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Perhaps the most talked-about gag orders in 2024 were those against former president (and current presidential candidate) Donald J. Trump. New York State Supreme Court Judge Juan M. Merchan, who presided over theNew York v. Trumphush money criminal trial, issued an order limiting Trump from making statements or directing others to make statements about potential witnesses, the district attorney, employees of the district attorneys office, family members of the district attorney, jurors, or prospective jurors. This came after the former president made numerous statements the judge considered inflammatoryand was givenseveral warnings to stop commenting on the case.

Trumps legal team argued this broad gag order violates his right to engage in political speech on matters of public concern. Judge Merchan countered that the statements were necessary to preserve the administration of justice, and supporters of the order contend the gag order was narrowly tailored and justified under the circumstances.

Judges commonly use gag orders to limit the speech of other trial participants, not just the former president and presumptive party nominee. Judges sometimes issue gag orders that prevent trial participants from making statements outside the court about the underlying legal proceedings or other matters before the court, in order to minimize harm from pervasive pre-trial publicity or to ensure litigants receive fair judicial proceedings. However, sometimes judges issue gag orders even against the media or other parties not before the court. In any of these instances, gag orders raise important First Amendment questions.

The most suspect gag orders are those levied against the press. The U.S. Supreme Court explained inNebraska Press Association v. Stuart (1976) that gag orders against the press are prior restraints on speech what Chief Justice Warren Burger called the most serious and least tolerable infringements on First Amendment rights.

The case involved the murder trial of a man who allegedly killed six members of a family in the small town of Sutherland, Nebraska. Trial judge Hugh Stuart issued a gag order limiting the press from reporting on several aspects of the case, including:

Whether the defendant had confessed to the police.

Statements that the defendant had made to others.

The contents of a note that the defendant had written the night of the crime.

Certain aspects of medical testimony at the preliminary hearing.

The identity of the victims of an alleged sexual assault committed before the killings. (It also prohibited reporting on the exact nature of the order.)

The press challenged the gag order as an impermissible prior restraint on speech in violation of the First Amendment. Ultimately, the Supreme Court agreed the gag order was too broad. It held that before issuing a gag order, a judge should consider less speech-restrictive alternatives, such as changing the venue or location of the trial, postponing the trial, questioning potential jurors during voir dire (the jury selection process), or making emphatic and clear jury instructions.

As the Court explained, these alternatives could lead to judicial proceedings sensitive to a criminal defendants fair-trial rights, without restricting speech like the gag order that Judge Stuart issued.

We cannot say on this record that alternatives to a prior restraint on petitioners would not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint unnecessary, the Courtwrote. Reasonable minds can have few doubts about the gravity of the evil pretrial publicity can work, but the probability that it would do so here was not demonstrated with the degree of certainty our cases on prior restraint require.

Nebraska Press Association thus erects a high barrier to gag orders against reporters, particularly in criminal cases. Subsequent courts generally have required the government to show that any requested gag order is narrowly tailored and necessary to avoid a clear and present danger to the fair administration of justice. While not always using the term gag order, the rule fromNebraska Press Association in effect means such an order against the media is constitutional only if it meets strict scrutiny the highest form of judicial review.

As constitutional law scholar Erwin Chemerinskyhas observed, the decision has virtually precluded gag orders on the press as a way of preventing prejudicial pretrial publicity.

While strict scrutiny is the high standard used to evaluate gag orders against the press, there is far less consistency in American jurisprudence on how to evaluate gag orders against attorneys and trial participants. Some courts still apply exacting scrutiny to such gag orders even against attorneys and trial participants. However, many courts use a much less demanding standard.

That inconsistency is perhaps understandable given the Supreme Court has never decided a First Amendment case directly involving a gag order on an attorney or trial participant, unlike with gag orders against the media. Attorneys are considered officers of the court and are therefore subject to greater judicial control. Likewise, trial participants also are more under the control of the court than the reporting press.

The Court did rule inGentile v. State Bar of Nevada (1993) on whether a criminal defense attorney could be subject to professional discipline for statements made at a press conference months before trial. Attorney Dominic Gentile, in order to combat negative pretrial press coverage of his client, contended his client was innocent and that the real culprit in the case was likely a police officer.The Nevada Bar sought to discipline Gentile for violating a rule of professional conduct that prohibited lawyers from making public statements about active litigation that have a substantial likelihood of materially prejudicing the underlying court proceedings.

All gag orders are not only prior restraints but content-based restrictions on speech. As such, they should be subject to rigorous review and must be narrowly drawn.

This substantial likelihood standard is often known as the Gentile standard. InGentile, a sharply divided Court upheld the constitutionality of the Nevada Bars professional conduct rule even as it ultimately ruled in favor of Gentile, finding he reasonably could have believed his comments were justified under the rules safe harbor exception allowing lawyers to make statements to counter negative pretrial publicity against their clients. The Court held the safe harbor provision was too vague, and that the bar therefore could not discipline Gentile.

