Gag orders are orders by a judge that require an individual to refrain from making public comments on particular topics. However, they can run afoul of the First Amendment, which guarantees freedom of speech.
When a judge issues a gag order, it is typically to bar trial participants — including attorneys, litigants and witnesses — from discussing trial-related material outside the courtroom. In general, courts have held that gag orders of people involved in trials is more acceptable than gag orders issued against the press, which would almost always be considered per se unconstitutional.
All gag orders must be carefully scrutinized for constitutionality under the First Amendment because they involve two of the most disfavored types of limitations on speech limitations: (1) prior restraints and (2) content-based limitations on speech.
Generally, gag orders are only constitutional if they meet strict scrutiny. In other words, a judge needs a compelling reason to issue a gag order and the order should be either narrowly tailored or the least speech restrictive means available to achieve the goal. The most common reason a judge would limit speech of trial participants is to prevent the dissemination of prejudicial information and to ensure a fair trial.
Supreme Court decisions on gag orders
The Supreme Court in Sheppard v. Maxwell (1966) ruled that criminal defendants are entitled to impartial juries and that trial court judges should take strong measures to uphold the right to a fair trial. Judges interpreted Sheppard as an authorization to impose gag orders on trial participants, but some even began to place them on the media.
The high court dispelled this latter notion, setting a high bar for such orders in Nebraska Press Association v. Stuart (1976). This case arose from the 1975 trial of Erwin Simants, who was charged with murdering six people in the small town of Sutherland, Nebraska. The county judge issued a gag order barring the media from reporting on Simants’ confession, statements he made to others, contents of notes he had written on the evening of the murders, as well as other potentially damaging information. The Supreme Court invalidated the judge’s order, ruling that media gag orders must meet a heavy burden and that courts must stringently demonstrate the need for them.
Chief Justice Warren Burger wrote that “prior restraints are the least tolerable and most serious infringements on First Amendment rights.” Rather than issuing a prior restraint that gags the media, courts should consider alternatives, such as a change of venue, trial postponement until public attention fades, rigorous voir dire (or jury selection procedures), and jury sequestration.
In Gentile v. State Bar of Nevada (1991), the Supreme Court held that attorneys who make out-of-court statements are not entitled to the same level of protection as the media. Gag orders on the press represent a form of prior restraint and are seldom upheld. However, it should be acknowledged that Gentile at its root was an attorney discipline case, as Nevada bar authorities sought to discipline criminal defense attorney Dominic Gentile for statements he made at a press conference many months before the actual trial took place in the underlying case.
Why judges issue gag orders
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. If prosecutors use the press to broadcast inadmissible material in court to jurors, such as the administration of polygraph tests or results, then defendants may be denied their right to an impartial jury.
Furthermore, proponents claim that the harm caused by such disclosures may hinder the fair administration of justice. Prejudicial press coverage of trials may even undermine public confidence in the judiciary and in jury verdicts. In the Oklahoma City bombing trial of Timothy McVeigh, Chief Judge Richard Matsch ordered all lawyers, law enforcement officials, and court personnel involved in the case to avoid making statements outside of the courtroom about the jury and the trial proceedings.
Trump hit with gag order in his trial on election interference
The most high-profile gag order in recent years involved former President Donald J. Trump in the election interference case, United States v. Trump. On Oct. 17, 2023, U.S. District Court Judge Tanya Chutkan issued a broad gag order limiting the former president, now a defendant, and his attorneys from making statements that “target” the prosecutor, court personnel or possible witnesses in the federal government’s case against Trump regarding the substance of their testimony.
Trump appealed the gag order, saying it restricted his free speech rights. The U.S. Court of Appeals for the District of Columbia upheld, but narrowed the gag order, saying it must balance Trump's free speech rights with the fair administration of justice. It said the trial court judge had “a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process.” (At one point, Trump had posted on social media about the trial: "IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
The appeals court said the gag order applies “to the extent it prohibits all parties and their counsel from making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.”
Most gag orders go unchallenged
Across appellate court jurisdictions, judges strike down as well as uphold gag orders, but most gag orders go unchallenged.
Opponents of gag orders argue that judges should be subjected to strict standards before gagging trial participants. They also contend that judges frequently use gag orders without looking at viable alternatives and charge that many orders are too broad and should be limited to specific information; in addition, they hinder the newsgathering abilities of the press and restrict the flow of information to the public. In short, many civil libertarians and journalists see gag orders as a threat to the First Amendment guarantee of a free press, while judges see them as inherently necessary to maintain the integrity of the judicial process.
This article was originally published in 2009 and updated in November 2023 by David L. Hudson Jr. Ruth Ann Strickland was a professor at Appalachian State University.