Arkansas Test for Judicial Gag Orders: Clarifying Prior Restraint Standards

1. Introduction

This commentary examines the Supreme Court of Arkansas’s decision in Aaron Spencer v. State of Arkansas (2025 Ark. 91), in which the court granted a writ of certiorari to vacate a circuit‐court gag order. The dispute arose after Spencer was charged with second‐degree murder for the shooting death of Michael Fosler. In pretrial proceedings, the State sought—and the Lonoke County Circuit Court entered—an expansive gag order restricting speech by the defendant, his counsel, family members, public officials, court employees, witnesses, and others, as well as sealing “the entire case.” Spencer challenged the order as an unconstitutional prior restraint on speech and a violation of due process.

2. Summary of the Judgment

On May 29, 2025, the Supreme Court of Arkansas:

Granted Spencer’s petition for writ of certiorari.
Held that the gag order was a “plain, manifest, clear, and gross abuse of discretion.”
Vacated the circuit court’s gag order in its entirety.
Articulated a new framework for when courts in Arkansas may enter judicial gag orders in criminal cases.

The court emphasized that prior restraints on speech carry a heavy presumption against validity and may be imposed only as a last resort, after a rigorous, fact-based inquiry.

3. Analysis

3.1 Precedents Cited

Nebraska Press Ass’n v. Stuart (427 U.S. 539, 1976): Established that prior restraints on speech by the press in criminal cases must be justified by a “serious and imminent threat” to the fairness of the trial and that less restrictive alternatives be considered.
Gentile v. State Bar of Nevada (501 U.S. 1030, 1991): Recognized that attorney speech may be regulated under a lower standard than press speech if it poses a “substantial likelihood of materially prejudicing” a proceeding.
Sheppard v. Maxwell (384 U.S. 333, 1966): Reversed a conviction due to the trial court’s failure to protect the defendant from prejudicial publicity, acknowledging that trial participants (lawyers, parties, witnesses) may be subject to restraints if publicity creates a “carnival atmosphere.”
Arkansas Democrat-Gazette v. Zimmerman (341 Ark. 771, 2000): Arkansas Supreme Court cases vacating identical form gag orders against media outlets.
In re Murphy-Brown, LLC (907 F.3d 788, 4th Cir. 2018): Emphasized that gag orders are “a last resort” and must be narrowly tailored.

3.2 Legal Reasoning

The court divided speakers into three categories—attorneys of record, non-attorney trial participants, and the public at large—and assigned each a different standard for restraint:

Attorneys of Record: May be restrained only if their extrajudicial statements pose a substantial likelihood of material prejudice to the criminal proceedings (consistent with Rule 3.6 of the Arkansas Rules of Professional Conduct and Gentile).
Non-Attorney Trial Participants (defendant, witnesses, court staff): Speech may be restrained only if it poses a serious and imminent threat of material prejudice (a higher threshold than for attorneys).
Public at Large: Prior restraints are effectively impermissible. The court observed that it is hard to imagine any circumstance justifying a prior restraint on purely public speech or public officials.

Before entering a gag order, a circuit court must make on-the-record findings (supported by evidence) that:

Prospective speech poses the requisite level of threat of material prejudice (depending on the speaker category).
No adequate, less restrictive alternatives (extended voir dire, change of venue, continuance, jury instructions, sequestration) would protect the right to a fair trial.
A restraining order is likely to prevent the identified prejudice.
The order is narrowly tailored—covering only the specific speech categories and limited duration necessary to preserve a fair trial.

3.3 Impact

This decision establishes a clear, structured legal framework for Arkansas judges considering pretrial restraints on speech. Future gag-orders must comply with the new standard, or they will face certiorari review. The ruling also reminds trial courts of defendants’ right to a public trial, the public’s right to access court files, and due-process limits on overly broad and vague restraints.

4. Complex Concepts Simplified

Gag Order (Prior Restraint): A judicial directive preventing certain persons from making public statements about a case before and during trial. It is “prior restraint” because it stops speech in advance, rather than punishing it afterward.
Material Prejudice: Speech that would likely influence jurors’ opinions or taint the fairness of a trial by conveying inadmissible or biased information.
Strict Scrutiny vs. Heightened Standards: Courts apply different levels of review for restrictions on speech:
- Strict Scrutiny (government must show a compelling interest and narrow tailoring) for nearly all prior restraints.
- Gentile’s Substantial Likelihood Standard for attorneys’ speech.
- Serious and Imminent Threat Standard for non-attorney participants.
Sealing Court Files: Removing records from public view. Arkansas law strongly favors openness; sealing requires particularized findings of necessity and limited duration.
Void-for-Vagueness: Legal rules must give fair notice of what is prohibited. If a gag order is too broad or unclear, persons subject to it cannot reasonably know what speech is barred, chilling lawful expression.

5. Conclusion

The Supreme Court of Arkansas’s decision in Aaron Spencer v. State of Arkansas marks a pivotal development in state-law standards for judicial gag orders. By categorizing speakers and prescribing tailored, evidence-based requirements before restricting speech, the court reaffirms that prior restraints are disfavored and permissible only as a last resort. This ruling will guide trial judges and litigants in balancing the competing interests of free expression, public access, and the right to a fair trial.

Key takeaways:

Gag orders bear a heavy presumption against constitutionality under both the Arkansas and U.S. Constitutions.
Different standards apply to attorneys, non-attorney participants, and the public.
Four specific findings—threat, alternatives, efficacy, tailoring—are prerequisites to any valid gag order.
Open court proceedings and public access to filings must not be curtailed without a compelling, evidence-based justification.

This precedent strengthens procedural safeguards in Arkansas criminal trials and reinforces the fundamental principle that speech restrictions must be narrowly tailored to serve a demonstrable need in the interest of justice.