The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From today's decision in In re: Murphy-Brown, LLC:
Petitioner [Murphy-Brown, LLC] (and defendant below) seeks relief from a gag order controlling interrelated civil nuisance suits. The plaintiffs in those suits allege that nearby hog farms associated with Murphy-Brown, LLC are a private nuisance. Hog farming is a predictably messy business, but one with central economic importance to the state of North Carolina. Plaintiffs claim that the hog farms give rise to undue amounts of odors, insects, and pests, not to mention the noise and debris generated by raising hogs and shipping them for sale.
In total, the Master Case Docket includes more than 20 lawsuits and more than 500 plaintiffs. Plaintiffs from five cases in the initial discovery pool have been grouped for eleven seriatim trials—three have already delivered large verdicts in plaintiffs' favor. The cases likely will take years to resolve….
The hog nuisance suits touch on important matters of local and regional concern. Sizable damages awards in the first two cases have generated legislative responses. It is no wonder that the press and the public have taken an interest, and that a lively, indeed passionate, debate has ensued.
The jury pools were, naturally, exposed to the publicity. Three juries have considered the hog nuisance suits. Of the jury pool for the first trial, two of the fifty potential jurors had been exposed to the issues of the case in some way. Of the second jury pool, eleven of fifty. Of the third, twenty-three of fifty. The majority of potential jurors with prior exposure to the case testified that they could impartially serve on one of the juries—two did in fact serve on the second one….
The present case addresses a gag order that the district court issued sua sponte while the second jury deliberated on June 27, 2018. The court found that "the volume and scope of prejudicial publicity observed" led to a "substantial risk of additional publicity tainting or biasing future jury pools." The gag order was a sweeping one. It prohibited all parties and their lawyers, representatives, and agents, as well as "all potential witnesses," from:
"giv[ing] or authoriz[ing] any extrajudicial statement or interview to any person or persons associated with any public communications media or that a reasonable person would expect to be communicated to a public communications media relating to the trial, the parties or issues in this case which could interfere with a fair trial or prejudice any plaintiff, the defendant, or the administration of justice and which is not a matter of public record. Statements of information intended to influence public opinion regarding the merits of this case are specifically designated as information which could prejudice a party."
The gag order provides for limited exceptions. "[W]ithout elaboration or any kind of characterization," covered individuals may discuss "the general nature of an allegation or defense"; "information contained in the public record of this case"; "scheduling information"; "any decision made or order issued by the court which is a matter of public record"; and "the contents or substance of any motion or step in the proceedings, to the extent such motion or step is a matter of public record."
Murphy-Brown asked the Fourth Circuit to lift the order. (One of the many amicus briefs filed on its side was on behalf of the American Farm Bureau Federation and the North Carolina Farm Bureau Federation, and was drafted by my Mayer Brown LLP colleagues Tim Bishop and Michael Kimberly, with some help from me; I'm a part-part-part-time academic affiliate with the firm.) The Fourth Circuit just did so, with some interesting discussion about jurisdiction, mootness, mandamus, and, most significantly, the First Amendment:
Even among First Amendment claims, gag orders warrant a most rigorous form of review because they rest at the intersection of two disfavored forms of expressive limitations: prior restraints and content-based restrictions…. Gag orders inherently target speech relating to pending litigation, a topic right at the core of public and community life. But the "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."
In light of these twin presumptions, gag orders must survive strict scrutiny…. [W]e require trial courts to support [speech-restrictive orders] with reasoning "specific enough to enable the reviewing court to determine" whether the order survives rigorous scrutiny. Applying searching review, we hold that petitioner has demonstrated a "clear and indisputable" right to relief from the gag order because it breached basic First Amendment principles in both meaningful and material ways….
Most significantly, the court rejected the analogy to restrictions on speech by lawyers about pending cases that they are litigating (see Gentile v. State Bar (1991), which are more easily upheld. Instead, the court concluded that the proper analogy was to restriction on media speech by newspapers and others (see Nebraska Press Assn' v. Stuart (1976)), which require a showing of strict necessity. And such a showing, the court stressed, required very strong evidence that the gag order would be effective, and that alternatives to it wouldn't be effective:
[T]he fact of publicity is hardly dispositive. Publicity often accompanies trials, including trials in which the public has a keen and understandable interest. The judicial process does not run and hide at those moments when public appraisal of its workings is most intense. An impartial jury, moreover, need not be wholly unaware of information—including potentially prejudicial information—outside the record. "Prominence does not necessarily produce prejudice, and juror impartiality … does not require ignorance."
Jurors are not that fragile…. The question … is neither whether a case has garnered public attention nor whether public discussion of it risks revealing potentially prejudicial information. Guidance is the critical concept. The question is whether the judge finds it likely that he or she will be unable to guide a jury to an impartial verdict. If judges can guide the jury to an impartial verdict, then no gag order may issue.
The record here demonstrates that the trial court assembled impartial juries each time it needed to do so. Plenty of potential jurors remained unfamiliar with the case, and most of those with prior exposure remained able to serve impartially. Two even did so. There was no showing here that the judge could not guide a jury to an impartial verdict.
Further and crucially, a gag order must actually "operate to prevent the threatened danger." Sometimes the inevitability of publicity surrounding civil proceedings will render a gag order entirely superfluous. On other occasions parties and counsel may even mitigate any prejudice by disseminating accurate and timely information to the public. By prohibiting only certain kinds of information from selected sources, a gag order can actually warp and distort discussion, thereby enhancing prejudice rather than mitigating it.
It is anything but clear that this gag order would accomplish its intended purpose of reducing risks to fair trial rights. Amici identified a torrent of potentially prejudicial news coverage released after the gag order had taken effect [citing the amicus brief that my colleagues and I filed -EV]. Recent news coverage included florid characterizations of farmers and hog farms, discussions of excluded testimony from an odor expert, and attacks on the attorneys at trial. Id. (referencing various news articles).
It is simply not clear why this gag order would not work selective and uneven impositions. Those could prove even less desirable than a fuller and more balanced airing of the viewpoints surrounding the hotly disputed question of the benefits and problems that hog farming has brought to eastern North Carolina.
For these reasons, the gag order did not further a compelling interest based on the record before us.
And the court concluded:
All these people [plaintiffs, defendants, and potential witnesses] care. This case is about their lives and their livelihoods. Whatever differences the parties and their supporters have, they possess in common a passionate First Amendment interest in debating their futures. It seems very wrong that a court would take that from them.
The court also added that the order was unconstitutionally vague (for instance, because "it permitted statements describing 'the general nature of an allegation or defense,' but only 'without elaboration or any kind of characterization whatsoever'"), and included still more interesting discussion of narrow tailoring; I expect that the decision will prove important for reviewing such trial participant gag orders throughout the country.