FFR: Fourth Circuit Reverses Gag Order

Some of you have been following ongoing federal court litigation related to North Carolina hog farms.  All of you, however, should take note of a 4th Circuit Ruling handed down today reversing a gag order entered in those cases.

Judge Britt, the trial judge presiding over the cases in the Eastern District of North Carolina, issued a gag order in June.  The order prohibited parties, their lawyers, their agents and all potential witnesses from speaking about the litigation in anything other than the most clinical, factual terms.  All of these people were prohibited from

giv[ing] or authoriz[ing] any extrajudicial statement or interview to any person or persons associated with any public communications media or that a reasonable person would expect to be communicated to a public communications media relating to the trial, the parties or issues in this case which could interfere with a fair trial or prejudice any plaintiff, the defendant, or the administration of justice and which is not a matter of public record. Statements of information intended to influence public opinion regarding the merits of this case are specifically designated as information which could prejudice a party.

The defendants in the cases asked the Fourth Circuit to reverse Judge Britt, a move that was supported by many “friend of the court” briefs, including one we filed for the North Carolina Pork Council and National Pork Producers Council.  Sparing you some procedural dramatics, I write to report that Fourth Circuit Judge Wilkinson not only has reversed Judge Britt’s gag order but has done so in a 24-page ruling that holds high the fundamental tenets of the First Amendment in ways that will be helpful to us for years to come.  I have attached Judge Wilkinson’s opinion and encourage you to read it.  Lest you don’t have time, or you get lost in the legalese, though, I want to point out some of  its highlights.

First, even a short gag order is offensive to the First Amendment.

The gag order has already inflicted serious harm on parties, advocates, and potential witnesses alike. It has muted political engagement on a contested issue of great public and private consequence. It has hamstrung the exercise of First Amendment rights. Even in short doses, these harms are hostile to the First Amendment.

Second, First Amendment rights accompany civil trials as well as criminal trials.

While gag orders in civil cases are quite rare (there being no Sixth Amendment right at issue), the First Amendment interests in an open and public civil justice system are no less salient ….

Third, a judge who claims that ensuring a fair trial is a compelling interest to justify a gag order must demonstrate, with specifics, that a fair trial is actually at risk.  It is not enough to simply parrot the words fair trial.

Ensuring fair trial rights is a compelling interest, however, only when there is a ‘reasonable likelihood’ that a party would be denied a fair trial without the order under challenge.

Fourth, gag orders are not appropriate just because a case is high profile.

The fact of publicity is hardly dispositive. … The judicial process does not run and hide at those moments when public appraisal of its workings is most intense …

Fifth, any proposed gag order must be exacting, because ambiguities are inherently problematic.

[V]ague restrictions on speech ‘offend’ the First Amendment.

Judge Wilkinson described the significant and legitimate individual and public interest in the cases that are working their way through the courts.  The cases matter to the parties and also to the community at large.

All these people care. This case is about their lives and their livelihoods. Whatever differences the parties and their supporters have, they possess in common a passionate First Amendment interest in debating their futures. It seems very wrong that a court would take that from them.

To Judge Wilkinson, I say, thank you.

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