Free Speech

Fourth Circuit Rejects Gag Order on Parties and Potential Witnesses, in Murphy-Brown Hog Farm Litigation

"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."


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.

NEXT: I'd Like to Teach the World to Troll, in Perfect Harmony!

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  1. Murphy-Brown, LLC. Operators of hog farms. No connection with Murphy Brown, the character played by Candice Bergen. Darn.

    1. My thought exactly. I knew that Bergen had packed on a few pounds, but using the name for a hog farm seemed awfully harsh.

    2. Well they both have a few things in common, including the stench!

  2. What I liked most about this Murphy Brown lawsuit was that, every day in court, there would be a new bailiff, and he/she would have a really unusual quirk or oddity.

  3. Seems like a correct and potentially important ruling and yet — apart from the ‘Murphy Brown’ angle — not really comment-worthy somehow. Hmmm.

    1. This blog isn’t only about the particular case.

      It’s part of Prof. Volokh’s focus on judges who issue gag orders or seal cases, often with little or no constitutional backing.

      We (the people) often complain about government secrecy and Prof. Volokh is doing an excellent job fighting against this–and often (always?) winning.

      He (and his students) need to be commended.

  4. Selfish, lousy neighbors who profit by creating nuisances that afflict others — and expect the victims or the public to pay for the problems — have rights, too.

    1. Whether someone who has a home devalued because a hog farms moves in nearby is different from someone who moves out to the country near a hog farm and then complains about it.

      1. So which is it in this case?

        1. It seems it might be a little of both. I googled a bit on the history of Murphy-Brown. It appears they were established with a new business model for raising pigs. They contract out and a fair number of farmers who formerly (or possibly still) raise not so smelly tobacco raise pigs and sell them to Murphy Brown. So at least some of the complainants may have previously lived next to non-smelly tobacco farms and now live near smelly pig farms.

          I’ve always know buying in agricultural put one at risk the nextdoor neighbor might change what he grew. But perhaps some people are naive and think a tobacco farm will always be a tobacco farm.

          1. Thanks for that research. Yea, that’s the risk I suppose.

            1. “And all this time I’ve been smoking harmless tobacco!”

              1. Harmless tobacco, or HAM-less tobacco???


                1. Get off the stage!

          2. Thanks for this. Like many charged political debates, it becomes a lot less charged when you know some facts.

            In this case, I don’t know — if you move in next to a tobacco (or flower) farm, do you have a reasonable expectation they won’t switch to pigs? I’d say not. Do you have a reasonable expectation they won’t switch to industrial-scale pig farming? That’s very marginal in my mind, and really becomes a question of scales rather than lines.

      2. It appears to be the same approach as the old airport nuisance complaints. Where people would buy a cheap house near the airport then start whining about the noise!

        1. If so, I’m surprised it got this far. Normally farms are grandfathered in so if you move near one, that’s your problem.

          1. Well, MY grandfather would have had a different response if someone started trying to sue him out of business. Two legged varmits get the same as four legged varmits.

            1. “Two legged varmits get the same as four legged varmits.”

              That’s not a good policy. The two-legged varmints can shoot back.

        2. Indeed.

          I think the more difficult case is when folks who live next to a smaller airport that, over decades, turns into a major airline hub, and wish to at least limit the growth.

    2. Sounds like the good Rev is making the case for his nuisance posts. Which stink as bad as a hog farm!

      1. Thanks for taking a moment from the urgent work to suppress black votes, harass women seeking to enter clinics, enable discrimination against gays, and protect America from brown immigrants to engage on this point, FlameCCT.

  5. It’s one thing to stand up for free speech as an abstract principle. It leads people to some interesting pairings ( in the “I hate what you say, you bastard, but I support your right to say it anyway” vein.) It’s true that popular, desirable speech does not need legal representation, only the unpopular, undesirable speakers do.

    It’s another thing to argue the specific interests of your legal client. It’s fair to ask “what does your client gain by having this order lifted?” They’re a business, not an individual or a special-interest group, so they don’t want this legal ruling for principle, they want it because it affects their profits. How does it affect their profits? It must either plan on corrupting the jury pool or achieving legislative mootness (A term I’ve just made up that means “getting what you want by getting your buddies in the legislature to write a law shielding you”) by intensive and expensive lobbying.
    If it’s the first one, then the order was in the service of justice. I’ll leave open the case for the second. Is there a third case I’m not seeing?

