Judges across the nation decided at a disturbing pace in 2000 that the only fair jury is an ignorant jury -- and in the process posed significant challenges to the newsgathering abilities of journalists. A nationwide surge in the number of protective orders has prevented attorneys, parties, and witnesses from discussing pending cases with anyone, including the media. Just as astonishing is the fact that almost half of these orders were issued in civil matters. Some were even imposed in cases tried by a judge, where there clearly is no concern that pre-trial publicity might contaminate a jury.

    The Reporters Committee for Freedom of the Press tracked 43 gag orders in 26 states and the District of Columbia between Feb. 1 and April 20, 2000. Only a handful appeared to have been imposed following a hearing to determine whether a gag order was the only way to protect the Sixth Amendment right of a criminal defendant to a fair trial. Many appeared to have been imposed unilaterally by a judge without input from the parties. A few examples:

• A judge in New London, Conn., issued a gag order in the trial of admitted murderer Michael Ross. The only jury issue was whether Ross should be executed or imprisoned for life for the murders of four teenage girls. The judge’s order gagged all counsel and possible witnesses, including relatives of the victims.
• A Pittsburgh judge imposed a gag order in a civil case brought by a female contractor who alleged she was pressured to take money but do no work at the new PNC Park and Steeler Stadium so that the public sports authority would meet affirmative action goals.
• A Lake Zurich, Ill., judge placed a gag order on the parties regarding a settlement between the village and a gas station owner who objected when the village condemned the station to build a park.
• A federal judge in Lubbock, Texas, routinely issued gag orders in nearly every case that came before him -- a total of 219 cases in two years.

    Eighteen of the 43 gag orders reviewed by the Reporters Committee were imposed in civil cases. Particularly disturbing were civil cases in Pennsylvania, South Carolina, Illinois, Connecticut, and the District of Columbia where government entities were parties. As a result of these orders, public officials were precluded from commenting on cases of major public import, such as the alleged improprieties involving public stadiums in Pittsburgh and the Illinois eminent domain case.

    The U.S. Supreme Court in Nebraska Press Association v. Stuart, 427 U.S. 539 (1979), made clear that gags on the media are unconstitutional. Protective orders against parties, their lawyers, and witnesses are allowed, but limited. They should only be imposed after an evidentiary hearing has been held and a court finds that other alternatives, such as thorough voir dire of potential jurors, sequestration of jurors, a change of venue, and instructions to the jury are not sufficient to protect a defendant’s Sixth Amendment right to a fair trial.

    There were a few bright spots in 2000. Media outlets that have challenged gag orders have been somewhat successful in getting them lifted -- particularly in Florida.

• A federal district judge in Miami in April 2000 enjoined enforcement of a state court judge’s order that had prevented participants in a class action lawsuit against tobacco companies from speaking to the public about the case. The federal judge ruled that a broad gag order against trial participants and their attorneys violated the media’s First Amendment newsgathering rights. The tobacco defendants had argued that the gag order infringed upon the industry’s First Amendment rights because tobacco companies must be able to pass along information about the litigation to current or potential investors who may otherwise receive only inaccurate or misleading information. Dow Jones v. Kaye, No. 00-0962-CIV, 2000 U.S. Dist. LEXIS 5456 (S.D. Fla. April 5, 2000).
• A federal district judge in Washington, D.C., in January 2000 struck down a gag order imposed on one of her colleagues that prevented him from publicly discussing a disciplinary action against him. Judge Colleen Kollar-Kotelly ruled that the imposition of a confidentiality clause against federal district Judge John McBryde of Dallas under the Judicial Conduct and Disability Act of 1980 operated as an impermissible prior restraint on his speech. McBryde v. Committee To Review Circuit Council Conduct and Disability Orders, 83 F. Supp. 2d 135 (D.D.C. 1999).

    The increase in the number of protective orders poses significant First Amendment concerns for reporters and editors. Judges who prevent the media from talking to parties and their lawyers (usually the most accurate sources of information in court stories) force journalists to rely on rumors, leaks, and innuendo. Journalists, meanwhile, are frequently reluctant to intervene in gag order cases by seeking a hearing -- although experience suggests that judges may revoke gag orders when journalists point out the public interest in access to trial participants.