Interesting article, "Gag orders and the effect on newsgathering,"
published by the
Reporters Committee for Freedom of the Press,
follows immediately after a short piece from Wikipedia that explains
what gag orders are and which discusses various criticisms of the practice.
My own view, for what it may be worth, is that gag orders are so
problematic and so often serve unethical purposes that no such oder
should be permitted in any venue in the United States without explicit
approval of the Justices of the Supreme Court. As the article makes clear,
the effect of gag orders on the First Amendment, a practice that has become
increasingly common in the era since ca 1990, has been unconscionable;
in some respects we simply do not have a First Amendment any more.
If, as I have reason to suspect, there have been gag orders used in order
to deny my rights as an American citizen here is what I intend to do
about it the moment that a relevant national news story breaks,
and I gain resources to publish a news journal or newspaper:
The names of each and every individual who has agreed to be
silenced in this way in my case will be made known
to the general public. I really won't give a rat's ass who
these people may be; if they agreed they should take the
consequences of public exposure. Their gutlessness
and moral compromise is inexcusable.
With resources I would also seek all possible legal remedy for each and
every person in government who has facilitated this development,
and this means everyone, and the same goes for people
in the media -from whom I will seek maximum punitive damages,
millions of dollars from major news organizations or businesses,
or example.
Hopefully this is clear and easy to understand.
Billy Rojas
December 12, 2015
Gag order
selected from Wikipedia
A gag order (also known as a gagging order or suppression order) is an
order, typically a legal order by a _court_
(https://en.wikipedia.org/wiki/Court) or government, restricting information
or comment from being made
public, or in some cases, passed onto any unauthorized third party. The phrase
may sometimes be used of a private order by an employer or other
institution.
Gag orders may be used, for example, to keep legitimate _trade secrets_
(https://en.wikipedia.org/wiki/Trade_secret) of a company, to protect the
integrity of ongoing police or military operations, or to protect the privacy
of victims or minors. Conversely, as their downside, they may be abused as
a useful tool for those of financial means to intimidate witnesses and p
revent release of information, using the legal system rather than other
methods of intimidation. _Strategic Lawsuit Against Public Participation
(SLAPP)_
(https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participatio
n) orders may potentially be abused in this way.
In a similar manner, a "gag law" may limit _freedom of the press_
(https://en.wikipedia.org/wiki/Freedom_of_the_press) , by instituting
_censorship_
(https://en.wikipedia.org/wiki/Censorship) or restricting access to
information.
United States
A _national security letter_
(https://en.wikipedia.org/wiki/National_security_letter) (_18 U.S.C._
(https://en.wikipe
dia.org/wiki/Title_18_of_the_United_States_Code) _§ 2709_
(http://www.law.cornell.edu/uscode/text/18/2709)
), an administrative subpoena used by the _FBI_
(https://en.wikipedia.org/wiki/FBI) , has an attached gag order which
restricts the recipient from
ever saying anything about being served with one. The government has issued
hundreds of thousands of such NSLs accompanied with gag orders. The gag
orders have been upheld in court._]_
(https://en.wikipedia.org/w/index.php?title=Gag_order&printable=yes#cite_note-26)
_Suspicious activity reports_
(https://en.wikipedia.org/wiki/Suspicious_activity_report) (_31 U.S.C._
(https://en.wikipedia.org/wiki/Title_31_of_the_United_States_Code) _§
5318(g)(2)_
(http://www.law.cornell.edu/uscode/text/31/5318(g)(2)) ; the Housing and
Community Development Act of 1992 /
Annunzio-Wylie Anti-Money Laundering Act, _Pub.L. 102–550_
(http://legislink.org/us/pl-102-550) , § 1517(b), 106 _Stat._
(https://en.wikipedia.org/wiki/United_States_Statutes_at_Large) _4060_
(http://legislink.org/us/stat-106-4060)
) require that "If a financial institution or any director, officer,
employee, or agent of any financial institution [...] reports a suspicious
transaction to a government agency—neither the financial institution,
director,
officer, employee, or agent of such institution (whether or not any such
person is still employed by the institution) [...] may notify any person
involved in the transaction that the transaction has been reported; and no
current or former officer or employee of or contractor for the Federal
Government or of or for any State, local, tribal, or territorial government
within
the United States, who has any knowledge that such report was made may
disclose to any person involved in the transaction that the transaction has
been
reported".
