(What I do to make a living):

Being a prior restraint on speech, gag orders are presumptively unconstitutional.  (Nebraska Press Ass’n v. Stuart (1976) 427 U.S. 539, 570; New York Times Co. v. United States (1971) 403 U.S. 713, 714.)  “Orders which restrict or preclude a citizen from speaking in advance are known as ‘prior restraints,’ and are disfavored and presumptively invalid.”  (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241 [101 Cal. Rptr. 2d 558], fn. omitted (Hurvitz); see Nebraska Press, supra, 427 U.S. at p. 559 [“[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”].)   An order restricting the speech of trial participants, typically known as a “gag order,” is a prior restraint.   (Hurvitz, at pp. 1241-1242; Saline v. Superior Court (2002) 100 Cal.App.4th 909, 915-916 [122 Cal. Rptr. 2d 813].)[1]

Accordingly, a “gag order” may be sustained only if it survives the searching inquiry required by strict scrutiny.  A gag order will not survive strict scrutiny unless it is specifically tailored to a compelling government interest, and there is no less restrictive alternative.   As the Ninth Circuit has explained:

Prior restraints are subject to strict scrutiny because of the peculiar dangers presented by such restraints. Accordingly, the district court’s order may be upheld only if the government establishes that: (1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest; (2) the order is narrowly drawn; and (3) less restrictive alternatives are not available.

(Levine v. United States Dist. Court (9th Cir. 1985) 764 F.2d 590, 595 [internal citations omitted].) “The trial court must make express findings showing it applied this standard and considered and weighed the competing interests.”  (Hurvitz v. Hoefflin (2000) 84 Cal. App. 4th 1232, 1241-1242 [emphasis added]).[2]

[1] Steiner v. Superior Court (2013) 220 Cal. App. 4th 1479,1486; John Doe et al. v. Gonzales, et al (S.D.N.Y. 2007) 500 F. Supp. 2d 379, 389. “A gag order is a prior restraint on speech and, as such, is ‘the most serious and least tolerable infringement on First Amendment Rights.” Nebraska Press Ass’n, supra, at p. 559. As Justice Scalia wrote in Vieth, et al. v. Furey, et al. (2003) 541 U.S. 267, 296; 124 S. Ct. 1769, 1786; 158 L. Ed. 2d 546: “As is well known, strict scrutiny readily, and almost always, results in invalidation” (emphasis added).

[2]

Orders which restrict or preclude a citizen from speaking in advance are known as “prior restraints,” and are disfavored and presumptively invalid. Gag orders on trial participants are unconstitutional unless (1) the speech sought to be restrained poses a clear and present danger or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available. The trial court must make express findings showing it applied this standard and considered and weighed the competing interests. As the reviewing court, we make an independent examination of the entire record to determine the constitutionality of the trial court’s order in light of this standard.

Hurvitz v. Hoefflin (2000) 84 Cal. App. 4th 1232, 1241-1242.

And so on for 50 pages.

A note here, I have spent a couple of weeks working and re-working this brief. Pastors, who handle the Word of God, should work at least as hard preparing a sermon — seeing as the eternal destiny of woman and men hang upon their work — as I do in protecting someone’s First Amendment rights (or inheritance, or rights under a contract).