Latest / Beyond The Horizon / Mega Edition: Wendy Olson's Declaration In Support Of Removing The Kohberger Gag Order (8/9/26)

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Mega Edition: Wendy Olson's Declaration In Support Of Removing The Kohberger Gag Order (8/9/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up, everyone, and welcome back to the program. In
• 0:03
  Speaker 1: this episode, the dive into the court documents is going
• 0:06
  Speaker 1: to continue, and this time we're going to take a
• 0:09
  Speaker 1: look at the declaration of Wendy j Olsen in support
• 0:13
  Speaker 1: of the motion to reconsider Case number CR twenty nine
• 0:18
  Speaker 1: Dash twenty two DASH twenty eight oh five, State of Idaho,
• 0:22
  Speaker 1: Plaintiff First Brian C. Coberger, the defendant, Section one introduction.
• 0:28
  Speaker 1: Last week, the Idaho Supreme Court confirmed that a vague, overbroad,
• 0:32
  Speaker 1: unduly restrictive, or not narrowly drawn gag order is an
• 0:36
  Speaker 1: unconstitutional obstacle to intervener's gathering information about this case. In
• 0:42
  Speaker 1: response to the petition for rid of mandamus or rid
• 0:45
  Speaker 1: of prohibition Number five zero four A two two zero
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  Speaker 1: two three WL three zero five eight two nine at five, Idaho,
• 0:55
  Speaker 1: April twenty fourth, twenty twenty three. But on procedural grounds,
• 0:59
  Speaker 1: the idahost Supreme Court decided that this Court should have
• 1:02
  Speaker 1: a chance, in the first instance, to vacate the amended
• 1:06
  Speaker 1: non dissemination order enter January eighteenth, twenty twenty three. Following
• 1:12
  Speaker 1: the Idaho Supreme Court's guidance, interveners now asks this Court
• 1:16
  Speaker 1: to vacate the gag order because it is vague, overbroad,
• 1:19
  Speaker 1: unduly restrictive, and not narrowly drawn. The gag order expands
• 1:24
  Speaker 1: far beyond the Idaho Rule of Professional Conduct three dot six,
• 1:29
  Speaker 1: applying to individuals not governed by those ethical rules, and
• 1:33
  Speaker 1: prohibiting any statements about this case, not just those that
• 1:37
  Speaker 1: are present a substantial likelihood of materially prejudicing a future trial.
• 1:42
  Speaker 1: What's more, the state and mister Coburger the parties have
• 1:46
  Speaker 1: submitted no evidence that media coverage presents a sufficient risk
• 1:50
  Speaker 1: of prejudice to mister Coburger's right to a fair trial,
• 1:54
  Speaker 1: or that other remedies are insufficient to prevent or remedy
• 1:58
  Speaker 1: any prejudice. Gag order, which is based on the party's stipulation,
• 2:03
  Speaker 1: rests merely on an assumption that press coverage is bad.
• 2:06
  Speaker 1: The US Constitution and the Idaho Constitution demand more. The
• 2:11
  Speaker 1: gag order should thus be vacated Section two. Background. In
• 2:17
  Speaker 1: December of twenty twenty two, Brian Colberger was arrested in
• 2:21
  Speaker 1: Charge for allegedly murdering for students at the University of Idaho.
• 2:26
  Speaker 1: Despite great public interest in the investigation of the murders,
• 2:29
  Speaker 1: and now the prosecution of mister Colberger. There have not
• 2:32
  Speaker 1: been any notable leaks or dissemination of extra judicial information
• 2:38
  Speaker 1: that would prejudice mister Coburger's right to a fair trial.
• 2:42
  Speaker 2: Yet the party stipulated to.
• 2:43
  Speaker 1: A gag order prohibiting attorneys, investigators, and law enforcement personnel
• 2:48
  Speaker 1: from making any extra judicial statement, written or oral concerning
• 2:53
  Speaker 1: this case other than a quotation from a reference two
• 2:56
  Speaker 1: without comment. The public records of the court is in
• 3:00
  Speaker 1: this case declaration of one d j olsen Ulsen Declaration
• 3:04
  Speaker 1: Exhibit A. The parties offered no evidence in support of
• 3:09
  Speaker 1: their stipulation, simply asserting, as this Court is aware, this
• 3:13
  Speaker 1: case involves matters that have received a great deal of publicity.
• 3:17
  Speaker 1: Their assertion, while not wrong, does not say the publicity
• 3:21
  Speaker 1: has been prejudicial to mister Coburger. The Court issued the
• 3:25
  Speaker 1: requested gag order just over an hour after the parties
• 3:29
  Speaker 1: submitted their stipulation. Interveners do not doubt that the Court
• 3:34
  Speaker 1: had good intentions, but an hour was not enough time
• 3:37
  Speaker 1: to meaningfully consider the constitutional interests at stake. There was
• 3:42
  Speaker 1: no time for the court to hold a hearing, take
• 3:44
  Speaker 1: any objections, make factual findings, or perform any legal analysis.
