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Federal Judge Strikes Down Gag Order in Hog Farm Law Suits, Next Case Moving Forward

By Erin Smith

A judge with the Fourth Circuit Court of Appeals in Richmond, Virginia, ruled on Monday that a gag order issued by Judge Earl Britt in the hog farm nuisance law suits against Murphy-Brown LLC,  “went too far.” The ruling of the court called the gag order “unconstitutionally vague” and said it deprived the company of its constitutionally protected first amendment rights.

Judge Wilkinson, who was joined by Judges Agee and Jones, in hearing the oral arguments, said in the ruling of the court on Monday that a gag order should only be issued in a court case as “a last resort.”

Judge Britt issued the gag order in June during the second hog farm trial. Judge Britt issued the gag order after a juror reported he had seen news accounts regarding the trials. The juror was questioned regarding his ability to remain unbiased after seeing the accounts and the court allowed the juror to remain on the case. Due to the incident, Judge Britt ruled a gag order would be put in place to “protect the integrity of the trial process.”

Judge Britt argued that potential jurors for future trials could potentially be tainted by exposure to news coverage.

According to Monday’s appeals court ruling, jurors who were exposed to publicity in the hog farm lawsuits testified that they could be fair and impartial. Judge Wilkinson stated in the ruling that many potential jurors in court cases have indeed been exposed to some type of pre-trial publicity but can in fact remain fair and impartial.

Judge Britt lifted the gag order in August 31 after the filing of an appeal to the gag order in July. Judge Wilson stated in his ruling that the attempt to rescind the gag order by Judge Britt clearly undercut the authority of the Court of Appeals.

Attorneys for Murphy-Brown, LLC argued that the gag order violated the company’s first amendment rights. Judge Wilson stated in the ruling the gag order also caused the company to lose its first amendment protections guaranteed in the United States Constitution. The court ruling reads, “Petitioner has met its burden because the gag order contravened the First Amendment in basic respects.”

Judge Wilson also struck down Judge Britt’s argument that trial publicity would be disruptive to the process. The ruling notes that jurors are not immune to publicity regarding trials but even with exposure to pre-trial publicity they can still remain impartial in deciding a case.

The court ruling reads, “Gag orders should be a last resort, not a first impulse. The skimpy findings supporting the gag order here frustrate the sort of fulsome, substantive appellate review that shields First Amendment freedoms from unjustifiable restraints. The lack of narrow tailoring and the availability of less-restrictive alternatives are among the further defects that accompanied the imposition of the challenged order in this case.”

The ruling labels the gag order unconstitutionally vague because everyone “had to guess” at who was covered by the gag order and who was not.

Judge Earl Britt was removed from hearing the next set of cases. Judge David Faber of West Virginia will hear the next two cases. No reason was given why Judge Britt was replaced or whether or not he will hear any of the cases remaining in the future.

The next hog farm lawsuit is set to go to trail in Raleigh on November 13 involving the Sholar Hog Farm of Sampson County. The farm has been in operation since 1984, according to court documents.

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