It was recently revealed that the U.S. Department of Justice sought and obtained gag orders against CNN, the New York Times, the Washington Post, their attorneys and executives, related to criminal investigations regarding leaks of national security secrets. Simultaneously with the subpoenas for email logs of targeted reporters, gag orders were issued by the court which prevented top executives from disclosing even the existence of the investigation or the subpoenas to the public or even their own reporters.
As compelling as the story is regarding the government’s investigation of news organizations is its use of court-issued gag orders to prevent public disclosure or discussion of legal proceedings and the effect that gag orders have on the administration of criminal justice.
Gag orders, sealing orders, and other protective orders within the court’s purview implicate the First Amendment rights of parties and their attorneys to comment on proceedings, the rights of news organizations to gather and disseminate news implicating the public’s right to know and defendants’ Sixth Amendment right to a fair trial by an impartial jury. Without the “sunlight” of public disclosure of the facts in criminal investigations and prosecutions, the fair administration of justice by government prosecutors and the courts is put at risk of neglect or abuse. In criminal proceedings, openness “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” Press-Enterprise Co. v. Superior Court [Enterprise I], 464 U.S. 501, 508 (1984),
CNN/WarnerMedia and the New York Times
The CNN and New York Times gag orders were secretive in the application process as well as in the resulting orders. In July 2020, the government sought and obtained from a magistrate judge in the Eastern District of Virginia a subpoena and a gag order on CNN’s parent company, WarnerMedia, through ex parte filings. The news organization did not have the opportunity to respond until top executives were served with a subpoena and an order not to communicate about the matter with anyone other than corporate counsel, not even the reporter whose communication records were the subject of the subpoena.
In October 2020, the magistrate judge granted WarnerMedia’s motion to require the government to limit the scope of the subpoena, but the gag order apparently was not challenged or vacated. In response, the government filed a motion for reconsideration and attached an ex parte sealed affidavit, which again Time Warner could not view. The court granted the motion for reconsideration and ordered TimeWarner to comply with the original subpoena and gag order. In November 2020, TimeWarner appealed the subpoena, but apparently not the gag order, to the district court. At a hearing on December 16, 2020, the district court found the subpoena was overbroad. Several days after the inauguration of the Biden Administration, the government again moved for reconsideration. In late January, however, the government softened its position, reduced the scope of the document subpoena, and loosened the gag order to allow the reporter at issue to be involved in the document production called for in the subpoena.. However, it was not until June 2021 that CNN was permitted to report the matter to the general public. The magistrate court docket remains under seal.
Contemporaneous with CNN’s report, the New York Times reported that it too had been subject to subpoenas for reporters’ emails logs and, since March 3, 2020, a gag order which prevented the Times’ top executives from disclosing the matter even to the executive editor. The Times reported the matter only after the gag order was lifted, apparently with the government’s consent.
In the wake of these reports, the Department of Justice committed to work with CNN, the Times, and the Washington Post to establish more reasonable DOJ policies. However, policies can change with a shift in the political winds, let alone a change of administrations. Notably, none of the gag orders on these news organizations were lifted over government opposition.
United States v. Roger Stone
The case of Roger Stone, political consultant and media commentator, is an example of a defendant determined to test the limits of restricted speech. In January 2019, Stone was arrested on charges of obstruction, false statements, and witness tampering and released on pretrial supervision. On February 15, 2019, the court entered an order prohibiting the parties, counsel, and witnesses:
from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case and … when they are entering or exiting the courthouse, or they are within the immediate vicinity of the courthouse, from making statements to the media or to the public that pose a substantial likelihood of material prejudice to this case or are intended to influence any juror, potential juror, judge, witness or court officer or interfere with the administration of justice.
