Gag

Episode Notes

Transcript

Make No Law: The First Amendment Podcast
Gag
04/18/2019

Ken White: Hi. It’s Ken. Welcome back to the Make No Law Podcast. I know it’s been a long time since our last episode. I will tell you the truth, they are a lot of work, doing the research and the interviews and the scripting for a deep dive into a First Amendment case and making it good enough that you want to hear it is very time-consuming.

I am blessed to have a fantastic production team with at the Legal Talk Network that makes these podcasts sound as polished as they do, but they can’t do the research or writing for me. That’s all on me.

So we are going to try something a little new. We are still going to do those detailed examinations of important First Amendment cases, but in between those, to space them out, we are going to offer you episodes that examine current events in free speech law. Those episodes are still going to involve interviews with subject matter experts, but they will be less scripted and less formal.

I hope that means we can bring you episodes more often. Here is our first.

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There is one piece of sound legal advice that’s almost universal, criminal cases or civil, defendants or plaintiffs, it applies to them all, it’s very simple and here it is, shut up, Now, that may sound like strange advice to get on a podcast about free speech, but the truth is it’s almost always good advice.

Running your mouth is how you get convicted. It’s how you destroy your otherwise very good case against somebody. It’s how you lose the case when you are the one being sued. Show me a trial lawyer and I will show you someone who has sat with their head in their hands despairing over something their client said or wrote in an email or posted on Facebook.

Judges would also prefer that you shut up. Judges don’t want their cases to be a media circus. They don’t want the jury pool hopelessly tainted with pretrial publicity, and so sometimes judges issue gag orders. Those are orders that restrict what the participants in the case, like the lawyers and the parties and sometimes the witnesses, can say in public about the matter. Sometimes judges even go as far as telling the press what they can print about a case.

But wait, how can a judge do that under the First Amendment? How far can they go to muzzle people from talking about a case, and how can you fight it? That’s our topic this time.

I am Ken White, and this is Make No Law: The First Amendment Podcast from popehat.com, brought to you on the Legal Talk Network.

This is Episode 10, Gag.

[Music]

Ken White: Gag orders have been in the news recently because of the cases swirling around the President of the United States. There have been two high profile examples, both arising from people known for talking too much.

One is Michael Avenatti, former lawyer to adult film actress Stormy Daniels, and the other is Roger Stone, former confidant to President Trump and defendant in a federal prosecution in Washington DC.

Those two cases and those two gag order motions had two very different results. On the one hand, former Trump lawyer Michael Cohen lost his attempt to gag Michael Avenatti in the case that Avenatti filed against him, but on the other hand, Judge Amy Berman Jackson did issue a gag order limiting what Roger Stone could say in public about his prosecution.

There are a couple of things you should know about the law in this area. First, it’s not as well-developed as you would expect. We have been talking in these podcasts about First Amendment doctrines that have been developing over the course of a century, but the law on gag orders is not as well established as the law of threats or defamation or incitement.

(00:04:48)

There are a few basic principles. Gagging the press in advance is almost always prohibited. That’s called prior restraint. Telling someone that they can’t speak in advance rather than punishing them afterwards if what they said fell into a First Amendment exception. A prior restraint on the press is almost never allowed under the First Amendment.

But on the other hand, lawyers and even parties to a case are different. The idea is that even though a court may not be able to exercise control over the speech of someone off the street, they can exercise some control over the speech of a participant in the proceeding before the court. That’s especially true for lawyers who owe certain duties to the court and who are bound by rules of professional conduct.

How far can that gag order on lawyers and participants extend, that’s the part of the law that’s still a little fuzzy.

To find out what the law in this area is really like in practice I talked to an expert. Steve Zansberg is an attorney at Ballard Spahr in Denver, Colorado. For more than 20 years Steve has represented the media in fighting gag orders. He has represented the press in cases about the Kobe Bryant rape prosecution, the Oklahoma City bombing, the Aurora Theater shooting, and a host of others. I asked him about the kind of gag orders judges issue and why.

Hi Steve.

Steven Zansberg: Hi Ken. Glad to be here.

