Gag Order

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A "gag order" is the term for when a judge prohibits the attorneys, parties, or witnesses in a pending lawsuit or criminal prosecution from talking about the case to the public. However, a court will scrutinize any gag order under the right of free expression, protected by the First Amendment, and applies a heavy presumption against its constitutional validity, as with any prior restraint. See Carroll v. Princess Anne. In Nebraska Press Ass’n v. Stuart, the U.S. Supreme Court considered the following factors in analyzing the constitutionality of a gag order: “(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger [of an unfair trial for defendant].” In that case, however, the Court found that a lower court’s gag order was justified because publicity of alleged shocking crimes would be widespread and would likely reach a jury, impairing the defendant’s right to a fair trial. 

[Last updated in December of 2020 by the Wex Definitions Team]