag orders on attorneys point out that in the Nebraska Press case itself, the Supreme Court listed restricting the speech of attorneys. The Court wrote:

This Court has outlined other measures short of prior restraints on publication tending to blunt the impact of pretrial publicity. Professional studies have filled out these suggestions, recommending that trial courts in appropriate cases limit what the contending lawyers, the police, and witnesses may say to anyone.

In another portion of its ruling, the Court wrote: “The courts must take steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.”6

Lower courts have responded to this language in Nebraska Press by increasing the use of judicial gag orders. Many states and courts have also adopted standing disciplinary rules that limit attorney speech.

Standing disciplinary rules
Most states have adopted a disciplinary rule based on the American Bar Association’s Model Rules of Professional Conduct Rule 3.6. This rule prohibits lawyers from making out-of-court statements that a “lawyer knows or reasonably should know” will have a “substantial likelihood of materially prejudicing an adjudicative proceeding.”

A well-known criminal defense attorney, Dominic Gentile, was privately reprimanded by the Nevada Bar for giving a press conference in which he said that his client, the owner of a vault storage, was not guilty of stealing money and cocaine from a vault rented by undercover police officers. Gentile said his client was an innocent “scapegoat” and that the more likely culprit was a police officer.

After his client was acquitted, disciplinary charges were brought against Gentile. A disciplinary board recommended a private reprimand for Gentile and the state supreme court affirmed this finding.

In 1991, the U.S. Supreme Court determined in Gentile v. State Bar that a portion of a Nevada disciplinary rule was unconstitutional because it was too vague. The last subsection of the rule, called a safe-harbor provision, listed a number of statements that attorneys could make about a pending case. The safe-harbor provision allowed an attorney to “state without elaboration … the general nature of the … defense.” Five members of the court determined that the rule failed to provide sufficient notice of what types of statements by attorneys could and could not be made.

However, five members of the Court ruled that the “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard that that established for regulation of the press” in Nebraska Press. 7

A bare majority of the Supreme Court determined that “‘the substantial likelihood of material prejudice’ standard constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State’s interests in fair trial.”8

The high court determined that the speech of lawyers was subject to more regulation than the news media and others for two primary reasons. First, the high court said that because attorneys have special access to information, their comments “are likely to be received as especially authoritative.” Secondly, the high court determined that attorney speech could be more regulated than that of others because attorneys are “officers of the court” and have special fiduciary responsibilities to ensure the administration of justice.

Since the Gentile decision, some lower courts have cited the decision to support an even lower standard for determining when a lawyer’s communications with the press could endanger a fair trial — the “reasonable likelihood of material prejudice” standard. For example, the 4th U.S. Circuit Court of Appeals determined that the reasonable likelihood standard did not violate the First Amendment.9

Judicial gag orders — differing legal standards
In addition to standing disciplinary rules, many courts will issue gag orders, affecting attorneys before the court far more directly than standing disciplinary rules. Dienes writes: “Gag orders on trial participants are more likely to chill speech than standing orders.”10

USC law professor Erwin Chemerinsky explains that gag orders are more damaging because they are prior restraints on speech, while standing disciplinary rules are after-the-fact punishments. “Gag orders are a form of prior restraint and they stop certain speech from ever occurring.”11

The question becomes: How do courts analyze restrictions on attorney speech? Currently, the lower courts are adopting different legal standards when analyzing gag orders on attorneys and other trial participants.

Some lower courts adopt a “reasonable likelihood” standard. Under this standard, a restriction on attorney speech is constitutional if there is a reasonable likelihood of prejudice without the gag order.

Other courts apply a higher legal standard. These courts argue that restrictions on attorney speech must be subject to a higher degree of judicial scrutiny. These other tests include “substantial likelihood of material prejudice,” “the clear and present danger” standard and the “serious and imminent threat of interference with a fair trial” standard.

However, still other courts do not view gag orders on attorneys as prior restraints at all. They reason that if the press is not gagged, then there is no prior restraint. The Supreme Court of Montana employed this reasoning, writing: “Although participant gag orders impede the flow of communication, they do not intrude upon the prerogative of the media to publish that which it knows.”12

To courts employing this analysis, a gag order on attorneys is not considered as abusive as a direct prior restraint on the news media because it does not prohibit the press from publishing what it already knows.

Chemerinsky attacks this reasoning, writing: “The crucial flaw in this conclusion is that it focuses solely on the institutional press and ignores that gag orders directed at lawyers and parties are a prior restraint on their speech.”13

Which standard should courts apply?
Many commentators contend that the current case law regarding limitations on attorney speech is seriously flawed. They point out that attorney speech about the criminal justice system is political speech — speech that represents the core values of the First Amendment.

Opponents of gag orders also emphasize that lawyers have a duty to zealously represent their clients — in and out of court. As Justice Anthony Kennedy has written: “An attorney’s duties do not begin inside the courtroom door.”14

Dienes writes that much of the current case law on attorney gag orders ignores two central First Amendment principles — that gag orders are content-based restrictions on political speech and that gag orders on trial participants are prior restraints on speech. He advocates that restrictions on attorney speech must be subjected to strict scrutiny, a high form of judicial review.

Chemerinsky goes even further in his approach. He advocates that the court examine attorney gag orders under the standard the U.S. Supreme Court developed for libel law in New York Times Co. v. Sullivan. 15 Under Times v. Sullivan, a public official cannot recover in a libel lawsuit unless she or her establishes, by clear and convincing evidence, that the defendant acted with actual malice or in reckless disregard of the truth.

“Why is this a superior approach to regulating lawyer speech?” Chemerinsky asks. Because “the approach provides maximum protection of speech without safeguarding that which has the least value and is most likely to be harmful.”16

Although Dienes and Chemerinsky advocate different standards for attorney speech, they both agree that the current standards fail to provide adequate protection. They also both believe that the lower courts are in disarray on this issue.

“This is an issue that cries out for United States Supreme Court review,” Chemerinsky says.

1Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1978).
2Eileen A. Minnefor, Looking for Fair Trials in the Information Age: The Need for More Stringent Gag Orders Against Trial Participants, 30 U.S.F.L. Rev. 95 (1995).
3Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).
4Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 554 (1976).
5C. Thomas Dienes, Trial Participants in the Newsgathering Process, 34 U. Rich. L. Rev. 1107, 1120 (2001).
6427 U.S. at 553-554.

7Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991).

8Id. at 1075.
9In re Morissey, 168 F.3d 134 (4th Cir. 1999).
10Dienes, supra n. 5, at 1147.
11Interview with Chemerinsky, 9/17/01.
12State v. Montana Twenty-First Judicial District Court Ravalli County, 281 Mont. 285, 933 P.2d 829 (Mont. 1997).

13Erwin Chemerinsky, Silence is not Golden: Protecting Lawyer Speech Under the First Amendment, 47 Emory L.J. 859, 880 (1998).
14Gentile, 501 U.S. at 1043.
15376 U.S. 254 (1964).

16Chemerinsky, supra n. 13, at 886.

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