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What is a Gag Order in Legal Terminology and How to Challenge It

Abhijit Naik May 13, 2019
Regardless of the field, a gag order, as its name suggests, is a diktat that prohibits people from talking. In the field of law, however, there is more to it than this simple definition. By the time you are done reading this post, you will be well-versed with the same.

Nebraska Press Association v. Stuart

In 1976, the U.S. Supreme Court passed a landmark ruling that declared any order barring the press from publishing information related to a criminal case unconstitutional.
Of late, there has been a rise in the number of high-profile cases in which pretrial publicity has unfairly prejudiced the jury against the defendant.
More often than not, pretrial publicity tends to influence jurors to presume the guilt―or innocence for that matter―of a defendant even before the trial begins, thus making it increasingly difficult to ensure fair administration of justice. The court's answer to this, a gag order.

What is a Gag Order?

In legal terminology, a gag order or suppression order is an order issued by a judge, prohibiting the involved parties, lawyers, witnesses, law enforcement officials, and other trial participants from making the details of the case public.
It is primarily issued to rule out pretrial publicity and prohibit the media from blatantly trying the case in press or on television, as that can contribute to prejudice against the defendant and deny right to fair trial guaranteed in 6th Amendment. By issuing a gag order, the judge also rules out the chances of creating a public mood in favor of one side.
A gag order is most often issued in high-profile cases involving celebrities or cases of gruesome crime. Pretrial publicity is no stranger to such cases; a gag order helps to minimize its impact. In most cases, the protective order is issued at the behest of one of the parties involved. However, if deemed necessary, the judge can issue the same on his own.
Though the concept exists in other federal and private organizations as well, it is restricted to the field of law in its true sense. In Canada and India, the court can ban the media from reporting a particular case by issuing a gag order. In the United States, such a gag on the media violates the First Amendment, which guarantees the Freedom of the Press.
That, however, hasn't stopped the media from going all guns blazing against the diktat, which, according to them, interferes with their First Amendment rights.
Their argument: as the courts cannot impose restraints on media; courtesy, the U.S. Supreme Court's 1976 ruling, they are using the gag order to restrain the sources of information, i.e., the trial participants, which is as good as restraining the media ... albeit, indirectly.

How to Challenge a Gag Order?

The media does have the right to challenge a gag order issued by the court, citing its own rights to gather information. If you are a journalist, you can challenge a gag order beforehand if you know that one of the involved parties is seeking it or that the judge intends to issue it at his own discretion.
If you challenge it after it has been issued, you should get a copy and go through it to see if there are any nuances in the language that can help you challenge it. Whilst filing a motion, you should specifically mention that you have interest in gathering the news and passing on the information from the speaker (trial participants) to the general public.
As it is a legal procedure, it is wise to take legal advice when filing a motion against a gag order. You also need to keep in mind that restrictive rulings cannot be ruled out.
It is no doubt necessary to protect an individual's right to a fair trial, but not at the cost of the general public's right to be aware of court proceedings and the related developments in the field of law. The onus is on the judge to strike the right balance.