• 3:50
  Speaker 1: Ten days later, the court held a private meeting with
• 3:53
  Speaker 1: the parties and an attorney for a victim's family. The
• 3:56
  Speaker 1: parties drafted a memorandum after the meeting. The memory is
• 4:00
  Speaker 1: not a court order. It is the party's memorialization of
• 4:04
  Speaker 1: what they remember from the meeting. Even though minor redactions
• 4:08
  Speaker 1: would satisfy any privacy concerns, the parties opted to file
• 4:12
  Speaker 1: the entire memorandum under seal to the public. It appeared
• 4:16
  Speaker 1: that the meeting never occurred. The parties later agreed to
• 4:20
  Speaker 1: unseal the memorandum to use it to oppose the intervener's
• 4:23
  Speaker 1: petition in the Idaho Supreme Court. Five days after the
• 4:27
  Speaker 1: private meeting, the court issued the gag order that is
• 4:31
  Speaker 1: at issue in this motion. Because the preceding meeting was
• 4:34
  Speaker 1: held privately to the public, it appeared that the court
• 4:38
  Speaker 1: issued the gag orders. Who was spontee. The Court noted
• 4:41
  Speaker 1: in the gag order that to preserve the right to
• 4:44
  Speaker 1: a fair trial, some curtillment of the dissemination of information
• 4:48
  Speaker 1: in this case is necessary and authorized under law. The
• 4:52
  Speaker 1: court made no factual findings in support of that conclusion, which,
• 4:56
  Speaker 1: of course it could not. As again, the party's presented
• 5:00
  Speaker 1: no evidence. If evidence was presented during the private meeting,
• 5:04
  Speaker 1: it was not offered on the record and cannot be
• 5:07
  Speaker 1: relied upon, as interveners have no means to evaluate, let
• 5:10
  Speaker 1: alone challenge, the veracity of the evidence, nor did the
• 5:15
  Speaker 1: court hold a hearing or offer any legal analysis, aside
• 5:19
  Speaker 1: from a footnote citing several authorities and offering no explanation
• 5:24
  Speaker 1: of how or why those authorities apply. The gag order
• 5:28
  Speaker 1: extends beyond what the parties requested in their stipulation. The
• 5:32
  Speaker 1: gag order applies to the attorneys for any interested party
• 5:36
  Speaker 1: in this case, including the prosecuting attorney, defense attorney, any
• 5:41
  Speaker 1: attorney representing a witness, victim, or a victim's family, as
• 5:45
  Speaker 1: well as the parties to the above entitled action, including
• 5:48
  Speaker 1: but not limited to investigators, law enforcement personnel, and agents
• 5:52
  Speaker 1: from the prosecuting attorney or defense attorney, interveners, or a
• 5:58
  Speaker 1: coalition of media companies that, but for the gag order,
• 6:02
  Speaker 1: would publish more information about the murders at the University
• 6:06
  Speaker 1: of Idaho and mister Coberger's prosecution. Members of the media
• 6:10
  Speaker 1: coalition have been affected by the gag order, as follows.
• 6:14
  Speaker 1: A victim's family wants to speak with the press about
• 6:17
  Speaker 1: mister Coberger's prosecution, but they feel bound by the gag order.
• 6:22
  Speaker 1: A Washington agency has requested declaratory relief to determine whether,
• 6:27
  Speaker 1: consistent with the gag order, it can produce nine to
• 6:30
  Speaker 1: one one tapes. In response to public records requests, Major
• 6:34
  Speaker 1: Christopher Paris of the Pennsylvania State Police told a reporter
• 6:38
  Speaker 1: Chris Ingles that he could not answer whether police had
• 6:41
  Speaker 1: launched any review of unsolved cases that could be linked
• 6:45
  Speaker 1: to mister Coburger because of the gag order. Moscow Mayor
• 6:49
  Speaker 1: Art Betkey told a reporter Eric Azuko that the city
• 6:52
  Speaker 1: attorney advised he was not able to answer questions about
• 6:56
  Speaker 1: the overall community healing in Moscow because of the gag order.
• 7:00
  Speaker 1: Journalist Taylor murfin Dusky public records request was denied by
• 7:05
  Speaker 1: the Layta County Sheriff's Office, Moscow Police Department, Pullman Police Department,
• 7:10
  Speaker 1: and Washington State Police Department because of the gag order.
• 7:14
  Speaker 1: The Moscow Police Department issued a press release that read,
• 7:18
  Speaker 1: due to this court order, the Moscow Police Department will
• 7:21
  Speaker 1: no longer be communicating with the public or the media
• 7:24
  Speaker 1: regarding this case. Gary Jenkins, chief of police at Washington
• 7:29
  Speaker 1: State University, and Matt Young, communication coordinator for the city
• 7:33
  Speaker 1: of Pullman, told reporter Morgan Romero that they cannot answer
• 7:37
  Speaker 1: whether mister Colberger applied for a graduate assistant research position
• 7:41
  Speaker 1: with the Pullman Police Department because of the gag order.
• 7:44
  Speaker 1: The Moscow Police Department refused to advise a reporter from
• 7:48
  Speaker 1: The Idaho Statesman how many cell phone towers are in
• 7:51
  Speaker 1: the area near where the murders occurred, the size of
• 7:55
  Speaker 1: mister Coberger's cell, the size of the Moscow jail, and
• 7:58
  Speaker 1: the nature of mister colber meals. Because of the gag order,
• 8:02
  Speaker 1: Long Crime reporter Annette Leve was denied access to Colberger's
• 8:06
  Speaker 1: booking video from the Leata County Sheriff's office because of
• 8:10
  Speaker 1: the court's non dissemination order. Within weeks of the court
• 8:14
  Speaker 1: issuing the gag order, intervener's petitioned the Idaho Supreme Court
• 8:18
  Speaker 1: to vacate or nullify the gag order. The Idaho Supreme
• 8:22
  Speaker 1: Court held that interveners have sufficient standing to challenge the
• 8:26
  Speaker 1: gag order. Petition for a writ of mendamus or writ
• 8:31
  Speaker 1: of prohibition twenty twenty three WL three zero five zero
• 8:35
  Speaker 1: eight two nine at six. In support of that holding,
• 8:39
  Speaker 1: the Idaho Supreme Court agrees that the injury claimed a
• 8:43
  Speaker 1: claim that the gag order infringes freedom of the press
• 8:46
  Speaker 1: by restricting Intervener's ability to gather information for publication is
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  Speaker 1: recognized under the First Amendment idea at five. The Idaho
• 8:56
  Speaker 1: Supreme Court further noted that if the gag order is vague,
• 8:59
  Speaker 1: over broad, unduly restrictive, or not narrowly drawn, it would
• 9:04
  Speaker 1: be an unconstitutional obstacle to their gathering of such information.