The order used the language of the standard for restricting speech in criminal trials: “substantial likelihood of prejudice.” Thus, Stone did not challenge the order. Rather, he stated in an email to a news organization that he was “pleased that the judge’s order leaves my First Amendment right to defend myself in public intact.” Three days later, however, Stone published an Instagram post which referred to the Special Counsel Robert Mueller as a “Deep State hitman” and to Stone’s impending trial as a “show trial before Judge Amy Berman Jackson,” and offering further suggestions that the judge was politically biased. Stone’s Instagram post also included a photograph of the judge with a print symbol resembling a crosshairs target above and to the left of her face. Later that day, the court ordered Stone to show cause as to why his statements did not violate the order.
After a hearing at which she solicited Stone’s counsel for suggestions as to how to modify the order, Judge Berman Jackson, ruling from the bench, added as a condition of Stone’s release that he was:
prohibited from making statements to the media or in public settings about the Special Counsel’s investigation or this case or any of the participants in the investigation or the case [which] includes, but is not limited to, statements made about the case through  radio broadcasts, interviews on television, on the radio, with print reporters, on internet-based media, press releases or press conferences, blogs or letters to the editor, and posts of Facebook, Twitter, Instagram, or any other form of social media. … Furthermore, the defendant may not comment publicly about the case indirectly by having statements made publicly on his behalf by surrogates, family members, spokespersons, representatives, or volunteers. … From this moment on, the defendant may not speak publicly about the investigation or the case or any of the participants in the investigation of the case. … You may send out as many emails, tweets, posts as you choose that say, “Please donate to the Roger Stone Defense Fund, to help me defend myself against these charges,” and you may add that you deny or are innocent of the charges, but that’s the extent of it.
In July 2019, Stone tested the scope of the new order by publishing a series of Instagram posts rhetorically asking “Who framed Roger Stone?” and “What could the FBI possibly be hiding?” and directly contradicting the congressional testimony of a potential witness in his case. In response, the Government moved to modify the conditions of Stone’s release further to prohibit certain social media posts, including:
pictures of other people’s words that Mr. Stone takes of other people’s accounts and he publishes on his Instagram account … comments that are phrased in the form of a question, and … commentary about public filings. … Just because a party puts something in a public filing, that doesn’t mean that defendant’s further dissemination of that information … cannot prejudice the jury.
The court added a further condition to Stone’s release: “during the pendency of this case, defendant may not post or communicate on Instagram, Twitter, or Facebook in any way on any subject, including but not limited to forwarding, liking, re-posting, or re-tweeting anyone else’s statements, article, posts, or tweets.” (emphasis added). The next day, the court issued a formal Order adding further conditions which prohibited statements “on any other form of social media. Furthermore, the defendant may not comment publicly about the case indirectly by having statements made publicly on his behalf by surrogates, family members, spokespersons, representatives, or volunteers.” (emphasis in original).
In August 2019, Stone moved the D.C. Circuit Court for a writ of mandamus to loosen the restriction, arguing that it was a prior restraint on speech which failed strict scrutiny. He cited Fifth and Ninth Circuit precedents that such restrictions require showing that the restricted speech represents a “clear and present danger” or a “serious or imminent threat” to the competing protected interest in a fair trial. He further argued that his family’s speech was chilled by the prohibition on “surrogate” statements. He cited the Supreme Court precedent that a gag order may issue only if it is a likely that “publicity, unchecked, would so distort the views of potential jurors that [enough] could not be found who would, under proper instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in open court.” Nebraska Press Association v. Stuart, 427 U.S. 539, 569 (1976). He further cited Fourth Circuit opinion that “the question  is neither whether a case has garnered public attention now whether public discussion of it risks revealing potentially prejudicial information. Guidance is the critical concept. The question is whether the judge finds it likely that he or she will be able to guide a jury to an impartial verdict. If judges can guide a jury to an impartial verdict, then no gag order may issue.” In re Murphy-Brown, LLC, 907 F.3d 788, 798 (4th Cir. 2018). He again cited the Supreme Court:
Publicity often accompanies trials, including trials in which the public has a keen and understandable interest. The judicial process does not run and hide at the moments when public appraisal of its workings is most intense. … “Prominence does not necessarily produce prejudice, and juror impartiality … does not require ignorance.” Skilling v. United States, 561 U.S. 358, 381 (2010).