Ken White: So you have really participated in litigation over gag orders and restrictions on information on a lot of the high profile cases in that part of the country over the last couple of decades. You were involved in litigation over the Kobe Bryant case and the Oklahoma City bombing, the Aurora Theater shooting, and more recently I think the Planned Parenthood shooting?

Steven Zansberg: That’s correct.

Ken White: And you have represented MPR and a few other media outlets in the course of trying to vindicate their ability to get access to the parties and the lawyers and the courtroom.

Steven Zansberg: I have, not just MPR, but a very large consortium of national and local media companies. Whenever there is a high profile criminal case in Colorado courts, thankfully they have turned to me to represent their interests in trying to keep the courtroom and the court file open.

Ken White: Now, when we were talking before this, you pointed out that sometimes we mean two different things when we say gag orders; one of them being courts trying to impose prior restraint on the press and the other where the court is trying to impose prior restraint on the parties and the lawyers. Can you expand on that a little bit and how you have encountered those two different things?

Steven Zansberg: Yes. So gag orders, it’s not a legal term, it’s a term that is used quite frequently in the press, and it’s generally been used to describe two types of orders issuing from a court directing some parties not to speak and not to speak in advance of the speech as opposed to punishing the speech after it has been uttered.

And so the first type is a gag order against the press from publishing information it has obtained, either through open court proceedings or from whatever means. And for instance, there was an effort to get such an order from Judge Richard Matsch, who presided over the Oklahoma City bombing trials, when the press, the Dallas Morning News in particular, had obtained information from Timothy McVeigh’s defense team purportedly, in which Mr. McVeigh had acknowledged, confessed essentially to committing the attack on the Murrah Building, and timing his attack to maximize the body count; people may remember that was the juiciest and most hellacious, inflammatory portion of that information.

And when the Dallas Morning News contacted McVeigh’s team to confirm the authenticity of the documents, they ran into court, the defense team did, to obtain an order from the judge directing the Dallas Morning News not to publish that information. And that would be a prior restraint, which the United States Supreme Court has said is the most serious and least tolerable form of infringement on First Amendment rights.

Thankfully, as we were waiting to be called into Judge Matsch’s chambers to argue against that requested order, the Dallas Morning News published that story on its website and thereby basically mooted the issue. It was one of these early instances in the Internet where rushing to publish can basically render unnecessary, and as I said moot, any effort to enjoin the speech, once the information is out, it’s out.

(00:10:02)

More recently, in the Kobe Bryant case you mentioned, seven news organizations obtained a sealed transcript of a hearing that was closed to the public involving the rape shield kit and the judge in that case ordered the seven news media who had obtained that transcript by mistake; a court clerk had distributed it unintentionally to members of the press who were not supposed to have it, and the judge ordered that the press not publish that information.

And we represented those seven entities and took the matter first to the Colorado Supreme Court, which actually affirmed the trial judge’s order not to publish that information. We took it to a justice of the US Supreme Court that ordered the trial judge to decide on admissibility of that information within 48 hours, so as to lift the prior restrain as it were with respect to the vast bulk of the information in that transcript. But that’s type one. They order on the press not to publish information it has received, and I had a couple of other more recent examples.

The other type is an order on those participating in the trial itself, the attorneys of record and the parties and the investigating agencies working with the prosecution not to make public statements outside of matters of public record.

Ken White: And there, with respect to the scope of how much a court can prohibit a participant or a lawyer, I think it’s fair to say the law is more cloudy, that there have been different standards articulated in different courts and that a lot of the time the courts seem eager to sort of avoid the issue. So there is a whole raft of great prior restraint cases about the press, but not as much direct, clear authority about gag orders on lawyers or the parties.

Steven Zansberg: That’s correct, and partly it’s because attorneys of record, not just prosecutors who have special duties under the Rules of Professional Conduct, but all attorneys are governed by, as you know, Rules of Professional Conduct that are promulgated by every state Supreme Court, and they are very similar. There are variances state to state, but by and large, they closely model the American Bar Association Rules of Professional Conduct.

And two of those Rules, Rule 3.6 and Rule 3.8, which is particular to prosecutors, do place limits on what attorneys of record, and as I said the law enforcement agencies working with the prosecution, are allowed to say in an extrajudicial statement, meaning outside of the courtroom that is intended to be published in some mass medium form.

