Lawyers have Free Speech Rights, Too: Why Gag Orders on Trial Participants Are almost Always Unconstitutional
LOYOLA OFLOS ANGELES ENTERTAINMENT LAW JOURNAL
Lawyers have Free Speech Rights, Too: W hy Gag Orders on Trial Participants Are almost Always Unconstitutional
Law Reviews 0 1
Erwin Chemerinsky 0 1
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1 Erwin Chemerinsky, Lawyers have Free Speech Rights, Too: Why Gag Orders on Trial Participants Are almost Always Unconstitutional , 17 Loy. L.A. Ent. L. Rev. 311 (1997). Available at:
Erwin Chemerinsky*
I. INTRODUCTION
Media coverage of trial proceedings is nothing new. There have been
a series of "trials of the century" over the last hundred years.' The O.J.
Simpson criminal trial received more media attention than any other legal
proceeding in American or world history. The Simpson case will likely
mean more media coverage of more court proceedings in the future
because it has shown that there is a large audience interested in the real life
drama of the courtroom. The Simpson case also focused attention, more
than ever before, on the issue of publicity and its effects on a fair trial.
As judges have struggled with the media in high profile cases, one
technique has become increasingly common: gag orders precluding
lawyers and parties from speaking with the press. In the civil suit against
Simpson, Judge Hiroshi Fujisaki imposed a broad order prohibiting the
attorneys and parties from discussing the case in public, even though Judge
Lance Ito had refused to impose such a gag order in the earlier criminal
prosecution. Similarly, in the Oklahoma City bombing case, United States
District Court Judge Richard Matsch imposed an order preventing the
lawyers from speaking with the media about the pending litigation.
These court orders undoubtedly are motivated by the laudable goal of
trying to ensure a fair trial. In recent years, a number of scholars have
urged courts to increase use of gag orders so as to uphold the constitutional
value of fair and impartial trial proceedings. 2 The Supreme Court's
* Legion Lex Professor of Law and Political Science, University of Southern California. I
want to thank Aleks Frimershstein and Chris Johnson for their excellent research assistance.
1. GERALD F. UELMEN, LESSONS FROM THE TRIAL: THE PEOPLE V. O.J. SIMPSON, 1-8
(1996).
2. See, e.g., Eileen A. Minnefor, Lookingfor Fair Trials in the InformationAge: The Need
for More Stringent Gag Orders Against Trial Participants,30 U.S.F. L. REV. 95 (1995); Mark
R. Stabile, Free Press-FairTrial: Can They Be Reconciled in a Highly Publicized Criminal
decision in Nebraska Press Ass n v. Stuart has virtually precluded gaI
orders on the press as a way of preventing prejudicial pretrial publicity.
Trial courts have thus responded in a manner not precluded by the
Supreme Court: gag orders on lawyers and parties. The restrictions on
lawyer speech are further justified by the claim that attorneys are officers
of the court and thus are more subject to court-imposed limits to preserve a
5
fair trial.
I strongly disagree with this trend towards gagging trial participants'
speech and believe that such court orders are virtually always
unconstitutional. The imposition of these gag orders is based on several
assumptions that are, at the very least, unproven and more likely
untenable. First is the assumption that publicity jeopardizes a fair trial. In
one high profile case after another-the McMartin preschool case, the rape
trial of William Kennedy Smith, the two trials of the officers for beating
Rodney King, the trial of Damion Williams and Henry Watson for beating
Reginald Denny, the murder trials of the Menendez brothers, and the O.J.
Simpson prosecution-there was speculation that the extensive publicity
would make a conviction of the defendant a certainty. Yet, most of these
cases resulted in acquittals, thus raising serious questions as to whether
publicity hurts criminal defendants. Moreover, even assuming the
prosecution has a "right" to a fair trial, there is no reason to believe that
publicity accounted for the outcomes.
Second, even if publicity is detrimental to a fair trial, there is the
assumption that statements by lawyers and parties cause or exacerbate the
harm. As the Simpson civil case demonstrates, gag orders on the attorneys
and parties do not decrease media coverage but merely limit the sources of
information. The assumption is that by limiting one source of information
a fairer trial would likely result.
Case?, 79 GEO. L.J. 337 (1990).
3. 427 U.S. 539 (1976).
4. See RODNEY A. SMOLLA, SMOLLA AND NIMMER ON FREEDOM OF SPEECH 8-4 (1994)
(Nebraska Presshas been treated as an almost complete bar to gag orders on the press); see id.
at n. 12 (collecting cases rejecting such prior restraints). One of the few cases in which a lower
court imposed a prior res (...truncated)