On June 19, 2020, the ACLU-NH filed an amicus brief in this case arguing that the State's proposed "gag order" banning pro se defendant Mr. Bergeron from making statements about his criminal case was unlawful and violative of the First Amendment. Here, the State urges the Court to issue a sweeping, one-sided gag order which would prohibit Mr. Bergeron (but not the State or its agencies) from “making any additional extrajudicial public statements in the media regarding the above-captioned case,” without regard to any prejudice on the parties’ ability to have a fair adjudication. For example, this order, if enacted, would prohibit Mr. Bergeron from publicly proclaiming his innocence, even after a local newspaper has already run a story noting his indictment in this case (but not his not guilty plea or presumption of innocence).
As explained in the amicus brief, the State’s motion seeking a "gag order" should be denied for at least three independent reasons. First, the basis for the State’s request is its apparent assumption that pro se criminal defendants are bound by Rule 3.6 of the New Hampshire Rules of Professional Conduct. The State is incorrect. The Rules themselves make clear that Rule 3.6 does not apply to pro se criminal defendants. Second, even if Rule 3.6 does apply to pro se criminal defendants like Mr. Bergeron (which it does not), the proposed gag order sought far exceeds Rule 3.6’s plain terms by (1) including speech that is not prejudicial because it occurs well before trial, and (2) failing to include the numerous important exceptions that exist in Rule 3.6(c). For example, the State argues that the proposed gag order is needed because of one letter to the editor Mr. Bergeron published in a local newspaper months before a jury is to be empaneled. However, as courts have repeatedly held, such speech occurring well before trial will not “have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter” under Rule 3.6. Third, if enacted, the proposed gag order would be an unconstitutional infringement on Mr. Bergeron’s right to express himself under the United States and New Hampshire constitutions.