![]() ![]() The occasionally competing First Amendment and fair-trial interests have to be weighed against one other when it comes to gag orders. The Supreme Court has recognized that a judge can and must do what is necessary to control their own courtroom and keep it from devolving into chaos. Judges have a constitutional responsibility to prevent these harms if they can. It can impede discovery if the materials at stake concern trade secrets or commercial information. It can be harmful for minors or other crime victims that don’t want to talk about their experiences openly. Media reporting can influence the jury pool, change witness testimony, or simply make for a chaotic courtroom. However, courts must also account for a countervailing constitutional right: the right to a fair trial. This is in contrast to a post-trial defamation suit against that newspaper for what it published about the trial, which allows for more procedural protections and less chilling, and is therefore less susceptible to scrutiny under the First Amendment. Not allowing a broad swath of speech is antithetical to the First Amendment-and further, such an approach is generally overbroad, because speech at the edges of the gag order might be chilled. Prior restraints-judicial orders that proactively prohibit people from talking, rather than allowing for after-the-fact litigation over what was said-are presumptively unconstitutional. īeyond this right to judicial openness, however, gag orders also function as prior restraints on speech. In the 1980s, over a series of cases, the Supreme Court declared a First Amendment-based right of access to the courtroom-Americans have a right to know what is going on in their courts. A courtroom is a presumptively open space. On the one hand, they threaten the public’s First Amendment’s right of access to the courtroom. Gag orders implicate the public’s and litigants’ First Amendment rights. They can be imposed on parties to litigation to stop them from talking to the press, or on the press itself to stop it from publishing certain information. Gag orders typically forbid individuals from talking about, publishing, or disseminating specified information. One way courts control information outflow is by entering gag orders. But trials must be conducted at law, rather than in the press, and courts sometimes feel the need to assert control of the outflow of information around judicial matters to preserve the fair trial rights of litigants. Whether it’s Serial recounting a murder investigation or a celebrity trial broadcast across the internet, courtrooms are places of drama, and the media knows and follows that. This was no anomaly-trials, especially criminal trials, have always garnered attention. People followed what was happening inside the courtroom with the same attention and eagerness that they would exhibit in watching one of O.J.’s football games, and the news media stoked that interest. Simpson came up for parole in the summer of 2017, 13 million viewers watched over eight different networks, ranging from ESPN to NBC to local Los Angeles news, with more watching via livestreams. ![]()
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