Are You at Risk of Having a Judge Issue a Gag Order?

If you’ve been following the national news at all, you may be familiar with the attention Donald Trump has been drawing when it comes to gag orders related to various trials.  Such orders are often headline-grabbing in high profile trials—but what about average people who find themselves facing a criminal trial? Are gag orders commonly handed out, and how likely are you to face one yourself?

The Point of Gag orders 

Judges typically issue gag orders to stop people from talking about a case publicly. The concern is that a jury pool will be poisoned by news coverage. Protecting the integrity of the court system is the goal.  Even so, they’re pretty controversial because limiting speech is contrary to the First Amendment.

Unconstitutional?

The American Civil Liberties Union (ACLU) has argued that gag orders are unconstitutional, generally because they are unwarranted or too vague to understand and enforce. They’ve filed many briefs against such orders, including on Mr. Trump’s behalf.

According to the Supreme Court, there must be a very high threshold for issuing gag orders restricting press coverage of any trial. It should be employed only as a last resort, since it is such an extraordinary remedy to a problem. That means courts have to consider alternatives before issuing a gag order, with evidence that the trial’s legitimacy would be severely compromised without it.

Requirements Related to Gag Orders

In order to be Constitutionally viable, gag orders do have to meet certain standards, which is why proponents believe that under severe circumstances they are appropriate. When information being spouted off threatens biasing a jury, it’s dangerous for the system at large. And because statements made outside of court are not made under oath, there is a greater likelihood of misstatements and untruths being dropped into potential jurors’ awareness. Additionally, when inflammatory statements are made that put the lives of those associated with the case at risk, the additional concern that jurors might be afraid to serve is a real issue.

Are Gag Orders Very Common?

Gag orders can be extremely limited—such as prohibiting statements related to a specific person related to the case—or quite broad, prohibiting any comments about the case altogether. Because judges are generally concerned about media coverage that could impact the outcome of the case, these orders typically are associated with high profile situations.

Are You Concerned About the Possibility of a Gag Order?

In all likelihood, most defendants will never have to worry about gag orders.  In cases that are very public and with high media coverage, the potential for such an order is greater. In any case, the experienced Las Vegas criminal defense attorneys at Lobo Law will always fight for the best outcomes for you. To discuss your case, schedule a confidential consultation today.