Recent Development by Robert N. Sidman
Several Louisiana public officials, including insurance commissioner Jim Brown and former governor Edwin Edwards, were indicted for allegedly using their political positions to halt a $27 million lawsuit by the state against a failed insurance carrier. Shortly after the indictment, Brown issued a statement in a news conference proclaiming his innocence and asserting his belief that he was the victim of an overzealous prosecutor. To combat Brown's influence on public opinion, the district court entered a gag order, sua sponte, on all parties, lawyers, and potential witnesses to prevent prejudicing the parties to the suit. The district court was also concerned with two related cases being tried almost concurrently, involving many of the same defendants, and arising out of the same federal investigation as the noted case. The aggregate effect of these three cases involving the alleged corruption of prominent public officials had attracted substantial national media coverage.
The district court temporarily lifted the gag order on September 28, 1999, to avoid obstructing the reelection campaign of Jim Brown, the incumbent insurance commissioner. Due to the subsequent release of tape recordings and interviews by several defendants, the district court issued a more limited order prohibiting the release of the tapes, interviews, and any other discoverable materials during his reelection campaign. The district court also asked the parties to submit suggestions for changes to the order if they believed modifications were necessary. None of the parties submitted such a request. After the election was completed and Brown was reelected insurance commissioner, the district court reinstated its original gag order. At a status conference, Brown objected to the reinstatement, but the district court denied his objection because of the intense publicity surrounding the trial. Brown then unsuccessfully moved for the district court to modify or vacate the order. He subsequently appealed the district court's ruling on his motion, claiming that the gag order violated his rights under the First Amendment. The United States Court of Appeals for the Fifth Circuit held that the gag order passed constitutional muster because it was based on a “substantial likelihood” that extrajudicial commentary by the defendant would undermine a fair trial, the gag order was narrowly tailored to accomplish this goal, and the order utilized the least restrictive means possible. United States v. Brown, 218 F.3d 415, 428 (5th Cir. 2000), cert. denied, 531 U.S. 1111 (2001).
About the Author
Robert N. Sidman.
Citation
76 Tul. L. Rev. 233 (2001)