A gag order is a court-imposed restriction on what information during trial or preliminary proceedings can be released to the public and what those involved in the case can say about it. It is a judges order prohibiting the attorneys and the parties to a pending lawsuit or criminal prosecution from talking to the media or the public about the case. Gag orders are relatively rare, however, they may be necessary to protect other valuable rights under the Constitution, such as the right to a fair trial, as well as the all-important “true administration of justice”.

Courts scrutinize any gag order under the right of free expression, protected by the First Amendment, and apply a heavy presumption against its constitutional validity, as with any prior restraint. In analyzing the constitutionality of a gag order, the U.S. Supreme Court considered the following factors: the nature and extent of pretrial news coverage, whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity, and how effectively a restraining order would operate to prevent the threatened danger of an unfair trial for the defendant.

Gag orders may be issued over one or more of the parties to the case, and sometimes they apply only to specific participants. The public and defendants have a First Amendment right and need to publicly review, critique, and comment on the performance of the judicial system. This holds courts accountable and sustains public support for their operations. However, the right to free speech may run up against the Sixth Amendment right guaranteeing a fair trial.