A gag order is a legal order by a court or government that restricts information or comment from being made public or passed onto any unauthorized third party. It is typically issued by a judge to prohibit the attorneys, parties, or witnesses in a pending lawsuit or criminal prosecution from talking about the case to the public. The order can be imposed upon a defendant where the defendant makes deliberate attempts to undermine the “true administration of justice” by tampering with the jury pool and making extrajudicial statements. Gag orders are relatively rare, however, as the Constitution guarantees the right to free speech, and courts are generally loath to abridge those rights.
Gag orders may be necessary to protect other valuable rights under the Constitution, such as the right to a fair trial (contained in the Sixth Amendment of the Bill of Rights), as well as the all-important “true administration of justice” . Judges issue gag orders to ensure a fair trial, to facilitate efficient administration of justice, and to prevent prejudicial information from reaching the jury pool. However, their use for this purpose is controversial since they are a potentially unconstitutional prior restraint that can lead to the presss using less reliable sources such as off-the-record statements and second- or third-hand accounts.
A gag order can be issued over one or more of the parties to the case, and it often applies to everyone directly involved, including lawyers, witnesses, defendants, and plaintiffs. The order can prohibit the attorneys and the parties to a pending lawsuit or criminal prosecution from talking to the media or the public about the case. Judges issue injunctions barring trial participants from making public comments.
In analyzing the constitutionality of a gag order, the U.S. Supreme Court considered factors such as 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. However, the Court found that a lower court’s gag order was justified because publicity of alleged shocking crimes would be widespread and would likely reach a jury, impairing the defendant’s right to a fair trial.
In summary, a gag order is a legal order that restricts information or comment from being made public or passed onto any unauthorized third party. It is typically issued by a judge to prohibit the attorneys, parties, or witnesses in a pending lawsuit or criminal prosecution from talking about the case to the public. Gag orders may be necessary to protect other valuable rights under the Constitution, such as the right to a fair trial, but their use for this purpose is controversial since they are a potentially unconstitutional prior restraint that can lead to the presss using less reliable sources.