As mentioned, some courts apply a very high standard for all gag orders. For example, the U.S. Court of Appeals for the Sixth Circuitinvalidated a broad gag order issued by a federal district court in the criminal trial of sitting Rep. Harold Ford from Memphis, Tennessee, back in 1987. Ford faced mail and bank fraud charges, and the judge issued a broad gag order prohibiting Ford from discussing the merits of the case. The order even prohibited him from makingany statements about the trial, including an opinion of or discussion of the evidence and facts in the investigation or case.

The Sixth Circuit wrote inUnited States v. Ford (1987) that such broadly based restrictions on speech in connection with litigation are seldom, if ever, justified. It also explained that it is true that permitting an indicted defendant like Ford to defend himself publicly may result in overall publicity that is somewhat more favorable to the defendant than would occur when all participants are silenced. This does not result in an unfair trial for the government, however.

Ultimately, the Sixth Circuit held such gag orders are justifiable only if the government can show public comments about the trial pose a clear and present danger to the fair administration of justice.

Two of the most cherished constitutional rights in the United States are the right to vote and the right to freedom of speech.

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Other courts use a much less demanding standard. These courts will often apply a standard similar to that discussed in theGentile case whether there is a substantial likelihood public statements about the trial would prejudice court proceedings. And some courts have used even a lower standard whether there is a reasonable likelihood that public statements will prejudice an underlying proceeding.

Gag orders featuring high profile defendants like the former President receive significant media attention. In the age of social media, everyone including court participants can reach a wider audience and this makes judges more sensitive to interference with court proceedings and more prone to issue gag orders. But as noted at the outset, in each case, they raise important constitutional considerations as they are a form of prior restraint.

The case law draws a distinction between gag orders against the media on the one hand and gag orders against trial participants, including attorneys, on the other hand. However, all gag orders are not only prior restraints but content-based restrictions on speech. As such, they should be subject to rigorous review and must be narrowly drawn.

By David L. Hudson, Jr. (Last updated: June 20, 2024)

Continue reading here:
Gag orders and First Amendment rights - Foundation for Individual Rights and Expression

The pastor of a large Baptist church in Fayette County, GA has been ordered by a county marshal to appear before a judge in August. The potential penalty could be up to $1,000 fine and 60 days in jail. The church held a car show on its property which, according to the county, requires a $30 permit fee. The church refused to pay and thus the confrontation.

I am not the pastor and cannot speak to the rightness or wrongness of the position he and the church have taken. However, I am a pastor and have been so for some five decades. During the pandemic, we, along with other churches, were faced with a dilemma. What do we do about restricted attendance, social distancing, suggested but not mandated mask wearing, and all the rest that caused angst among church leaders?

Our Council met on Zoom many times throughout the pandemic and grappled with the situation as best we could. We decided that we had two biblical mandates: (1) To obey those in authority over us, including the government. (2) To obey God rather than man. We sought to do both, as difficult as that was. At the very start, we eliminated two extreme positions: (1) To refuse to do anything different no matter what we were told, and (2) to shut down worship services until the pandemic was over.

So, we walked through those months and tried to remain as flexible as we could. Of course, not everyone in the church was happy, especially those who held opinions on one or the other extremes. As a result, we lost some people, but our goal was not to please everyone but to do the right things and keep our people safe while trying to fulfill those two biblical mandates. At the end, no one who attended our services caught or spread the Covid-19 virus. As far as I know, no one got sick, and no one died. Mission accomplished.

For over 13 years I was the senior pastor of Trinity Fellowship Church. Along about the tenth year of my tenure, the Official Board and I decided to start a Christian school. I soon discovered that the Fire Marshal had a say in what we would need to do to the building to come into compliance. It was going to cost us a bit. But we complied and eventually received the go ahead to begin the school. Today, though I have been gone from there almost 28 years, through excellent leadership and parents who sacrifice, Trinity Christian School now has around 1,900 students on two campuses. It was well worth the start-up costs and both biblical mandates were fulfilled.

Personally, I would have paid the $30 for the reasons mentioned above. But then, its not up to me and there may be valid reasons why the position was taken. Perhaps they believe its a First Amendment issue. For their part, the county has the power to exempt the church should it choose to do so. It just seems like an awful lot of fuss over $30.

[David Epps is the Rector of the Cathedral of Christ the King (www.ctk.life). Worship services are on Sundays at 10:00 a.m. and on livestream at http://www.ctk.life. He is the bishop of the Diocese of the Mid-South (www.midsouthdiocese.life). He has been a weekly opinion columnist for The Citizen for over 27 years. He may be contacted at davidepps@ctk.life.]

