A gag order is a legal order by a court or government that restricts information or comment from being made public or passed onto any unauthorized third party. It is typically used to keep trade secrets of a company, protect the integrity of ongoing police or military operations, and protect the privacy of victims or minors. Gag orders may also be used to prevent prejudicial pre-trial publicity and assure a fair trial by preventing the attorneys, parties, or witnesses in a pending lawsuit or criminal prosecution from talking about the case to the public. However, their use for this purpose is controversial since they are a potentially unconstitutional prior restraint that can lead to the presss using less reliable sources such as off-the-record statements and second- or third-hand accounts.
Courts will scrutinize any gag order under the right of free expression, protected by the First Amendment, and apply a heavy presumption against its constitutional validity, as with any prior restraint. In analyzing the constitutionality of a gag order, the nature and extent of pretrial news coverage, whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity, and how effectively a restraining order would operate to prevent the threatened danger of an unfair trial for the defendant are considered.
Gag orders are relatively rare, and they are not done as a matter of routine since the Constitution guarantees the right to free speech. However, they may be necessary to protect other valuable rights under the Constitution, such as the right to a fair trial and the all-important “true administration of justice” .
