top of page
Search

Gag Orders In Modern Times: No, It Is Not Constitutional

A North Carolina court recently issued a gag order and members of the press are not pleased. What are gag orders, and why should the general public be concerned?


Source: Freedom Forum

FOR IMMEDIATE RELEASE


November 19, 2023


By Sophia Labordo


NORTH CAROLINA—A gag order was issued by a North Carolina court in October regarding a sexual assault case which resulted in the expulsion of a UNC Chapel Hill student. Under the pseudonym Jacob Doe, the student accused of sexual assault, claimed that the school had botched the sexual assault investigation due to a bias against men and sued in response. Doe was vindicated in two of the four sexual assault cases against him. This is the second order he had requested in his case, the first filed in February which was quickly opposed by ACLU of North Carolina, a UCLA First Amendment law professor, and Freedom of the Press Foundation, resulting in the order being dissolved. Doe requested for a second gag order that was approved by a second judge after a public records request was filed. The second judge that approved the order stated that it would only be in place until the original judge returned from absence. On October 25, the gag order was renewed for another fourteen days.


A gag order, also known as an on-dissemination order, is a legal order on what information from trials or preliminary proceedings can be released to the public. It restricts what those involved can say on the case and can affect everyone involved—lawyers, defendants, witnesses, and plaintiffs. The goal of the gag order is to impose the sixth amendment: the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. Information being released to the public can violate this amendment by influencing potential juror’s opinions on the case, therefore harming the impartiality of a jury.


This specific gag order is the seventh out of the total nine of this year—a record high since 2019. While the press is not specifically included in the order, it has the same effect in which the information the press receives is greatly reduced, limiting a journalists’ ability in reporting news. In simpler terms, gag orders control what the public can know and what the press can publish.


The problem is that this conflicts with another amendment in the bill of rights. The first amendment, which states the freedom of speech or of the press, is actively being violated whenever this order is imposed. Gag orders assist in maintaining the sixth amendment but violate the first amendment at the same time. In any shape or form, gag orders are unconstitutional, but also constitutional, which makes them polarizing and often challenged by members of the press.


In conclusion, gag orders are a controversial piece of the legal system. It sacrifices one amendment for the benefit of the other in an ever repeating cycle of establishment and dissolvement. While the implementation of a gag order is done with a good cause, the effects are detrimental in silencing information. Many debates circulate on whether they violate the constitution and whether they need to be dissolved, but ultimately, it is up to the everyday citizen to challenge the court to fight for their freedom of speech.


Deputy Director of Media Relations at Teens for Press Freedom, Aydin Levy shares that “finding a balance between confidentiality and the limitations it might cause on press freedom is necessary in society. Gag orders hold a complicated power in the ways they both conflict and abide by the constitution. Freedom of press is a fundamental right and in turn, carries importance in the ways that right is upheld and maintained. It is critical that journalists are able to write what they want to write and the nation recognizes how having different perspectives ensures democracy remains at the forefront.”


SOURCES


No gag rule exception for the media in North Carolina. U.S. Press Freedom Tracker. (n.d.). https://pressfreedomtracker.us/blog/no-gag-rule-exception-for-the-media-in-north-carolina/


Policinski, G. (2023, October 30). What is a gag order? definition, examples and more. Freedom Forum. https://www.freedomforum.org/what-is-a-gag-order/


Farhi, I. (2023, September 28). When silence isn’t golden: How gag orders can evade First Amendment protections. Yale Law School. https://law.yale.edu/mfia/case-disclosed/when-silence-isnt-golden-how-gag-orders-can-evade-first-amendment-protections


Staff, C. (2023, July 14). Lawsuit challenging UNC Sex Assault Response will proceed with no real names. Carolina Journal -. https://www.carolinajournal.com/lawsuit-challenging-unc-sex-assault-response-will-proceed-with-no-real-names/



bottom of page