_18 U.S.C._
(https://en.wikipedia.org/wiki/Title_18_of_the_United_States_Code) _§ 2705(b)_
(http://www.law.cornell.edu/uscode/text/18/2705(b)) (the
_Electronic Communications Privacy Act_
(https://en.wikipedia.org/wiki/Electronic_Communications_Privacy_Act) of 1986
/ _Stored Communications Act_
(https://en.wikipedia.org/wiki/Stored_Communications_Act) ) also provides for
gag orders which direct the recipient of a _18 U.S.C._
(https://en.wikipedia.org/wiki/Title_18_of_the_United_States_Code) _§ 2703(d)_
(http://www.law.cornell.edu/uscode/text/18/2703(d)) order to refrain from
disclosing the
existence of the order or the investigation.
_18 U.S.C._
(https://en.wikipedia.org/wiki/Title_18_of_the_United_States_Code) _§
3123(d)(2)_ (http://www.law.cornell.edu/uscode/text/18/3123(d)(2))
(the Electronic Communications Privacy Act of 1986) also provides for gag
orders which direct the recipient of a _pen register_
(https://en.wikipedia.org/wiki/Pen_register) or _trap and trace device_
(https://en.wikipedia.org/wiki/Trap_and_trace_device) order not to disclose
the existence of the
pen/trap or the investigation.
In the United States, a court can order parties to a case not to comment on
it but has no authority to stop unrelated reporters from reporting on a
case. Thus, information concerning a case is often leaked to the media, and
the media often chooses to publicly report this leaked information after
receiving it. In addition, this information can be used to the media's
advantage, as they can decide to post negative information about a person who
is
involved with a case and who has been issued a gag order, knowing that that
person cannot comment on the publicly reported information due to the gag
order being imposed on this person. Most statutes which restrict what may be
reported have generally been found _unconstitutional_
(https://en.wikipedia.org/wiki/Unconstitutional) and void. However, the gag
provisions of the
_WIPO Copyright and Performances and Phonograms Treaties Implementation
Act_
(https://en.wikipedia.org/wiki/WIPO_Copyright_and_Performances_and_Phonograms_Treaties_Implementation_Act)
have been upheld.
The trials of _Guantanamo Bay_
(https://en.wikipedia.org/wiki/Guantanamo_Bay_detention_camp) suspects have
also been subjected to a gag order, which
has hindered public scrutiny Likewise, as part of a plea bargain _John
Walker Lindh_ (https://en.wikipedia.org/wiki/John_Walker_Lindh) consented to
a
gag order to not talk to the press or others. Also, Judge Howard Shore
from San Diego put a gag order on activist Jeff Olson.
Gag orders can be part of a settlement agreement between two parties. In
the state of Pennsylvania in 2011, a lifetime gag order on the discussion of
_fracking_ (https://en.wikipedia.org/wiki/Fracking) was agreed to by a
family as part of _their agreement_
(https://en.wikipedia.org/wiki/Stephanie_Hallowich,_H/W,_v._Range_Resources_Corporation)
with the oil and gas
drilling company _Range Resources_
(https://en.wikipedia.org/wiki/Range_Resources)
. An attorney for Range Resources claimed in court that the gag order
covered not only the adults in the family, but also the children, then aged
seven and ten years old, and that the company intended to enforce it.
Some U.S. states, the first of which was _Florida_
(https://en.wikipedia.org/wiki/Florida) , have enacted so-called "_physician
gag laws_
(https://en.wikipedia.org/wiki/Physician_gag_law) " limiting doctors' ability
to talk
to their patients about their gun ownership.
-------------------------------
Gag orders and the effect on newsgathering
By Ashley Gauthier
Gag orders on trial participants have become a significant threat to the
First Amendment protection for the press. News organizations should make
every effort to challenge even the most routine gag orders because they
represent the slow but steady erosion of First Amendment rights.
"They have the best chance of surviving review and are routinely upheld,"
said C. Thomas Dienes, a professor at George Washington University Law
School and author of "Trial Participants in the Newsgathering Process."
