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Gag orders on trial participants and indirect limitation of press freedom

Following the rulings in Nebraska Press Association  v. Stuart and other prior restraint cases, it’s generally understood that courts almost never uphold requests for halts to publication, even if it means protecting a fundamental right, such as a defendant’s right to a fair trial. The Supreme Court has endorsed in Sheppard v. Maxwell (and later in Nebraska Press Association) gag orders on trial participants as a viable alternative to gag orders of the press.

Theoretically, punishing journalists or private citizens engaging in speech ahead of the distribution of their message is the “worst infringement” of the First Amendment right to free expression, the Supreme Court said in Nebraska Press Association. But despite this practice of granting free expression extreme protection, courts have no issue punishing speech or publication after it occurs. This can cause journalists to self-censor and can indirectly limit the freedom of the press.

Without a federally recognized reporter’s privilege, journalists can face civil contempt citations and other sanctions for declining to disclose an anonymous source’s identity. A judge could issue a gag order on trial participants, such as involved attorneys, who would otherwise provide essential information about a trial or court proceeding to reporters. A reporter might get an attorney to speak on the condition of anonymity, and then the judge could demand the reporter give up his source so that source can be punished for violating the original order.

While the press is free to write about a trial and to use anonymous sources, judges can hold journalists in contempt for not disclosing the identity of an information leaker. It could be argued that gag orders on involved parties are equivalent to gag orders on the press. The only distinction is that the government’s burden for proving necessity of a gag order on involved parties is much lighter than the burden for proving necessity of a gag order on the press.  By circumventing the press gag order and forbidding involved parties from disclosing information about proceedings, courts can produce the same end result while seemingly upholding the law and not violating any First Amendment protections.

According to the Reporters Committee for the Freedom of the Press (RCFP) First Circuit Open Courts Compendium, there are three requirements for the issuance of a gag order on involved parties: “(1) there is a showing of good cause as required by Rule 26(c); (2) the restriction is limited to the discovery context; and (3) the order does not restrict the dissemination of information obtained from other sources.”

Meanwhile, under the Supreme Court decision CBS Inc. v. Davis, gag orders on the press “may be used only in ‘exceptional cases’ where ‘the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.’”

These standards are clearly very different; it’s much easier for the government to get a gag order on involved parties than on the press. Unlike the test for a gag order on trial participants, the government has a “heavy burden” to prove the necessity of any kind of prior restraint of the press, the Supreme Court said in a per curiam opinion in New York Times Co. v. United States.

Even if a judge hasn’t issued a gag order, state bar guidelines can still legally bind lawyers involved in a case and can curtail a lawyer’s freedom to speak to the press about a case already open to the public, the Supreme Court ruled in 1991 in Gentile v. State Bar of Nevada. Lawyers’ speech doesn’t carry the normal, strong First Amendment protection test of “clear and present danger” of imminent harm or prejudice affecting a defendant.

Instead, the court noted that a “substantial likelihood of material prejudice” test was enough to protect a lawyer’s speech about a case he is directly involved in. The court struck down the specific Nevada Bar guideline for vagueness, but the ruling in favor of Gentile didn’t change the fact that lawyers’ speech, especially addressed to the press, receives less protection than normal speech.

Gag orders can be necessary to protect a defendant’s right to a fair trial. It is important to note that while press freedom is a constitutionally protected right, so is the right to a fair trial. They are equally important rights with equal protections. However, the potential for harm to the defendant is much greater than that to the press. While the press may not be able to print certain facts about a story if a court abridges the First Amendment with a gag order, a defendant risks loss of money, liberty or even his life if publicity prejudices the jurors at his trial.

One of the four main tenets of the Society of Professional Journalists Code of Ethics is to “minimize the harm.” The code reads: “Ethical journalists treat sources, subjects and colleagues as human beings deserving of respect … [They should] [b]alance a criminal suspect’s fair trial rights with the public’s right to be informed.”

