In re MURPHY-BROWN, LLC, No. 18-1762 (4th Cir.) (October 29, 2018).
Where multiple cases challenging hog farming practices in North Carolina generated considerable public controversy, a federal district court, fearing jury pool contamination, issued a gag order binding the parties, counsel, and “potential” witnesses from commenting on the cases, then promptly withdrew the order when mandamus review in the Fourth Circuit was sought. The infirmities of the order could not be cured by its withdrawal, the federal appellate court found, as a circular process of order entry, appeal, and retraction would make the issues capable of repetition, yet evading review.
Judicial gag orders are particularly disfavored in the law. Notwithstanding that courts may act to ensure preservation of fair trial rights in civil cases, gag orders by definition involve both prior restraints and content based restrictions. The compelling state interest that must be found to support limitations on First Amendment speech freedoms cannot be premised on an increase in publicity, particularly where publicity itself does not necessitate a finding of prejudice. Speech restraints must operate to cure and not to create the ills invited by curtailing discussion.
Even if the gag order in issue could be seen as advancing fair trial rights, it cannot be shown to have been the least restrictive means of so doing. Courts have available multiple measures short of impeding speech to guard against jury prejudice: juror pools may be expanded, venues changed, voir dire enhanced, instructions limited, or sequestration imposed. No findings were made supporting the blanket speech restrictions imposed, which themselves were fatally defective for vagueness. The breadth of reach of the order to any potential witnesses as well as the guesswork involved in determining what might be permissible general factual commentary rather than influential speech compel the conclusion that the order fails to withstand a vagueness challenge.