• 9:08
  Speaker 1: But the Idaho Supreme Court declined to vacate the gag order,
• 9:12
  Speaker 1: opining that the proper course is to first seek redress
• 9:16
  Speaker 1: from the magistrate court Idea number ten. Following that instruction,
• 9:21
  Speaker 1: interveners now asks this Court to vacate the gag order
• 9:25
  Speaker 1: because it is vague, overbroad, unduly restrictive, and not narrowly drawn.
• 9:31
  Speaker 1: The argument justice cannot survive behind walls of silence Shepherd
• 9:36
  Speaker 1: versus Maxwell, three eighty four US three point thirty three
• 9:40
  Speaker 1: three forty nine, nineteen sixty six. For that reason, a
• 9:44
  Speaker 1: responsible press has always been regarded as the handmaiden of
• 9:47
  Speaker 1: effective judicial administration, especially in the criminal field. Idea three
• 9:52
  Speaker 1: point fifty. The press does not simply publish information about trials,
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  Speaker 1: but guards against the miscarriage of justice by subjecting the police, prosecutors,
• 10:02
  Speaker 1: the judicial process to extensive public scrutiny and criticism. ID
• 10:08
  Speaker 1: the memorandum in support of motion to vacate the amended
• 10:12
  Speaker 1: non dissemination Order. The First Amendment was thus intended to
• 10:16
  Speaker 1: give to liberty of the press the broadcast scope that
• 10:20
  Speaker 1: could be continenced in an orderly society ID cleaned up.
• 10:24
  Speaker 1: To be sure, an orderly society must also consider a
• 10:28
  Speaker 1: criminal defendant's right to a fair trial. But when balancing
• 10:31
  Speaker 1: that interest, First Amendment protections do not yield until they
• 10:35
  Speaker 1: infringe on the sixth Amendment. There is no presumption that
• 10:39
  Speaker 1: speech is prejudicial to a criminal defendant, or more that
• 10:43
  Speaker 1: speech necessarily means a less fair trial to that contrary,
• 10:47
  Speaker 1: the US Supreme Court's precedent demonstrates that pre trial publicity,
• 10:51
  Speaker 1: even pervasive adverse publicity, does not inevitably lead to an
• 10:56
  Speaker 1: unfair trial Nebraska Press Association versus Stewart for twenty seven
• 11:01
  Speaker 1: US five thirty nine, five point fifty four, nineteen seventy six.
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  Speaker 1: And even when speech is prejudicial, to a criminal defendant.
• 11:09
  Speaker 1: Only in relatively rare cases does pre trial publicity present
• 11:14
  Speaker 1: unmanageable threats idea at five point fifty one and at
• 11:18
  Speaker 1: five fifty four. Many mitigating measures exist, including a change
• 11:22
  Speaker 1: of venue, trial postponement, a searching v. Dyer, emphatic jury instructions,
• 11:28
  Speaker 1: and sequestration of the jurors. Application of Dow, Jones and Company,
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  Speaker 1: eight forty two f Dot two D six H three
• 11:36
  Speaker 1: six eleven, Second Circuit nineteen eighty eight, citing Shepard three
• 11:40
  Speaker 1: eighty four US three thirty three and Nebraska Press for
• 11:44
  Speaker 1: twenty seven US five thirty nine. To ensure a proper
• 11:48
  Speaker 1: balance between the first and six amendments, a party requesting
• 11:52
  Speaker 1: a gag order must present evidence that the prohibited speech
• 11:56
  Speaker 1: presents a sufficient risk of prejudice to a fair trial,
• 12:00
  Speaker 1: and that none of the other alternative remedies which do
• 12:03
  Speaker 1: not prohibit speech, are sufficient to prevent or remedy any prejudice. Here,
• 12:09
  Speaker 1: the parties have fallen well short, as they have submitted
• 12:12
  Speaker 1: no evidence on the record to support the sweeping gag
• 12:15
  Speaker 1: order that is in place. All right, folks, we're gonna
• 12:19
  Speaker 1: wrap up part one right here, and we'll pick up
• 12:21
  Speaker 1: in the next episode discussing this topic with Part two,
• 12:25
  Speaker 1: and the gag order violates the First Amendment because it
• 12:28
  Speaker 1: is vague, overbroad, unduly restrictive, and not narrowly drawn. All
• 12:34
  Speaker 1: of the information that goes with this episode can be
• 12:36
  Speaker 1: found in the description box. What's up everyone, and welcome
• 12:40
  Speaker 1: back to the program. In this episode, we're gonna pick
• 12:43
  Speaker 1: up where we left off with the Declaration of Wendy
• 12:47
  Speaker 1: j Olsen.
• 12:50
  Speaker 2: Part A.
