From U.S. v. Smith, decided Tuesday by Magistrate Judge John Love (E.D. Tex.):
On November 10, 2022, Defendant was indicted on one count of Deprivation of Rights Under Color of Law in violation of 18 U.S.C. § 242. The indictment charges that Defendant violated 18 U.S.C. § 242 when he directed his police dog, Mata, to bite a minor, R.E., while R.E. did not pose a threat that warranted the use of the police dog. The indictment charges the police dog caused bodily injury to R.E…. [T]he government filed … a request for this court to enter a gag order against Defendant Smith and his attorney….
The Supreme Court has called a gag order "one of the most extraordinary remedies known to our jurisprudence." If the district court determines that there is a "substantial likelihood" that extrajudicial commentary by trial participants will undermine a fair trial, then it may impose a gag order on the participants, as long as the order is also narrowly tailored and the least restrictive means available. Gag orders are appropriate for trial participants only when there is a substantial likelihood that comments from the lawyers and parties might taint the jury pool. The court must ensure they are narrowly drawn and the least restrictive corrective measure available to ensure a fair trial. Prior restraints on free speech are traditionally disfavored. For a prior restraint to stand, the government must demonstrate that (1) the activity restrained poses a clear and present danger or serious and imminent threat to compelling government interest; (2) less restrictive means to protect that interest are unavailable; and (3) the restraint is narrowly tailored to achieve its legitimate goal….
Although titled as a motion for protective order, the government's motion actually asks the court to enter a gag order in this case. The government contends there is a threat to a fair trial warranting a gag order in this case based upon: (1) a previous Facebook post made by Defendant Smith that contained content disclosing personal identifiable information of the minor victim contained in an arrest warrant; and (2) defense counsel's statements to the media where he attacked the victim's character, called him derogatory names, and referenced unadjudicated charges against him. Defendant contends the information regarding the minor in his arrest warrant was made public and that the government started a publicity fire when it released a press release first….
