Legal Memorandum: Gag Order and Threat to First Amendment Interests

Issue: Under federal law, does a gag order always pose a threat to a party’s First Amendment interests?

The Supreme Court has noted that a gag order, even if short in duration, is a prior restraint on speech that is considered a serious threat to First Amendment interests.  Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1304 (U.S. 1983); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (prior restraints are "the most serious and the least tolerable infringement”).  Moreover, a gag order constitutes a content-based restriction on speech and as such is subject to strict scrutiny, only to be upheld if there is a “compelling state interest” and the restriction is “narrowly tailored” to achieve that interest.  Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007). 

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