On February 28I blogged on Doe c. UNC Sys. (WDNC), a case challenging plaintiff Jacob Doe’s deportation for alleged sexual assault; in that case, the court issued a rather remarkable TRO which, among other things, required defendants “to order all individuals, including, but not limited to, employees and studentsover which they exercise control to refrain from publishing or disclosing any information concerning the Requester, the disciplinary proceeding or the outcome of such proceeding” (emphasis added).
It struck me as likely unconstitutional, because of its substantive scope, because it was entered as an ex parte TRO without an opportunity for the defendants to be heard, and because it purports to restrict the liberty rights of expression of third parties who also had no possibility of being heard. But when I tried to figure out why the court had introduced such a broad restriction, I couldn’t, because the motion for the TRO and the supporting memorandum were sealed. And when I tried to figure out the basis of the sealing, I couldn’t, because there was no official sealing order authorizing and explaining the sealing (even though local WDNC rules seem to require such sealing orders).
The ACLU of NC, representing itself and the Freedom of the Press Foundation, joined by my local pro bono attorney Mark Sigmon, representing me, therefore moved to unseal the request for an order. I had hoped this would explain why such an extraordinary gag order was requested and issued.
The court quickly granted our motion and also set aside the order (by joint agreement of the parties). But, after reviewing unsealed memorandum supporting the TRO, I didn’t see anything at all that explained the gag order. The memorandum does not address the First Amendment, the very strong presumption against prior restrictions, or more generally any of the legal analyzes that could justify gag orders. His arguments regarding UNC’s alleged gender bias and other procedural errors could justify ordering UNC, as a state agency, not to publicize the outcome of these allegedly illegal procedures. . But I don’t see how anything there explains how the ban can apply to students.
I encourage you to review the memorandum yourself, and let me know if there’s anything I’m missing. And sadly, the judge just issued the TRO the motion requested, although I’m glad it ended up being overturned.
Anyway, I’m sorry I didn’t blog about this sooner myself, but I got distracted by the press of other business and just came back to it; better late than never, I hope.