On occasion courts will issue orders forbidding lawyers, witnesses, jurors and other participants in a case from speaking to the news media. It is well settled that courts possess the power to issue such “gag orders” on trial participants in appropriate circumstances.[132] Nevertheless, such orders are limited by the First Amendment and may be challenged if they are overbroad and not based on specific findings of fact.[133] In every case involving a jury, the members of the jury will be forbidden from speaking to others—including reporters—about the case until it is over. After a case is over, jurors are allowed to speak to lawyers, reporters and others about the case if they so desire.
In 2007, the N.C. Court of Appeals vacated an oral order entered by a trial court in Beaufort County that prohibited the parties in a lawsuit between two public bodies and their attorneys from speaking to the press.[134] The order was not reduced to writing and did not contain the required findings of fact or conclusions of law, and the news media moved to dissolve the order.[135] The Court of Appeals found that the gag order—and the trial court’s ill-advised conduct—wholly failed to meet the standards required by law.[136]
A North Carolina trial court has also permitted the news media to intervene to modify a protective order that limited the ability of parties to talk to the news media in a case where one of the parties to the lawsuit was a public agency.[137] On the motion of a newspaper publisher, the court acted to modify the protective order between the parties so that it would not limit the ability of any of the parties or their representatives from discussing the facts of the case with any member of the public or with the news media.[138]
In addition to gag orders entered in particular cases, Rule 3.6 of the Revised Rules of Professional Conduct of the North Carolina State Bar, governing all attorneys, restricts what attorneys and their employees may say to reporters about cases in which they represent a client. These rules represent specific restrictions on the content of lawyers’ speech and are generally intended to prohibit interference with the ability of the court to determine facts and dispense justice. The rules are enforced by the North Carolina State Bar, and a lawyer may be disbarred for violating them.[139] Reporters should factor these restrictions into their analysis of lawyers’ responses to questions and should not leap to unwarranted conclusions based on their perception of a lawyer as “evading” certain questions.
Although North Carolina’s rule regulating lawyers’ statements to the news media has not been challenged on First Amendment grounds, a similar rule in Nevada has been. In Gentile v. State Bar of Nevada, the U.S. Supreme Court held the Nevada rule was capable of being applied in a constitutional manner but that the rule was unconstitutional as applied to the lawyer in the particular case.[140]
The Gentile case involved a criminal defense lawyer who, six months prior to his client’s criminal trial, held a press conference to proclaim his client’s innocence. The attorney stated his opinion that the actual perpetrator of the crime was a police officer and that the government was attempting to “cover-up” wrongdoing. The attorney’s client was later found not guilty.
The Supreme Court’s 5-4 decision raises, but does not definitively resolve, the questions presented by the tension between a lawyer’s duty as an officer of the court, his or her duty to his or her client and his right to free speech under the First Amendment. For example, the five justices in the majority subscribed to the opinion that restrictions on the speech of a lawyer representing a party in a judicial proceeding are evaluated under a less demanding constitutional standard than prior restraints on speech by the news media or the public. Justice Sandra Day O’Connor, who provided the fifth vote for this position, stated:
[A] state may regulate speech by lawyers representing clients in pending cases more readily than it may regulate the press. Lawyers are officers of the court and, as such, may legitimately be subject to ethical precepts that keep them from engaging in what otherwise would be constitutionally protected speech . . . . This does not mean, of course, that lawyers forfeit their First Amendment rights, only that a less demanding standard applies.[141]
Accordingly, North Carolina’s rule regulating lawyers’ statements to the news media is, in most cases, likely constitutional.
[132] See Central South Carolina Chapter, Soc’y of Prof’l Journalists v. Martin, 556 F.2d 706 (4th Cir. 1977); In re Oliver, 452 F.2d 111, 114 (7th Cir. 1971). See also Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-33 n.18 (1984); Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 601 (1976).
[133] See Gulf Oil Co. v. Bernard, 452 U.S. 89, 99-104 (1981); cf. In re Knight Publ’g Co., 743 F.2d 231 (4th Cir. 1984).
[134] See Beaufort Cnty. Bd. of Educ. v. Beaufort Cnty. Bd. of Comm’rs, 645 S.E.2d 857, 35 Media L. Rep. (BNA) 2018 (N.C. Ct. App. 2007).
[135] Id. at 862.
[136] Id. at 863.
[137] Goldsmith v. Henderson Cnty. Bd. of Pub. Educ., 32 Media L. Rep. (BNA) 1353 (N.C. Super. Ct. 2003).
[138] Id.
[139] An excellent analysis and comment on the implications of these ethical rules for criminal defense lawyers is contained in R.W. Smith, Criminal Defense Counsel And the News Media (N.C. Bar Raleigh, N.C., Nov. 17, 1990).
[140] 501 U.S. 1030 (1991).
[141] Id. at 1082-83 (O’Connor, J., concurring). The standard the majority would apply is a balancing test in which the state’s interest in regulating the legal profession is weighed against the attorney’s First Amendment right of free speech. Thus in Gentile, five justices concluded that the “substantial likelihood of material prejudice” standard contained in the Nevada rule did not necessarily violate the attorney’s right to freedom of speech. Four other justices differed and, in an opinion by Justice Anthony Kennedy, contended that “wide-open balancing of interests is not appropriate” where the subject matter of a lawyer’s speech is comment “critical of the government and its officials.” Justice Kennedy went on to argue that state regulations imposing prior restraints on speech by attorneys in pending cases should be judged by the more demanding standard for prior restraints set forth in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). The question of the legal standard to be applied was actually unnecessary to the Court’s holding in Gentile because the Court held the rule unconstitutional as applied. The statements made by the justices with respect to the applicable standard for evaluating state regulations on speech by lawyers are thus, technically, dicta. The dicta are, however, instructive because they indicate that the issue is a matter of controversy that remains for future resolution.
