In In re Murphy-Brown, LLC, Case No. No. 18-1762 (4th Cir. October 29, 2018) a trial judge issued a gag order in a case over conditions at hog farms. Plaintiffs claim that the hog farms give rise to undue amounts of odors, insects, and pests, not to mention the noise and debris generated by raising hogs and shipping them for sale. In total, the Master Case Docket includes more than 20 lawsuits and more than 500 plaintiffs. Juries had awarded a half a billion dollars against the company in the ongoing nuisance trials. Judge W. Earl Britt had issued the gag order against lawyers, litigants and even “potential witnesses.” The court found that “the volume and scope of prejudicial publicity observed” led to a “substantial risk of additional publicity tainting or biasing future jury pools.” The gag order was a sweeping one.
The appeals court reversed, saying judges can restrain speech only as a last resort. That gag order was going too far, the appeals court said. Although Britt withdrew his order on the eve of oral argument in the Fourth Circuit, the damage had already been done and it had to be corrected. “It has muted political engagement on a contested issue of great public and private consequence,” the court said. “It has hamstrung the exercise of First Amendment rights.” No pun intended, of course.