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4th Circuit cuts down gag order in hog farm cases

Judges admonish: "Gag orders should be a last resort, not a first impulse."

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By
Travis Fain
, WRAL statehouse reporter
RALEIGH, N.C. — The 4th U.S. Circuit Court of Appeals shot down a district court judge's gag order Monday in North Carolina's ongoing hog farm nuisance trials, saying the order was vague and "ill-advised" and "hamstrung the exercise of First Amendment rights."

The three-judge panel said publicity concerns in high-profile cases aren't enough for judges to forbid attorneys and their clients from talking to the press. In short, the judges said, "Gag orders should be a last resort, not a first impulse."

"The gag order has already inflicted serious harm on parties, advocates and potential witnesses alike," Judge J. Harvie Wilkinson III wrote for the unanimous appellate panel. "It has muted political engagement on a contested issue of great public and private consequence."

U.S. District Judge W. Earl Britt entered the gag order this summer, during the second of multiple trials pitting hog farm neighbors against pork giant Smithfield Foods. Neighbors have complained of foul odors at farms the company's hog division contracts with for its pigs and say sprayers used to spread a manure mixture as a fertilizer causes feces to drift onto and into their homes.

Smithfield's hog division, Murphy-Brown, has lost all three cases that have gone to trial, and jurors have hit the company with a half-billion dollars in verdicts. The fourth case is slated for trial next month.

Britt actually dropped his own gag order at the end of August – on the eve of the 4th Circuit taking the matter up in oral arguments. To simply let that stand without weighing in would encourage lower court judges to "pull the rug out from under the appellate court" when a reversal seems imminent, Wilkinson wrote.

The order had targeted a range of people, including any "potential witnesses," an overly broad category that could "include almost anyone who is knowledgeable or conversant about the issues in these cases," Wilkinson wrote.

A more limited gag order may be still to come in these cases, but the appellate panel said juries can cope with publicity and judges should limit press interviews only when impartiality is at stake. Plenty of potential jurors are still unfamiliar with these cases, and impartiality does not require ignorance, the panel said.

"The judicial process does not run and hide at those moments when public appraisal of its workings is most intense," Wilkinson wrote.

Fourth Circuit Judge G. Steven Agee and U.S. District Judge James P. Jones of Virginia joined Wilkinson on the order. Murphy-Brown petitioned to have the order struck down, and a number of media organizations, including WRAL News, supported the petition.

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