Paul Watler’s Podcast: “Gag Orders and the Media”

January 28, 2008 | Insights

Does the Texas constitution allow a trial court to enter a gag order forbidding jurors from speaking to the news media following a highly publicized civil trial? The answer is no, according to a recent decision by the First District Court of Appeals in Houston.

The strongly pro-free speech ruling In re Hearst Newspapers Partnership, 2007 WL 3227672 (Tex. App.Hou. [1st. Dist.] 2007), has significant implication for trial judges and trial lawyers in high profile civil cases. Proponents of gag orders have both substantive and procedural hurdles to clear. And the ruling gives ample ammunition to those opposing gag order. It also implicitly recognizes the standing of non-party members of the press to challenge gag orders.

The case arose from the 2005 fatal explosion at BP’s Texas City Refinery. This past September, the first of hundreds of claims from the explosion went to jury trial in the court of state district judge Susan Criss in Galveston. After 10 days of trial and before the plaintiffs rested, the parties agreed to a settlement. The jury was discharged, but Judge Criss issued a gag order that allowed jurors to speak only to lawyers involved in the trial. The claims of hundreds of other explosion plaintiffs in other cases remained pending. Judge Criss expressed concern that future jury pools might be tainted by publicity arising from jurors speaking to the news media. Hoping to avoid news media coverage regarding the settled case from interfering with the trial of later explosion cases, the trial court ordered that jurors not talk to the news media.

The strongly pro-free speech ruling In re Hearst Newspapers Partnership has significant implication for trial judges and trial lawyers in high profile civil cases.

The Houston Chronicle and the Galveston Daily News moved to rescind the gag order. Following a hearing on the newspapers’ motion, the trial court modified the gag order to limit its duration until the BP explosion litigation had concluded. The trial court found that “media coverage of the discharged jurors’ impressions about the evidence, trial or disclosure of what their votes would have been, based upon the incomplete trial record, posed a threat to the administration of justice in the remaining pending cases.”

The newspapers then filed for a writ of mandamus in the court of appeals, contending the gag order was a prior restraint on free speech prohibited by the Texas constitution. The First District Court of Appeals decided the case under the standards enunciated by the Texas Supreme Court in the 1992 decision of Davenport v. Garcia.

In an opinion by Justice Elsa Alcala, the court wrote, citing Davenport: “A prior restraint in a civil case will withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.”

The Court of Appeals was also guided by the Fifth Circuit’s 1982 decision in In Re Express-News Corporation. In Express-News, the Fifth Circuit held a federal district court local rule prohibiting interviews of jurors concerning their deliberations or verdict, except by leave of court, was unconstitutional. The First District Appeals Court noted that the Fifth Circuit held that the local rule violated the newspapers’ constitutional right to gather news. The Houston court also observed that the Fifth Circuit held in In Re Express-News that “the public has no less a right under the First Amendment to receive information about the operation of the nation’s courts than it has to know how other governmental agencies work.”

Although the First District Appeals Court found that competing interests in some instances may outweigh the right to gather news, it held that any restrictions must be “narrowly tailored to prevent a substantial threat to the administration of justice.”

The Houston court of appeals noted that restrictions on jurors’ speech had rarely been found to be constitutionally permissible. The restrictions have been limited to situations such as protecting the secrecy of jury deliberations, protecting the privacy of jurors, and preserving a defendant’s Sixth Amendment right to a fair trial in criminal cases.

The court concluded that “the right to gather news generally includes the right of the press to interview willing, discharged jurors, except when outweighed by a compelling government interest, such as the need to protect the sanctity of jury deliberation, a jury’s right to privacy and to be free from harassment, or a criminal defendant’s Sixth Amendment right to a fair trial.”

Restrictions in the BP case did not pass constitutional muster under this standard because there were no findings or evidence that additional publicity from jury interviews would cause imminent and irreparable harm to the judicial process. Furthermore, the court found that the second prong of the Davenport test had not been met in that the gag order was not the least restrictive means available to prevent the threatened eminent irreparable harm to the judicial process. “Nothing in the record shows the trial court considered other less restrictive means, such as continuance or change of venue,” the court found. “Further, the trial court’s conclusion that voir dire, with so many in the jury pool would be an inconvenience, does not satisfy the Davenport standard.”

The court concluded that the gag order in this case was unconstitutional under Article 1, Section 8 of the Texas Constitution.

Jackson Walker partner Paul Watler regularly provides podcasts for Texas Lawyer.