A Prior Restraint by Any Other Name: The Judicial Response to Media Challenges of Gag Orders Directed at Trial Participants

Gag orders directed at trial participants do not directly intrude into the media’s editorial process, but instead result in a reduction of the total communication available regarding trial proceedings. In this way, participant-directed gag orders are effective, albeit indirect, restraints upon the media. This Note examines the dynamics of these participant-directed restrictions and their consequent effect upon the media. Part I examines participant-directed gag orders in relation to traditional prior restraint doctrine. After discussing the history of prior restraint doctrine and the present standard of prior restraint analysis, Part I relates efforts by courts to apply. prior restraint doctrine to media challenges of participant-directed gag orders. Part I demonstrates that judicial application of prior restraint doctrine to these challenges leads to arbitrary results: if the court characterizes the gag order as a prior restraint, it almost always strikes the order down; if the court holds that the gag order is not a prior restraint, it need only examine the order under a “reasonableness” test, a deferential standard that most judicially imposed gag orders can pass. Finally, Part I explores the rationales for prior restraint doctrine and examines their relevance to participant-directed gag orders. This Part concludes that participant-directed gag orders are not prior restraints of the media, but that such restraints pose many of the same first amendment problems that prior restraint doctrine was intended to alleviate.

Part II examines the rights on which media organizations base their challenges to participant-directed gag orders: a public right to receive information, the press’ right to gather news, and a public right of access to trial. This Part concludes that the public’s right to receive information may provide a basis for media challenges of participant directed gag orders. Under a public debate conception of the first amendment, this right must be protected in order to provide the public with the information it needs to function as an institutional check upon the judiciary’s performance.

Part III suggests two alternative approaches courts might employ to protect the public’s right to receive information from trial participants. First, courts could continue to apply prior restraint analysis to media challenges of participant-directed gag orders, but could create an exception to traditional standing doctrine that would allow the media to assert the rights of the restrained speakers. Given the highly restrictive nature of prior restraint analysis, however, such an approach would likely prove overinclusive, foreclosing even those participantdirected orders that are necessary to preserve the administration of justice. Second, courts could recognize media claims based on a public right to receive information, and could accord. standing to the media based on a financial injury caused by the information restriction. The court should examine such claims under a standard of “heightened” scrutiny, based on the functional utility of the speech at issue. This Note advocates that this second approach be applied regardless of whether the challenger is a speaker or a receiver. A single, standardized test would enable courts to protect the “public debate” envisioned in New York Times Co. v. Sullivan.