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Car shows, the First Amendment, and $30 - The Citizen.com

ROSE BUD, Ark. A lawsuit filed by the ACLU of Arkansas on behalf of the ballot question committee For AR Kids claims the town of Rose Bud broke the law.

The suit claims an ordinance that puts restrictions on petition canvassers at a town event violates First Amendment rights.

The ordinance that was passed would require canvassers to collect signatures only at their booth, and not be able to walk around, which the ACLU says violates the First Amendment.

The judge put a halt to the ordinance for the time being Thursday.

The ordinance said no one can ask for signatures on any property owned by the city of Rose Bud, except at a booth or other spot rented by the group trying to get signatures.

Rose Bud Mayor Shawn Gorham said the ordinance was passed to prevent crowd congestion at the entrance and exit of events, where canvassers might ask those trying to get into their annual summer fest event.

Sarah Everett with the ACLU of Arkansas said the ordinance kept people from being able to express themselves by collecting signatures on public property.

She said thats one of the reasons they filed for a temporary restraining order, which was granted Thursday. This means the city of Rose Buds ordinance restricting canvassing abilities, cant be enforced.

The ordinance violated the First Amendment because it kept people from being able to express themselves to collect signatures for specific issues on public property, so collecting signatures for ballot petitions is First Amendment-protected activity, Everett said.

Gorham said the ordinance had nothing to do with any issues individually or his personal thoughts, that they just passed it to help with crowd control at what he says is a very populated event.

The only thing it wouldve limited is rather than anybody regardless of who you are, you would have not been able to walk around, the location of anywhere other than the booth space that you rented, Gorham said.

He also said they are fully abiding by the law and the judges order.

More than 90,000 signatures must be collected by July 5 to put the issues canvassers were gathering signatures for on the November 2024 ballot.

See original here:
ACLU lawsuit claims Rose Bud ordinance restricts First Amendment rights - KARK

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In 2021, the Civil Rights Division at the U.S. Justice Department launched a series of pattern-or-practice investigations into several police departments around the country. These investigations often lead to a court-enforceable consent decree, negotiated between the DOJ and the agency investigated, to eliminate pervasive violations of constitutional or legal rights.

In 2023, the department issued reports on the Louisville and Minneapolis police departments that, for the first time ever, included specific findings on violations of press rights.

TheLouisville reportfound that journalists were swept up in the Louisville Metropolitan Police Departments indiscriminate responses to the 2020 protests and that arrests and retaliatory force against journalists violated the firmly established qualified right of access for the press to observe government activities.

And theMinneapolis reportincluded a whole subsection on police interactions with the press. Notably, the report recognized that removing journalists from the scene of protests through blanket dispersal orders, even when police may lawfully remove others present, can violate the First Amendment because any restriction on newsgathering must leave open ample alternative channels for gathering the news.

Last week, the DOJ released itspattern-or-practice reporton the Phoenix Police Department and the city of Phoenix. While it does not contain findings specific to the press, it does contain a significant section on police interactions with protesters that is relevant to the basic First Amendment principles that are also at play in police-press interactions.

Most notably, the report confirms that, while officers may use force to target specific and imminent threats of violence, they may not ban the activity of peaceful protestors because of the violent acts of others. In doing so, it cites toIndex Newspapers LLC v. United States Marshals Service, a case from the U.S. Court of Appeals for the Ninth Circuit, where the court left an injunction in place barring federal officers from dispersing journalists engaged in lawful newsgathering from the scene of protests.

Both the report and theIndex Newspaperscase stand for the proposition that the First Amendment requires any police response to violent conduct by some at protests to be tailored to addressing that conduct by those individuals.

The Phoenix report underlines that point in several ways. It finds that the Phoenix Police Department violated the First Amendment rights of lawful protesters by (1) using indiscriminate force that failed to target individuals engaged in unlawful activity, (2) using mass arrests to clear peaceful protesters (including having a policy in 2019 and 2020 to incarcerate as many people as possible), (3) arresting or using force against individuals in response to criticism, insults, or perceived disrespect, and (4) retaliating against people for recording police activity.

Again, the through line in the Louisville, Minneapolis, and now Phoenix pattern-or-practice reports is the basic principle that officers may lawfully use force against individuals engaged in unlawful activity, but it must be tailored to address that specific activity, and that tailoring means that peaceful protesters must be protected and that journalists may have a right to remain on the scene and report.

In addition to this work of the Civil Rights Division, the Office of Community Oriented Policing Services, or COPS,at the DOJ has been working on a set of high-level national best practices for police-press interactions at protests. During a convening the Reporters Committee helped coordinate with media and police representatives last October, we urged the DOJ to emphasize the importance of that tailoring for the press in the ultimate report (which we hope will be released soon).

