In re: Murphy-Brown LLC (P)

The district court must vacate a gag order imposing stringent restrictions on participants and potential participants in a series of nuisance suits brought against the hog industry in North Carolina.

Plaintiffs claim that hog farms give rise to undue amounts of odors, insects, and pests, not to mention the noise and debris generated by raising hogs and shipping them for sale. During a jury deliberation, the court issued a sweeping gag order on grounds that “the volume and scope of prejudicial publicity observed” led to a “substantial risk of additional publicity tainting or biasing future jury pools.” After this court ordered expedited review of the plaintiffs’ petition for mandamus relief, the district court granted the respondents’ motion to vacate the gag order.

First, the August 31 order vacating the gag order exceeded the trial court’s authority vis-à-vis the court of appeals. Allowing rescission of the gag order to stand would invite district courts to track cases on the appellate court’s docket, and when a reversal seemed possible or imminent, to pull the rug out from under the appellate court and the parties.

On the merits, the gag order doesn’t pass strict scrutiny. If judges can guide the jury to an impartial verdict, then no gag order may issue. Here, the trial court assembled impartial juries each time it needed to do so. The gag order should not have come before less restrictive alternatives including voir dire were somehow found or proven to be ineffective.

The gag order also included no findings specific to the various individuals it restricted. It treated lawyers no differently from parties, who in turn were treated the same as potential witnesses. Moreover, the gag order applied blanket restrictions to more than twenty cases that will be tried over a period of years. Individuals and organizations were led to guess whether they were “potential witnesses,” a term the gag order does not even define.

All these people care. This case is about their lives and their livelihoods. Whatever differences the parties and their supporters have, they possess in common a passionate First Amendment interest in debating their futures. It seems very wrong that a court would take that from them.

Petition granted.

In re: Murphy-Brown LLC (P), No. 18-1762, Oct. 29, 2018. 4th Cir. (Wilkinson) from EDNC at Wilmington (Britt).

Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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