The Improving Law of Judicial Gag Orders

by Jeffrey J. Pyle

“The Supreme Court has roundly rejected prior restraint” on speech.¹ Orders that prohibit protected expression in advance have always been considered “the most serious and least tolerable” infringement of First Amendment rights.² Most famously, in the Pentagon Papers case, the Supreme Court refused to enjoin the media from publishing a classified U.S. Department of Defense study on the history of the Vietnam conflict despite the government’s plea that an injunction was needed to protect national security.³

Except, the law sometimes requires courts to issue prior restraints. The Supreme Court has held that judges have an affirmative duty to restrain the speech of trial participants to protect the administration of justice against prejudicial outside interference like witness intimidation, jury interference, and threats to court staff. Such orders restraining speech must be sufficiently broad and enforceable to ensure that cases are fairly tried on the merits. At the same time, they can be imposed only when absolutely necessary, and they must be narrowly tailored to give breathing space for free speech on public issues – including harsh and vituperative criticism of judges, prosecutors, and other litigants.⁴

In short, there is not much room for error here. When a court orders a trial participant not to say something, it must navigate between the Scylla of maladministration of justice and the Charybdis of unconstitutional prior restraint.

However, there is some helpful new caselaw on this issue, courtesy of Donald Trump. Over the last several months, courts have issued groundbreaking gag orders against the indicted former president and presumptive Republican nominee. These courts did so after he repeatedly published online posts that caused some of his followers to harass, threaten, and abuse the judges, prosecutors, witnesses – and even a law clerk – involved in cases against him.

Those courts’ decisions to gag the former president were understandable, and mostly justified. Some of Trump’s posts included ominous and even threatening language. For example, attacking Manhattan District Attorney Alvin Bragg (who filed the first indictment against Trump), Trump wrote, “OUR COUNTRY IS BEING DESTROYED, AS THEY TELL US TO BE PEACEFUL!” – a statement prosecutors argued was a signal to his followers not to be peaceful. In another post, Trump predicted “death & destruction” would come from Bragg’s “false charge” that Trump falsified business records. DA Bragg’s office said it had “received hundreds of threats in the wake of, and connected to, [Trump’s] public attacks.”

The Trump cases present extremes on all sides of the gag order issue. The public has an unusually high interest in what Trump has to say. At the same time, his speech has an unusually strong tendency to harm the trial process. This article will summarize the emerging, and generally improving, caselaw on this issue.

What’s the Standard? 

The standard for imposing a gag order likely depends on which trial participant is being gagged.

Courts impose gag orders on trial counsel based on a relatively relaxed standard of “substantial likelihood of causing material prejudice” to the proceeding. That was the language of the disciplinary rule upheld in Gentile v. State Bar of Nevada.⁵ The Supreme Court justified this standard based partly on the role of lawyers as “officers of the court,” which “subjects them to fiduciary obligations to the court and the parties.” The standard is replicated in Mass. R. Prof. C. 3.6(a).

A litigant, of course, has no such fiduciary obligation. In its decision largely upholding U.S. District Court Judge Tanya Chutkan’s gag order against Trump in the January 6 criminal prosecution, the U.S. Court of Appeals for the District of Columbia Circuit assumed without deciding that “the most demanding scrutiny” applies to a speech-restricting order against a criminal defendant. To the court, this meant that “only a significant and imminent threat to the administration of criminal justice will support restricting Mr. Trump’s speech.” Further, such a prior restraint “can be imposed only if narrowly tailored to redress sufficiently serious threats to the criminal justice process and if no less restrictive alternatives are available.”⁶

Similarly, the Supreme Judicial Court of Massachusetts held years ago that an order restraining the speech of a litigant “must be justified by a compelling State interest to protect against a serious threat of harm,” and must be narrowly tailored to prevent that harm. “It is apparent that any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available.”⁷

What Justifies a Gag Order? 

The most common reasons that courts cite to support gag orders are preventing prejudicial outside influence on the jury and on witness testimony. In the prosecution of Whitey Bulger, for example, Judge Denise Casper of the District of Massachusetts issued an order requiring trial counsel to refrain from making extrajudicial statements during the trial in accordance with D.Mass. L.R. 83.2.1(e). That rule stated that no lawyer shall make a statement to the media except to “quote from or refer without comment to public records of the court in the case.” Judge Casper held that there is “a compelling interest in avoiding any risk of the jurors’ exposure to the extrajudicial statements of counsel about this case,” as well as in “insulating witnesses, many of whom have not yet testified,” from having their testimony affected by extrajudicial statements. These broad restrictions, she held, served the compelling interest of “protecting the integrity and fairness of trial proceedings.”⁸

On the other hand, protecting judges, the government, and high-level prosecutors from criticism is not a compelling governmental interest.⁹ In the January 6 case against Trump, Judge Chutkan’s order prohibited parties from making any public statements that “target” prosecutors or their staff, including Special Counsel Jack Smith. The D.C. Circuit Court of Appeals overturned this portion of the gag order, largely based on the public interest in the handling of prosecutions. As the court explained:

Prosecutors are vested with immense authority and discretion, including the power to take steps that can result in persons’ loss of liberty. The public has a weighty interest in ensuring that such power is exercised responsibly. And criminal defendants facing potential curtailments of liberty have especially strong interests in commenting, within reasonable bounds, on prosecutors’ use of their power.¹⁰

For these reasons, the appellate court overturned Judge Chutkan’s order to the extent it “restricted speech about the Special Counsel himself.” It held that the special counsel was “no more entitled to protection from lawful public criticism than is the institution he represents.” On the other hand, given Trump’s documented history of inciting harassment, the court held it was permissible to protect lower-level staff from such comments.¹¹

What are Some Reasonable, Less-Restrictive Alternatives?

