A gag order is either a legal order issued by the court or by the government, or a private order issued by an employer or institution, that restricts information from being made available to the public. Gag orders might be used to keep a company’s trade secrets concealed, or protect the integrity of an ongoing police investigation. They can also be used for abusive purposes, such as a corporate employer issuing a gag order to prevent employees from potentially speaking against them.
Recently, a Kanawha County judge issued a gag order in the murder case of Shawn Thomas Lester. Lester has been charged with shooting and killing three people with a scoped rifle in 2003. The gag order will prevent Lester, Lester’s family, the victims’ family, and other witnesses from speaking to the public. Judge Duke Bloom explained that this was the only way to ensure a fair trial and to protect Lester’s constitutional rights as a defendant.
Lester’s trial is already the subject of considerable publicity. His attorney has repeatedly sought a change of venue, noting that Lester has appeared in more than 200 newspapers and in nearly 1,500 news broadcasts. Of the more than 400 prospective jurors, 63% stated that they had been moderately to heavily exposed to coverage of the Lester case, and 81 jurors had already formed an opinion of the case. Judge Bloom has stated that he might permit a change of venue depending upon how the jury selection process plays out.
While many observers agreed that Lester’s situation was appropriate for a gag order, some questioned whether the order as issued was too broad. Greg Leslie of the Reporter’s Committee for Freedom of the Press noted that Judge Bloom’s written justification is only a paragraph long, and contains no legal basis for issuing the order. Furthermore, the gag order encompassed even people with seemingly no connection to the case. Leslie argued that gag orders issued in these situations should be as narrow as possible, but too many judges issue them too broadly.
The Lester situation highlights the difficulties of ensuring fairness in a criminal trial. A criminal defendant has more to lose than a defendant in a civil situation, so the burden of proof is high — beyond a reasonable doubt. A criminal defendant is ensured the representation of counsel. In Lester’s case, his West Virginia criminal defense attorney is a public defender. Also, government officials must ensure that they did not violate a defendant’s Fourth, Fifth, Sixth, or Fourteenth Amendment rights, or crucial evidence can be tossed out. However, attempts to protect these rights are sometimes balanced against other rights, such as the First Amendment right to free speech.
Gag orders have been subject to significant court rulings in the past. In 1993, the Second Circuit Court of Appeals found that a judge could not issue a gag order that prevented defense attorneys from discussing any aspect of the case against Mohammed A. Salameh, who killed six people in the World Trade Center bombing. The Second Circuit found the gag order to be so overbroad that it violated the defense attorneys’ First Amendment rights. Judges could not issue orders imposing “prior restraints” before trial, even for the purpose of protecting a defendant’s constitutional rights.