Gag orders are frequently in the news—especially in high-profile cases where celebrities or publicity-hungry lawyers use social media to control the narrative and shape public opinion about the cases. But what actually are gag orders, and what are they used for?
What Is a Gag Order?
The term “gag order” can mean different things in different situations. Usually, it refers to a judge’s order that prohibits participants in a criminal or civil case from making public statements about the case until the trial is over.
The order (sometimes called a “suppression order” or simply an injunction) is meant to ensure a fair trial with an impartial jury. But when judges are making these orders, they must balance that goal with the First Amendment free speech rights of the people being silenced, as well as the media’s right to report on cases and the public’s right to information.
Who Is Subject to a Gag Order?
Because courts have almost always overturned trial judges’ attempts to restrict the media’s right to report on cases, gag orders typically apply to participants in a case, such as:
- the parties (the defendant and the prosecutor in a criminal case, or either side in a civil case)
- the lawyers
- any witnesses, and
- the jurors.
Judges may also order law enforcement and court personnel not to speak to the media or release certain information about the case to the public.
When Judges Issue Gag Orders
Usually, a gag order is requested by one or both parties in a case, but judges may decide on their own to issue these orders. Either way, the judge must find that the order is needed to protect the fairness of the proceedings and prevent the jury from being prejudiced by inflammatory or extensive publicity about the case.
Example of a Gag Order
A gag order might include one of the following prohibitions:
- trial participants are prohibited from posting on social media any threats against current and former jurors, witnesses, attorneys, and court personnel associated with the case
- trial participants are prohibited from discussing witness testimony on social media, or
- counsel in the case shall not make public comments that they know have a substantial likelihood of prejudicing the case (such as comments that reveal plea discussions or inadmissible evidence in a case or that take the form of victim blaming).
Gag orders need to be narrowly defined based on the particular case. They generally last the duration of the trial.
Why Issue a Gag Order
Judges might initially opt for less restrictive measures to maintain order and fairness in a case before issuing a gag order. For instance, a judge may issue a protective order that directs parties in a case not to share certain evidence or discovery with third parties, including not posting the information online. Or a judge might admonish (warn) the parties that they should not engage in certain behavior.
If a party violates the protective order, the judge might decide a broader gag order is necessary. Or if an attorney or party continuously posts or makes inflammatory statements about a case or about certain individuals despite the court's warnings, the judge might decide less restrictive measures won't suffice in a case.
Are Gag Orders Constitutional?
Gag orders involve competing constitutional rights: the right to a fair trial with an impartial jury versus free speech. It can be difficult to balance those rights. The U.S. Supreme Court has long recognized judges’ authority to control publicity before and during criminal trials (Sheppard v. Maxwell, 384 U.S. 333 (1966)). But the Supreme Court hasn’t laid out a single, clear test for deciding when gag orders violate the First Amendment, and courts around the country apply different standards to evaluate challenged gag orders.
In general, however, courts focus on three questions when they’re deciding whether gag orders violate the First Amendment:
- How likely is it that further public statements by participants in the case will prejudice the jury and harm the judge’s ability to conduct a fair trial?
- Can the judge use other methods to ensure a fair trial that don’t restrict free-speech rights (like using the jury-selection process to weed out people who were prejudiced by pretrial publicity or instructing jurors not to pay attention to news)?
- If not, does the gag order specifically address the problems, or is it too broad?
Also, the standards for gag orders may depend on the person being “gagged.” For instance, judges have more leeway in restricting speech by attorneys in a case than by ordinary citizens.
What Happens When People Violate Gag Orders?
Anytime you violate an order of the court—including a gag order—you could be found guilty of contempt. If you're facing contempt charges for violating a gag order, you should speak with a criminal defense attorney as soon as possible. Sanctions for contempt of court vary, but they might include a more restrictive gag order, a fine, or even jail time. And if a gag order was part of the conditions for being released on bail or on your own recognizance, the judge could send you back to jail for violating those conditions.