Legal Memorandum: Requirements for Upholding a Gag Order

Issue: What is the importance of good cause and factual findings in upholding a gag order?

There must be factual findings in an Order to support issuance of a gag order.  Unlike the gag order struck down in Twohig v. Blackmer, 121 N.M. 746 (1996):

The order does not contain any analysis of the facts supporting the court’s conclusion that a gag order was necessary.  Nor does the order indicate that the court considered alternatives less restrictive of free speech rights than an outright ban on all communication with the media—what may not be said, when it may not be said, where it may not be said, who may not say it, and why less restrictive alternatives would not suffice.

21 N.M. at 754.  See also Albuquerque Journal v. Jewell, 130 N.M. 64, 67 (2001) (“We agree that a court may not use a gag order to silence a willing speaker unless it makes detailed factual findings supporting the existence of a compelling state interest and concludes that less restrictive alternatives would not advance that interest.”)

It is necessary for a protective order recite any “good cause”; in fact, that is an essential predicate for a protective order.  According to the rules “justice requires” the Order “to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.”  Rule 1-026(C) NMRA; see Does I through III v. Roman Catholic Church of Archdiocese of Santa Fe, 122 N.M. 307, 311 (Ct. App. 1996).    

See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37 (1984) (discussing Fed. R. […]