So that’s the background that it’s already a restriction on the participants in the judicial process that is allowed and was upheld by the US Supreme Court as a reasonable restriction on those participant’s speech, so long as the restricted speech really does pose a substantial probability of prejudicing a judicial proceeding or a tribunal or jury. And that’s a very important distinction.

So the court has recognized that attorney’s rights, attorneys of record and participants in litigation have somewhat less protection for their free speech than members of the general public. But that doesn’t mean that there needs to be a judicial order imposed that adds a very severe sanction, of contempt of court to require that attorneys abide by their professional duties of responsibility.

Ken White: One thing I have noticed and that you and I talked about is that it seems that when courts impose prior restraints on the press and put out the order saying you can’t do this, a lot of the time it just seems like the judge in question was clueless about the constitutional issue. In other words, a lot of the time it doesn’t seem like they are applying the Supreme Court precedent on prior restraints and finding this is outside the norm and something where it’s allowed; they are just not confronting those precedents at all. Has that been your experience?

Steven Zansberg: Yes. In our experience there have been a couple of occasions in the recent past where prosecutors have gone into judge’s chambers literally after — moments after a court proceeding has ended, after hours and said Your Honor, there is someone in the courtroom who was taking pictures, with your permission, was one example, a newspaper in Fort Collins, Colorado was taking photographs of a witness in a criminal case who was in prison garb and had been taken out of the county jail in order to testify in that case, and this was done in open court, in front of spectators and as I say, a press photographer.

(00:15:07)

And after the hearing was concluded the prosecution went into the judge’s chambers and said this is an informant who, if his picture is printed on the front page of the newspaper tomorrow, it will place his life in jeopardy as a jailhouse snitch. And they put an order in front of the judge ordering that the newspaper not publish that photograph, even though in fact it had already been posted on the Internet.

And the judge signed it, and we filed an emergency motion and it was heard the next morning asking the judge to lift that order as an unconstitutional prior restraint, and we cited the case law, in that case it was absolutely clear that there is US Supreme Court precedent that says the press is free to report anything it hears, observes in open court and it can’t be punished thereafter through civil fines or otherwise, so it certainly can’t be the subject of a prior restraint, which is the, as I said, least tolerable, most significant — most serious infringement of free speech rights. And so the judge lifted the order that morning.

And the same thing happened more recently with another judge, again a trial court judge, and the prosecution showed up with an order after hours, temporary restraining order demanding that a local television station not rebroadcast again something that had ready been disseminated to the public that had been obtained from a court file that should have been sealed, but was provided to a reporter without any restrictions and was therefore lawfully obtained. And the same thing happened, we asked that the judge lift that temporary restraining order as an unconstitutional prior restraint, and upon reviewing the case law the judge agreed and lifted it.

So as we discussed earlier, I think there are just some newer judges who are not as well-versed in this area of law as we First Amendment practitioners and upon being confronted with the law that does make it practically impossible for a prior restraint against the press to be upheld, the US Supreme Court has never done so in any instance, they quickly lift those orders. But when the prosecutor shows up and says this is an emergency, you have to sign this order, judges tend to do so.

Ken White: And that kind of goes to some extent to whose responsibility this is? I have noticed in cases that I have participated in or followed that when parties seek prior restraint, they often do it without citing any of the relevant authority, just pretending that it’s just a run-of-the-mill, routine thing to ask for.

So certainly the judges ought to know the First Amendment law better, but on the other hand, I think they are being led into error by parties that are demanding things that I suspect a lot of the time they know they are not entitled to. And judges after all depend to some extent on the lawyers citing the relevant law that governs what they are asking for and it really appears to me that oftentimes people asking for prior restraint don’t cite that law.

Steven Zansberg: Well, the most recent example I just gave about CBS O&O station KCNC-TV here in Colorado, there I have to say the prosecution did cite both the prior Kobe Bryant case from our Colorado Supreme Court and US Supreme Court case law, but they took the view that allowing this information to be disclosed would create an immediate and irreparable danger, the likes of which disclosing the landing times of our troops overseas that would result in immediate death of our soldiers overseas.

