The Celebrity Divorce, the Publicity and the Gag Order

Hollywood icon Lauren Bacall, who recently died, once famously said “in Hollywood an equitable divorce settlement means each party getting 50 percent of publicity.” This provocative statement inspired this post because it begs the question, first of all, is publicity and asset? And second of all, in the reverse, should the courts really have the right to control the publicity in a celebrity divorce by issuing gag orders?
What first of all is a gag order? According to

A gag order, also known as a protective order, is an order from a judge in a criminal trial that restricts information or comments from being made public. Gag orders provide protection to parties, witnesses or potential jurors. Gag orders are a judge’s means for controlling publicity about court proceedings. They may be used to control either pretrial or trial publicity. Generally, gag orders prohibit the trial participants from talking to the media. Gag orders are most often used in trials involving high-profile cases, such as those with celebrities or particularly gruesome crimes. The use of a gag order helps to ensure a defendant’s right to a fair trial in cases where there is a lot of publicity.
There has been a slew of celebrity divorce announcements recently including Gwyneth Paltrow and Chris Martin, Melanie Griffith and Antonio Banderas, Jennifer Lopez and Mark Anthony, Kelsey and Camille Grammar and others. Curiously, most celebrities getting divorced today manage to somehow keep the entire proceeding private. There typically isn’t even a trial anymore. So the gag order is not even at issue. The folks who tend to seek gag orders usually are fighting over their children, to wit: Mel Gibson and his paramour Oksana; and R& B crooner Usher when he was fighting ex wife Tameka for custody of the kids. There are the exceptions of course like the case involving Bruce Springstein when he was caught up in that mess with a woman he met at a gym in New Jersey and Frank and Jamie McCourt when they were fighting over the dodgers. And who can forget the case of George and Marie Douglas David in Connecticut a few years back?
Gag orders are not just for celebrity cases, of course. Ordinary litigants can petition the courts for a gag order, or the court can on its own can issue a gag order in a case. But the rub with gag orders is that they always have to  balance fairness to the litigants (the defendants in particular although in a divorce case both parties could want one) with the “public’s right to know.” Once again,
Although the public has a right to open and accessible court proceedings, there is another equally important right that sometimes competes, it is the right of an accused criminal to a fair trial. A trial judge has the complicated duty of balancing these interests, controlling adverse publicity and protecting the right of an accused person to a fair trial. Gag orders provide an important means by which parties can ensure that damaging pretrial and trial publicity is minimized. Courts try to balance the rights of the criminally accused and the public’s right to know. Gag orders are a traditionally acceptable mechanism to strike this balance by preventing the disclosure of certain information that could unfairly influence the outcome of a case.
Gag orders are a form of prior restraint that prohibit parties, lawyers, prosecutors, witnesses, law enforcement officials, jurors and others from talking to the press. Usually a gag order is sought by one party in a case, but a judge may issue a gag order on her own initiative.
In celebrity cases, courts may decide to issue a gag order in order to ascertain the “fair administration of justice” or to preserve each parties right to a fair and unbiased trial such that the publicity would not result in jury of public opinion taking over the case. So the case has to contain a very high level of notoriety and interest to the public; and would likely have received an unusual amount of publicity for the court to decide to gag the parties and participants in the case. Who can the court gag exactly in these celebrity and non celebrity cases?
A judge’s gag order may prohibit certain participants in a case from talking to the news media, including:
  • The parties
  • Lawyers
  • Law enforcement officials
  • Witnesses
  • Juror

The article states that the court cannot stop reporters (and that ostensibly would include bloggers and the like) from reporting on the case although the court can control whether parties and participants speak directly to media.
So what is the takeaway? Well, in most states, it seems like getting a gag order in a divorce trial might be difficult – even if the parties are celebrities (maybe especially if they are celebrities). The parties would have to demonstrate to the court that it would be fundamentally “unfair” to someone’s rights for the case to remain unsealed and open to the public. The fact that a party wants privacy is not enough. The parties rights to privacy must be balanced with the public’s right to know. Why does the public have a right to know about your intimate divorce details? Because you chose to purchase an index number and a Request for Judicial Intervention and take the case to trial. Trials are open proceedings. This might be why there is such a dearth of celebrity divorces that go to trial these days. Nobody wants all their dirty laundry out there anymore. So they are going the collaborative/mediation route or they are stipulating to settle the situation quietly.
But on the other hand, sometimes, the publicity is an asset! Having the case open to the court of public opinion might shame the other side to settle the matter more quickly and for a fair price- in which case, Lauren Bacall may have been on to something.