We understand lawyers for San Diego Gas & Electric Company believe that recent publicity may impact the upcoming trial concerning alleged discrimination by SDG&E, which is set for October 19 in San Diego Superior Court. According to the lawyers, “SDG&E is prepared to take all actions necessary to protect its right to a fair trial.” That statement suggests SDG&E might seek a gag order prohibiting trial participants from talking to the press and public about the case.

The ACLU of San Diego & Imperial Counties would have serious concerns about any potential gag order. Though the right to a fair trial for all parties in a civil case is fundamental, so is the right to freedom of speech. As the courts have made clear, gag orders are unconstitutional unless (1) the speech to be silenced imminently threatens the right to a fair trial, and (2) the court has no other alternatives for ensuring a fair trial.

In this case as in many others, other alternatives may ensure a fair trial, short of taking the extreme step of imposing a gag order. For example, the court and lawyers may question potential jurors about their exposure to pretrial publicity and its impact, if any, on their opinions. Potential jurors with bias may then be excused. Courts also routinely instruct potential jurors not to read the media or surf the internet about the case. Finally, in extreme cases, courts may consider change of venue motions. Such alternatives have ensured fair trials in cases far more inflammatory than this one.

Finally, SDG&E was given full opportunity to comment on the allegations against it. SDG&E advocated its position in the media, once again showing that the best response to speech is more speech, not censorship of speech.