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.