Gag Order in Georgia Murder Trial Stuck Down

In February 2017, Ryan Duke was arrested and charged with the murder of Tara Grinstead, who went missing almost 12 years earlier.  Tara was a south Georgia high school teacher and beauty queen, and her disappearance and Duke’s subsequent trial attracted substantial media attention.  (Indeed, her murder has its own Wikipedia page.)

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Five days after Duke’s arrest—and at Duke’s request—the state trial court issued a gag order.  That order was incredibly broad.  The court prohibited the prosecution, all law enforcement, Duke, his lawyers, all potential witnesses, court personnel, and family members for both Duke and Grinstead from making any “extrajudicial statements” “by any means of public communication relating to any matters having to do with this case” until Duke’s case was over.  The court was concerned that the high-profile nature of the case might jeopardize Duke’s right to a fair trial.  After several news organizations complained, the court modified its gag order but still prohibited the prosecution, law-enforcement officials, and the defense from making public statements about the case.

Quick legal note.  A gag order is what’s called a “prior restraint” of speech, that is, a government restraint that operates before someone ‘speaks,’ as opposed to a punishment or sanction applied after the ‘speech’ takes place.  Courts do not look favorably on prior restraints, treating them as “presumptively unconstitutional.”

Okay, back to the Duke trial.  The news organizations—still dissatisfied—sued, arguing that the modified gag order was an unconstitutional restriction on their First Amendment rights.  The Georgia Supreme Court agreed earlier this year and unanimously struck down the modified gag order.  The Court held that there was no “reasonable likelihood of prejudice” to Duke from permitting lawyers and law enforcement from publicly commenting on the case.  The Court did not find any evidence that the extensive media coverage of Duke’s trial contained inflammatory statements or prejudicial information.  Rather, the overwhelming majority of the reports were based on public records.  “Prejudice sufficient to justify a gag order,” the Court said, “cannot simply be inferred from the mere fact that there has been significant media interest in a case.”

Duke’s trial is scheduled for summer 2019.

(For the legal nerds, this case also highlights a couple areas of the law with a fair amount of uncertainty, including (1) standing, (2) whether a non-restrained party can challenge a prior restraint, and (3) the different standards for assessing the constitutionality of gag orders.)

Case: WXIA-TV v. Georgia, No. S17A1804 (Ga. Mar. 5, 2018) (opinion here)

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