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  Speaker 1: The gag order violates the First Amendment because it is vague, overbroad,
• 12:56
  Speaker 1: unduly restrictive, and not narrowly drawn. The gag wor broadly
• 13:00
  Speaker 1: prohibits any statements concerning this case. That prohibition is much
• 13:05
  Speaker 1: broader than Idaho Rule of Professional Conduct three dot six,
• 13:09
  Speaker 1: and it is broader than the regulations of speech described
• 13:13
  Speaker 1: by the US Supreme Court in Shepherd Nebraska Press and Genteel.
• 13:18
  Speaker 1: There is no evidence that every statement concerning mister Coberger's
• 13:22
  Speaker 1: prosecution poses a substantial risk to his right to a
• 13:26
  Speaker 1: fair trial, nor is there any evidence that other less
• 13:30
  Speaker 1: restrictive measures could not prevent or remedy any prejudice. As
• 13:35
  Speaker 1: a result, the gag order violates the US Constitution and
• 13:39
  Speaker 1: the Idaho Constitution one, the gag order far exceeds Idaho
• 13:45
  Speaker 1: Rule of Professional Conduct three dot six. Footnote one of
• 13:49
  Speaker 1: the gag order cites Idaho Rule of Professional Conduct three
• 13:52
  Speaker 1: dot six. It is unclear whether that citation is intended
• 13:56
  Speaker 1: to suggest that the gag.
• 13:58
  Speaker 2: Order mirrors Lee.
• 14:00
  Speaker 1: Even if that were the case, the parties need to
• 14:03
  Speaker 1: explain why the Idaho state bar enforcement of rule three
• 14:07
  Speaker 1: dot six is insufficient such that a coord order and
• 14:10
  Speaker 1: the penalty of contempt are necessary. Those more severe penalties
• 14:15
  Speaker 1: present a unique chilling effect that will reduce speech that
• 14:19
  Speaker 1: does not violate Rule three dot six. In any event,
• 14:22
  Speaker 1: the gag order does not mirror Rule three dot six.
• 14:25
  Speaker 1: The gag order is far broader. It prohibits more topics
• 14:29
  Speaker 1: of speech and governs a wider range of individuals. A.
• 14:34
  Speaker 1: The gag order broadly prohibits any statements about mister Colberger's prosecution.
• 14:40
  Speaker 1: Rule three dot six carefully crafted to regulate a narrow
• 14:43
  Speaker 1: set of topics that are most likely to be prejudicial.
• 14:47
  Speaker 1: It regulates speech that will have a substantial likelihood of
• 14:50
  Speaker 1: materially prejudicing and adjudicative proceeding in that matter I dot
• 14:55
  Speaker 1: R dot PC three dot six. A. The rules comment
• 15:00
  Speaker 1: explains that there are certain subjects that are more likely
• 15:03
  Speaker 1: than not to have a material prejudicial effect on a proceeding,
• 15:07
  Speaker 1: such as the character, credibility, reputation, or a criminal record
• 15:12
  Speaker 1: of a party, the possibility of a plea of guilty
• 15:14
  Speaker 1: to the offense, or the existence or contents of any confession, admission,
• 15:20
  Speaker 1: or statement given by a defendant, the performance or results
• 15:25
  Speaker 1: of any examination or a test, or the refusal or
• 15:28
  Speaker 1: failure of a person to submit to an examination or
• 15:31
  Speaker 1: a test, and any opinion as to the guilt or
• 15:35
  Speaker 1: innocence of a defendant. By contrast, the gag order is
• 15:40
  Speaker 1: not tailored at all. Section one of the gag Order
• 15:43
  Speaker 1: prohibits any extra judicial statements written or oral concerning this
• 15:48
  Speaker 1: case Ulsen declaration example d. Section two offers examples of
• 15:54
  Speaker 1: prohibited speech, but it does not say those examples are
• 15:58
  Speaker 1: exhaustive or limit the general prohibition of any statements concerning
• 16:02
  Speaker 1: this case. As a result, the gag order prohibits all
• 16:06
  Speaker 1: statements about mister Coburger's prosecution, even statements that could help
• 16:10
  Speaker 1: him secure a fair trial. Unsurprisingly, then, individuals have said
• 16:15
  Speaker 1: the gag order prohibits them from making comments on innocuous
• 16:19
  Speaker 1: topics like how the Moscow community is healing, how many
• 16:23
  Speaker 1: cell phone towers are around where the murder occurred, the
• 16:27
  Speaker 1: size of mister Coburger's cell meals mister Coburger receives, and
• 16:31
  Speaker 1: mister Coberger's job applications to the Pullman Police Department ulsen
• 16:36
  Speaker 1: Declaration Part nine. Even without the sweeping prohibition in section one,
• 16:41
  Speaker 1: section two of the gag Order does not precisely mirror
• 16:45
  Speaker 1: Rule three dot six's commentary. For example, Section two way
• 16:49
  Speaker 1: prohibits speech on evidence regarding the occurrences or transactions involved
• 16:54
  Speaker 1: in the case, which is broader than the commentary's concerns
• 16:57
  Speaker 1: about speech related to the identity or nature of physical
• 17:01
  Speaker 1: evidence expected to be presented. I dot R dot P
• 17:05
  Speaker 1: dot C three dot six cmt dot five, and section
• 17:09
  Speaker 1: two dot D prohibit speech about any opinion as to
• 17:13
  Speaker 1: the guilt or innocence of the defendant I dot R
• 17:16
  Speaker 1: dot P dot C three dot six, CMT dot five,
• 17:20
  Speaker 1: which is also covered in section two F, suggesting section
• 17:24
  Speaker 1: two D is intended to regulate something different and broader.
