Gag Me

The good news is that the Supreme Court yesterday declined to come to the rescue of Gloria Allred, the omnipresent television commentator who was "gagged" by a trial judge from speaking to the media last year about a California case in which she represented one of the witnesses. Lord knows the world needs to see and hear less of Allred. The bad news is that the Justices refused to use Allred's appeal to bring some much needed clarity to an area of the law with which I am, unfortunately, all too aware.

The "gag order" in its many forms is designed to keep lawyers, witnesses, and litigants from communicating publicly in a way that might impact the fair trial rights of a defendant (or plaintiff in a civil case). They are nearly impossible to enforce but that doesn't stop judges from issuing them with increasing frequency. And each time a judge does, it triggers that tension between the first amendment right to cover a public trial and a defendant's sixth amendment's right to have a fair trial free from prejudicial publicity (that can occur when lawyers and other advocates tell their stories before the cameras)

To the dismay of some of my colleagues, I have always been a fan of the gag order and have never been an ardent supporter of the first amendment in these circumstances. Having seen and heard (and had to cover) the spin (read: lies) that often is spun before and during a high-profile trial, and having absolutely no confidence in Allred and others like her to truly play it straight (more candor, less advocacy) in front of the cameras in high-profile trials, I have grudgingly come to the conclusion that it is indeed more important to protect a defendant's fair trial rights than it is to protect the first amendment interests involved in disseminating out-of-court statements by the folks in the thick of the fight.

But the nature and effect of gag orders clearly need the sort of clarity that only the Supreme Court itself could offer and that's the unfortunate part of the Justices' action (or inaction) yesterday. Judges have a right to know how far they can go with their gag orders. Litigants and their lawyers have a right to know when judges have crossed a line. And the public has a right to get as much information as possible without triggering those sixth amendment rights. Clearly, the Court felt that Allred's case wasn't the right sort of vehicle to achieve this goal. Hopefully, and soon, another case will come along that will push the Justices into this debate.

By Andrew Cohen |  October 3, 2006; 11:30 AM ET
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