A Media Primer for Spinners: Silence is Golden, Especially When Required

Posted on Jun 29, 2017 in Blog Entry: Spinning the Law

Kendall Coffey is a former U.S. Attorney for the Southern District of Florida and founding member of Coffey Burlington, PL. Learn more about his expertise in law on his personal website: http://kendallcoffey.com/

With legal news, as with diets, some of the most delicious tidbits are off-limits. In fact, some laws make it a federal crime to disclose confidential information about especially sensitive subjects. In cases with national security implications governed by the Classified Information Procedures Act (CIPA), a leakster could potentially face criminal prosecution. Grand jury proceedings are also confidential, and prosecutors and government agents could be prosecuted themselves for disclosing those secrets. Significantly, witnesses are under no such restraints, and some are surprisingly talkative.

In ordinary circumstances, the rules prohibit attorneys from creating publicity that they know or should know will have a “substantial likelihood of materially prejudicing” the judicial proceedings. Publicity hounding early in a case is more tolerable, but as the trail draws near, the risk skyrockets that publicity reaching future jurors will influence their later decisions. Judges understandable perceive that the likelihood of prejudice is great with publicity that is near the time of trial as opposed to negative stories much earlier that are mostly forgotten by the average juror. Moreover, for prosecutors at least, extensive chest thumping about their case is rarely a good idea. Especially if defense attorneys are seeking to move the case to a different city, they will pounce upon press-happy prosecutors as purveyors of excessive pretrial publicity that prejudices potential jurors.

An even greater restriction on press communication is, of course, the gag order. Although the term gag order is often used loosely to describe an assortment of limitations, in its extreme form, a true gag order prohibits virtually any communication about a pending case by the litigation team or courthouse personnel. Ordinarily disfavored due to concerns for rights of the press and public, gag orders were imposed in the Scott Peterson and Michael Jackson trials because nothing else could adequately protect the defendants from barrages of relentless news coverage.

Some confidentiality orders are less drastic, even routine. For example, in cases about business trade secrets, courts frequently prohibit the disclosure of confidential processes, patents, or formulas. Perhaps because these restrict access to technical tedium rather than to courtroom dramas, they are often agreed upon by all parities and raise fewer objections from the media.