So they made that argument. They didn’t hide the ball in terms of not disclosing the appropriate case law, but it just didn’t seem to me to be a very sincere claim, that this was the type of situation that would be the exception to an almost insurmountable rule of barring prior restraints.

Ken White: Well, I have always been impressed by a prosecutor’s ability to see every case as like the D-day landing, but I am a defense attorney, so I want you to take that with a grain of salt.

The gag orders seem to be more widespread of an issue than the prior restraint orders. Have you seen any trends in gag order practice over the course of the last few decades, particularly as social media has become a big thing?

(00:19:51)

Steven Zansberg: Unfortunately, yes. The answer is unquestionably there has been a dramatic increase in the frequency with which defense attorneys in particular are seeking gag orders at the very outset of a case. Early on in my career it was an infrequent practice. That a defense attorney would ask the judge to enter an order holding in contempt the prosecution team or members of the law enforcement community for making prejudicial extrajudicial statements.

And now it’s de rigueur and it has been for quite some time, and maybe it is with the advent of social media and the Internet, but now whenever a high profile criminal case gets filed in our state, and this is the routine practice frankly of the State Office of Public Defender here in Colorado, they file a motion asking the judge to enter an order barring what they call prejudicial pretrial publicity. And that order tracks the Rules of Professional Conduct that I mentioned earlier, Rules 3.6 and 3.8.

And our view is that there is really no reason for a judge to enter such an order at the outset of a case, unless there is a showing that there is reason to believe that the prosecutor and his or her team are not going to abide by the Rules of Professional Conduct. Once that’s been shown, then of course the judge — it’s appropriate to enter an order commanding that people comply with their ethical duties.

But these types of orders are being put before judges in every case in our state that attracts media attention and they are unfortunately routinely being signed by judges. I say unfortunately because obviously if they do nothing but track the Rules of Professional Conduct and if prosecutors abide by those rules, they are still allowed to comment on any matter of public record, anything that has been said in open court or filed in open judicial document.

But prosecutors, generally once an order has been entered that puts them on notice, they face contempt sanctions, generally clam up and refuse to speak to the press once such an order has been entered.

A more egregious type of order that we don’t confront nearly as often, thankfully, are orders that go beyond the Rules of Professional Conduct and demand that the parties and the attorneys of record don’t say anything outside the courtroom concerning the case, and that’s clearly an unconstitutional overbroad order, but those are extremely rare these days.

Ken White: Well, it seems to me that even the relatively narrow order that simply tracks the language of the Rules of Professional Conduct is a real problem because of its inherent vagueness. I mean if a court tells me I can’t talk about the case at all, I understand what that means, but if a court tells me I can’t say prejudicial things, I don’t really know what that means and I am not sure what a judge acting later in a bad mood might decide that it means.

So I would think that a lot of these participants wind up chilled from speaking to the media just because of the inherent ambiguity of what exactly they can or can’t say.

Steven Zansberg: That’s exactly right. It does have a profound chilling effect on participants’ free speech rights to be put on notice that if they make a statement to the press that causes substantial probability of harm to the fairness of the proceeding, they may be held in contempt of court. If I were subject to such an order, and most attorneys who are, reasonably say well, I am going to err on the side of not violating that not particularly bright line and I am just not going to say anything.

Ken White: In your experience, do media outlets ever challenge these types of orders, these ones that restrain the participants from speaking as opposed to the prior restraint orders that prohibit the press from publishing?

Steven Zansberg: As I said, early on I have in my career challenged some facially overbroad orders, which I haven’t seen in more than a decade, that simply bar any discussion of the case. And it’s clear that there is no violation of the ethical rules.

There is actually a case that went up to the US Supreme Court challenging the constitutionality of the Nevada State ethical rules by a criminal defense lawyer there named Dominic Gentile, whom I have had the pleasure of meeting, he is a wonderful man. And the US Supreme Court upheld those Model Rules, the ABA Rules 3.6 and 3.8. Although it found that they could not actually be applied to his speech on the courthouse steps defending his client and basically saying that an officer in the Las Vegas Metro Police Department was the one who was guilty of the crime, which his client was charged with, because his statements were made six months before a trial would even be set.

