What is a Gag Order? (2024)

FAQs

How does a gag order work? ›

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.

Example: In the 2004 Michael Jackson child molestation trial, the California Supreme Court upheld a gag order prohibiting Jackson, his accusers, and the attorneys in the case from publicly commenting on the case, except through statements approved in advance by the trial judge.

Regardless, gag orders will typically last for the duration of the court case. Gag orders tend to be more common in high-profile cases that attract media coverage, so they often seem more common than in actuality.

In Allen, the court held that “there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.” 397 ...

Judges issue gag orders to ensure a fair trial, to facilitate efficient administration of justice, and to prevent prejudicial information from reaching the jury pool.

While a party-agreement gag order effectively resolves some of the issue of gag orders functioning as unconstitutional prior restraints (though a party-stipulated gag order can still restrain the speech of others, such as witnesses), it does not resolve the issue of a First Amendment right of access to the courts.

Violations of the gag order are punishable by a fine of up to $1,000, by jail time of up to 30 days, or both. The gag order blocks the defendant from speaking out about potential witnesses and most people in or associated with the court or the New York district attorney's office.

In Congress, the House of Representatives used the “gag rule” to prohibit discussions and debates of the anti-slavery petitions. In the late 1830s, Congress received more than 130,000 petitions from citizens demanding the abolition of slavery in Washington, D.C. and other federally- controlled territories.

In May of 1836 the House passed a resolution that automatically "tabled," or postponed action on all petitions relating to slavery without hearing them. Stricter versions of this gag rule passed in succeeding Congresses.

The gag was finally rescinded on December 3, 1844, by a vote of 108–80, all the Northern and four Southern Whigs voting for repeal, along with 78% of the Northern Democrats.

What does rule 46 mean? ›

A formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, a party need only state the action that it wants the court to take or objects to, along with the grounds for the request or objection.

Like all other humans, judges can get frustrated, angry, wake up on the wrong side of the bed, or simply have a bad day.

The ACLU – which filed 400 legal actions against President Trump's administration – has defended free speech for over a century. And gag orders are one of the most troubling types of restrictions to free speech as protected by the First Amendment because they make speech immediately punishable by fine or jail.

The Supreme Court has found that some gag orders violate free speech rights, while others do not. Since there is not one specific test that can be applied, determining whether a gag order violates free speech considers what the order is protecting, who it restricts and other factors of the trial.

The First Amendment to the United States Constitution all but forbids state or federal courts from imposing gag orders on the press. E.g., United States v. Quattrone, 402 F. 3d 304, 309–10 (2d Cir.