Trial gag orders are no laughing matter

Published August 2022

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

South Carolina Circuit Judge Clifton Newman was praised (here and here, for example) in early August when he rejected requests for gag orders from both the prosecution and the defense in the pending double-homicide murder trial against disbarred attorney Alex Murdaugh for allegedly killing his wife and son in the midst of a maelstrom of other charges involving fraud, theft and other illegal and unethical behavior.

The parties had requested that Newman seal—remove public access to—all the evidence in the double murder case and to allow the parties to seal all of their motions in the case.

In his order denying the request, Newman wrote that “[t]he public is entitled to know how justice is being administered.” Issuing the gag orders, he added, “would likely constitute the improper closure of the courtroom.”

The U.S. Supreme Court has held that public access to the courts—and most court documents—is protected by the First Amendment, and that access can be closed to the public only under extraordinary circumstances. In decisions in 1984 and 1986, the Court held that “proceedings cannot be closed unless specific, on the record findings are made demonstrating that ‘closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” In other words, any closure or sealing of documents must serve an interest that overrides the public’s interest in open courts, and the closure or sealing must be limited to only what is absolutely necessary to protect that overriding interest. The Court added that a court ordering any closure must also explicitly justify its reasoning for the closure.

Openness also ensures that the trial is fair to the defendant. This idea is enshrined in the Sixth Amendment to the U.S. Constitution, which provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial …” The U.S. Supreme Court has also held that courts are generally required to be open to the public under the First Amendment right of free speech.

The South Carolina Supreme Court has similarly held that judicial proceedings and records may be closed only where “countervailing interests outweigh the public interests in access,” based on the provision in the South Carolina constitution that “[a]ll courts shall be public.”

That’s why the complete sealing of a real estate foreclosure case involving then-White House acting chief of staff John Michael (“Mick”) Mulvaney was improper, since the court in that case did not state any justification for the closure other than the parties requested it. The case was eventually unsealed by an order of the South Carolina Supreme Court.

In criminal trials, there is always some tension between the public right of access to court proceedings and court documents on the one hand and the defendant’s right to a fair trial on the other. For example, jurors could learn of evidence through coverage of pre-trial proceedings even though some of that evidence will be inadmissible during the trial itself. So, the public and the press were barred from a hearing into the mental competency of Emanuel AME Church killer Dylan Roof to stand trial, and on Roof’s request to represent himself in the case.

This is particularly true in trials in which there is intense public interest. There is certainly such interest in the Murdaugh murder case, as well as the swirl of other criminal and civil cases surrounding Alex Murdaugh. In such high-profile cases, courts often use a variety of techniques, such as admonishments to the trial participants, decorum orders to control media access to and behavior in the court, and enforcement of legal ethics rules to ensure that such trials are both accessible to the public (and its representatives, the press) and fair to the defendant(s).

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to 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.

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