In America, we take our First Amendment rights very seriously, and for good reason. According to the Constitution (where the First Amendment is outlined), it is forbidden for Congress or any government body to compel, control, or otherwise punish a United States citizen for saying what they want, when they want, how they want. This amendment also protects those wishing to freely practice their religion, assemble peacefully, and for the press to write whatever it wants (as long as it’s true) without repercussions from the government.

There are exceptions to every rule, however, even with the First Amendment. For one thing, as a law, you cannot incite panic with your speech; a typical example of this is yelling “fire” in a crowded theater, thereby ensuring a panicked stampede of people, which could result in the death/injury of people involved. Another example of this is directly threatening a person or persons, also called “terroristic threatening.”

The best mindset to employ when thinking about freedom of speech is while exercising it. Are you inhibiting others from pursuing their inalienable rights of life, liberty, and happiness? For instance, some religions allow stoning those found breaking the rules, but because that is a crime and an impediment upon someone’s liberty, it does not fall within the protections of free speech or free practice of religion.

But what about gag orders and their role in courtroom proceedings (especially in family law)? Why do we even have gag orders? Are gag orders constitutionally sound? All these questions and more can be easily answered. It is also essential to know when it is a violation of your rights and to have an attorney in place to fight ardently for you.

What Is a Gag Order?

To explore gag orders versus the First Amendment, we must first define precisely what a gag order is. In plain terms, a gag order is a judge’s order that a case cannot be discussed in public. There are also gag orders in the military, corporate America, police precincts, etc., to protect information, often referred to as non-disclosure agreements (NDAs).

When Does a Judge Use a Gag Order?

A judge might implement a gag order for a multitude of reasons but primarily for the safety of others and the overall outcome of the trial. The judge’s goal, ideally, is to make sure that every party is treated fairly and is held to the same standards under the law. A gag order is used to prevent the scales of justice from being tipped in one direction or another.

Safety of Those Involved

Let us say that, hypothetically, John Doe is getting a divorce from his wife, Jane. Jane and John both file for sole custody of their 4-year-old child.

Jane alleges that John has been physically abusing the child. Obviously, there must be an investigation into these claims, and supervised visitation would be established before the custody process can continue. In this case, the judge issues a gag order on both parents, their attorneys, and those in the courtroom because a minor child is involved and a profoundly serious crime is alleged.

Jane feels that the pending investigation is not enough, that the gag order restricts her constitutional rights, and that John should be punished by the court of public opinion as well as the court of law. Jane clearly has not read our blog on the pitfalls of social media in a divorce and posts what she alleges John has done to their child. The post generates a great deal of attention. The press in their town does a news story and names John as the alleged abuser. An angry citizen sees John out in town and proceeds to physically assault him, putting him in the hospital.

Jane most likely did not intend for this to happen but, by violating the gag order before an investigation or verdict could be rendered in the custody case and the abuse allegations case, she has invited other people into the proceedings through her actions. She is not solely responsible for the actions of the vigilante who assaulted John, but she does hold a certain amount of liability because she chose to violate the judge’s order.

Whether John is a child abuser is moot; even if he is guilty, the assault against him coupled with Jane disobeying the gag order makes John look more sympathetic in court. This event also makes Jane look impulsive and immature but, more critical than optics, Jane might be found guilty of contempt of court. Contempt of court can carry heavy fines and even jail time if Jane is found guilty.

Taint of the Jury Pool

In high-profile or complex cases which require a jury, social media and the media, in general, can muddy the waters and taint a jury pool. When a person hears about a news story before a case has gone to trial and then is called to be a juror, they might be prejudiced. During jury selection, they might say they are unbiased, but there is no way to determine that without the ability to read minds. It is easier and better for the judge to issue a gag order until a proper jury can be selected and sequestered.

Because we live in a world where social media makes information available immediately to many people, it is nearly impossible to have a jury that has not at least heard of a case before it goes to trial, but the process of jury selection is meant to weed out those who have an extreme prejudice versus those who will remain unbiased.

When Is a Gag Order Unconstitutional?

There are three instances where it might be deemed that a gag order is, indeed, a violation of the First Amendment right to free speech. A lawyer who feels a judge’s gag order violates the First Amendment might ask:

  1. How likely is it that statements made by those involved will influence the jury and damage the capability to carry out a fair trial?
  2. Could the judge reasonably employ other procedures to prevent a tainting of the jury pool or harming those involved through a stricter jury selection process or sequestering?
  3. Is the gag order itself too broadly written/instructed? Is it so broad that it makes it difficult or impossible not to violate it?

Connect With the Experts in Your Area

Our seasoned and professional attorneys at Stange Law Firm believe in all the principles and amendments in the Constitution. They are committed to making sure you never have your rights violated, inside the court or out. We are dedicated to making sure any gag order imposed by a judge is fair, constitutionally sound, or protects you against slander, defamation, or vigilante-like retribution before you have had an opportunity to argue your case fairly in court.

Please contact us to schedule a consultation and get started on your case.