The Fourth Circuit dismissed Stone’s appeal on procedural grounds, holding that mandamus was not appropriate because Stone did not first avail himself of all available procedural options: either an appeal of the conditional release order under 18 U.S.C. § 3145, or a motion to modify the order followed by a notice of appeal, either of which needed to have been filed within 14 days. Stone’s petition for a writ, filed 16 days after the order, was both the wrong vehicle and out of time.
Stone’s gag order remained in place through the conclusion of his criminal matter. He was convicted of seven felony counts and sentenced to 40 months in prison. As Stone awaited his date to report to federal prison, President Trump commuted his sentence.
United States v. Donald Blankenship
In this case, a zealous court overstepped its authority when it imposed sweeping gag and sealing orders that would have entirely foreclosed public knowledge and discussion of an ongoing criminal trial. Blankenship was the CEO of Massey Mine Corporation and one of the wealthiest and most influential people in West Virginia when, after a mine explosion killed 29 of Massey’s miners, he was charged individually with conspiracy to violate mine safety regulations, conspiracy to defraud the Government, falsifying Government submissions, and securities fraud. One day after his indictment in 2015, the district court judge sua sponte entered a sealing order which sealed “any and all motions, stipulations, [and] discovery requests” in their entirety from the moment of filing and a gag order prohibiting trial participants, victims, and even victims’ family members, from giving statements to the media regarding “the facts and substance of this case.” The court justified its extraordinary orders by saying “the Defendant and the matters which are referenced in the indictment have been the subject of publicity,” thus it was “necessary to take precautions” to ensure and impartial jury “whose verdict is based only upon evidence presented at trial.”
A group of news organizations including the Wall Street Journal and the Associated Press filed a motion to intervene and vacate the order, arguing that it was an impermissible prior restraint of First Amendment rights. Blankenship opposed the motion but ironically could not serve his opposition papers upon the movants for fear of violating the orders. After oral argument, the court modified the sealing order but left the gag order untouched. The court’s order continued to direct that all documents be filed directly with the clerk, that
any documents … which contain information or argument regarding the facts or substance of this case be restricted to the case participants and court personnel. However, this order shall not be applicable to documents which have previously been released publicly or orders of the court …the court directs the clerk to make the docket entries publicly available.
The gag order was restated:
Neither the parties, their counsel, other representatives or members of the staff, potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the Defendant, nor any court personnel shall make any statements of any nature, in any form, or release any documents to the media or any other entity regarding the facts or substance of this case.
The media group appealed to the Fourth Circuit, arguing that the sealing and gag orders violated the First Amendment and that the gag order was unconstitutionally vague and overbroad. It cited Supreme Court precedent that the First Amendment provides a right of contemporaneous public access to criminal trials, pre-trial proceedings, and documents filed in connection with those proceedings. It cited Fourth Circuit precedent for a four-prong test as to whether such a restriction to access is constitutional: (1) that there is a “substantial probability” of prejudice to a compelling interest, in this case the right to a fair trial; (2) that there was no alternative to adequately protect the competing interest; and that the restriction is (3) narrowly tailored to and (4) effective in protecting the competing interest.
The Fourth Circuit granted the writ of mandamus, based on the first two prongs of the test. The Court based its decision on the First Amendment right of access to criminal trials, pretrial proceedings, and documents submitted in the course of same, which includes a motion to dismiss an indictment and other pretrial filings. Citing Supreme Court precedent that the public may not be denied access unless there is a “substantial probability” that a defendant’s right to a fair trial will be prejudiced by publicity and no reasonable alternative exists that will protect the defendant’s rights, Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14 (1986), the Fourth Circuit granted the motion for writ of mandamus and ordered the district court to vacate the sealing and gag orders.
