Gag Orders and Shield Laws

Overview

Gag orders and shield laws are generally designed to protect the rights of victims and the accused. To ensure compliance, presiding judges have great latitude in the enactment of gag orders, and they have the authority to restrict the release of information by victims, defendants, lawyers, witnesses, jurors, and the media. Gag orders generally ban relevant parties from discussing any aspect of the case in public. After the terrorist attacks of 9/11, US Congress gave the government extended authority over the issuance of gag orders, making them discretionary when national security and military action are involved, when public release of information might interfere with law enforcement, and when there is a potential for personal danger if information is made public. Some 97 percent of all National Security Letters now include gag orders as a matter of course, and search warrants issued by the Intelligence Surveillance Act Court are routinely sealed. The government prohibits communication providers from notifying customers when they are under government-ordered surveillance. Shield laws are designed to protect victims of rape and sexual assault from being publicly identified and to protect journalists from being forced to name confidential sources. No shield law exists at the federal level. The fact that the First Amendment protects the free speech rights of those involved in a case and the right of the press to cover public trials may complicate handling of cases affected by shield laws and/or operating under a gag order. Historically, the courts have upheld First Amendment rights more often than rights dealing with fair trials as specified in the Constitution. The right of the press to cover public trials has also been at issue when judges close trials.

Media claims that the Sixth Amendment guarantees media access since all trials and proceedings must be public have been rejected, with judges insisting that the right is guaranteed to those accused of crimes rather than to media reporting on trials. Judges have a great deal of leeway in determining whether trials should be open or closed, and the accused may sometimes request a closed trial. In the 1970s and 1980s, a number of cases concerning the right of public access to trials came before the US Supreme Court. When the Nixon administration demanded that the infamous White House tapes, which they had been forced to release to a district court, be kept from the media, a lawsuit was filed. In Nixon v. Warner Communications (1978), the Court rejected the common-law right of media to access the tapes, holding that the discretion of whether to release the tapes should remain with the district court. In a criminal case the following year, the Court again rejected a Sixth Amendment right of the media to public access but hinted that the First and Fourteenth Amendments might protect that right (Block-Weber, 2018). In 1982, the Court overturned a Massachusetts law that provided for closed trials only in cases involving minors. Recognition of the First Amendment right of the press to cover trials was established in 1980 with Richmond Newspapers, Inc. v. Virginia.In a concurring opinion, Justice William Brennan argued that trials must be open to the press (1) when an established history and tradition of openness exists and (2) to ensure transparency as mandated by a republican form of government.

In response to the women’s movement and greater awareness of women’s rights, Congress passed the Privacy for Rape Victims Act in 1978, establishing Rule 412 of the Federal Rule of Evidence. Jurisdictions at virtually all levels, including the military, adopted Rule 412, prohibiting defending attorneys from bringing up evidence of a victim’s past sexual history unless that history might help to provide evidence of an alternate attack or sexual activity, if doing so might prove consent, or if not introducing the evidence would deny the constitutional rights of the defendant(s). Before the passage of the first shield laws and the enactment of new trial rules governing the treatment of rape and sexual assault victims in court, accusers were often treated as criminals rather than victims. They were told that the way they dressed must have encouraged attacker(s), and their past sexual histories were used to “prove” that they had agreed to consensual sex. Courtroom attacks were even more vicious in cases where an accuser had a past sexual history with her attacker. Even though the time had passed when women were not allowed to testify in court or serve on juries, female witnesses were often perceived of as less reliable than male witnesses.

Even though gag orders and shield laws surfaced in response to the women’s movement and the attempt to prevent rape and sexual assault victims from being traumatized by the publicity surrounding such an event, in practice the chief purpose of rape shield laws came to be to ensure a fair trial for the accused by protecting his rights. However, they continued to govern rules of conduct during a trial that were intended to protect both the accuser and the accused.

Gag orders that prevent the press from exercising their right to cover trials frequently results in lawsuits. The landmark case dealing with this subject is Nebraska Press Association v. Stuart(1976) in which the judge in the murder trial of Erwin Charles Simants, who was charged with the murders of six members of a family, issued a gag order that prevented the press from reporting on testimony given or “evidence adduced” at Simants’s trial. The Court upheld the gag order but limited its reach. Attorneys bound by gag orders may be prevented from discussing a case outside the court, and the American Bar Association mandates that all lawyers exercise proper judgment and refrain from engaging in public speech that might be considered prejudicial to their clients.

