Legal Memorandum: Distinction between Gag and Protective Orders

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

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.”).