A District Court judge will hold a hearing Wednesday at the Cumberland County Courthouse to explain the gag order he issued Monday, which attempted to prevent journalists from reporting statements made by a witness at a criminal proceeding in Portland District Court.
The unprecedented oral order, issued by Judge Jeffrey Moskowitz, drew criticism Tuesday from First Amendment advocates.
“This order is a major strike to the First Amendment and the public’s right to know about its court system and those accused of crimes,” Justin Silverman, executive director of the New England First Amendment Coalition in Westborough, Massachusetts, said Tuesday in an email. “It is pre-publication censorship and almost certainly an unconstitutional prior restraint. It is disappointing that a judge of this stature would disregard such fundamental First Amendment protections.”
Zachary Heiden, an attorney with the American Civil Liberties Union of Maine, said Tuesday in an email that the organization did not know of a similar order being issued previously by a Maine judge.
“Our courts are open to the public, and the press is almost always free to report what happens in court,” Heiden said. “The alternative to open courts is secret courts, and that is wholly inconsistent with our constitutional principles. In rare instances, courts may be closed to the public, but that is the exception not the rule.”
The gag order was announced at a hearing where Anthony J. Sineni II, 52, of Standish, a criminal defense lawyer in southern Maine, was convicted on one count each of assault and disorderly conduct, both misdemeanors. The plea agreement was a result of negotiations with the Maine attorney general’s office, which prosecuted the case, Sineni’s attorney, Christopher Largay of Bangor, said Tuesday.
The judge ordered journalists not to report statements made by the defendant or witnesses, according to the Portland Press Herald. Sineni did not address the court but his former girlfriend did. After consulting with its attorney, the Press Herald described what she told Moskowitz and quoted her.
Moskowitz scheduled the unusual hearing for 11 a.m. Wednesday, according to Mary Ann Lynch, spokeswoman for the Maine court system.
In exchange for Sineni’s plea, a misdemeanor count of domestic violence assault, three counts of witness tampering and one count of possession of a stolen gun or guns were dismissed, all of which are felonies, Largay said.
The case was prosecuted by Assistant Attorney General Paul Rucha. Efforts to reach Rucha on Tuesday were unsuccessful.
Timothy Feeley, spokesman for the attorney general’s office, confirmed the plea agreement Tuesday in an email. He said that his office “can have no further comment at this time.”
The alleged victim in the dismissed counts was Sineni’s former girlfriend, according to Largay. The victim in the counts on which Sineni was convicted was a male friend of the woman’s.
Moskowitz imposed a deferred disposition sentence. If Sineni abides by conditions, which were not made public, the disorderly conduct charge would be dismissed in a year and the assault charge would be dismissed in two years.
Largay said Tuesday that the judge sealed documents in the case for seven additional days while he and his client consider filing a federal civil rights case against the police involved in the investigation of Sineni that led to the charges and others.
Legal experts have said there is little justification for media gag orders such as the one Moskowitz imposed.
The National Judicial College in Reno, Nevada, stated in an article published last year in the Reynolds Courts & Media Law Journal that telling reporters what they cannot write has been ruled to be prior restraint by the U.S. Supreme Court.
“The United States Supreme Court repeatedly has recognized that government censorship in the form of prior restraints against the media constitute ‘the most serious and the least tolerable infringement of First Amendment Rights,’” an article titled Summary Guide to the Media and the Courts: A Basic Guide for Judges stated.
“Although the court has not unequivocally ruled out the possibility that a prior restraint may be justified in an extraordinary case, to date, the United States Supreme Court has never found a compelling interest advanced by plaintiffs and the government — including national security interests and a criminal defendant’s Sixth Amendment right to a fair trial — sufficiently compelling to support the imposition of prior restraint,” the article stated.
Lynch said Tuesday that Maine judges undergo three months of extensive training before they preside without supervision. Jurists also participate in a weeklong annual training. She could not say how much of that training was focused on First Amendment issues.
“Judges have to balance a defendant’s right to a fair trial and the First Amendment,” she said.