The UCI Intellectual Property, Arts, and Technology Clinic has filed a friend-of-the-court brief in the California Court of Appeal challenging a gag order that had silenced rapper Darrell Caldwell, known as Drakeo the Ruler, since March. The order was vacated yesterday.
The Clinic’s brief argued that the gag order imposed by the Los Angeles Superior Court was unconstitutional. The gag order, in place since March, had banned Drakeo from posting statements such as “I’m innocent” or “Free Drakeo” on his Twitter account. Last week, Drakeo’s attorneys appealed the order and asked the Court of Appeal for an immediate stay, and the IPAT Clinic filed its brief on Tuesday. Once Drakeo filed his appeal, prosecutors immediately asked the lower court to vacate the order, and the court did so yesterday, restoring all privileges to Drakeo.
“The Gag Order places a broad, unconstitutional restriction on the speech of Petitioner, his counsel, and the government,” the IPAT brief argued. “It has impeded—and will continue to impede—the ability of journalists to report on Petitioner’s criminal prosecution.”
Los Angeles County District Attorney Jackie Lacey, who is in a contested campaign for re-election, requested the gag order. Her office is prosecuting Drakeo for murder, gang conspiracy, and weapons charges, based largely on his rap lyrics. This controversial strategy is being used by prosecutors across the nation and has been condemned by some critics as racist.
Drakeo was acquitted of murder and attempted murder charges in 2019. He is now being tried on gang conspiracy and weapons charges.
IPAT filed the brief in support of Drakeo after the rapper filed a petition asking the Court of Appeal to stay the criminal case against him and vacate the gag order. Last month, the IPAT Clinic filed an amicus brief in the lower court supporting Drakeo’s motion to vacate the gag order. When that order was denied, his lawyers appealed.
California courts have repeatedly struck down court gag orders as a form of prior restraint that violates the First Amendment’s guarantee of freedom of speech. Pretrial gag orders on trial participants have been held unconstitutional unless they meet the three-part test set forth in Hurvitz v. Hoefflin, 84 Cal. App. 4th 1232 (2000). IPAT argued that the gag order failed to satisfy the three-part test. The test requires courts to establish by compelling evidence:
(1) the speech sought to be restrained poses a clear and present danger to a protected competing interest;
(2) the order is narrowly tailored to protect that interest; and
(3) no less restrictive alternatives are available.
IPAT argued that the court failed to satisfy any of the three requirements, especially by failing to consider alternatives to the gag order, such as using voir dire to weed about biased jurors and instructions to jurors to avoid reading news or social media during the trial.
The IPAT amicus brief describes the history of openness in trials—now protected by the First Amendment—and the Supreme Court’s recognition that the judicial branch and society benefit from a fair and transparent legal system. The brief also demonstrates how gag orders impinge on newsgathering and curb the free flow of information about judicial proceedings to the public. Courts have historically recognized that the First Amendment protects newsgathering. See U.S. v. Sherman, 581 F.2d 1358, 1361 (9th Cir. 1978); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980).
The brief was authored by Professors Susan Seager and Jack Lerner and IPAT’s Certified Law Students Savannah Levin and Esther Lim. Read the brief here.
RELATED: The IPAT Clinic is working on a Rap on Trial Practice Guide that will help defense attorneys fight back against problematic practice of using rap lyrics in criminal proceedings.