• 17:29
  Speaker 1: B The Gag Order prohibit speech from a broad and
• 17:32
  Speaker 1: vague group of individuals. The Gag Order targets the attorneys
• 17:36
  Speaker 1: for an interested party in this case, including the prosecuting attorney,
• 17:40
  Speaker 1: defense attorney, and any attorney representing a witness, victim, or
• 17:44
  Speaker 1: victim's family, as well as the parties to the above
• 17:47
  Speaker 1: entitled action, including but not limited to, investigators, law enforcement personnel,
• 17:53
  Speaker 1: and agents for the prosecuting attorney or defense attorney. To start,
• 17:58
  Speaker 1: that group of individuals is Although the gag order expressly
• 18:02
  Speaker 1: identifies certain types of individuals, that list is not exhaustive
• 18:07
  Speaker 1: because of the phrase including, but not limited to. As
• 18:10
  Speaker 1: a result, others like the victim's families and law enforcement
• 18:14
  Speaker 1: outside the state of Idaho must guess whether they too
• 18:17
  Speaker 1: are subject to the gag order. The guessing game renders
• 18:21
  Speaker 1: the gag order unconstitutionally vague, and it also exceeds the
• 18:25
  Speaker 1: court's jurisdiction, as the court cannot bind individuals who are
• 18:29
  Speaker 1: not before it and who reside outside of Idaho. That
• 18:33
  Speaker 1: group of individuals is also overbroad. In contrast to the
• 18:37
  Speaker 1: gag order. Rule three dot six governs attorneys only, and
• 18:41
  Speaker 1: specifically those attorneys admitted to practice in Idaho e g. I,
• 18:47
  Speaker 1: dot R dot P dot C PMBL ID eight point five.
• 18:52
  Speaker 1: Rule three dot eight demonstrates that limitation. It requires a
• 18:57
  Speaker 1: prosecutor to exercise a reasonable care to prevent investigators, law
• 19:01
  Speaker 1: enforcement personnel employees, or other persons assisting or associated with
• 19:07
  Speaker 1: the prosecutor in a criminal case from making statements that
• 19:10
  Speaker 1: the prosecutor could not make under rule three dot six
• 19:14
  Speaker 1: ID three dot eight f. That is, rule three dot
• 19:17
  Speaker 1: eight operates indirectly through the prosecutor. It does not apply
• 19:22
  Speaker 1: directly to an investigator or a law enforcement because they
• 19:25
  Speaker 1: are not lawyers admitted in Idaho. Nor does rule three
• 19:29
  Speaker 1: dot eight address the defense attorneys, the defense investigators or agents,
• 19:34
  Speaker 1: or the attorneys or agents for the victim's families. The
• 19:37
  Speaker 1: gag order, by contrast, applies to both prosecution and the defense,
• 19:43
  Speaker 1: and it directly regulates those who are not subject to
• 19:46
  Speaker 1: the Idaho rules a professional conduct. Two US Supreme Court
• 19:51
  Speaker 1: precedent counsels in favor of vacating the gag order. The
• 19:55
  Speaker 1: Court cited three US Supreme Court decisions in footnote one
• 19:59
  Speaker 1: of the gag order, Shepherd, Nebraska, Press, and Genteel. While
• 20:04
  Speaker 1: those cases acknowledge the propriety of regulating some speech from
• 20:07
  Speaker 1: lawyers and trial participants, they also explained the findings of
• 20:11
  Speaker 1: prejudice and the narrow tailoring that are required before prohibiting speech.
• 20:16
  Speaker 1: The party stipulation and the gag order ignore those principles,
• 20:21
  Speaker 1: taking the cases in order. The US Supreme Court first
• 20:24
  Speaker 1: decided Shepard versus Maxwell three eighty four US three thirty three,
• 20:28
  Speaker 1: nineteen sixty six. There a prisoner challenged his conviction, arguing
• 20:33
  Speaker 1: that he did not receive a fair trial because of
• 20:35
  Speaker 1: publicity before and during his trial. For example, Shepherd jurors
• 20:40
  Speaker 1: were subjected to newspaper, radio, and television coverage of the
• 20:44
  Speaker 1: trial while not taking part in the proceedings. Three months
• 20:48
  Speaker 1: before the trial, Shepherd was examined for more than five
• 20:51
  Speaker 1: hours without counsel, which was televised live from a high
• 20:55
  Speaker 1: school gymnasium seating hundreds of people Idea three fifty four.
• 21:00
  Speaker 1: During the trial, the lower Court erected a press table
• 21:02
  Speaker 1: for reporters inside the bar, where some twenty reporters sat
• 21:06
  Speaker 1: within a few feet of the jury box. The lower
• 21:09
  Speaker 1: court also assigned almost all of the available seats in
• 21:13
  Speaker 1: the courtroom to the news media. Together, those decisions interfered
• 21:18
  Speaker 1: with the privacy and tranquility of the defendant, the witnesses,
• 21:22
  Speaker 1: and the jury during the trial idea three p.
• 21:24
  Speaker 2: Fifty five.
• 21:26
  Speaker 1: As a result of those and other facts, the Court
• 21:29
  Speaker 1: held that Shepherd did not receive a fair trial consistent
• 21:32
  Speaker 1: with the due process clause of the Fourteenth Amendment Idea
• 21:36
  Speaker 1: three thirty five. In support of that holding, the Court
• 21:39
  Speaker 1: noted the trial judge's failure to prevent remedy any prejudice
• 21:43
  Speaker 1: to Shepherd using remedies such as the continuance of trial,
• 21:47
  Speaker 1: sequestering of the jury, and control of the court room interveners.
