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Hog Farm Gag Order Went Too Far, 4th Circuit Rules

By William Vogeler, Esq. on November 02, 2018 | Last updated on March 21, 2019

You can't make silk out of a sow's ear, but the U.S. Fourth Circuit Court of Appeals did its best.

In re. Murphy-Brown, LLC, a trial judge issued a gag order in a case over conditions at hog farms. The appeals court reversed, saying judges can restrain speech only as a last resort.

The judicial panel said the order "hamstrung" the exercise of First Amendment rights.

Court's "Mischief"

It goes without saying that a prior restraint is the worst violation of free speech. The judge apparently knew it because he withdrew his order just before the appeals court ruled.

The Fourth Circuit said the trial court's "mischief" was obvious. Judges can't avoid an appellate slaughter by rescinding their orders.

"[It] would invite district courts to track cases on the appellate court's docket, and when a reversal seemed possible or imminent, to pull the rug out from under the appellate court and the parties," Judge J. Harvie Wilkinson III wrote for the unanimous panel. "This sets up an endless game of cat and mouse."

The case had nothing to do with cats and mice, but everything to do with pigs and hogs. Smithfield Foods faces multiple suits in the Carolinas, Maryland, Virginia, and West Virginia, from neighbors complaining about foul odors and manure drifting over their homes.

Foul Orders

Juries had awarded a half a billion dollars against the company in the ongoing nuisance trials. Judge W. Earl Britt had issued the gag order against lawyers, litigants and even "potential witnesses."

That was going too far, the appeals court said. Although Britt withdrew his order, the Fourth Circuit said the damage had already been done and it had to be corrected.

"It has muted political engagement on a contested issue of great public and private consequence," the court said. "It has hamstrung the exercise of First Amendment rights."

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