Governments prevent information from being made public through restraints on speech called “gag orders.” Government executive orders and court injunctions impose gags to restrict the flow of certain types of information to achieve specific government objectives. For example, many national governments enact laws or adopt executive orders to prevent the distribution of official government secrets, details of ongoing military actions, and national security data. Similarly, courts around the world impose injunctions and nonpublication orders to prohibit, or enjoin, public distribution of information that might prejudice the outcome of ongoing litigation. Gag orders are a form of prior restraint because they prevent the exchange of information before any harm occurs rather than imposing punishment in response to specific harms caused by speech. While some gag orders target individuals, many gags are imposed on the media as the messenger that disseminates information most widely.
Different nations and cultures have distinct histories and traditions related to the freedoms of speech and press. One foundational distinction rests upon a nation’s embrace of libertarianism or authoritarianism. More authoritarian nations tend to view press law as a means to advance the self-interest of the state, which includes maintaining law, order, and civility. More liberal nations see a more independent role for the press to provide external oversight of government to prevent political abuses and maintain an informed citizenry. These differences lead to divergent national presumptions about the costs and benefits of gag orders that suppress the exchange of information.
Canada, the United States, and Australia, for example, all trace their fundamental understanding of free-speech values back to England and share a strong common law presumption disfavoring prior restraints on speech. In these nations, judges are required to protect the integrity of court processes and enforce procedural safeguards to limit their own discretion and the power of government officers to impose gags on the media. Nonetheless, Australian and Canadian courts presume that media coverage of ongoing trials prejudices jurors and irretrievably damages the fairness of proceedings. As a result, Australian and Canadian judges routinely impose gag orders on the media to prevent distribution of information about ongoing trials. In the United States, however, court orders preventing the media from publishing information are presumed to violate the US Constitution and are subject to the most stringent standards of judicial review. US courts, therefore, commonly rely on prior restraints that stop attorneys, jurors, and other individuals engaged in the trial from sharing potentially prejudicial information with the media. In some instances, US courts uphold bans on reporters’ access to public officials to prevent continued unfavorable coverage or disclosure of leaked government information.
Many governments consider official control of the content of speech to be a legitimate function of the state and impose prior restraints and prohibitions on a wide range of subjects. The Press Ordinance in Palestine and Israel’s Defense Regulations give government the power to censor as well as to license, revoke, or suspend publications without court review. The Philippine Press Institute has fought government initiatives there to regulate media content by suspending or revoking broadcast authorizations. Venezuela’s Law on the Social Responsibility of Radio and Television is a criminal statute that prohibits the press from attacking or insulting government and punishes journalists who undermine state values and ideology. Both German and European Union standards prohibit denial of the Holocaust, and German law permits prior restraints on the press to avoid harm. In Paraguay and El Salvador, judges have extensive authority to impose gag orders to protect public morals and state security.
In rare cases, prior restraints reach beyond national boundaries. US Presidents Ronald Reagan and George W. Bush imposed a global gag rule that prohibited any non-US family planning organization that received US funds from disseminating information about abortion or lobbying for relaxation of anti-abortion laws. Members of the US Congress, the Council of Europe, and family planning experts across the Balkans, Africa, and the Americas opposed the so-called Mexico City Policy for its chilling effect on free speech and its negative impact on global women’s heath.
National standards and policies related to gag orders are not static, yet overall trends are difficult to assess. In general, more restrictive laws are adopted by authoritarian governments and during periods of national strife or insecurity. Political shifts toward democracy and international engagement tend to relax national policies on gag orders. For example, Panamanian government officials at the start of the twenty-first century moved to repeal key provisions of its decades-old criminal defamation laws that gagged the press and imposed severe penalties for criticism of government. The laws had been enacted under authoritarian military rule. Similarly, Thai courts revoked injunctions that prevented media from criticizing government officials as a means to preserve public peace and order. In addition, the interconnection of nations through a global communication network undermines the utility and effectiveness of gag orders that prohibit only information flows within national boundaries. Particularly in high-profile situations, international coverage of banned information as well as national reportage on the ban itself may increase, rather than reduce, interest in and attention paid to the prohibited speech.
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