Gag Orders Can Create a Whole New Set of Problems

Professor Eugene Volokh recently highlighted an interesting first amendment case involving gag orders. There may be times when a gag order is appropriate, but if you are a judge contemplating issuing one, be aware that the gag order itself can create a whole new set of problems.

A New Jersey federal court allows the lawsuit — brought by Paul Nichols, a Bergen Dispatch reporter who wants to interview one of the litigants — to go forward, and seems sympathetic to Nichols’s First Amendment argument, though the case is still at a preliminary stage and no declaratory judgment has been issued. Here are some excerpts from that opinion, Nichols v. Sivilli (D.N.J. Dec. 19, 2014):

Plaintiff Paul Nichols is a reporter for the Bergen County Dispatch who brings a First Amendment challenge to a gag order … issued by Judge Nancy Sivilli in Myronova v. Malhan, a divorce and custody suit pending in the family division of the Essex County Superior Court. Nichols wishes to interview one of the parties in Myronova v. Malhan, but is unable to because the Gag Order restrains all parties to the litigation from discussing any aspect of the divorce proceedings.

In order to understand Nichols’ First Amendment challenge, the Court first must provide a brief overview of the divorce proceedings that are the subject of the Gag Order. In 2011, a New Jersey court granted full child custody to Alina Myronova and stripped all custody rights from her husband, Surrender Malhan, after Myronova alleged that Malhan was an unfit parent.

According to the [Complaint], the state court stripped Malhan of his custody rights on a mere two hours’ notice without affording him an opportunity to refute Myronova’s allegations. For example, the court prohibited Malhan from cross examining Myronova or presenting physical evidence — such as bank records or video recordings — that would further demonstrate his parental fitness. The [Complaint] alleges that after the 2011 proceeding, Myronova retained sole custody of the children for sixteen months until she agreed to joint custody in June 2012; during that time, “Malhan was never granted a plenary hearing.”

Malhan, along with five other parents, subsequently filed a class action lawsuit in this District that is currently pending before the Honorable Freda Wolfson: Edelglass, et al., v. New Jersey, et al.. The class action suit alleges that the New Jersey family court system fails to provide adequate due process rights to parents in child custody proceedings. In February 2014, a New Jersey affiliate of a major news broadcasting company interviewed Malhan and two other Edelglass plaintiffs regarding their experiences in family court and their allegations that the family court deprived them of their constitutional rights. In response, Myronova initiated proceedings against Malhan, which resulted in Judge Sivilli entering the Gag Order. The Gag Order reads, in pertinent part:

All parties are hereby enjoined and restrained without prejudice from speaking with, appearing for an interview, or otherwise discussing, the parties’ marriage, their pending divorce, the within litigation, or the parties children or making any derogatory or negative statements about the other parties to any reporters, journalists, newscasters, or other agents/employees of newspapers or other media outlets on the grounds that it is not in the best interest of the children to have the parties’ divorce litigation discussed in a public forum or to have public disparaging statements made about any party by the other party.

In addition to restricting their ability to discuss their divorce or related litigation with other individuals, the Gag Order also prohibits the parties from conveying such information on social media. The Gag Order also instructs Malhan to remove all divorce-related information from his blog.

In May 2014, Malhan filed for a temporary restraining order in Edelglass seeking to enjoin enforcement of the Gag Order. In a May 8, 2014 Order, Judge Wolfson expressed her view that the Gag Order “raises serious constitutional concerns” and that Judge Sivilli “failed to meaningfully weigh Plaintiff’s First Amendment rights.” She nonetheless denied Malhan’s motion because the relief he sought was barred by the Rooker-Feldman doctrine [which limits federal intervention in state proceedings -EV]. Malhan suffered another defeat when the Appellate Division of the Superior Court of New Jersey denied his application for an interlocutory appeal of the Gag Order.

After Malhan failed to enjoin enforcement of the Gag Order, Nichols filed the instant action in this Court.2 Nichols wishes to interview Malhan about his experiences in family court, which according to Nichols, “are a matter of public interest.” Nichols contends that that he is unable to interview Malhan because the Gag Order restricts Malhan from saying anything that relates to his divorce proceedings.

The [Complaint] alleges that Judge Sivilli entered the Gag Order without conducting any meaningful weighing of the First Amendment interests at stake. According to Nichols, Judge Sivilli did not hold a plenary hearing and made no specific findings as to why a gag order was required in this particular case; instead, she issued the Gag Order “based on a generalized finding that publicity in family court is not in the best interests of children.” … Nichols seeks … a declaratory judgment that the Gag Order is unconstitutional ….

The [defendants’] motion to dismiss contends that the Gag Order is not a prior restraint and therefore must only be “reasonable,” a standard that, according to Defendants, is easily met here. In contrast, Nichols argues that the Gag Order is a prior restraint subject to the most exacting form of judicial scrutiny.

Once a court determines that a restriction on speech is a prior restraint, there will be a heavy presumption against its constitutional validity.. While the precise differences between a prior restraint and an ordinary restriction on speech are notoriously muddied, at the very least, prior restraints can be understood to “encompass[ ] injunctive systems which threaten or bar future speech based on some past infraction.”

The situation in this case, however, is less straightforward because the Gag Order does not impose any restrictions on Nichols; it restricts only the speech of Malhan, whom Nichols wishes to interview. [Footnote: Even though Nichols is not the subject of the Gag Order, his inability to obtain information from Malhan meets Article III’s injury-in fact-requirement.] The Third Circuit is silent on whether a gag order imposed on a trial participant can operate as a prior restraint on the press. Other Circuits that have addressed the issue are in disagreement. Compare In re Dow Jones & Co., Inc. (Dow Jones & Co.), 842 F.2d 603 (2d Cir. 1988) (gag order on trial participant does not operate as a prior restraint on the press), and Radio and Television News Assoc. of Southern California, 781 F.2d 1443 (9th Cir. 1986) (same), with Journal Publishing Co., v. E.L. Mechem, 801 F.2d 1233 (10th Cir. 1986) (gag order on trial participant is a prior restraint on the press presumed to be constitutionality invalid), and CBS Inc. v. Young, 522 F.2d 234 (6th Cir. 1975) (same).

The Court need not choose which side of the split to follow because even assuming that the Gag Order is not a prior restraint on the press, Nichols has sufficiently pled that the Gag Order is not justified. See Davis v. East Baton Rouge Parish School Bd., 78 F.3d 920 (5th Cir. 1996) (“We need not decide whether the confidentiality order constitutes a prior restraint on the news agencies because, even assuming that the order is not a prior restraint, its effect on the news agencies’ First Amendment rights must still be justified.” (citing Dow Jones & Co., 842 F.2d at 609)). The Dow Jones & Co. Court, which found that a similar gag order was not a prior restraint on the press, upheld the order only after concluding that it was justified. First, the court noted that the judge who issued the gag order examined specific circumstances unique to the case. For example, the judge found that press leaks attributable to the government revealed the identities and testimony of grand jury witnesses, which constituted a “shameful abuse of grand jury secrecy” that jeopardized the Sixth Amendment rights of the criminal defendants. Moreover, the judge issuing the gag order “properly recognized [that] before entering an injunction against speech he had to explore whether other available remedies would effectively mitigate the prejudicial publicity.” Dow Jones & Co., 842 F.2d at 609, 612 (citing Nebraska Press, 427 U.S. at 562).

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