One of the things most people living in the United States take for granted is our right to free speech. Those of us who have grown up in the United States have been told since we are children that our right to speak out is sacred, and that right will be protected against anyone who tries to limit it. That is why it may come as a surprise to know how easy it is to have the right to speak and comment taken away from you. This can be done when a court issues a “gag order.”
A gag order is as unpleasant as it sounds. It prevents you from speaking about what is happening in a particular case before the court. The classic type of gag order is one that might be issued in a highly-publicized case. The parties, attorneys, and witnesses are prevented from any public discussion of the case in order to prevent potential jurors from forming opinions before they hear the evidence.
While a gag order may, in theory, be issued only for a very important reason, such as protecting personal privacy in a lawsuit involving sensitive matters, courts have been too willing to issue orders just to make life easier for someone involved in a case. These orders often have nothing to do with keeping sensitive information from the public. For example, a court-appointed guardian of an incapacitated adult will often seek a gag order preventing the adult’s family or close friends from discussing the guardianship case with anyone. That’s right – these orders may bar discussion with anyone, not just the news media. This means a family member of a person under a guardianship might be prohibited from talking to a health care provider or a caregiver to find out how a loved one is doing, or whether his or her care is adequate. A simple conversation with an attendant in a nursing home could be claimed to be a violation of the gag order and could make the person who asks a few simple questions subject to sanctions for contempt of court. The gag order makes the guardian’s life easier by effectively cutting him or her off from any kind of scrutiny or accountability, except for going back to court. In my opinion, it generally does nothing to help the person who is supposedly being cared for.
Gag orders in guardianship cases often go unchallenged. Many family members are unaware of the options available to them to challenge or fight such an order. Or they lack the financial and legal resources to do so. They may even have been led to believe that there is nothing wrong with a gag order, and so may not understand that it is a violation of their rights to free speech.