At trial, a jury convicted Blankenship on one misdemeanor count of conspiring to violate mining safety regulations and acquitted him of all other counts. He was sentenced to one year in federal prison and a $250,000 fine.
United States v. Julia Keleher
Shortly after resigning as Secretary of Education for Puerto Rico in 2019, Julia Keleher was charged with numerous federal crimes in connection with a alleged conspiracy with at least six other former government officials and private individuals to steer $15 million in government contracts to politically connected consulting firms. The day the indictment was unsealed and Keleher was arrested, her attorney gave a television interview in which she said the government was making “serious, serious, serious false representations” of which, if “the grand jury were aware, it is very possible that it would have derailed the accusation.” In another interview, counsel said that the U.S. Attorney’s Office was “demonstrating a pattern of conduct in which when they bring a weak case, with legal flaws, they attempt to remedy the situation by bringing another case.” Her co-defendant’s counsel accused the government of “not understanding the facts” and “twisting the facts.”
Two days later, the government quoted the foregoing statements in its motion for a gag order “for the sake of ensuring the integrity of the judicial process and that all litigants receive a fair trial to which they are entitled.” It characterized defense counsel’s statements as “imputing nefarious motives on prosecutors” and “threaten[ing] to interfere with the possibility of a fair trial by turning this matter into a referendum on irrelevant issues.”
The court granted the government’s motion the same day it was filed, without a written submission or oral argument from defense counsel. It entered a gag order which enjoined the parties, the attorneys, court personnel, witnesses, federal law enforcement officers, and several Puerto Rican government agencies from “divulging, talking to, or discussing with, the press, media and public, including without limitation, through social networks, any information other than that entered without restriction on the docket or disclosed in open court, relating to the facts of the  case.” The order further stated that it was “not intended to prevent the press and media to report, opine, and inform about the case[, n]or will the protective order operate to automatically close proceedings or block access to public portions of the record.”
Neither defense counsel nor any third party challenged the gag order, and it remained in place through Keleher’s guilty plea and sentencing.
The prosecution of William Baroni and Bridget Anne Kelly, two top officials in the administration of Governor Chris Christie, was marked by restrictions on access to many documents and facts involved in the case, especially the identity of unindicted co-conspirators. Two weeks after the indictments were unsealed in May 2015, the government sought a protective order to protect, among other things, “information about governmental and business matters that are not related to the allegations contained in the indictment.” As a result, many pretrial filings and exhibits were redacted extensively, and sometimes in their entirety. Two weeks after the protective order was entered, the government produced a letter addressed to defense counsel, most of which was redacted but which included among unredacted Brady materials the summaries of information provided by Governor Christie and two other individuals.
In November 2015, defense counsel filed omnibus discovery motions demanding, among other things, a bill of particulars, including the identities of all co-conspirators and “others” who knew of the alleged conspiracy as referenced in the indictment. They argued that the identities were necessary “to organize [their] defense and prepare for trial.” The government opposed the motion, but during a closed hearing it told the court that it would provide the identities to defense counsel “in a document to be filed under seal.” The motion for a bill of particulars was dismissed as moot, along with other outstanding discovery motions. On January 11, 2016, the government emailed the letter listing unindicted co-conspirators to defense counsel and the judge, but not to the court clerk, nor did it file the letter under seal or otherwise.
On January 12, 2016, Baroni’s counsel filed a letter objecting to the submission of the government’s letter, arguing among other things that because the government failed to follow both its own promise to file the letter under seal and local rules as to filing sealed documents, the letter was neither sealed nor covered by the protective order.
On January 13, 2016, a group of news organizations moved to intervene through a separate civil action, North Jersey Media Group v. United States. It also moved to lift or modify the July 2015 protective order and gain access to certain documents related to the case, including
- The Government’s response to a Motion for a Bill of Particulars, including a list of unindicted co-conspirators emailed to the Court and Defense counsel on January 11, 2016.
