Tongue-tied: Court ruling amounts to a gag order
This is an archived article that was published on sltrib.com in 2007, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

She hired legal counsel, filed a lawsuit, made copies of the documents for reporters. Then she gathered her lawyers and called a news conference. Mary Ann Kingston Nelson wanted the public to hear her claim.

What Nelson and her lawyers did was not unprecedented. In fact, it is, or at least was, commonplace.

Attorneys and their clients often talk to the press, or even turn to the press, to increase public awareness of pressing issues before the courts. Tobacco litigation, product liability cases, actions that directly impact the public's health and safety. And our world is a better place because of it.

But now, after a ruling by the Utah Supreme Court on Friday, plaintiffs and their attorneys may decide to hold their tongues outside the courtroom. The court, overturning appellate and district court decisions, ruled that Nelson and her attorneys can be sued for comments made and information distributed at the press conference, i.e., outside the courts.

If the same exact words had been said and the very same documents had been quoted while court was in session, no matter how untruthful or defamatory they may be, the plaintiff and her attorneys would be held harmless. But by speaking outside the courtroom and communicating to people not directly involved in the proceedings - the press - Nelson and counsel forfeited their "judicial proceeding privilege," making them subject to litigation.

So now, if a lawyer so much as answers a reporter's question, faxes a document to a newsroom, or sits at his desk and reads from a legal complaint to the press, he or she could run the risk of being sued.

And the press, in order to thoroughly report on cases where lawyers are hesitant to talk, would have to attend every hearing, every trial, every second of every proceeding. Sorry, folks, but that's just not possible in most cases.

We've read the decision and heard from attorneys and we wonder if the justices considered the real-world implications of their ruling.

The implications of their findings are onerous. Unless some sort of qualified privilege is granted to give lawyers the right to respond to reporters' questions, this ruling inevitably will have a chilling effect on an attorney's ability to disseminate information and on the public's right to know.

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