    1. Perhaps they feel that they have the right to respond to the allegations in public instead of being compelled to sit idly by while their reputation is diminished by implication?

      After all, silence in the face of accusations is often considered to be a lack of defense. Having to explain that you are prohibited from responding sounds like a cop-out.

      1. ” silence in the face of accusations”

        Except the accusers were also silenced.

  6. I strongly favor judges being very generous with sealing discovery, and even (far less importantly) stingy with allowing cameras in courtrooms. And I think New York is right, and every other state is wrong, about whether divorce proceedings should be public. But Volokh is right to shine a light on this type of abuse. There’s a strong public interest, and no real hazard of privacy or embarrassment.

  7. I like how Gene totally set us up for some witty Murphy Brown jokes and puns, but all anyone could do is simply point out that the litigant is named that. It might have seemed ripe for material, but then when you sit down to think about it, no one can think up any actual Murphy Brown references; and if you did manage to remember one, you’d probably know that no one else would get it. The show was too much of a boilerplate mediocrity for anyone to recall anything but the fact that it was there in the ’90s, and that Murphy fired her secretary every episode.

    1. “…boilerplate mediocrity…”

      IOW it stinks in both usages?

    2. Its been rebooted this season.

      Hillary did a secretary interview.

      I think the dust-up with Dan Qualye is remembered a little.

      1. Oh yeah; forgot about Quayle! And I do remember now that it’s been picked up again, as part of the current odd trend of doing so with decades-old sitcoms. I had seen the Hillary segment in particular.

        1. “decades-old sitcoms”

          Not just sitcoms. We have a new Magnum PI to go along with the new Hawaii Five-O.

          Leaving the islands, we have MacGyver.

          Not decades old but we now have a Charmed reboot from a mere decade ago.

          Might be others.

        2. I thought the first few years of the old Murphy Brown were decent. I tried watching the first two episodes of the reboot. Found it unwatchable, and sort of painful. Politics aside…it just wasn’t funny at all.

  8. In law school, a nuisance was explained to us thusly: “A pig in a pen is not a nuisance. A pig in a parlor is.” (It’s especially effective when intoned with a deep Alabama accent.) In any event, it appears that legal principle isn’t true if you have a lot of pigs in pens.

    1. The nuisance is when what that guy over there on HIS property affects your ability to enjoy your property over here.

      So if that guy leaves garbage around his property, and it attracts bears and rats which don’t know where the property line is, you can go to court and ask that he be ordered to stop doing things that attract bears and rats.

      An issue alluded to above, however, is the doctrine of “coming to the nuisance”. In general, if you knew there was something that might affect your use of property when you bought it, you should have known not to buy it. This covers, say, houses near the town dump or airport.

      Many formerly agricultural areas, meanwhile, find that farms are being sold to developers to be made into tracts of single-family housing (that is, the suburbs keep expanding). This can bring people into conflict, as agriculture often stinks, produces dust, and other things that one would prefer not be happening right outside one’s front door if one’s livelihood is not dependent on it.

      Then, sometimes you get cases where “agriculture” used to mean raising plants but now includes raising animals. Hog-farming, in particular, is nasty. Google “pig lagoon”. Now ask yourself if you’d want your neighbor to put one in near your home.

      1. So if that guy leaves garbage around his property, and it attracts bears and rats which don’t know where the property line is, you can go to court and ask that he be ordered to stop doing things that attract bears and rats.

        Or at least to pitch his appeal to a more educated class of bears and rats.

  9. Years ago I won one of these motions after the Court tried to gag the Defendant in the Sara Jane Olson trial. The order was so broad it would have prohibited Olson from saying “I am innocent of the charges”.

  10. The judge ruled it was impossible to keep one’s mouth and one’s nose sealed simultaneously.

  11. Where is Somin’s post whining about the Trump anchor baby EO? I’m eagerly awaiting it.

    1. On twitter, Ilya Shapiro (another contributor) is saying that there is academic debate on whether a law can change birthright citizenship, and good points on both sides, but that you can’t via exec order. I expect whomever is the first to post, there will be “lively” discussion.

    2. I’d write myself, but I’d need to link to a few of Ilya’s previous posts and I’m too lazy to do a search ;

  12. So they couldn’t have called it Brown-Murphy.

    1. Fresh-Prince?



  13. Please tell me no one is trying to sue bacon.

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