Gag orders can continue

Supreme Court declines to hear challenge to silencing lawyers

October 03, 2006|By David G. Savage | David G. Savage,Los Angeles Times

WASHINGTON -- In a setback for lawyer and TV commentator Gloria Allred, the Supreme Court refused yesterday to hear a free-speech challenge to the increasingly common practice of judges issuing "gag orders" for all the lawyers in highly publicized criminal cases.

The order turning down Allred's appeal came on an unusually quiet first day of the court's fall session.

By law, the justices open their term on the first Monday in October. But since this year it came on the Jewish holiday of Yom Kippur, the justices postponed the first oral arguments until today. At 10 a.m., the court issued a list of nearly 1,900 appeal petitions which were turned down without comment.

Those included a constitutional challenge to a Texas law that makes it a crime to sell some vibrators and other sex toys. Similar laws have been struck down on the grounds that they violated the right to privacy by state courts in Colorado, Kansas and Louisiana but upheld in Georgia, Alabama, Mississippi and Texas.

For its part, the Supreme Court has shown no interest in deciding the issue. It turned down an appeal from Alabama last year.

The vast majority of appeals come from prison inmates, and nearly all are rejected without comment.

Although the media and the public have a right to see and hear trials, the participating lawyers do not always have a free-speech right to talk about their cases. Judges sometimes have barred lawyers from speaking out about a pending case on the theory that their public pronouncements could threaten the defendant's right to a fair trial.

Erwin Chemerinsky, a Duke University law professor, filed an appeal on Allred's behalf, arguing that the court should clarify when a judge can bar lawyers from talking in public.

"In virtually every high-profile case, it is now routine for trial courts to issue broad gag orders preventing attorneys, parties and witnesses from making public statements," he said in the appeal. These orders not only prevent lawyers "from speaking to the press about pending cases" but "even from commenting on the wrongdoing of government officials."

Last year, a state judge in Contra Costa County presiding over the murder trial of Scott Dyleski barred prosecutors and defense lawyers, including those who represented witnesses, from making any out-of-court statement about evidence in the case.

Allred and her law firm had been hired to represent a minor who was a potential witness. The judge said the order was not intended to prevent commentators from speaking on the case but "insofar as [Allred] is an attorney for a material witness, she will be subject to the same constraint as another attorney representing a party or witness."

Chemerinsky's appeal pointed out that this was the first time Allred had been subjected to a gag order. The judge's order was upheld by a California appeals court, and the state Supreme Court refused to hear it.

Attorney General Bill Lockyer also urged the high court to reject the appeal. He said judges are doing a good job of deciding when "gag orders" are needed to preserve a fair trial, and there was no need for a special rule in "the unusual situation of an attorney in a high-profile case" who also "regularly comments on legal matters on television."

Dyleski, now 17, was convicted in August of the murder of Pamela Vitale, the wife of prominent defense lawyer Daniel Horowitz, and was sentenced last week to life in prison without parole.

David G. Savage writes for the Los Angeles Times.

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