In the interests of guaranteeing a free press, shield laws are also used to protect the right of journalists to refuse to disclose the names of confidential sources. All states except Hawaii provide a measure of protection for journalists. However, those rights might not be protected under federal law. In 1972 in Branzburg v. Hayes,the Court rejected the unlimited right of protections for journalists by holding that the First Amendment does not prevent journalists from answering questions about sources in criminal cases. Justice Powell argued that a case-by-case determination was the best way to deal with such cases. A reporter who refuses to disclose a source in defiance of a court order may be jailed for an indefinite period. For instance, In re Grand Jury subpoena, Judith Millerin 2005 dealt with the case of a New York Timesreporter who spent 85 days in jail for refusing to name her source for identifying the wife of a former ambassador as a CIA operative. Miller was not released until Lewis “Scooter” Libby, the chief of staff for Vice President Dick Cheney, admitted to being her source. Contrarily, a reporter who does disclose a source may face a civil suit by an informant who was assured of confidentiality. According to state laws, journalists may have the right to refuse to answer information that can be obtained from alternate sources, or journalists may choose to distance themselves geographically to place them outside a court’s jurisdiction.

Applications

The Sixth Amendment stipulates that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Both trials and searches were public before the nineteenth century. However, in the early twentieth century, the Supreme Court refused to uphold the right of law enforcement to carry out warrantless searches. By the early twenty-first century, experts were convinced that widespread access to the internet was making old privacy and shield laws obsolete in many ways. The rise of social media sites like Facebook, Twitter, and Instagram provides users with numerous ways to post messages, images, and videos without regard to the privacy of victims and/or accusers. Anyone with access may set up a website or write a blog without being limited by the factchecking that limits traditional media to some extent. In the case of alleged rapes and sexual assaults, persons accused of crimes often post their own accounts of incidents, including the names and personal details of their accusers, overriding shield laws that might be in effect. The result is that accusers may be harassed and bullied long before a case ever comes to trial. This practice has led rape scholars to identify this period as the “third rape,” with the first occurring during the initial attack and the second taking place when the victim faces the accused and defense lawyers in court. Those who work with rape survivors have found that limiting trial publicity and protecting the identity of victims helps immensely in the recovery process.

The use of gag orders has significantly expanded. In 1986, Congress passed the Electronic Communications Privacy Act, which expanded protections for government searches of electronic communications. The Stored Communications Act allowed the government to install pen-register and track and trace devices on the telephones of suspect individuals. Congress subsequently amended the act in 1994 with the Communications Assistance for Law Enforcement Act; and following the 9/11 terrorist attacks on the United States in 2001, the act was further amended with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act). In 2008 with the FISA Amendments Act, Congress amended the Foreign Intelligence Surveillance Act of 1978 to give the government additional power to monitor electronic surveillance. A number of bipartisan bills have subsequently been introduced in Congress for the purpose of making gag laws more responsive to the twenty-first century environment.

Constitutional scholars, defense attorneys, and advocates for the right of the accused have become increasingly concerned about widespread authority given to judges to conduct warrantless searches. In a 2009 study of 15,000 court cases that took place in 2006, only 54 percent were instituted after search warrants were obtained; 37 percent were carried out through the use of pen-registers and trap and trace devices attached to telephones to monitor outgoing and incoming calls (Bloch-Weber, 2018). Applications for search warrants to conduct surveillance of electronic data continues to rise, and most applications are accompanied by gag orders that prohibit notifying individuals they are under surveillance. Although the law calls for notification within 90 days, sealing gag orders prevents that stipulation from being put into effect. The Administrative Office of the United States Courts reports that from October 1, 2020, and September 30, 2021, nearly twenty thousand delayed-notice search warrants were requested. The cell phone provider Verizon reported receiving more than 330,000 demands from law enforcement for customer data in 2021, and Facebook reports that about 60 percent of all such requests include a gag order. Even though the number of government requests to monitor landlines, cell phones, emails, instant messages, and website visitations had increased significantly, the number of requests for search warrants has declined (Tricchinelli, 2012). In the summer of 2011, Judge Stephen W. Smith, a Texas magistrate judge, published an article in Law and Policy Reviewin which he called for greater transparency concerning gag orders. He insists that gag orders are routinely considered to be “written in invisible ink.” Smith notes that between 1995 and 2007, of 3,886 sealed electronic search requests in Houston, 99.8 percent remained sealed in 2008. Other judges have reported similar experiences.

Viewpoints

Gag orders intended to prevent discussions of trials outside of courtrooms also serve to gag victims and prevent them from publicly telling their own stories. State and local laws may also prevent the public identification of minors involved in crimes. Thus, in a rape or sexual assault case involving a minor, details may be even more closely guarded. In a 2011 case, for instance, a 16-year-old girl, Savannah Dietrich, was partying with friends. After she drank too much and passed out, she was sexually assaulted by two male acquaintances. Her assailants photographed the assault and posted it on the internet. During the subsequent trial, the two males were offered a plea bargain that allowed them to plead guilty to sexual assault in the first degree and a misdemeanor charge of voyeurism. The judge issued a gag order designed to prevent Dietrich from telling her side of the story and identifying the males, even though they had already violated her privacy by posting images of the assault. She chose to ignore the order and posted their identities on Twitter. At that point, the national media began following the story. The opposing lawyer filed contempt charges against Dietrich, threatening her with a $500 fine and up to six months in jail—a more severe sentence than her attackers had received. A public outcry led to withdrawal of the charges (Birdsell, 2014). In 2023, a New York appeals court upheld a gag order barring former president Donald Trump from discussing court personnel during his New York civil fraud trial, for which he was found guilty of inflating his net worth to obtain better business deals. The court ruled that Trump's attorneys should not have sued trial judge Arthur Engoron, who imposed the gag order after Trump made negative remarks about his law clerk.

