Court Gag Orders Are Serious Business
Published December 2023
There has been a lot of court action recently on “gag orders” that courts hearing some of the civil and criminal cases against ex-president Donald Trump have issued that limit what he can say about the cases and the individuals involved.
I wrote about such gag orders last August, when South Carolina Circuit Judge Clifton Newman rejected requests for gag orders in the murder prosecution of disgraced attorney Alex Murdaugh. In that case, both the prosecution and the defense had sought to seal all the evidence and all of the parties’ motions in the case. Newman refused these requests, writing that “[t]he public is entitled to know how justice is being administered.”
In the Trump cases, a federal judge in Washington, D.C. and a state court in New York issued orders barring Trump from commenting on the participants in the proceedings, including prosecutors, witnesses and court personnel. An appeals court mostly upheld the federal court order on the grounds that some of his remarks had “pose[d] a danger to the integrity of these criminal proceedings,” but held that Trump should be free to comment on special prosecutor Jack Smith and former White House and campaign employees. The New York gag order was suspended, but then reinstated by an appeals court.
By their nature, gag orders are restrictions of First Amendment free speech rights. But the U.S. Supreme Court has held that courts may impose them on trial participants—but not on others not directly involved in the trial, such as the media—when necessary to ensure fair proceedings. Even when such a gag order is essential, it cannot be more extensive than absolutely necessary. And courts cannot restrict media coverage of a case unless there is no other viable alternative.
In Trump’s cases, his statements disparaging the prosecutors, the judges, judicial and other court staff, and potential witnesses—and their families—led to doxxing (posting personal information online) and credible threats against these individuals.
The judge overseeing the New York trial has fined Trump twice for violating the order in the state case, for a total of $15,000.
Is Journalism “Supporting Terrorism”?
On Dec. 6, 14 state’s attorneys general—including South Carolina Attorney General Alan Wilson—sent a letter to executives of the Associated Press, CNN, The New York Times and Reuters following up on reports that some of the freelancers hired by these news outlets to cover the war in Gaza were aligned or allied with Hamas, and were embedded with the Oct. 7 attackers. CNN and the AP later cut ties with one of the freelancers.
Citing federal and state laws that make providing “material support” of terrorist organizations illegal, the letter from the attorneys general states that while “our States support press freedom and never seek to chill speech,” if the news organizations’ hiring practices “led you to give material support to terrorists, you must change these policies going forward. Otherwise, we must assume any future support of terrorist organizations by your stringers, correspondents, contractors, and similar employees is knowing behavior” that constitutes material support of terrorists.
The letter ends with the following: “We will continue to follow your reporting to ensure that your organizations do not violate any federal or State laws by giving material support to terrorists abroad. Now your organizations are on notice. Follow the law.”
But while using freelancers to cover terrorism may be ethically fraught, it should not be illegal.
Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.