In recent years, the judicial system has struggled to strike the proper balance between free speech and a fair trial in a world where social media is ever-pervasive.  In just the last year, John Craven noted that juror tweets have caused numerous mistrials, Marina Visan reported that Facebook “likes” are not protected by the First Amendment, and guest blogger and attorney James P. Goslee discussed whether discovery can reach information posted on Facebook profiles.  Last week, another judge addressed yet another issue with regard to a different type of social media: the blog.

When Dr. Linda Cheek was accused of prescribing pain medication illegally, she took to her blog to begin her defense.  She accused the government of collusion and of treating her like a Colombian drug lord.  In response to Dr. Cheek’s inflammatory remarks, the U.S. Attorney’s Office for the Western District of Virginia requested a gag order on the defendant, seeking a prohibition on “internet blogging, tweeting and otherwise public communication about her trial.”  Judge Glen Conrad rejected the prosecutor’s motion, citing the defendant’s First Amendment right to free speech as support.

The Wall Street Journal Law Blog covered the issue on February 6.  Intrigued by the balance of free speech and a fair trial, WSJ turned to Ken Paulson, President and CEO of the First Amendment Center at Vanderbilt, for some answers.  Paulson explained that while the judge has the duty of ensuring a fair jury trial, he also must be rather deferential to the defendant’s free speech rights.  While the circuit courts are split on the proper standard to apply, gag orders are generally only issued when the defendant’s speech is so inflammatory and/or untrue that it will create either (a) a clear and present danger of an unfair trial, or (b) a substantial likelihood of an unfair trial.

It will likely remain unclear what the proper standard is until the U.S. Supreme Court takes a case.  Until then, defendants will walk a fine line between defending themselves in the “court of public opinion” and inciting the public so egregiously as to cause a mistrial.

Erin Reimer

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2 Responses to Social Media and a Fair Trial… Again

  1. Michael Dearington says:

    Hey Erin, a very thoughtful post, and one that highlights, through other JETLaw posts, the pervasiveness of the issue. I tend to think, from a normative standpoint, a defendant should be able to vent to her own network in whatever way she pleases so long as she does not compromise the prosecution’s ability to prosecute. Thus, unless her network is so large as to reach a potential jury and disrupt jury selection, for instance(e.g., if she were writing an op-ed for a local news paper), I don’t see why she should be silenced.

  2. Joanna Collins says:

    Great post, Erin! I think an important fact in this case was that it was the defendant who was engaging in speech on a social media site. It seems as though the main purpose of gag orders to protect the defendant’s right to a fair trial, so, arguably, a defendant should have a greater right to free speech than a prosecutor, juror, or witness in this context. If, for example, the prosecutor disclosed negative facts about the defendant on a blog, this would pose a threat to the fairness of the trial because it could influence the jury. However, if the defendant blogs about how unfair the trial is, this does not undermine her own rights as a criminal defendant in any way.