Gag Orders

Jane E. Kirtley

The term gag order —also known as an injunction, restraining order, restrictive order , or protective order —refers to a form of prior restraint which prohibits an individual or institution from disseminating information to those not authorized to receive it. Although the term is usually applied to orders issued by a judge in the context of an ongoing legal proceeding such as a trial, it can also include statutory or regulatory provisions promulgated by the legislative or executive branches. As a general proposition, prior restraints are presumed to violate the First Amendment rights to freedom of speech and press, and are therefore unconstitutional. However, the Supreme Court has recognized that this presumption is not absolute, and can be overcome when a competing and overriding public interest requires protection ( Near v. Minnesota , 283 U.S. 697 [1931]). A typical gag order is issued by a trial judge during the pretrial ...

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