The Volokh Conspiracy

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Free Speech

There Was No Good Reason Offered, It Turns Out, for the Gag Order on Students in Doe v. UNC


On Feb. 28, I blogged about Doe v. U.N.C. Sys. (W.D.N.C.), a case challenging the expulsion of plaintiff Jacob Doe for alleged sexual assault; in the case, the court issued a quite remarkable TRO that, among other things, required defendants "to direct all individuals, including but not limited to employees and students, over whom they exercise control to refrain from publishing or disclosing any information concerning the Plaintiff, the disciplinary proceedings, or the outcomes of such proceedings" (emphasis added).

This struck me as likely unconstitutional, because of its substantive scope, because it was entered as an ex parte TRO with no opportunity for the defendants to be heard, and because it purports to restrict the free speech rights of third parties who also had no opportunity to be heard. But when I tried to figure out why the court entered such a broad restriction, I couldn't, because the motion for the TRO and the supporting memorandum were sealed. And when I tried to figure out the basis for the sealing, I couldn't, because there was no official sealing order authorizing and explaining the sealing (even though the W.D.N.C. local rules seem to require such sealing orders).

The ACLU of N.C., representing itself and the Freedom of the Press Foundation, joined by my pro bono local counsel Mark Sigmon, representing me therefore moved to unseal the motion seeking the order. I had hoped that this would give some explanation of why such an extraordinary gag order was sought and issued.

The court promptly granted our motion, and also vacated the order (per the parties' joint agreement). But, having reviewed the unsealed memorandum supporting the TRO, I saw nothing at all that explained the gag order. The memorandum doesn't discuss the First Amendment, the very strong presumption against prior restraints, or more generally any of the legal analysis that might justify gag orders. Its arguments about UNC's supposed sex bias and other errors in the proceedings might justify ordering the UNC, as a state agency, not to publicize the outcome of those supposedly illegal proceedings. But I don't see how anything there explains how the prohibition can apply to students.

I encourage you folks to review the memorandum yourselves, and let me know if there's something I'm missing. And unfortunately the judge simply issued the TRO that the motion sought, though I'm glad that it did end up being vacated.

In any event, I'm sorry I didn't blog about this more promptly myself, but I got distracted by the press of other business, and just returned to it; better late than never, I hope.