Legal Memorandum: A Gag Order in a Criminal Proceeding

Issue: Under federal law, have courts assessed whether a gag order in a criminal proceeding could be enjoined by a federal court?

Connecticut Magazine, Div. of Arc Communications, Inc. v. Moraghan, 676 F. Supp. 38 (D. Conn. 1987) involved a § 1983 claim by a news agency seeking an injunction that would prohibit the state court from enforcing a gag order in a criminal proceeding.  The court’s analysis is instructive:

Abstention under Younger is appropriate when a federal court acts to frustrate a pending state court proceeding, by injunction, declaratory judgment or similar mechanism, such that the proceedings are halted or mooted. See, e.g., Juidice v. Vail, 430 U.S. 327, 51 L. Ed. 2d 376, 97 S. Ct. 1211 (1977) (injunction of contempt proceedings sought); Huffman, 420 U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (declaratory and injunctive relief sought challenging the enforcement of state court judgment under state nuisance statute); Younger, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (injunction of state criminal prosecution sought). An injunction issuing from this Court against the enforcement of the gag order in Crafts would not prohibit in any way the pending prosecution itself from going forward. Any interference with the state proceedings would be minimal and therefore cannot justify the eschewal of the Court’s jurisdiction to protect the federal constitutional rights of the plaintiff.

Id. at 41.  The court went on to reason that even if Younger were applicable, it only warrants abstention where the state court provides an adequate forum for […]