Legal Memorandum: Constitutional Claims concerning a Gag Order

Issue: Under federal law, what means are available to a party to have constitutional claims concerning a gag order heard in federal court?

41 U.S.C. § 1983 is the most viable mechanism for getting constitutional arguments heard in federal court.  That statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage,             of any State of Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Essentially under § 1983, a claimant must show that a person, acting under color of state law, deprived claimant of his or her federal constitutional or statutory rights.  In a case involving the issuance of the protective order, the judge would be the person and the issuance of the protective order would serve as the action under color of state law, and the due process and First Amendment rights discussed above would constitute the deprivation.

It is important to note that a judge would only be considered a “person,” for purposes of the statute if sued in his or her official capacity for injunctive relief, if sued for damages, a judge would be considered the state itself and not subject to suit under § 1983 due to sovereign immunity.  Will v. Mich. Dep’t of State Police, 491 U.S. 58, […]