Fourth Circuit Finds Gag Order Fails First Amendment Scrutiny

By C. Amanda Martin

Those who watch Fourth Circuit opinions already know this, but the court recently released an opinion ordering the Eastern District of North Carolina to vacate a gag order entered in ongoing litigation related to North Carolina hog farms. In addition to the importance of the core ruling – overturning the gag order – the Fourth Circuit’s opinion is a powerful statement about the importance of First Amendment rights and the need for trial courts to dot all the i’s and cross all the t’s before taking away those rights.

The Eastern District of North Carolina issued a gag order in June 2018 that made it impermissible for everyone involved to speak about the litigation in anything other than the most clinical, factual terms. The order prohibited parties, their lawyers, their agents, and all potential witnesses from:

giv[ing] or authoriz[ing] any extrajudicial statement or interview to any person or persons associated with any public communications media or that a reasonable person would expect to be communicated to a public communications media relating to the trial, the parties or issues in this case which could interfere with a fair trial or prejudice any plaintiff, the defendant, or the administration of justice and which is not a matter of public record. Statements of information intended to influence public opinion regarding the merits of this case are specifically designated as information which could prejudice a party.

The defendants in the cases petitioned the Fourth Circuit for a writ of mandamus seeking to overturn the gag order, a move that was supported by many amici. The Fourth Circuit ordered the Eastern District to vacate the gag order in a 24-page ruling that holds high the fundamental tenets of the First Amendment. Here are some of its highlights.

First, the Fourth Circuit held that even a short gag order is offensive to the First Amendment.

 The gag order has already inflicted serious harm on parties, advocates, and potential witnesses alike. It has muted political engagement on a contested issue of great public and private consequence. It has hamstrung the exercise of First Amendment rights. Even in short doses, these harms are hostile to the First Amendment.

Second, First Amendment rights accompany civil trials as well as criminal trials.

While gag orders in civil cases are quite rare (there being no Sixth Amendment right at issue), the First Amendment interests in an open and public civil justice system are no less salient ….

Third, while recognizing that ensuring fair trial rights is a compelling interest, the trial court must demonstrate, with specifics, that a fair trial is actually at risk. It is not enough to simply contend that publicity would jeopardize a fair trial.

Ensuring fair trial rights is a compelling interest, however, only when there is a ‘reasonable likelihood’ that a party would be denied a fair trial without the order under challenge.

Fourth, gag orders are not appropriate just because a case is high profile.

The fact of publicity is hardly dispositive. … The judicial process does not run and hide at those moments when public appraisal of its workings is most intense …

Fifth, any proposed gag order must be exacting, because ambiguities are inherently problematic.

[V]ague restrictions on speech ‘offend’ the First Amendment.

The opinion describes the significant and legitimate individual and public interest in the cases that are working their way through the courts. The cases matter to the parties and also to the community at large.

All these people care. This case is about their lives and their livelihoods. Whatever differences the parties and their supporters have, they possess in common a passionate First Amendment interest in debating their futures. It seems very wrong that a court would take that from them.

This opinion will serve as an important roadmap for courts and litigants alike to consider when balancing considerations of free speech and ensuring fair trial rights in cases of high public interest.