Before issuing a gag order, courts must consider less-speech-restrictive alternatives. These can include an admonition encouraging trial participants to self-regulate. Shortly after the indictment of Trump in relation to the events of January 6, Judge Chutkan cautioned all parties “to take special care in your public statements about this case,” because even “arguably ambiguous statements from parties or their counsel, if they could reasonably be interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.” The D.C. Circuit Court of Appeals held that this warning helped show that Judge Chutkan considered, and even tried, less restrictive alternatives to suppressing speech.

The Supreme Court has identified several other potential, less-speech-restrictive alternatives, most of which have to do with protecting juries from outside influence. They include questioning prospective jurors, instructing seated jurors to ignore extrajudicial statements, moving the trial to a different location, and postponing the trial. These are the workaday tools of the trade for trial judges seeking to protect the sanctity of the jury. However, as certain courts in the Trump cases have held, where a trial participant’s statements are likely to put witnesses or participants in fear of their safety, such alternatives are not an effective substitute for a gag order.

Does Intent Matter? 

The standards discussed above look at the likely effect of the speech on the administration of justice, not on whether the speaker intends to prejudice the proceeding. However, in other contexts, the law frequently restricts speech based on whether the speaker intended to achieve a particular unlawful outcome. For example, state law allows Massachusetts courts to issue harassment prevention orders when a person commits three or more “acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property ….” G.L. c. 258E, § 1. Should judicial gag orders likewise focus on the intent of the speaker?

As noted above, Judge Chutkan was concerned about how Trump’s public statements attacking court personnel and prosecutors led to online harassment. Accordingly, she issued an order prohibiting Trump and others involved in the case from “making any public statements, or directing others to make any public statements, that target . . . the Special Counsel prosecuting this case or his staff . . . any of this court’s staff or other supporting personnel. . . .”¹² The D.C. Circuit Court of Appeals held this portion of the order too restrictive, because “targeting” a public official with criticism about their conduct in office can amount to core free speech. Accordingly, the court sought to balance the competing interests by adding a mens rea requirement as to statements about line prosecutors, court staff, and their families.

Specifically, the court held that it was appropriate to restrict Trump’s speech “concerning counsel and staff members, or their family members, to the extent it is made with either the intent to materially interfere with their work or the knowledge that such interference is highly likely to result.” Mens rea requirements, the court explained, “lessen the hazard of self-censorship” and allow “breathing room” for speech, while covering the speech most likely to harm the courts’ institutional interests. On the other hand, the court noted that such requirements make the imposition of sanctions for violation of the gag order more difficult. New York Supreme Court Judge Juan Merchan later included the similar intent language in a gag order on Trump in the prosecution for falsification of business records.¹³

Conclusion

The decision of the D.C. Circuit Court of Appeals in the January 6 prosecution skillfully navigates the difficult competing interests in gag order cases. It provides strong protection against witness intimidation and harassment, while allowing for ample speech criticizing the government and the court. The decision shows the way toward a more sophisticated and balanced approach to this important issue.

1. Walter Sobchak, The Big Lebowski (1998).
2. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).
3. New York Times Co. v. United States, 403 U.S. 713 (1971).
4. Broadrick v. Oklahoma, 413 U.S. 601, 611–612 (1973).
5. 501 U.S. 1030 (1991).
6. United States v. Trump, 88 F.4th 990, 1014 (D.C. Cir. 2023), reh’g denied, No. 23-3190, 2024 WL 252746 (D.C. Cir. Jan. 23, 2024).
7. Care & Prot. of Edith, 421 Mass. 703, 705 (1996).
8. United States v. Bulger, No. 99-cr-10371-DJC, 2013 WL 3338749, at *7 (D. Mass. July 1, 2013).
9. See also Care & Prot. of Edith, 421 Mass. at 705-706 (holding there was no compelling interest in preventing father from directly or indirectly revealing the names of children subject to care and protection proceeding).
10. United States v. Trump, 88 F.4th 990, 1025 (D.C. Cir. 2023), reh’g denied, 23-3190, 2024 WL 252746 (D.C. Cir. Jan. 23, 2024).
11. Similarly, in the civil fraud case against the Trump Organization, Judge Arthur Engoron prohibited Trump from making any statements attacking court staff (not including the judge himself). The order came after Trump started attacking the judge’s law clerk, Allison Greenfield, whom he falsely called “Chuck Schumer’s girlfriend.”
12. United States v. Trump, 23-cr-257 (TSC), 2023 WL 6818589, at *2 (D.D.C. Oct. 17, 2023).
13. People v. Trump,  71 543-23 (N.Y. Sup. Ct., March 26, 2024). As of this writing, Trump faces a motion for sanctions based on his alleged violation of Judge Merchan’s gag order some ten times over.

Jeffrey J. Pyle is a partner at Prince Lobel Tye LLP in Boston, where he practices in the fields of First Amendment law and litigation.