• 21:51
  Speaker 1: Acknowledged that one potential measure the court mentioned was the
• 21:55
  Speaker 1: trial court might well have prescribed extra judicial statements by
• 21:59
  Speaker 1: any lawyer, party witness, or a court official which divulge
• 22:03
  Speaker 1: prejudicial matters, such as the refusal of Shepherd to submit
• 22:08
  Speaker 1: to interrogation or take any lie detector tests, any statement
• 22:12
  Speaker 1: made by Shepherd two officials, the identity of prospective witnesses
• 22:16
  Speaker 1: or their probable testimony, any belief in guilt or innocence,
• 22:21
  Speaker 1: or like statements concerning the merits of the case Idea
• 22:24
  Speaker 1: three sixty one. But that observation does not compel maintaining
• 22:29
  Speaker 1: the gag order to start. Shepherd is a due process case,
• 22:33
  Speaker 1: not a first Amendment case, nobody appeared to argue that
• 22:36
  Speaker 1: the proscription suggested by the Court would violate the First Amendment,
• 22:41
  Speaker 1: so the court did not decide the issue. Shepherd also
• 22:44
  Speaker 1: largely addressed conduct during trial, which for now is not
• 22:48
  Speaker 1: an issue as mister Coberger's trial has not even been
• 22:51
  Speaker 1: set and is likely many months or years away, and
• 22:55
  Speaker 1: to be clear, interveners do not seek to conduct and
• 22:58
  Speaker 1: out of court examination of mister Coberger or to sit
• 23:01
  Speaker 1: within the bar at mister Coberger's trial. While those stark
• 23:05
  Speaker 1: legal and factual differences means Shepherd is not controlling. More importantly,
• 23:10
  Speaker 1: the gag order here is not the hypothetical order that
• 23:13
  Speaker 1: Shepherd described. There the court contemplated in order limiting speech
• 23:19
  Speaker 1: on prejudicial matters, such is the refusal of Shepherd to
• 23:22
  Speaker 1: submit to interrogation or take any lie detector tests, any
• 23:26
  Speaker 1: statement made by Shepherd to officials, the identity of prospective
• 23:30
  Speaker 1: witnesses or their probable testimony, any belief in guilt or innocence,
• 23:36
  Speaker 1: or like statements concerning the merits of the case id
• 23:40
  Speaker 1: as described above, the gag order is much broader. It
• 23:44
  Speaker 1: prohibits any statements concerning this case, regardless of how likely
• 23:49
  Speaker 1: or unlikely the statement is to be prejudicial or helpful
• 23:52
  Speaker 1: to mister Coburger. The Court next acided Nebraska Press Association
• 23:57
  Speaker 1: versus Stuart, four twenty seven US five nine, nineteen seventy
• 24:01
  Speaker 1: six the gag Order their prohibited statements about the existence
• 24:06
  Speaker 1: and nature of any confessions or admissions made by the
• 24:09
  Speaker 1: defendant to law enforcement officers, b any confessions or admissions
• 24:14
  Speaker 1: made to third parties except members of the press, and
• 24:18
  Speaker 1: see other facts strongly implicative of the accused Ida at
• 24:22
  Speaker 1: five forty five. Internal quotation marks omitted. Even with the
• 24:27
  Speaker 1: more narrow scope of prohibitions, the Court held that the
• 24:30
  Speaker 1: gag order was unconstitutional. While drawing that conclusion, the Court
• 24:35
  Speaker 1: explained three principles relevant here. First, the First Amendment and
• 24:39
  Speaker 1: the sixth Amendment are entitled to equal protection. As the
• 24:43
  Speaker 1: Court explained, the authors of the Bill of Rights did
• 24:46
  Speaker 1: not undertake to assign priorities as between First Amendment and
• 24:50
  Speaker 1: six Amendment rights, ranking one as superior to the other
• 24:54
  Speaker 1: Idea at five sixty one. It is thus not for
• 24:57
  Speaker 1: the courts to rewrite the Constitution by undertaking what the
• 25:01
  Speaker 1: founders declined to do. Id Instead, First Amendment rights should
• 25:06
  Speaker 1: yield only when necessary to protect six Amendment rights. There
• 25:10
  Speaker 1: is a need to protect the accused as fully as possible,
• 25:14
  Speaker 1: and a need to restrict publication as little as possible
• 25:17
  Speaker 1: id At five sixty six. The second and related principle
• 25:22
  Speaker 1: is that court should consider other measures before issuing a
• 25:25
  Speaker 1: gag order. The Court endorsed many alternatives, such as change
• 25:30
  Speaker 1: of trial venue to a place less exposed to the
• 25:32
  Speaker 1: intense publicity that seemed imminent in Lincoln County. B postponement
• 25:37
  Speaker 1: of the trial to allow public attention to subside. C.
• 25:41
  Speaker 1: Search and questioning of prospective jurors, as Mister Chief Justice
• 25:45
  Speaker 1: Marshall used in the birth case to screen out those
• 25:48
  Speaker 1: with fixed opinions as to guilt or innocence. D. The
• 25:52
  Speaker 1: use of emphatic and clear instructions on the sworn duty
• 25:55
  Speaker 1: of each jur to decide the issues only on evidence
• 25:59
  Speaker 1: presented in open court. ND sequestering of jurors id at.
