This afternoon, the Reporters Committee for Freedom of the Press and 15 additional organizations devoted to professional journalism filed an Amici Curiae, or Friends of the Court, brief with the Court of Appeals for the Tenth District of Texas n behalf of a motion to lift the gag order imposed June 30 by Judge Matt Johnson on Scimitars Motorcycle Club member Matt Clendennen, his lawyer Clint Broden and others in the case.
The Reporters Committee provides free legal resources, support, and advocacy to protect the First Amendment and freedom of information rights of journalists working in areas where United States law applies. The other friends of the court are The Center for Investigative Reporting, Courthouse News Service, Cox Media Group, Inc., First Look Media, Inc., Gannett Co., Inc., Hearst Corporation, Investigative Reporting Workshop at American University, National Newspaper Association, The National Press Club, National Press Photographers Association, The New York Times Company, Newspaper Association of America, Radio Television Digital News Association and The Seattle Times Company.
The brief argues:
“ The gag order imposed in this case places unconstitutional restrictions on speech and prevents members of the media from gathering the news and reporting on matters of significant public interest. The trial court failed to apply the correct legal standard for determining whether and to what extent the constitutional rights of the press and the public under the First and Fourteenth Amendments and Article I, Section 8 of the Texas Constitution must yield to preserve (Clendennen’s) ability to receive a fair trial by an impartial jury. The record in this case does not include any findings of inflammatory or prejudicial media coverage that would support a determination that (Clendennen’s) fair trial rights would be threatened in any way by public access to information about his case – let alone findings of prejudice to the extent required to justify curtailing the exercise of state and federal constitutional rights. For that reason alone, the trial court’s gag order must be vacated.
“Moreover, the gag order is unconstitutionally vague and overbroad. Not only does it purport to restrain the speech of too many individuals, including witnesses and law enforcement officers who do not possess information that could jeopardize (Clendennen’s) fair trial rights, but the order also restricts too much speech and is of unlimited duration. The order prevents any gagged individual from making any comment whatsoever to the media, without regard to whether the information is innocuous, purely factual, or already a matter of public record. Unlike gag orders that have passed constitutional muster, the gag order’s ‘no comment’ rule does not preserve for (Clendennen’s) or his counsel the right to assert his innocence, the right to generally discuss legal claims and defenses, or the right to communicate with the media about the status of the proceedings against him. The trial court made no attempt to narrowly tailor the gag order to prevent dissemination only of prejudicial material, or even to limit the order’s duration. It is unclear from the language of the gag order what speech – if any – concerning (Clendennen’s) case or the underlying incident falls safely outside its ambit.
“In addition, the trial court failed to give proper consideration to alternatives designed to safeguard the integrity and impartiality of a jury, including voir dire, which is normally sufficient to root out prejudice, even in the most high-profile
and publicized of criminal trials.”