Gag Orders and Free Speech

Many forces have been attacking the freedom of speech recently. This is due to an America filled with rabid tweeting, lack of transparency from government agencies, misinformation from scientists, and protests against racism. Everybody wants their voice to be heard, but the abuse of free speech has caused doubt about all so-called facts. It seems that facts belong to the highest bidder. Nobody knows what is actual because nothing is factual. That is why it is important to understand the importance of gag orders and free speech. 

Gag orders are a tempestuous notion in nearly all circumstances, but they do serve a purpose. They offer a chance for a fair trial, protection, control of publicity, and privacy. They prevent people from knowing things that would harm others. However, they can infringe on constitutional rights like the First Amendment. Gag orders are often a welcomed rule for one party, but those who create them must be careful not to infringe upon the rights of citizens. 

What is a Gag Order?

A gag order is basically an order that a person not talk publicly about a case or subject included in the order. It is usually issued by a judge or government agency, but it can be issued by the private sector. 

Gag orders should be very specific and limited to only essential elimination of communication in order to be constitutional. It is very easy to make a gag order illegal by expanding its use to private communication. There are many arguments about whether or not the use of social media can be banned. This is because social media is considered private speech, but it has an almost public reach. 

Examples of Gag Orders

Examples of gag orders can come from many places. A defendant involved in reaching a settlement in a civil case may wish the amount of the settlement to be kept quiet from the public. A court may ask that all participants in a criminal case remain silent about case details in order to protect participants. This type of a gag order may also be meant to keep the jury from hearing news briefings that could create bias. 

Although court cases are one place for gag orders, they can exist outside of the legal system. Private organizations may require discretion in regard to trade secrets or business practices as a condition of employment. Government agencies may issue gag orders about sensitive issues that could cause harm to the public. There are many unique reasons to use gag orders, but some of them are used inappropriately. 

Florida’s Physician Gag Order

Florida was the first state to impose a physician gag order in 2011. The order prohibited doctors from asking their patient about whether or not they own guns. However, this gag order was eventually discarded. The courts found that it limited physicians’ duty of care and infringed upon their freedom of speech. Doctors are now allowed to inquire about gun ownership and recommend safe gun ownership practices. 

1st Amendment

Misuse of gag orders can infringe on people’s 1st amendment rights. The first amendment guarantees the freedom of religion, expression, press, and the freedom to assemble. It is what allows protests in the street and various religions to coexist in America. More commonly, people recognize the 1st amendment as the freedom of speech. 

Free speech is incredibly important in order to maintain our freedom from the government. It allows us to say things that are contrary to politicians. It allows us to protect ourselves from corruption and express our opinions. We each have a voice, and that voice is crucial to the continuance of democracy. 

In a world without free speech, we would not recognize injustices and falsehoods because they could be covered up. There would be no whistle blowers to prevent wrongdoings. 

A good example of what happens when there is no freedom of speech is the city of Ashgabat in Turkmenistan. It is called the City of the Dead although it is a beautiful and rich city. This is a city that definitely lacks free speech. The people walk around quietly (like the walking dead), and they will not speak ill of their leader. In fact, they get nervous and try not to speak to any outsiders. They are completely oppressed. 

In America, citizens constantly have to fight to exercise their right to free speech.  Gag orders are constitutional, but only if they are specific and very limited. Allowing too much speech limitation is a slippery slope, and the courts have a very important job in protecting the first amendment. 

6th Amendment

The 6th amendment provides an argument in favor of gag orders. It requires all defendants in trials the right to a speedy trial by a fair and impartial jury. An impartial jury is difficult in cases that are high profile such as those involving celebrities. In these cases, a judge may issue a gag order, so there will be some impartial jurors available. 

What Happens if You Break a Gag Order?

If you break a gag order, a court may find you in contempt and issue a fine or sentence you to jail time. If you break a non-disclosure agreement, a company may have a right to sue. You may lose your job or face other punishments. Generally speaking, you’ll know what will happen if you break a gag order based on the language within it. 

Transparency vs. Privacy

The controversy behind gag orders hinges on the value of transparency and privacy. Transparency breeds trust and honesty. It holds people accountable for their actions and prevents corruption. 

On the other hand, privacy is definitely valued. This is especially true in America where citizens believe in the freedom to make their own decisions and keep them private. Transparency and privacy requires balance. 

Still, gag orders definitely have value in that they keep things private in order to protect private entities or defendants from harm. Just like in situations where hate speech is limited, gag orders try to better society rather than harm it. 

Should You Agree to a Gag Order?

If the courts issue a gag order, you don’t really have a choice. You may appeal a gag order, but courts are unlikely to overturn it unless it is clear that there could be a fair trial without the order. Some people, such as Roger Stone, have had gag orders that they claimed were unconstitutional. In his case, he claims that the gag order doesn’t allow him to defend himself. Meanwhile, the press has definitely been able to speak out against him. 

A non-disclosure agreement (NDA) is different from a gag order issued by the court because it does require a signature. You may not receive a settlement unless you agree to it. In other cases, you may not be able to work at a certain place without agreeing to a non-disclosure agreement. It is important to consider the consequences of signing a NDA as well as the consequences of not signing it. You may change your mind with time. 

One famous example of changing her mind is Stormy Daniels. Some of the details of this case are alleged rather than confirmed facts. It appears that she signed an NDA in return for a $130,000 payment. However, she did not remain silent about her affair with President Trump. Whether it was “noble” to break the NDA or done more for the purpose of fame, she changed her mind. This is why it is important to consider consequences. 

If you are considering signing an NDA or have been unconstitutionally gagged, talk to a lawyer. If you want to speak with a personal injury lawyer, contact Kirshner, Groff, and Diaz. You’ll speak to an actual lawyer right away and get a no-obligation consultation about your case.

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