by Paul Alan Levy
Last February, I discussed on this blog our appeal on behalf of an Alabama law firm and about a hundred of their clients who were subjected to an exceptionally broad gag order that forbade them from saying anything publicly or even privately about an extermination company that they had sued for false advertising. We originally sought both mandamus and a stay pending appeal.
In an opinion issued this morning, the Alabama Supreme Court unanimously reversed. Although the gag order was promoted below as being justified on the ground that some of the statements about the exterminating company were defamatory and harmful to its business, and as a form of professional discipline, the Supreme Court addressed only the third justification: that talking about the litigation might prejudice the exterminator's right to a fair trial. The court went out of its way to insist that it did not want to tie a trial judge’s hands in protecting the fairness of a possible jury trial, but said that the order was far broader than could possibly be justified by that claimed objective. What was needed, the court said, quoting from a Fifth Circuit decision, is “a nuanced approach to the delicate balance between the necessity of avoiding a tainted jury pool and the rights of parties to freely air their views and opinions in the 'market square' now taking the form of the electronic square known as the Internet."
As the advocate for the people whose speech was restrained, I am inclined to think that it was irresponsible for the Alabama Supreme Court to ignore the issue of a stay pending appeal, leaving a grossly overbroad prior restraint in place for eight months. But at least the order is now overturned, with a clear message to lower courts not to overreach against free speech.