Applying Due Process to Gag Rules and Orders

At its 1976 annual meeting held in August, the American Bar Association (ABA) House of Delegates recommended a new court procedure for the application of due process to the issuance of gag orders. The proposal seeks to render standing gag rules unenforceable and would provide for special gag orders only after notice and an opportunity for a hearing are given to interested parties. The ABA proposal will help to reduce the current glut of judicial restraints by providing more specific procedural guidance than was offered by the Supreme Court in Nebraska Press Association v. Stuart. This article first explores the structure of the ABA proposal and how it could improve the current system of judicial restraints by reducing unneeded gag orders, preserving first amendment freedoms of speech and press without the expense and delay of traditional court procedures, and eliminating the hidden jeopardy of standing gag rules.

It then examines the two pressing issues left unsolved: When does the Constitution allow a judge to gag a journalist, lawyer, or other individual interested in a trial? Should one who violates an improper or erroneous order be punished? It is concluded that the ABA proposal approved by the House of Delegates may be a long overdue improvement in the area of judicial restraints. However, the House of Delegates could have strengthened the proposal by expressing an opinion on the constitutional standards which should apply to the issuance of gag orders, and by recommending that those who violate erroneous court orders not be punished.