(00:24:54)

But interestingly in that case, the court found and held that the exceptions to the rule, the safe harbors that the rule had set forth that attorneys could speak to certain subjects without running afoul of it was unconstitutionally vague. As you said Ken, it isn’t exactly clear what it means to make a statement that causes substantial probability of prejudicing a tribunal. So even though the rule as it stood was held to be constitutional, that wasn’t constitutionally applied to Mr. Gentle’s speech, it is still highly ambiguous. And I think such gag orders could be challenged, but to date none of my clients have asked me to go into court and challenge a gag order that basically tracks the rules of professional responsibility.

Ken White: So you began your career producing documentaries for a public TV station in San Francisco, so you were in effect part of the media, part of the press. Did what you experienced there inform the way you view these types of orders, both prior restraint and gag orders, that that kind of helped you understand your clients’ perspective better do you think?

Steven Zansberg: Absolutely. When I was a documentary producer at KQED in San Francisco, I called upon attorneys to help me navigate the shoals and so I very much understand the frustration that my clients feel when they are told that a prosecutor won’t speak with them about a hearing that was just conducted in open court, where oftentimes the press can’t even hear the presentation of evidence or what had gone on.

I do commend, there is a local district attorney here in a very high profile case called People against Patrick Frazee, who recently, even after the court had entered an order like the ones we have discussed that track the Rules of Professional Conduct, he and the lead prosecutor held a press conference for 20 minutes and recounted all of the evidence that had been presented in open court in a preliminary hearing.

And when they were asked questions from the press that went beyond what was presented in open court, they said well, I can’t speak to that. All I can do is tell you what was said today at the hearing. But they took the time and really worked with the press to fill in the blanks, because a lot of them simply weren’t able to understand what had gone on in a very high profile murder one case, and that’s appropriate, because they are allowed to speak about any matter of public record.

So yes, I do understand the frustration when my clients call me and say we can’t get anyone knowledgeable about this case to speak to us.

Ken White: Well, thank you very much for your insight and experience into these issues, Steve. It’s been a great pleasure speaking with you.

Steven Zansberg: It’s been my pleasure as well.

Ken White: Steve Zansberg painted a picture of a constant struggle to fight the frequency and scope of gag orders, but the news for First Amendment defenders is not all bad. In the high profile cases we have seen recently, judges have been very careful about the scope of their orders.

In Los Angeles, Federal Judge James Otero refused to issue a gag order that would have stopped Michael Avenatti, the media hungry attorney for Stormy Daniels, from talking about the case. Otero found that Michael Cohen, the President’s fixer, had not met the very exacting test required to impose a gag order on Avenatti and his client.

Meanwhile, in Washington DC, Federal Judge Amy Berman Jackson did gag flamboyant Trump confidant Roger Stone, and she broadened that gag after he published an Instagram picture of her with what some people said were crosshairs next to her.

But even there it’s notable how narrow her gag order was. Judge Jackson made it a condition of Roger Stone’s bail on the criminal charges, not as a freestanding order. She got his attorneys to agree to it, to keep him out of jail, and by doing that she avoided some of the thorny constitutional issues that arise when you try to gag a party who doesn’t want to shut up.

We don’t have a Supreme Court case that clearly explains when a court can impose a gag order on the lawyers or the parties before it, but the way cases are conducted in the media these days, I would not be surprised if the issue reaches them soon.

In these series of podcasts I will be telling you more stories behind important First Amendment decisions and free speech issues. If there is a case you want to hear about or a First Amendment question you would like answered on the podcast, drop me a line at [email protected].

Thanks for listening. You can find documents and cases mentioned on this podcast at popehat.com or legaltalknetwork.com.

If you liked what you heard today, please remember to rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app.

Lastly, I would like to thank our participants, producers and audio engineers for their participation, my guest Steven Zansberg, Producer Kate Nutting, Executive Producer Laurence Colletti, and last but not least, Audio Engineer Adam Lockwood.

See you next time.

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Outro: The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Popehat, Legal Talk Network, or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer, please.

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