This article is courtesy of IBA Counsel Don Craven.
gag order. (1952) 1. A judge’s order directing parties, attorneys, witnesses, or journalists to refrain from publicly discussing the facts of a case. • When directed to the press, such an order is generally unconstitutional under the First Amendment. 2. A judge’s order that an unruly defendant be bound and gagged during trial to prevent further interruptions. Black’s Law Dictionary 9th ed. 2009.
Kemner v. Monsanto Co. – Actions were brought for injuries allegedly due to train derailment and dioxin spill against various defendants including chemical manufacturer. The circuit court entered a “gag” order against manufacturer prohibiting them from making any statements directed to the media which directly or indirectly mentions the existence of the present litigations. The Appellate court affirmed. The Supreme court ruled that the “gag” order was unconstitutionally vague and overbroad and is an unconstitutional prior restraint of free speech protected by the first and fourteenth amendments of the United States Constitution.
Other Related Cases
Doe v. County of Montgomery – County residents brought action against county challenging its display of a sign stating “THE WORLD NEEDS GOD” over the main entrance to the county courthouse. The action was dismissed for lack of standing, however, the Court of appeals affirmed in part, reversed in part, and remanded. Upon remand the parties cross-moved for summary judgment. The District court held that the sign violated the First Amendment’s establishment clause.
Eubanks v. Northwest Herald Newspapers – newspaper inaccurately reported that Plaintiff had been charged with retail theft and attempted obstruction of justice. Defamation and false light invasion of privacy action was brought against the newspaper. The circuit court awarded summary judgment to newspaper. The Appellate court held that the article was a complete and accurate summary of an e-mail the newspaper received from the local police department and the newspaper did not abuse the fair report privilege in printing the report.
Sandhold v. Kuecker – a former high school basketball coach brought an action against numerous defendants, alleging multiple counts of defamation per se, false light invasion of privacy, civil conspiracy to intentionally interfere with prospective business advantage, and slander per se, based on statements made by the defendants as part of their campaign to have the coach removed due to their disagreement with his coaching style. The circuit court granted defendants’ motion to dismiss finding that the defendants were immune from liability under the Citizen Participation Act, awarding attorney fees to the defendants pursuant to the Act. The Appellate court affirmed. The Supreme court held that a claim is subject to dismissal pursuant to the Act where it is solely based on, relates to, or is in furtherance of the moving party’s rights of petition, speech, association, or to otherwise participate in government. The court also held that the Act is intended to target only meritless, retaliatory SLAPP’s (strategic lawsuits against public participation) and not to establish a new absolute or qualified privilege for defamation and that the coach’s suit was not a SLAPP within the meaning of the Act, and thus suit was not subject to dismissal on that basis. Also the Act did not violate various provisions of the Untied States and State Constitutions.
Solia Technology, LLC v. Specialty Pub. Co. – Patent holder and law firm brought action alleging defamation per se, tortuous interference with prospective economic advantage, and false light invasion of privacy after magazine published articles critical of patent holders use of patent. The circuit court granted the magazine defendants’ motion to dismiss. The Appellate Court affirmed in part and reversed in part. The Supreme court held that the Statement in the article regarding “deeply greedy people” was a protected opinion; the cover headline and article headline were not defamatory and even if they were defamatory they were a fair abridgement of complaint. Also, the statement that the attorney was being sued personally fell outside the fair report privilege; and the statement implying that the patent holder committed a crime fell within the fair report privilege. However, the letter published in the magazine implying that the patent was “essentially worthless” was actionable as defamation per se.
Pidgeon v. State Board of Elections – Action seeking declaratory and injunctive relief against the State Board of Election in connection with the drawing of boundaries for electoral districts for the board of trustees of a community college district was brought by a registered voter. The circuit court granted a motion to dismiss. The Appellate court affirmed holding that the statute creating electoral districts and eliminating at-large elections for the board of trustees was not impermissible special legislation and delegating the authority to draw districts to an administrative agency did not violate separation of powers.