The proliferation of gag orders began after a 1976 U.S. Supreme Court
decision in which the court ruled that an order barring the press from
publishing information about a criminal case was improper. Since then, courts
have
understood that prior restraints on publication should not be imposed upon
the press. Instead, they impose prior restraints on the sources of
information, making an end-run around the rule that the press itself generally
cannot be restricted. (Nebraska Press Association v. Stuart)
Courts have reasoned that prior restraints on individual trial participants
are somehow less offensive than prior restraints on media organizations.
The effect, however, is similar. The flow of information to the public is
constricted.
Journalists often do not challenge gag orders on trial participants. Dienes
said journalists believe they can still "get the story" because someone
will voluntarily violate the gag order or they can obtain information from
secondary sources. Journalists also believe they can cover what occurs in the
courtroom and sacrifice interviewing the people involved in the case.
To many lawyers, however, gag orders on trial participants quickly erode
fundamental First Amendment principles and present an ominous precursor to
further infringements on media rights. "And I think it's going to become much
more repressive," Dienes said.
Standing to challenge gag orders
Journalists could challenge the gag orders. Courts generally accept that
media organizations or journalists have "standing" -- a sufficient interest
in the matter to be allowed to make arguments to the court -- to challenge a
gag order. However, not all arguments to support standing are successful.
First, the press may argue that it has standing to assert its own rights to
gather information. This argument is almost always successful.
The Supreme Court has recognized that there is some newsgathering
protection, although the extent of the protection has yet to be fully defined.
In
Branzburg v. Hayes, the Court stated that it does "not question the
significance of free speech, press, or assembly to the country's welfare. Nor
is it
suggested that news gathering does not qualify for First Amendment
protection; without some protection for seeking out the news, freedom of the
press
could be eviscerated."
In Journal Publishing Co. v. Mechem, the U.S. Court of Appeals in Denver
held that a newspaper had standing to challenge a gag order imposed on
jurors. Specifically, the court said, "Journal Publishing alleged an injury in
fact because the court's order impeded its ability to gather news, and that
impediment is within the zone of interest sought to be protected by the
First Amendment." Other cases where courts have held that the press has
standing to challenge a gag order on trial participants include Radio &
Television
News Ass'n v. United States Dist. Ct. (9th Cir.); In re Express-News
Corp. (5th Cir.); CBS, Inc. v. Young (6th Cir.); Connecticut Magazine v.
Moraghan (D. Conn.); and In the Matter of NBC, Inc. v. Cooperman (New York).
Although most courts believe that the press has standing to challenge gag
orders because of its right to gather news, some courts have issued
restrictive rulings. For example, the U.S. Court of Appeals in Philadelphia
(3d
Cir.) ruled that the press would "have standing to challenge a gag order only
when there is reason to believe that the individual subject to the gag
order is willing to speak." Arguably, this statement requires the media to
prove that the participant would speak to the press if the gag order were
lifted. (FOCUS v. Allegheny Cty. Ct. of Common Pleas)
The Supreme Court of Michigan similarly imposed such a requirement, denying
a newspaper's ability to challenge a gag order when the newspaper failed
to identify an specific "willing speaker." (In re Detroit Free Press)
In re Detroit Free Press also calls into question the assumption that the
press has a broad right to gather news. Justice Corrigan denied the Free
Press' appeal of a gag order in a custody case and criticized the paper's
argument that the order infringed on its rights: "Further, while the Free Press
makes much of its special first amendment right to 'gather news,' . . . it
fails to acknowledge the rather limited scope of this 'right.' It is
axiomatic that the press has no greater right to access information than the
public at large." Justice Corrigan reasoned that, if the press' right is
equivalent to the right of the public, then there is no special "freedom of
the
press" right to access the information subject to the trial court's gag
order.
Justice Corrigan also stated "there is no general First Amendment 'right to
gather data,' " relying on Zemel v. Rusk, a case in which the U.S.
