U.S. Appellate Court Strikes Down Unjustified Gag Order in Free Speech Win for Manufacturers

Yesterday, the U.S. Court of Appeals for the 4th Circuit struck down an unjustified district court gag order that limited constitutionally protected free speech rights. The ruling helps manufacturers by upholding their First Amendment right to choose how and when to speak publicly about ongoing litigation that affects them.

The case—In re Murphy-Brown—involved a gag order issued by the district court judge, without prompting by either party, to restrain speech on an ongoing line of cases against pork producers in North Carolina. These cases have resulted in some of the largest verdicts in state history. More than 500 plaintiffs filed dozens of public nuisance lawsuits alleging damages from nearby hog farms.

Because of all the press attention surrounding the ongoing cases, the district court judge issued a gag order to restrain the parties from talking about the case to prevent potential jurors from being swayed before the trials. Murphy-Brown then filed a petition for a writ of mandamus asking the circuit court to review the gag order because the order violated fundamental free speech rights.

In August 2018, the National Association of Manufacturers’ Manufacturers’ Center for Legal Action (MCLA) filed an amicus brief supporting the petition to the circuit court. The MCLA’s brief underscored the First Amendment and practical harms of the district court’s sweeping gag order on manufacturers.

The circuit court granted review and vacated the district court’s gag order. In a powerful opinion that supports the rights of businesses to comment on litigation against them, the circuit court chastised the district court for its unsupported and vague gag order. The circuit court’s opinion cited the MCLA’s amicus brief both noting the harms of a forced “no comment” posture to business and adopting our arguments about the risk of a conflict between a gag order and securities-disclosure obligations.

This is an important victory for manufacturers everywhere as it upholds vital free speech rights. But the case is a reminder that manufacturers must remain vigilant against attacks on their First Amendment rights. The MCLA is committed to defending manufacturers against these threats.

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Leland Frost

Associate General Counsel at National Association of Manufacturers
Leland Frost is the Associate General Counsel at the National Association of Manufacturers (NAM). As part of the Manufacturers' Center for Legal Action, Mr. Frost works to strengthen the NAM's ability to promote manufacturing policy objectives through litigation. Mr. Frost's background includes international, environmental and corporate law experience and work on a wide range of policy and regulatory issues.
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