AAN has decided to wade into the rough and tumble world of motorcycle gangs. Not literally, it’s more of an “amicus legal brief” type thing.

This arises out of one of the 177 criminal prosecutions of participants in the huge riot/fight/shootout between rival motorcycle gangs in Waco, Texas in May. The trial court judge issued a gag order which “takes judicial notice of: (1) the unusually emotional natures of the issues involved in this case, (2) the extensive local and national media coverage this case has already generated and (3) the various and numerous media interviews with counsel for the parties that have been published and broadcast by local media” all of which serves to increase the volume of pre-trial publicity. His order decrees that prior to and during the trial:

1. All attorneys must strictly adhere to the letter and spirit of the Texas Code of Professional Responsibility governing comments to the media and shall specifically “refrain from making ‘extrajudicial statements that a reasonably person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of material prejudicing an adjudicatory proceeding.’”


2. Attorneys, staffs and law enforcement officers shall not discuss this case with the media.


3. Witnesses shall not discuss the case with the media when they have previously given statements to law enforcement or the District Attorney’s office, or if they have testified in investigative or administrative proceedings. Those who give such statements after the entry of this order shall not discuss this case with the media.


4. Attorneys, however, may communicate with parties in order to prepare for trial. 3rd parties (presumably the media) who attend the trial can publish information they have already obtained or can obtain in the future – so this doesn’t directly censor media, though it does sharply impact the media’s ability to obtain information about the case.

The order was appealed to the Tenth Circuit Court of Appeals for Texas. We were invited to join then but declined, preferring to wait until the case reached the highest level of the state court system (as per our usual practice). The Court of Appeals for the Tenth Circuit of Texas conditionally granted mandamus relief and ordered the Trial Court to lift the Gag Order. The McLennan County District Attorney has appealed that ruling to the Texas Court of Criminal Appeals, which is the highest court in Texas for criminal cases and, thus, equivalent to the Supreme Court. This is where we stepped in, joining 24 other media organizations and companies on a brief drafted by the Reporters Committee for Freedom of the Press.

The brief provides an overview of the importance openness plays in preserving the defendant’s right to a fair trial in criminal proceedings, also noting that the United States Supreme Court has held (repeatedly) that a trial judge must make specific judicial findings, consider less drastic alternative and narrowly tailor the order to address the identified harm (the same is true under the Texas Constitution).

It also notes that this particular gag order violates both the U.S. and Texas constitutions because it is vague, overbroad and unsupported by findings of a sufficient likelihood of prejudice. There are no specific findings to show a substantial likelihood of prejudice, let alone a serious and imminent threat. There is no indication that any press coverage has been prejudicial to the defendant. The gag order seemed more concerned with the possibility of broad coverage, not any specific instances of coverage to date. The order itself is also both overbroad and vague. It restricts innocuous speech that poses no risk of prejudice. It is not limited to individuals who might convey potentially prejudicial information about the case – it just covers any witness who has given a statement to law enforcement, whether or not they have, will or may participate in court proceedings. The gag order is also of unlimited duration through the trial. Finally it does not clarify whether the prohibitions apply only to this specific prosecution or to facts of the underlying incident that are unrelated to this particular case.

Finally, we object to the fact that the trial court improperly rejected less restrictive alternatives to this expansive gag order, primarily by focusing on the volume of publicity generally but not the effect on this particular case. The judge, for instance, never explained why extensive jury questioning was insufficient to protect a fair trial. In fact, in most, if not all cases, extensive voir dire should be more than sufficient to guarantee an impartial jury.