The family of University of Idaho stabbing victim Kaylee Goncalves is appealing a gag order imposed upon them and others in the case against suspected killer, Bryan Kohberger. That appeal is supported by media organizations. As a long-standing critic of these gag orders on free speech grounds, it should come as no surprise that I believe that this order should be viewed as unconstitutionally vague and overbroad. However, courts have steadily increased the scope of these orders despite the curtailment of First Amendment rights.
At the start of the case, Judge Megan Marshall issued the initial gag order Jan. 3 to restrict comments from prosecutors, the defense, law enforcement and other officials. That is fairly common. However, on Jan. 18, she expanded the scope to include attorneys for the victims and their families from speaking with the media. The key language in the order states:
“The attorneys for any interested party in this case, including the prosecuting attorney, defense attorney, and any attorney representing a witness, victim, or victim‘s family, as well as the parties to the above entitled action, including but not limited to investigators, law enforcement personal [sic], and agents for the prosecuting attorney or defense attorney, are prohibited from making extra judicial statements (written or oral) concerning this case, except, without additional comment, a quotation from or reference to the official public record of the case.”
The order is an example of the ever-expanding scope of these orders. Courts have become untethered from the narrow parameters laid down by the Supreme Court in prior cases.
In Gentile v State Bar of Nevada, 501 U.S. 1030, 1072-1074 (1991), the Supreme Court recognized that “The speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2781 (1976) …”
However, this order extends far beyond that scope. Lawyers for family members are representing clients who are not parties to the case. That negates the premise of gag orders allowed by the Court in Gentile. The Court reasoned that attorneys “have special access to information through discovery and client communications, [and therefore] their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative.”
Courts today treat any pretrial publicity as not just inimical to a fair trial but legitimately subject to judicial regulation. The Supreme Court rejected that presumption in Nebraska Press Ass’n v. Stuart:
“Pre-trial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial. The decided cases cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.”
In my view, Judge Marshall erred in the sweeping scope of the order. While the courts tend to support these orders, it should be narrowed in light of the countervailing First Amendment interests.
Jonathan Turley: Assuming the defendant pleads “not guilty” a trial jury panel, plus alternates, will have to be selected from the adult residents of Latah County, Idaho. There aren’t very many. So how is a presumably fair trial going to be conducted?
And no, from just across the state border, I don’t actually know everybody in Latah County personally. But the ones I do know have already made up their minds about the defendant’s guilt.
The judge has control of his courtroom only – sequester your jury, Your Honor. The judge has no power to amend the Constitution.
Is there any such thing as a “fair trial”?
Every political trial is corrupted by charging in, and employing, the Washington, D.C., venue.
No doubt O.J. Simpson is innocent.
David – I am amazed you do not know everyone in Latah County since it is the place to buy goods.
Until we hear what Idaho’s version of Johnny Cochrane has to tell TMZ, clearly the public’s and likely the defense’s interests are not being protected.
Statements of those who may have proprietary information due to discovery proceedings may very well have an effect on the opinions of the public. However, it is incumbent upon a court to assemble a jury whose members have not been affected by pre-trial publicity regardless of the inconvenience. This may be difficult, but no one ever said that it was or should be easy. Free speech (with very few careful exceptions) is the law of our land and the most important one at that. As this article suggests, the gag order concept is being abused and this is not a surprise. When it comes to speech, there is no limit to the justification made to curtail it. I say err on the side of the First Amendment.
Unless they are active parties to the case there is no need to gag people. I think free speech is worth that risk.
That will force attorneys in the case to concentrate on picking good jurors rather than people who don’t read papers or watch the news or anything else. Then you just end up with dumb jurors. I would rather a juror be aware of the world and capable of listening and making an informed judgement.
It is interesting that the Courts increasing view themselves as outside the confines of the Constitution and the Bill of Rights. One of the best examples was in a recent Congressional confirmation hearing for an appellate court judgeship, the one candidate did not even know what Article 2 or 5 of the constitution pertained to. I surely hope some Judges read your articles!
Free speech concerns – agreed. But what about a fair trial? Little bit of tension there between those rights. Which one is the most critical?
To deny the freedom of speech, one must amend the Constitution.
In a nation of laws, laws must be obeyed.
The judge has power over his courtroom only, not America, his action must be to sequester the jury.
It is not rational and coherent, or necessary and proper, to write a constitution and, subsequently, deny it.
The only denial of constitutional rights and freedoms in the Constitution is the suspension of habeas corpus during invasion or rebellion (not pandemic).
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People must adapt to the outcomes of freedom.
Freedom does not adapt to people.
Dictatorship does.
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This judge must be impeached and convicted for abuse of power, usurpation of power, denial of constitutional rights et al.