Yes – you’re right to press me to be clear. There are two troubling things here. One: removal of the blog postings. This seems fine to me after a hearing, but not before. There’s no threat of prior restraint here since the speech has already occurred, of course, but we’re normally protective of speech, and we don’t suppress it unless it falls into the category of things which may be proscribed. My analysis here is that it does not, but as I’ve mentioned, I am operating without a complete picture of the facts.

Two: the order not to blog further about the case. You suggest this may be run-of-the-mill. I simply don’t know enough about this aspect of procedure to conclude definitively (as my point about family law tried to indicate). My suggestion, from a policy perspective, is that the normal rationales for gag orders seem absent here – it’s a civil case; there’s no jury; there’s no risk to improper influence of the fact-finder (presumably the judge is rightly skeptical of one side’s contentions); and there are no third parties with interests at stake (such as children). So, on balance, the policy arguments against a gag order seem stronger than those in favor of it. This clearly derives from our general bias in favor of speech and of its circulation, but I think that’s unexceptionable in American jurisprudence.

Have I missed something on how gag orders typically work? How broadly do they apply? (Can I tell my family / therapist / friends? Can I discuss the case loudly in Starbucks? etc.)

I agree the removal of speech has some different implications than continued speech. But you wrote in your post:

“To frame this: a judge has ordered one party to stop talking – at least online – about his case. This type of gag order seems suspect constitutionally.”

I assumed that when you were referring to the order to “stop speaking,” you were talking about future speech. Isn’t that the context in which it’s potentially a “prior” restraint?

I’m not an expert on procedure; while gag orders seem routine, my impression was that they were calculated to maintain the status quo regarding the lawsuit – preventing jurors from being influenced and so forth. Given that this is a non-jury situation, don’t those concerns disappear? (I don’t know the rules for gag orders, but it strikes me that removing speech is likely more problematic than ordering parties, temporarily, to keep quiet.)

I’d welcome clarification here on the procedural aspects…