In the absence of hard evidence or witness testimony, rape and sexual cases may involve “he said/she said” scenarios in which jurors are asked to decide whether the accuser or the accused presents a more believable case. In such cases, the skill of lawyers is a major factor in the outcome. Bennett Capers (2017) contends that in the case of Stephens v. Miller, an Indiana shield law caused the accused to be denied his constitutional rights. Sitting en banc,the Seventh Circuit Court of Appeals upheld the conviction of Stephens who had been sentenced to 22 years in prison for the rape of a female acquaintance in 1987. Stephens had offered conflicting testimonies and had even gone so far as to convince a friend to lie in order to give him an alibi. Capers argues that the fact that Stephens was prohibited by shield laws from bringing up what he said was proof of the promiscuity of the victim and her initial consent to engage in sexual activity was evidence that shield laws, often passed in the 1970s, are “over inclusive” and that they interfere with a defendant’s right to obtain a “proper judgment” when accused of rape or sexual assault.

Most criminal lawyers agree with Bennett Capers that rape shield laws are unconstitutional because they deny the accused the right to have all aspects of a case brought out in court. Women’s rights advocates strongly disagree, decrying the so-called “purity myth” that assumes that a female who has been sexually active cannot be raped. Advocates insist that overturning shield laws would return women to the pre-1970s rape culture in which trying victims rather than defendants in court led to the encouragement of male aggression, the support of cultural violence against women, and the condoning of physical and emotional terrorism toward women (Loewen, 2015).

There have been a number of incidents in the early twenty-first century that have shown that shield laws have not totally eradicated the pre-shield law treatment of women. In 2016, John C. McKeon, a Montana judge, was threatened with impeachment after sentencing a father who repeatedly raped his 12-year-old daughter to only two months in jail, including time served while awaiting the trial, even though prosecutors had recommended a 25-year sentence. McKeon followed through on his previously announced plan and retired.

Bibliography

Birdsell, B. (2014). Reevaluating gag orders and rape shield laws in the internet age: How can we better protect victims? Seton Hall Legislative Journal, 38(1), 71–97. Retrieved December 23, 2018 from EBSCO Online Database Academic Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=asn&AN=111830771&site=ehost-live

Bloch-Wehba, H. (2018). Exposing secret searches: A First Amendment right of access to electronic surveillance orders. Washington Law Review, 93(1), 145–199. Retrieved December 23, 2018 from EBSCO Online Database Academic Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=asn&AN=129006698&site=ehost-live

Capers, B. (2017). Rape, truth, and hearsay. Harvard Journal of Law and Gender, 40(1), 183–228. Retrieved December 23, 2018 from EBSCO Online Database Academic Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=asn&AN=123978397&site=ehost-live

Docter, S. (2010). Blogging and journalism: Extending shield law protections to new media forms. Journal of Broadcasting and Electronic Media, 54(4), 588–602. Retrieved December 23, 2018 from EBSCO Online Database Academic Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=asn&AN=56038589&site=ehost-live

Herman, S. N. (2011). The war on terror and the erosion of American Democracy. New York: Oxford University Press.

Liptak, Adam. (2022, April 18). Can the S.E.C. Require 'Gag Orders' When It Settles Cases? The New York Times. Retrieved June 27, 2022, from https://www.nytimes.com/2022/04/18/us/politics/supreme-court-gag-order-sec.html

Loewen, K. (2015). Rejecting the purity myth: Reforming rape shield laws in the age of social media. Women’s Law Journal, 22(2), 151–166. Retrieved December 23, 2018 from EBSCO Online Database Academic Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=asn&AN=112950050&site=ehost-live

Peters, J. (2016). Shield laws and journalist’s privilege: The basics every reporter should know. Quill, 104(5), 14–18. Retrieved January 1, 2019 from EBSCO Online Database Business Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=bsu&AN=119182555&site=ehost-live

Siegel, P. (2008). Communication law in America. (2nd Ed.). Lanham, MD: Rowman Littlefield.

Sisak, M. (2023, Dec. 14). Appeals court again upholds gag order barring Trump from commenting about judge's staff. PBS News Hour, www.pbs.org/newshour/politics/appeals-court-again-upholds-gag-order-barring-trump-from-commenting-about-judges-staff