Conclusion It is this author's conclusion that a trial judge should not issue a gag order covering a criminal defendant for the following reasons.
First a gag order infringes the defendant's first amendment rights.
Second, the public interest in a fair trial does not justify the issuance of an order including the defendant.
Furthermore, until some legal justification is developed, the contempt power is not available as a remedy to enforce such an order.
It cannot be ignored, however, that the Supreme Court has expressly sanctioned the proscription of extrajudicial statements by parties.' 86
To muzzle the defendant without his express permission emasculates fundamental Constitutional rights. In the words of Justice Black: The First Amendment is truly the heart of the Bill of Rights. The Framers balanced its freedoms of religion, speech, press, assembly, and petition against the needs of a powerful central government, and decided that in those freedoms lies this nation's only true security. They were not afraid for men to be free. We should not be. 87