The Massachusetts reporter’s privilege

Massachusetts is one of the 10 states without a shield law on the books, joining a small minority that interpret the so-called “reporter’s privilege” under case law. While the U.S. Supreme Court has denied the existence of a constitutionally protected reporter’s privilege, states legislatures are free to enact laws that give more rights to journalists than the baseline fundamental rights granted in the United States Constitution. Currently 40 states and the District of Columbia have statutory shield laws in effect.

The Massachusetts reporter’s privilege is confusing and open to interpretation, but ultimately Massachusetts courts have acknowledged a limited reporter’s privilege. Massachusetts common law protects reporter’s privilege when the reporter’s interest in protecting his source’s identity outweighs the government’s or private lawsuit party’s interest in procuring evidence. Courts are more inclined to protect information gathered from confidential sources than sources who have spoken on the record, however.

A First Circuit appellate court decision from 1998 acknowledged the existence of a limited reporter’s privilege to protect his sources. In Cusumano v. Microsoft, the First Circuit court determined that Microsoft Corporation could not compel two academic researchers to produce research materials for a book concerning an antitrust lawsuit Microsoft was involved in. The court established a balancing test for a limited First Amendment privilege of protecting confidential information.

Quoting United States v. LaRouche Campaign, the court said when district courts must decide whether to enforce requests for discovery production of materials used “in the preparation of journalistic reports,” the courts should “be aware of the possibility that the unlimited or unthinking allowance of such requests will impinge upon First Amendment rights.” To determine how discovery requests should be limited, if at all, those courts “must balance the potential harm to the free flow of information that might result against the asserted need for the requested information.”

Importantly, the court also declined to limit the applicability of the protection to the traditional definition of journalists. The court noted that academic researchers and journalists share many trade similarities and therefore must both enjoy a First Amendment privilege to protection of confidential sources and information:

Courts afford journalists a measure of protection from discovery initiatives in order not to undermine their ability to gather and disseminate information. Journalists are the personification of a free press, and to withhold such protection would invite a “chilling effect on speech,” and thus destabilize the First Amendment. The same concerns suggest that courts ought to offer similar protection to academicians engaged in scholarly research. After all, scholars too are information gatherers and disseminators … Just as a journalist, stripped of sources, would write fewer, less incisive articles, an academician, stripped of sources, would be able to provide fewer, less cogent analyses. Such similarities of concern and function militate in favor of a similar level of protection for journalists and academic researchers.

There have been a few recent attempts to pass a shield law in Massachusetts. An attempt in 2007 failed in early 2008, as well as a more recent attempt by the Massachusetts Broadcasters Association in 2010. Last year, another possible shield law called the “Free Flow of Information Act” that offered protection to journalistic bloggers made the rounds in the news media before it too failed. Massachusetts still doesn’t have a shield law on the books.

While Congress has repeatedly failed to pass a federal shield law statute and the courts have ruled that the Constitution doesn’t protect a reporter’s privilege, 40 states have passed shield laws. Some may prefer legislation about reporter’s privilege at the state level. State level shield laws can account for cultural and geographic differences and conform more to the culture of the state.

The vast variety in state shield laws, however, can make things very difficult for reporters who plan to travel anywhere outside their home state to cover a story. Theoretically, a reporter would be responsible for knowing the specific laws in each state he or she covers news in. This could place an undue burden on the reporter and can hinder or discourage him from branching out and covering stories outside of his home state. Adding more to the confusion is the question of who legally qualifies as a journalist and can enjoy protection under state shield laws.

University of Oregon Professor Kyu Ho Youm wrote a brief editorial for the New York Times website following an Oregon judge’s December 2011 determination that a blogger did not qualify for shield law protection. Youm noted that a First Circuit court in a recent decision declined to dispense First Amendment protections on “professional credentials or status” alone.

“The federal court ruling reinforces the judicial reluctance to read bloggers and other journalistic outsiders (“outliers”?) into state shield law,” Youm wrote. “Judges are more likely to continue with their traditional journalist-oriented approach to source protection unless their state laws are ambiguous enough to allow them creative interpretations.”