Legal Memorandum: Free Speech and Due Process Violation

Issue: Whether a District Court Order directing parties to ‘keep confidential all . . . information pertaining to a proceeding which are produced, shared or utilized in this litigation’ constitutes a violation of free speech and due process.

Such a gag order constitutes an illegal prior restraint in violation of the First Amendment for several reasons.  First, the restraint on disclosure is not limited to documents or information Petitioner obtained in the discovery process.  Rather, the Order restricts the disclosure of “any” information that merely “pertains” to a proceeding, regardless of whether the information was obtained as a result of discovery, as long as it is produced, shared or utilized in the litigation, by any party regardless of the source from which it was obtained.  Such 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.”).