Given the possibility of mass demonstrations in the upcoming election season, its exceedingly valuable for the DOJ to be setting down a marker on these fundamental First Amendment principles.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.

Excerpt from:
DOJ report on Phoenix PD contains guidance on First Amendment rights at protests - Reporters Committee for Freedom of the Press

Protesters and police officers wearing riot gear have a standoff near Daley Plaza on Saturday, May 30, 2020. (Evan Garcia / WTTW News)

Chicago Police Department officials have significantly changed their plan to handle protests during the Democratic National Convention in response to objections lodged by police reform groups against a policy that would allow mass arrests, officials said.

The coalition of police reform groups behind the consent decree, the federal court order requiring CPD to change the way it trains, supervises and disciplines officers, told a federal judge that the original policy designed to give officers the power to make mass arrests of protestors violated the First Amendment. The new policy includes significant changes, officials told WTTW News.

CPD officers will now be required to take additional steps to protect the First Amendment rights of protestors and remain unbiased and opinion neutral in any communication with individuals within the crowd while affirming that the First Amendment rights of lawful participants are protected.

Officers will be prohibited from arresting those engaged in First Amendment protests for minor or petty offenses or for actions that pose no immediate threat to the safety of the community, or others, or of causing property damage, according to the revised policy.

Read the full revised policy here.

Chicagoans have until June 30 to weigh in on the new draft of the policy, which has not yet been finalized, even though the convention is less than two months away.

Alexandra Block, director of the Criminal Legal System and Policing Project at the ACLU of Illinois, who represents the coalition, said the revised policy represents a substantial improvement over the original policy, even though concerns remain.

The coalition does not endorse this policy, Block told WTTW News on Friday, in advance of a formal summary of their response to the new policy being filed next week with the federal judge overseeing the consent decree. But it is a policy that we made better.

Protestors can only be arrested as a last resort, when police have evidence that their actions pose an immediate threat to the lives of others or may cause property damage, according to the policy.

For example, a group of protesters could face arrest if they choose to block access to a hospital, because that could threaten public safety, Block said. But those who engage in protests that pose no such threat may not be arrested, even if they do not follow police directives, according to the policy.

In addition, only specific protestors who pose a threat to people or property can be arrested not everyone participating in the protest, according to the new policy.

That should reduce the need for Chicago police to make mass arrests during protests, Block said.

Mayor Brandon Johnson and Chicago Police Supt. Larry Snelling have repeatedly said "that Chicago police officers are prepared to lawfully police the massive protests expected to erupt around the United Center and downtown under the white-hot media glare the convention is sure to trigger.

Snelling has promised officers will be better prepared to handle protests around the convention than they were when demonstrations and unrest triggered by the police murder of George Floyd erupted in May 2020, when officers failed to protect the constitutional rights of thousands of Chicagoans, according to two probes, one by the independent monitoring team charged with determining whether the city is making good on its promises of reform and one by the citys inspector general.

Our officers will be ready, disciplined and trained to deal with those situations, Snelling said June 6. We want people to have their voices heard. The Chicago Police Department, we do not get political when it comes to this. Our job is public safety and we want to make sure that we keep the public safe.

The potential of violent protests marring the 2024 convention is especially fraught because of condemnation of President Joe Bidens support for Israel in its war against Hamas in Gaza.

Massive anti-Vietnam War protests outside the 1968 Democratic National Convention triggered a police riot, highlighting the partys split over the war, and helping to elect former President Richard Nixon. Those images indelibly stained Chicagos reputation as a home for political conventions.

When the Democratic National Convention returned to Chicago in 1996, it was peaceful, helping to boost former President Bill Clintons reelection bid.

The revised policy would not require officers to document every time they used force against a member of the public. The original policy required documentation only if someone is injured, a provision that violated the consent decree, according to the coalition.

In addition, the revised policy bans kettling, the confinement by police of a group of demonstrators or protesters in a small area, as a method of crowd control.

The revised policy also ensures that credentialed members of the news media will not be required to disperse if police officials order a First Amendment assembly to disperse.

The revised policy was released approximately 10 days after Inspector General Deborah Witzburg released a report outlining persistent concerns officers are prepared to lawfully police protests expected to erupt around the convention.

Witzburg said she was particularly concerned CPD officials have already been training officers on these yet-to-be finalized policies, a concern Block said she shared with less than two months to go before the convention takes place Aug. 19-22.

That is a problem of CPDs own making, Block said. All of this could have been avoided.

Contact Heather Cherone:@HeatherCherone| (773) 569-1863 |[emailprotected]

A Safer City is supported, in part, by the Sue Ling Gin Foundation Initiative for Reducing Violence in Chicago.

Originally posted here:
Chicago Police Department Revises Plan to Handle Protests Around DNC After Reform Groups Object - WTTW News