Legal Memorandum: Distinction between Gag and Protective Orders

Issue: What distinguishes a gag order as prior restraint from a protective order?

Area of Law: Constitutional Law, Litigation & Procedure
Keywords: Gag order; Protective order; Prior restraint
Jurisdiction: Federal
Cited Cases: None
Cited Statutes: Fed. R. Civ. P. 26(c)
Date: 10/01/2014

A gag order may constitute an illegal prior restraint in violation of the First Amendment for several reasons.  Prior restraints—i.e., those that are not limited to information received from another party in discovery—are unlawful.  See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984) (a protective order entered on a showing of good cause as required by Fed. R. Civ. P. 26(c) does not violate the prior restraint prohibition of the First Amendment but only if it “does not restrict the dissemination of the information if gained from other sources” outside discovery); Rodgers v. U.S. Steel Corp., 536 F.2d 1001, 1006-07 (3d Cir. 1976) (“The instant protective order, however, also prohibits petitioners’ counsel from disclosing information which they obtained otherwise than through the court’s processes, and we have no doubt that neither the parties nor their counsel implicitly waive their First Amendment rights to disclose or disseminate information or matters obtained independent of the court’s processes.”).

As the Supreme Court explained in Seattle Times, a valid “protective order prevents a party from disseminating only that information obtained through use of the discovery process.  Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes.”  467 U.S. at 34.