Gag Order in World Trade Center Bombing Case Is Struck Down

A three-member federal appeals panel on Friday unanimously struck down a gag order preventing prosecutors and defense lawyers in the World Trade Center bombing case from talking to the press.

The U.S. Court of Appeals for the 2nd Circuit ruled that the sweeping ban by Judge Kevin T. Duffy, which carried potentially enormous fines, was unconstitutional. The appeals judges said Duffy’s order was overly broad and a prior restraint on free speech under the First Amendment.

“The limitations on attorney speech should be no broader than necessary to protect the integrity of the judicial system and the defendant’s right to a fair trial,” the judges ruled.

On April 1, Duffy ordered prosecutors, defense lawyers, investigators and others connected with the case not to discuss it with the news media. He set a schedule of fines for transgressions, starting at $200 for a first offense and squaring the sum of future fines so that by a third offense, the total would be $1.6 billion.

Lawyers for suspects in the trade center bombing, which killed six people and injured more than 1,000 others on Feb. 26, appealed the ruling. They were joined by a consortium of news organizations.

The defense lawyers argued that the ban effectively prevented them from defending their clients against charges brought by prosecutors in court documents and in discussions with the media.

In their unanimous opinion, Judges J. Edward Lumbard, Amalya L. Kearse and J. Daniel Mahoney wrote: “This court has stated that before a district court issues a blanket prior restraint, it must explore whether other available remedies would effectively mitigate the prejudicial publicity” and “ensure an impartial jury.”

“The order imposed by the District Court in the present case does not meet these standards. The restraint on the attorneys’ speech is not narrowly tailored; rather it is a blanket provision that extends to any statements that have anything to do with the case or that even may have something to do with the case. . . .”

Robert Precht, the lawyer for Mohammed A. Salameh, the first defendant arrested in the case, said Friday that he was “gratified” the gag order was lifted.

“I appreciate Judge Duffy’s desire to create an environment in which the defendants will receive a fair trial, and I know his motivation for the gag order is a good motivation,” he said. “The problem is it allowed the government to leak damaging allegations against the defendants and prevented the defendants from responding.”

Six suspects have been indicted in the trade center bombing.