• 26:04
  Speaker 1: Five sixty four and five sixty three. Footnote omitted. By
• 26:08
  Speaker 1: considering these alternatives, in other words, by narrowly tailoring the remedy,
• 26:13
  Speaker 1: courts ensure they are issuing gag orders only when necessary.
• 26:17
  Speaker 1: As a result, the First Amendment is infringed only when
• 26:21
  Speaker 1: necessary to protect a six Amendment interest. That approach preserves
• 26:25
  Speaker 1: an equal balance between the two rights as intended by
• 26:28
  Speaker 1: the founders. The third principle is that when reviewing the
• 26:32
  Speaker 1: above analysis or review in court must examine the evidence
• 26:36
  Speaker 1: before the trial judge and the precise terms of the
• 26:39
  Speaker 1: restraining order. Based on these and other principles, Nebraska Press
• 26:44
  Speaker 1: held that the gag order there was unconstitutional. The court
• 26:48
  Speaker 1: observed that pre trial publicity, even if pervasive and concentrated,
• 26:53
  Speaker 1: cannot be regarded as leading automatically and in every kind
• 26:57
  Speaker 1: of criminal case, to an unfair trial I d. At.
• 27:00
  Speaker 1: Five sixty five. Given that assumptions are inappropriate in this context,
• 27:05
  Speaker 1: the probability of prejudice was not demonstrated with the degree
• 27:09
  Speaker 1: of certainty required Idea at five sixty nine. The gag
• 27:13
  Speaker 1: order was also not properly tailored. The trial court there
• 27:18
  Speaker 1: failed to consider alternative short of a gag order, and
• 27:22
  Speaker 1: the prohibition on implicative information was too vague and too
• 27:26
  Speaker 1: broad to survive the scrutiny required Idea at five sixty eight.
• 27:31
  Speaker 1: In many ways, Nebraska Press councils in favor of vacating
• 27:35
  Speaker 1: the gag order Here, the parties offered no facts for
• 27:38
  Speaker 1: the court to determine that any statement concerning his case
• 27:41
  Speaker 1: would prejudice mister Coburger. The parties also offered no explanation
• 27:46
  Speaker 1: of why alternative measures will not suffice. But even if
• 27:49
  Speaker 1: they had, the precise terms of the gag order which
• 27:52
  Speaker 1: prohibit statements concerning this case are broader than the Nebraska
• 27:56
  Speaker 1: press gag order, which prohibited statements about implicative information that
• 28:02
  Speaker 1: the US Supreme Court held was too broad. Last the
• 28:06
  Speaker 1: Court decided genteelivers State Bar of Nevada five oh one
• 28:10
  Speaker 1: US ten thirty nineteen ninety one. There an attorney challenged
• 28:14
  Speaker 1: disciplinary action taken against them for allegedly violating Nevada's equivalent
• 28:19
  Speaker 1: of Idaho Rule a Professional Conduct three dot six. Like
• 28:23
  Speaker 1: the Idaho rule, the Nevada rule prohibited an attorney from
• 28:27
  Speaker 1: making an extra judicial statement that a reasonable person would
• 28:31
  Speaker 1: expect to be disseminated by means of public communication if
• 28:35
  Speaker 1: the lawyer knows or reasonably should know that it will
• 28:38
  Speaker 1: have a substantial likelihood of materially prejudicing and adjudicative proceeding
• 28:44
  Speaker 1: Ida ten thirty three citation omitted. The Court held that
• 28:48
  Speaker 1: the rule was unconstitutional as interpreted and applied in Nevada.
• 28:52
  Speaker 1: The Court's decision was fractured, but part two of Chief
• 28:56
  Speaker 1: Justice rehnquist opinion garnered a majority, and dad is relevant here.
• 29:01
  Speaker 1: Chief Justice Rehnquist first observed that by default, the First
• 29:04
  Speaker 1: Amendment requires a showing of clear and present danger that
• 29:08
  Speaker 1: a malfunction in criminal justice system will be caused before
• 29:11
  Speaker 1: a state may prohibit media speech or publication about a
• 29:16
  Speaker 1: particular pending trial Idea ten seventy and seventy one. That said,
• 29:21
  Speaker 1: the law imposes a less demanding standard for regulating speech
• 29:25
  Speaker 1: of lawyers representing clients and pending cases, because those lawyers
• 29:29
  Speaker 1: are participants in the criminal justice system, and thus the
• 29:32
  Speaker 1: state may demand some adherents to the precepts of the
• 29:36
  Speaker 1: system Idea ten seventy four. A substantial likelihood of material
• 29:41
  Speaker 1: prejudice test satisfies that less demanding standard, as it imposes
• 29:46
  Speaker 1: only narrow and necessary limitations on speech at ten seventy five.
• 29:51
  Speaker 1: Put differently, the restraint on speech is narrowly tailored Idea
• 29:55
  Speaker 1: ten seventy six. Under Chief Justice rehnquists, reasoning the the
• 30:00
  Speaker 1: gag order is unconstitutional. The parties have submitted no evidence
• 30:04
  Speaker 1: of a clear and present danger of prejudice for statements
• 30:07
  Speaker 1: made by non lawyers, nor a substantial likelihood of material
• 30:11
  Speaker 1: prejudice for statements made by lawyers. And again, the gag
• 30:15
  Speaker 1: order is not at all tailored. It prohibits all statements
• 30:19
  Speaker 1: concerning this case, not just those that would cause material prejudice.
