The case against Bryan Kohberger just got more controversial with an expanded ruling by an Idaho judge that extends the gag order from not only the attorneys involved in the case but also to the attorneys representing the victim’s families and any witnesses as well. Some are questioning the legality of the order because of the obvious free-speech implications.
It is well-settled law that defendants in criminal cases have a right to a fair trial. This right includes the right to an impartial jury and the right to present a defense. Judges often issue partial gag orders to protect the rights of the accused, but rarely do they order sweeping gag orders that restrain victims from speaking to the press. But that’s exactly what has happened in the Idaho case.
Judge Megan Marshall’s newly amended gag order bars “any attorney representing a witness, victim, or victim’s family” from making any comments about the case that go beyond quoting or referring to official public records. The order had previously only applied to prosecutors and Kohberger’s defense attorney. The attorneys are now not even permitted to speak publicly about the characters of the victims.
The Supreme Court has held that the First Amendment does not allow for unlimited restrictions on speech in order to ensure a fair trial. In particular, the Court has ruled that gag orders must be narrowly tailored to serve a compelling government interest. The interest in ensuring a fair trial must be balanced against the defendant’s and the victim’s right to free speech.
The order came shortly after an attorney who represented Kohberger in Pennsylvania for the extradition hearing spoke to the press about possible defenses in the case. He appeared to be speaking on behalf of the Kohberger family and Kohberger. After weeks of victim’s statements and an effort to convict Kohberger in the press, putting forward a spokesperson was a smart thing to do. But now the order silences any representatives of any of the families involved from speaking. Is that a coincidence that the order came right after Kohberger’s representation started making a case for his innocence?
It looks that way. If we are being fair and not pre-judging Kohberger before the trial, then any person concerned with the rights of the accused must agree that the accused has a right to defend himself in public with the same vociferousness as the victims’ families. Did the judge issue this order to silence Kohberger specifically? If so, that’s troubling. Judge Marshall did not issue the order after weeks of victims’ families doing interviews on all the major networks but expanded the ruling right after Kohberger’s attorney attempted to mount a public defense.
This troubles me. Gag orders walk the line of violating free speech anyway, but the expansion of this one seems to cross that line into illegal and challenge-worthy. Already, 22 news outlets have formed a coalition to begin the process of challenging the order. “This order is unnecessarily sweeping and broad and severely impedes the public’s understanding of a significant criminal investigation that profoundly impacted the community,” said Josh Hoffner, national news director for the Associated Press. The media outlets are expected to file against the order this week.
Kohberger is accused of stabbing four University of Idaho students in November. His DNA was found on the button snap of a knife sheath, and police say his phone activity placed him at the scene of the crime along with videos of his car on the night of the murders. Kohberger will appear in court for a preliminary hearing on June 26.
Join the conversation as a VIP Member