Sunday, March 11, 2018
An opinion last week from the Georgia Supreme Court vacated a gag order in a pending criminal case
This is an appeal from a gag order, which restrains the lawyers in a murder case, the defendant and the lawyers in a related case, court personnel, and current and retired law enforcement personnel from making extrajudicial, public statements on certain subjects related to the murder case for so long as it remains pending. A gag order like this one may be constitutionally permissible in exceptional circumstances, but the record here does not reveal circumstances sufficiently exceptional to warrant such a restraint. For that reason, we vacate the gag order.
The victim had disappeared in 2005 and the defendant was arrested in 2017.
The gag order was entered five days later
The superior court issued this gag order without an evidentiary hearing, but it found that “this case is high profile and has generated extensive media coverage.” The court concluded that “there is a reasonable likelihood that [Duke]’s Sixth Amendment right to a fair trial by an impartial jury may be prejudiced by extrajudicial statements,” and for that reason, “an [o]rder restricting statements made outside the courtroom is necessary and proper.”
When the media objected, a hearing was held and the order modified. A media outlet appealed the modified order.
The court found the media had standing and addressed the merits
Nebraska Press and Gentile both differ from our case in yet another respect, one that the parties have not addressed in their briefing. In both Nebraska Press and Gentile, the restraint of expression was challenged by those to whom the restraint was directed — the media in Nebraska Press and the lawyer in Gentile. Here, however, the modified gag order is challenged by news organizations to which the gag order does not directly apply. Litigants ordinarily are not entitled to assert the constitutional rights of others, see Romer v. State, 293 Ga. 339 (745 SE2d 637) (2013), and although the gag order may amount to a prior restraint as to those to whom it applies, it does not restrain the speech of WXIA-TV or 13 WMAZ-TV in any way. Although they have standing to challenge the modified gag order, their standing is based on the extent to which it impairs their news gathering, not any impairment of their freedom to speak and publish...
The United States Supreme Court has never passed upon the constitutionality of a gag order that is directed to trial participants and potential trial participants, much less when such a gag order is challenged only by others, and there is significant uncertainty about the standard to be applied in such cases. Cf. E. Chemerinsky, Lawyers Have Free Speech Rights, Too: Why Gag Orders on Trial Participants Are Almost Always Unconstitutional, 17 Loy. L.A. L.J. 311, 313-314 & n.11 (1997) (“No Supreme Court case has addressed the constitutionality of gag orders on lawyers and parties,” and “lower courts are split as to the applicable standard.”). Some courts have treated gag orders against trial participants as typical prior restraints and have applied the sort of exacting scrutiny that was employed in Nebraska Press...
Here, although the record shows significant media interest in the case, it does not demonstrate any likelihood that the persons to whom the modified gag order is directed would make prejudicial statements. We have reviewed the exhibits offered by Duke at the hearing to illustrate the nature and extent of media coverage, and we find no reports attributing inflammatory statements or prejudicial information to sources covered by the modified gag order. Many of the reports purport to have been published after the entry of the original gag order, and they attribute no statements at all to the persons to whom that order applied. Others attribute statements to law enforcement sources that strike us as measured and highly unlikely to produce any prejudice. Most of the reports purport to share information gleaned from arrest warrants and other public and court records. The record certainly does not suggest that any lawyers, court personnel, or law enforcement personnel have disclosed sensitive or confidential information or have attempted to effectively put Duke on trial in a court of public opinion.
The gag order was vacated.