Supreme Court rejected a First Amendment claim raised by a person denied a
passport to Cuba. The person alleged that he had a First Amendment right to
travel to Cuba to learn about its policies, but the Court concluded that "[t]he
right to speak and publish does not carry with it the unrestrained right to
gather information." Corrigan therefore concluded that "a mere restriction
on 'data flow' does not raise serious First Amendment concerns." (In re
Detroit Free Press)
However, Justice Corrigan's reasoning conflicts with many cases
acknowledging that the public has a right to receive information and that the
media
creates an effective mechanism for the public to receive that information. In
Globe Newspaper Co. v. Superior Ct., the U.S. Supreme Court noted that the
public has a right of access to information about judicial proceedings for
the sake of preserving our democracy. Then, in Gentile v. State Bar of
Nevada, the Supreme Court recognized that most people acquire information
about court cases from the media. A Supreme Court Justice had previously
noted,
"An informed public depends on accurate and effective reporting by the
news media. No individual can obtain himself the information needed for the
intelligent discharge of his political responsibilities. For most citizens
the prospect of personal familiarity with newsworthy events is hopelessly
unrealistic. In seeking out the news the press therefore acts as an agent of
the public at large. It is the means by which the people receive the free
flow of information and ideas essential to effective self-government." (Saxbe
v. Washington Post Co., Powell, J., dissenting)
The press may also try to argue that it has standing to challenge the First
Amendment rights of the speakers who have been silenced, but some courts
are less persuaded by that argument.
The Supreme Court has indicated that both speakers and listeners had an
enforceable right. The Court stated, "freedom of speech presupposes a willing
speaker. But where a speaker exists, as is the case here, the protection
afforded is to the communication, to its source and to its recipients both."
(Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,
Inc.)
Some courts have allowed the press to challenge gag orders, following the
notion that the listener has a right to hear a communication. For example,
the U.S. Court of Appeals in Cincinnati (6th Cir.) ruled that a gag order on
trial participants constituted "a direct prior restraint upon freedom of
expression." The court noted that "[a]lthough the news media are not
directly enjoined from discussing the case, it is apparent that significant
and
meaningful sources of information concerning the case are effectively removed
from them and their representatives .... A more restricting ban upon
freedom of expression in the trial context would be difficult if not
impossible
to find." (CBS, Inc. v. Young)
However, other courts have rejected the argument that the press has
standing to argue that gag orders infringe the free speech rights of trial
participants. The U.S. Court of Appeals in Miami (11th Cir.) found that "there
is
a fundamental difference between a gag order challenged by the individual
gagged and one challenged by a third party." Similarly, the U.S. Court of
Appeals in New York (2d Cir.) concluded that "the news agencies may not
assert defendants' First Amendment rights when defendants refuse to challenge
that infringement themselves." (News-Journal Corp. v. Foxman (11th Cir.); In
re Dow Jones & Co., Inc. (2d Cir.))
The importance of challenging gags
While journalists often feel that it is not worth the time, effort or
expense to challenge a particular gag order, media lawyers often agree that
the
perceived "lack of worth" is exactly why journalists should challenge the
orders.
Gag orders allow courts to circumvent the First Amendment, slowly eroding
the freedom of the press in a much more subtle manner than if they gagged
the media directly. When the press fails to challenge an individual gag order
because the order doesn't seem important, it becomes another brick in the
wall. While each separate brick may not seem, in itself, to be a threat to
the flow of information, the collective wall will be.
Dienes, the law professor, contended that U.S. v. Brown in Lousiana
exemplifies the encroachment of gag orders on First Amendment rights. "The
Brown
case in the Fifth Circuit is just terrible," Dienes said. "It's a gag on a
criminal defendant, and it was challenged by the criminal defendant rather
than the media, and it was still upheld."
The Brown case involved the prosecution of former Louisiana Gov. Edwin
Edwards and Louisiana Insurance Commissioner Jim Brown for alleged insurance
fraud. Judge Edith Clement imposed a gag order on all trial participants,
but Brown challenged the constitutionality of the order, claiming that it
violated his First Amendment right to free speech. The U.S. Court of Appeals
in New Orleans (5th Cir.) upheld the gag order and did not apply the strict
scrutiny analysis typical in a First Amendment case. Instead, the court
upheld the gag order based on a "substantial likelihood" that publicity could
prejudice the court's ability to conduct a fair trial. There were no
specific factual findings to support such a conclusion, and the court did not
require an examination of less restrictive alternatives.
