First Amendment expert questions gag order
A gag order slapped on everyone directly associated with the Kobe Bryant rape case was called “overly broad” and “of questionable constitutionality” by one of the nation’s most prominent First Amendment attorneys.District Judge Terry Ruckriegle on Wednesday banned “all trial participants and their attorneys” from speaking publicly until the trial is over. He banned them from making “any extrajudicial comments that a reasonable person would expect to be disseminated by any means of public communication” – speaking to the press.Bryant’s defense attorneys Harold Haddon and Pamela Mackey requested the order Monday night. Ruckriegle signed it early Wednesday evening, after court working hours. His gag order came the same day the alleged victims’s attorneys, John Clune and Lin Wood, had granted two television interviews.Floyd Abrams, one the nation’s pre-eminent First Amendment attorneys, said Ruckriegle’s order to gag first and ask for objections later isn’t the normal progression for such an order. Ruckriegle gave the parties until 5 p.m. today to register their objections.”Certainly, the usual way one would address this is giving both parties the opportunity to express their views in advance of an order, and giving the press an opportunity as well,” said Abrams. “It’s unusual to enter an order without hearing from both sides.”The gag order bans speaking by anyone connected to either side of the case, attorneys, law enforcement, witnesses, anyone who attended one of the private hearings, and anyone who shares an office with any of the attorneys.”This is a broad gag order of questionable constitutionality,” said Abrams. “That is because of its scope and the fact that it bars any statements at all, even if they’re not prejudicial by their nature.”Abrams said Ruckriegle is within his authority to try to protect the fair trial rights of Bryant and his alleged victim.”It is the judge’s job to do it, but there are significant limits on the entry of orders which limit speech,” said Abrams. “What is uncommon is a total gag order on saying anything.”Banning trial participants from speaking is a form of prior restraint generally allowed in trials. What is not allowed, Abrams said, is the ban Ruckriegle used to keep the media from publishing details of a leaked transcript.”Prior restraint on the press is almost always unconstitutionall,” said Abrams. “Prior restraint on participants in a trial still must meet difficult legal tests, but is more often constitutional than on the press.”Abrams said that while Ruckriegle’s order is a prior restraint on the trial participants, but not on the press, the order is overly broad.In that prior restraint case dealing with the mistakenly released transcripts from Ruckriegle’s clerk Michelle Goodbee, the media appealed to the U.S. Supreme Court Ruckriegle’s order to not publish the details of the transcripts. Media attorneys dropped their appeal when the high court pressured Ruckriegle to released edited versions of those transcripts.