Legal Memorandum: Validity of an Unlawful Gag Order

Issue: Under federal law, does the validity of a gag order depend on whether it inhibits a party’s ability to prepare for trial?

Area of Law: Constitutional Law, Litigation & Procedure
Keywords: Validity of a gag order; Trial preparation
Jurisdiction: Federal, New Mexico
Cited Cases: None
Cited Statutes: None
Date: 10/01/2014

The standard for determining an unlawful gag order is not whether it prohibits a party from preparing her case for trial.  Even if an order does not hamper trial preparation at all, but merely forbids disclosures to the media it can constitute an unlawful prior restraint.  Thus, an order that prohibits the parties “from making any extrajudicial oral or written statement, comment, opinion, press release, letter or other communication to or through any media or public fora, . . . on any substantive matters or substantive issues of this case” may constitute an unlawful prior restraint that violates the first amendment.  Twohig v. Blackmer, 121 N.M. 746, 918 P. 2d 332 (1996).  


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