Gag order in hog farm trial has pig producer hamstrung. Murphy-Brown wants to talk.

U.S. District Judge Earl Britt has issued a gag order in the series of hog farm nuisance lawsuits underway in Raleigh.
U.S. District Judge Earl Britt has issued a gag order in the series of hog farm nuisance lawsuits underway in Raleigh. N&O file photo

The pig producer being sued in a series of hog farm nuisance trials underway in Raleigh has taken on the unlikely role of champion for a free press.

Murphy-Brown, the defendant, is appealing a federal judge’s gag order that prevents attorneys, farmers and neighbors from talking to reporters about the cases. The company argues that the gag order prevents its representatives from countering the plaintiff neighbors’ and environmentalists’ spin outside of court.

U.S. District Judge Earl Britt put the gag order in place last month because of concern that news media coverage of the trials could influence jurors’ opinions. The order prohibits people involved with the cases from talking to what he termed the “public communications media” while the trials run their course, which is likely to take several years unless there is a settlement. Neither side had asked for such an order.

Murphy-Brown, which is based in the Duplin County town of Warsaw, has appealed the gag order to the U.S. Fourth Circuit Court of Appeals, arguing it is an unconstitutional restraint of free speech.

When Britt issued the unexpected gag order on June 27, he said extensive publicity during the first two trials earlier this year prompted his decision. He didn’t mention it, but there were also concerns about juror misconduct in the second trial.

Earlier in June, a juror reportedly spoke with other members of the jury about having researched the cases on the internet, according to court records. That juror reportedly knew about the outcome of the first trial, was aware of pending legislation that would protect farms from some legal action, and knew that the plaintiff’s lead attorney is based out of state. The juror also relayed that someone was reportedly going to be indicted in relation to the hog farms.

Britt had given the jury a standard admonition not to read anything about the case or conduct members’ own research.

Britt called each of the 12 jurors in the federal court trial into his chambers and quizzed them, with attorneys for both sides also present, according to a transcript of the session filed with the appeal. None of the members of the jury admitted to having been the offending juror, and none said anything they might have heard discussed outside of court prevented them from being impartial.

Murphy-Brown moved for a mistrial, saying some members of the jury had been less than candid. Britt denied the motion.

Lead by Rep. Jimmy Dixon, Lt. Gov. Dan Forest, and Commissioner of Agriculture Steve Troxler, hundreds gathered on the Carter Farm on Tuesday, July 10, 2018 near Beulaville, N.C.

Mistrial denied

Judges are always challenged to keep news media coverage of high-profile trials from seeping into the jury pool, and typically warn jurors not to conduct any outside research on the internet or elsewhere. During jury selection in the second trial, Britt dismissed one potential juror who said she had already formed an opinion about the case, and Murphy-Brown struck another juror who had read news coverage about the case.

Personal injury attorney John McCabe of Cary said gag orders are appropriate when a judge is concerned about the jury becoming unduly influenced by news media accounts of their trial. McCabe, who is not involved in these lawsuits, said he thinks that Britt’s order will be upheld on appeal.

“Judges don’t want cases tried in the media before the first bit of admissible evidence is presented in court,” McCabe said Thursday. “Instead, judges want cases tried — and decided — on the actual evidence admitted during the trial.”

Murphy-Brown, which is owned by the Smithfield Foods conglomerate, in its July 6 petition to the federal appeals court, calls the order “an impermissible prior restraint on free speech because it prohibits dozens — if not hundreds — of individuals from speaking freely about facts related to the nuisance cases.” The appeal cites case law calling prior restraint “the most serious and least tolerable infringement on First Amendment rights.”

There are 26 lawsuits with more than 500 plaintiffs suing Murphy-Brown contending hog farms in North Carolina have interfered with their ability to enjoy their homes due to neighboring odor, flies and truck traffic. The lawsuits were consolidated in 2015, and five of them were chosen to prepare for trial.

Staggered trial dates were established, and the first trials are expected to continue into next year. It will take several years to resolve all 26 lawsuits. The first two trials ended with verdicts against Murphy-Brown with multimillion-dollar awards. The third began on July 11.

Near the end of the second trial, on June 27, Britt announced his order without warning and without making legal findings justifying it, other than to say it was based on the amount of prejudicial publicity in the first two trials and the “substantial risk” to biasing future juries.

Britt included exceptions that allow those covered under the order to provide general descriptions of court matters that are in the public realm “without elaboration,” such as explaining allegations or defense questions, and scheduling information.

But, according to the appeal, the order has left the parties confused about who it covers, what can be said, how long it is in effect and whether “public communications media” includes social media, leading to additional claims that it is unconstitutionally vague and overly broad. The order doesn’t address whether growers and neighbors in the first trial are also prohibited from talking, but says it takes effect immediately going forward.

Three public nuisance lawsuits filed against Smithfield Foods and Murphy-Brown hog farm operations have so far been decided, with damages in excess of $500 million awarded to plaintiffs.

Pig producer hamstrung

Murphy-Brown’s appeal says there are less-onerous steps that the judge could have taken, including closely questioning the jury about what news coverage they might have seen or heard. North Carolina’s rules of professional conduct for attorneys already restricts what they can say outside of court.

As an example of how the gag order hurts Murphy-Brown, the company points to a June 29 story in The Wall Street Journal about the verdict in the second trial. The story said the company declined to comment because of the order that had been imposed two days earlier.

But the story went on to quote environmentalists welcoming the verdict and saying the hog industry should just replace hog farm lagoons with new technology. Murphy-Brown argues it was hamstrung from publicly disagreeing with the verdict or pointing out legal errors by the plaintiffs.

“The gag order thus prevents Murphy-Brown from defending itself while giving its critics free reign to publish factually erroneous claims and slanted opinions without rebuttal,” the appeal says. “Such one-sided treatment both violates Murphy-Brown’s free speech rights and jeopardizes the impartiality of a jury pool that is exposed to a lopsided message critical of Murphy-Brown’s business.

With the gag order in place, news stories about the cases have relied on courtroom testimony and commentary from outside advocates such as environmentalists and the hog-farming industry, without context and fact-checking that might be elicited from the attorneys.

But the tradeoff is worth it, says Charlotte Morris, a trial consultant based in Raleigh. She says she was recently involved in a case that was tried for two weeks and went into deliberations, where one juror was holding out because of something the juror read online, resulting in a mistrial. Both sides spent a significant amount of money on the case.

“A judge’s decision to limit what can be said outside of court is protection for all parties and in the interest of civil justice,” Morris said. “It’s my belief the media and its audience can wait for comments from the lawyers and parties until the process has run its course.”

Craig Jarvis: 919-829-4576, @CraigJ_Nando