Is GLWA Gag Order Constitutional?

For most purposes, Detroit’s historic bankruptcy (Case #13-53846) is over. However, on February 6, 2015, Bankruptcy Judge Steven Rhodes extended his Mediation Order (Docket #8468) of November 26, 2014, providing for negotiations concerning the lease of certain water treatment facilities from the Detroit Water and Sewerage Department by a newly created regional entity, the Great Lakes Water Authority.

Under the supervision of U.S. District Judge Sean Cox as mediator, representatives of the City of Detroit and the several counties that comprise the new authority will review anticipated costs and revenues and discuss the financial viability of the proposed lease.

In his Mediation Confidentiality Order (Docket #9176) of February 6, 2015, Judge Rhodes ordered that discussions and documents related to the lease negotiations shall be privileged and confidential. This is commonly referred to as a gag order.

For background, note that, concerning an overly broad, court-imposed gag order following the criminal indictment of former Massey Energy CEO Don Blankenship, the Corporate Crime Reporter said (November 18, 2014), “University [of] California Irvine Law Professor Erwin Chemerinsky has written on gag orders, including a seminal 1997 law review article…”

In the 1997 piece, [now Dean] Chemerinsky reminded us that, in Nebraska Press Association, 427 U.S. 539 (1976), the Supreme Court forbad gag orders on the press -- gag orders which were intended to thwart prejudicial pretrial publicity.  To get around that decision, trial courts began to impose gag orders on the parties and their attorneys.

Chemerinsky concluded that such orders are virtually always unconstitutional because they are founded on untenable assumptions.

First, it is assumed by judges imposing gag orders that publicity puts a fair outcome at too great a risk. Chemerinsky lists numerous, highly publicized criminal cases wherein defendants were subjected to prejudicial pretrial publicity but were acquitted nonetheless.

Next, even if publicity impairs fairness, it is false to assume that the comments of the parties or their attorneys outside the courtroom to the press or the public cause or exacerbate the impairment. Media frenzy doesn’t depend exclusively or even principally on what parties or counsel say.

In denying media access to the thoughts and opinions of participants, gag orders are likely counterproductive to a fair outcome.  That is to say, media are forced to rely on inferior sources of information, to which parties and counsel can’t respond, eroding the prospect of fairness even further.

The third untenable assumption is that, even if you accept that publicity is prejudicial and gag orders on participants make a positive difference, these considerations count more than our rights under the First Amendment.  Gag orders are prior restraints.  They restrict free speech and should be subjected to close, strict scrutiny.

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2165&context=faculty_scholarship

The public has a right to know what is being discussed behind closed doors about a proposed $50 million per year lease that water and sewer ratepayers will be obligated to pay for 40 years.  The GLWA/DWSD gag order is unconscionable, should be challenged in court and, if necessary, taken on appeal.