- Numerous redactions in the brief in support of the Baroni Discovery Motion which were made expressly pursuant to the Protective Order ... ;
- Extensive Portions of a July 22, 2015 Discovery Letter sent by U.S. Attorney Paul Fishman to defense counsel [which] were redacted and attached to … the Kelly Discovery Motion … [including] a section which transmits Brady material to the Defendants … ;
- An Email from Governor Christie to PoliticsNJ … accompanying the Baroni Discovery Motion;
- The so-called “Gibson Dunn Memo” which also accompanies the Baroni Discovery Motion and is redacted in its entirety … “in an abundance of caution.”
The media group argued that a number of the documents were filed expressly pursuant to the Protective Order whereby they should have been automatically unsealed after 10 days absent a request to keep them sealed. Some were kept sealed pursuant to pending motions by intervenor Port Authority which were ultimately granted.
The media group argued that the First Amendment right to access was guaranteed not only by Supreme Court precedent cited supra but also by Third Circuit precedents stated in United States v. Antar, 38 F.3d 1348, 1361 (3d Cir. 1994), and Publicker Industries Inc. v. Cohen, 733 F.2d 1059, 1066—67 (3d Cir. 1984). The Third Circuit finds at least six societal interests in allowing access to judicial proceedings: (1) promotion of informed public discussion of governmental affairs; (2) assurance that proceedings are fair; (3) “significant community therapeutic value”; (4) a check on corrupt practices, bias, and partiality through public scrutiny; (5) enhancement of performance; and (6) discouragement of perjury. United States v. Criden [Criden II], 675 F.2d 550, 556 (3d Cir. 1982).
A court must make specific findings on the record before restricting access:
First, that the competing interest asserted is not only “compelling,” but also that it outweighs the First Amendment right of access. Second, it must determine that the limitations imposed are both necessary to and effective in protecting that interest. One part of establishing the necessity of a limitation is a consideration of the alternative measures and a showing that the limitation adopted is the least restrictive means of accomplishing the goal.
Both the government and intervenor Port Authority opposed the motion. In May 2016 the district court granted the media group access to the list of unindicted co-conspirators and ordered the government to provide that list by a date certain. The next day, John Doe, who identified himself only as a person named in the government’s list of unindicted co-conspirators, filed an emergent motion to intervene, to proceed anonymously, and to stay the order. Doe argued, among other things, that the letter was not a bill of particulars or other document to be filed publicly but merely a discovery letter that should have been sent to the defense only and to which the public and press had no right of access. The media group argued in reply that the letter, produced pursuant to a resolution of the bill of particulars motion, essentially was a bill of particulars. The government formally took no position.
The district court denied Doe’s motion to stay the order to produce the letter, reasoning that it was indeed tantamount to a bill of particulars to which the public had a right of access. Doe appealed to the Third Circuit. In a precedential opinion, the Third Circuit held that “the letter in question is a part of the general discovery process, [and] it is not subject to any First Amendment or common law right of public access.” It vacated the district court order and required that the letter not be disclosed.
The criminal trial proceeded to guilty verdicts, sentencings, and appeals that culminated in the Supreme Court overturning the convictions because the criminal statute did not encompass the defendants’ conduct. The government’s “discovery letter” and other information covered by the protective order remained sealed, and the identities of the unindicted co-conspirators, including John Doe, remain secret.
Openness is vital to the healthy functioning of our judicial system, our public discourse, and ultimately our democratic society. Conversely, gag orders and other restrictions on public access to information surrounding criminal prosecutions put those institutions at some risk. The foregoing examples illustrate that while our current system is imperfect, it is essential that attorneys advocate fiercely and courts soberly consider whether free speech threatens a fair trial and, when it does, to find the least restrictive way to protect both.