The court in Brown was apparently not concerned that Brown was a sitting
office-holder who was not able to comment on his job performance or duties
of office pending the outcome of the trial. Considering that political
speech has always been given the greatest protection under the First Amendment,
it seems odd that the court would dismiss Brown's First Amendment claims and
impose the rather weak "substantial likelihood" test. Surely, the
indifference to Brown -- an office holder -- as a speaker is a harbinger of
even
more restrictive rulings in the future.
A split among circuits
Over time, a split has arisen among federal appeals courts on the standard
for evaluating a gag order on trial participants. The Second, Fourth, Fifth
and Tenth Circuits have held that a trial court may gag participants if it
determines that comments present a "reasonable likelihood" or "substantial
likelihood" of prejudicing a fair trial. (In re Dow Jones & Co.; In re
Russell; U.S. v. Brown; U.S. v. Tijerina)
Some states have followed the same rule. (Sioux Falls Argus Leader v.
Miller; State ex rel. Missoulian v. Montana Twenty-First Jud. Dist. Ct.)
However, the Third, Sixth, Seventh and Ninth Circuits have imposed a
stricter standard, rejecting gag orders on trial participants unless there is a
"clear and present danger" or "serious and imminent threat" of prejudicing a
fair trial. (Bailey v. Systems Innovation, Inc.; U.S. v. Ford; Chicago
Council of Lawyers v. Bauer; Levine v. U.S. Dist. Ct.)
Hawaii and New York have followed this standard as well. (Breiner v.
Takao; People v. Fioretti)
The "clear and present danger" test is more appropriate for analyzing a
First Amendment claim, as it reflects the "strict scrutiny" standard applied
in other First Amendment cases, such as Nebraska Press Association. In the
spring issue of Communications Lawyer magazine, Dienes argued that the
"substantial likelihood" standard used by the Fifth Circuit is grossly flawed
and will lead to further trammeling on free speech rights. "One can only hope
that [the "substantial likelihood" test] merely reflects the extremely
political context of the cases that spawned it," Dienes wrote. "It should be
expected that appellate courts will at least use standards for justifying
such orders that reflect the important First Amendment interests at stake."
Cases Cited:
Bailey v. Systems Innovation, Inc., 852 F.2d 93 (3d Cir. 1988)
Branzburg v. Hayes, 408 U.S. 665 (1972)
Breiner v. Takao, 835 P.2d 637 (Ha. 1992)
CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975)
Chicago Council of Lawyers v. Bauer, 552 F.2d 242 (7th Cir. 1975)
Connecticut Magazine v. Moraghan, 676 F. Supp. 38 (D. Conn. 1987)
FOCUS v. Allegheny Cty. Ct. of Common Pleas, 75 F.3d 834 (3d Cir.1996)
Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)
Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982)
In re Detroit Free Press, 620 N.W.2d 10 (Mich. 2000)
In re Dow Jones & Co., Inc., 842 F.2d 603 (2nd Cir. 1988)
In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982)
In re Russell, 726 F.2d 1007 (4th Cir. 1984)
In the Matter of NBC, Inc. v. Cooperman, 501 N.Y.S.2d 405 (Ct. App. 1986)
Journal Publishing Co. v. Mechem, 801 F.2d 1233 (10th Cir. 1986)
Levine v. U.S. Dist. Ct., 764 F.2d 590 (9th Cir. 1985)
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)
News-Journal Corp. v. Foxman, 939 F.2d 1499 (11th Cir. 1991)
People v.Fioretti, 516 N.Y.S.2d 422 (N.Y. Sup. 1987)
Radio & Television News Ass'n v. United States Dist. Ct., 781 F.2d 1443
(9th Cir. 1986)
Saxbe v. Washington Post Co., 417 U.S. 843 (1974)
Sioux Falls Argus Leader v. Miller, 610 N.W.2d 76 (S.D. 2000)
State ex rel. Missoulian v. Montana Twenty-First Jud. Dist. Ct., 933 P.2d
829 (Mont. 1997)
U.S. v. Brown, 218 F.3d 415 (5th Cir. 2000)
U.S. v. Ford, 830 F.2d 596 (6th Cir. 1987)
U.S. v. Tijerina, 412 F.2d 661 (10th Cir. 1969)
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U.S. 748 (1976)
Zemel v. Rusk, 381 U.S. 1 (1965)
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