A gag order, also known as a protective order, is an order from a judge in a criminal trial that restricts information or comments from being made public. Gag orders provide protection to parties, witnesses or potential jurors.
Gag orders are a judge's means for controlling publicity about court proceedings. They may be used to control either pretrial or trial publicity.
Generally, gag orders prohibit the trial participants from talking to the media. Gag orders are most often used in trials involving high-profile cases, such as those with celebrities or particularly gruesome crimes. The use of a gag order helps to ensure a defendant's right to a fair trial in cases where there is a lot of publicity.
Balancing the Rights of Defendants with the Public's Right to Know
Although the public has a right to open and accessible court proceedings, there is another equally important right that sometimes competes, it is the right of an accused criminal to a fair trial. A trial judge has the complicated duty of balancing these interests, controlling adverse publicity and protecting the right of an accused person to a fair trial. Gag orders provide an important means by which parties can ensure that damaging pretrial and trial publicity is minimized.
Courts try to balance the rights of the criminally accused and the public's right to know. Gag orders are a traditionally acceptable mechanism to strike this balance by preventing the disclosure of certain information that could unfairly influence the outcome of a case.
Prior Restraint
Gag orders are a form of prior restraint that prohibit parties, lawyers, prosecutors, witnesses, law enforcement officials, jurors and others from talking to the press. Usually a gag order is sought by one party in a case, but a judge may issue a gag order on her own initiative.
Reasons for Gag Orders
A court may find it necessary to issue a gag order to protect certain rights, including:
- A person's right to a fair trial
- The fair administration of justice
- The sanctity of jury deliberations
Gag Orders against Case Participants
A judge's gag order may prohibit certain participants in a case from talking to the news media, including:
- The parties
- Lawyers
- Law enforcement officials
- Witnesses
- Jurors
No Authority to Stop Reporters from Reporting on Case
A court can only order participants in a case not to comment on it. A court has no authority to stop reporters from reporting on a case. However, judges may be able to control how the media contact trial participants. For example, a judge may order all court personnel, counsel, witnesses and jurors to not speak directly to the media during a trial.
Judge's Role
Most gag orders are issued at the request of a party, not the judge hearing the case. In many cases, it is the party requesting the gag order who drafts it. Typically, the judge's role is to:
Review the facts submitted to support the issuance of the gag order
Make factual findings that support the gag order
Ensure that the gag order is not overly broad Gag Orders Don't Apply to Everything
A gag order doesn't ban everyone involved in a case from talking. The public may attend proceedings and inspect any portions of the court file that are open to public inspection. The press may attend hearings and report what they observe. Gag orders do not apply to judicial proceeding held in open court or any documents that have not been placed under seal.
Questions for Your Attorney
Who can request a gag order?
What does a gag order prevent?
Are there different types of gag orders?