• 30:24
  Speaker 1: In some Shepherd Nebraska Press and Genteel all counsel in
• 30:28
  Speaker 1: favor of vacating the gag order, those cases only permit
• 30:33
  Speaker 1: prohibitions on speech that are one justified by a risk
• 30:37
  Speaker 1: of material prejudice and two narrowly tailored to limit only
• 30:41
  Speaker 1: the speech that is actually prejudicial and cannot be prevented
• 30:45
  Speaker 1: or remedied through other means. The parties have submitted no
• 30:49
  Speaker 1: evidence of prejudice sufficient to justify a gag order clear
• 30:54
  Speaker 1: and present danger for non lawyers and substantial risk of
• 30:58
  Speaker 1: material prejudice for lawyers, And even if they had, the
• 31:01
  Speaker 1: gag order is not narrowly tailored to surgically prescribe only
• 31:05
  Speaker 1: the speech that is prejudicial and cannot be prevented or
• 31:09
  Speaker 1: remedied through other means. All right, folks, We're gonna wrap
• 31:13
  Speaker 1: up Part two here and then the next episode on
• 31:15
  Speaker 1: the topic. We'll pick up where we left off. All
• 31:19
  Speaker 1: of the information that goes with this episode can be
• 31:22
  Speaker 1: found in the description box. What's up everyone, and welcome
• 31:26
  Speaker 1: back to the program. This episode, we're gonna pick right
• 31:29
  Speaker 1: back up where we left off with the declaration of
• 31:32
  Speaker 1: Wendy j Olsen Number three. The Court should treat the
• 31:37
  Speaker 1: gag order has a prior restraint and apply strict scrutiny
• 31:41
  Speaker 1: consistent with the principles articulated in Shepherd, Nebraska Press and Genteel.
• 31:46
  Speaker 2: The Court should treat.
• 31:47
  Speaker 1: The gag order as a prior restraint and vacate it
• 31:50
  Speaker 1: because the party's request does not survive strict scrutiny. The
• 31:54
  Speaker 1: gag order is a prior restraint. Speech presupposes a speaker
• 31:59
  Speaker 1: and a recipient. VA State Board of Pharmacy versus VA
• 32:04
  Speaker 1: Citizens Consumers Council, Incorporated. Four twenty five US seven forty
• 32:09
  Speaker 1: eight seven fifty six, nineteen seventy six. Without the one,
• 32:13
  Speaker 1: there cannot be the other. Richmond Newspapers Incorporated, First Virginia
• 32:18
  Speaker 1: four forty eight US five fifty five five seventy six,
• 32:21
  Speaker 1: nineteen eighty. We have recognized that without some protection for
• 32:25
  Speaker 1: seeking out the news, freedom of the press could be eviscerated,
• 32:29
  Speaker 1: So the right to speech necessarily protects the right to
• 32:32
  Speaker 1: receive information and ideas VA citizens for twenty five US
• 32:38
  Speaker 1: at seven fifty seven Citation omitted. There is thus a
• 32:43
  Speaker 1: constitutionally guaranteed right as a member of the press to
• 32:46
  Speaker 1: gather news CBS Incorporated versus Young, five, twenty two f
• 32:51
  Speaker 1: Dot two D. Two thirty four two thirty eight six
• 32:54
  Speaker 1: Circuit nineteen seventy five. The gag order restrains that constitutional
• 32:59
  Speaker 1: right before it can be exercised. Interveners do not make
• 33:03
  Speaker 1: the news. They report the news. They cannot report what
• 33:07
  Speaker 1: they cannot gather. Here there are many sources of newsworthy
• 33:11
  Speaker 1: information that, but for the amended gag order, would provide
• 33:15
  Speaker 1: information to interveners. That interveners would then make editorial decisions
• 33:20
  Speaker 1: about whether and when the published intervener's speech is thus
• 33:24
  Speaker 1: being restrained before they can even speak. That is the
• 33:28
  Speaker 1: definition of prior restraint. Prior restraint Black Laws Dictionary, eleventh edition,
• 33:34
  Speaker 1: twenty nineteen a governmental restriction on speech or a publication
• 33:39
  Speaker 1: before its actual expression. If the amended gag order is
• 33:43
  Speaker 1: a prior restraint, then it is subject to strict scrutiny
• 33:47
  Speaker 1: levin versus US District Court for Central District of California,
• 33:51
  Speaker 1: seven sixty four F. Dot two d five ninety five,
• 33:55
  Speaker 1: ninety five, Ninth Circuit, nineteen eighty five, Number four should
• 34:00
  Speaker 1: reject the fiction that gag orders directed at trial participants
• 34:04
  Speaker 1: do not restrain the press to avoid the outcome dictated
• 34:07
  Speaker 1: by prior restraint. Jurisprudence and cases like Shepherd Nebraska Press
• 34:12
  Speaker 1: and genteel interveners anticipate that the parties will ask the
• 34:16
  Speaker 1: court to follow the Second and Ninth Circuits in applying
• 34:19
  Speaker 1: the First Amendment. Differently, when the media challenges gag orders
• 34:23
  Speaker 1: directed at sources of information, the court should reject those
• 34:27
  Speaker 1: decisions because they are not well reasoned and place form
• 34:31
  Speaker 1: over function. In Radio and Television News Association of Southern
• 34:35
  Speaker 1: California versus US District Court for the Central District of California,
• 34:40
  Speaker 1: the Ninth Circuit recognized that the media has a First
• 34:43
  Speaker 1: Amendment right of access or right to gather information. Seven
• 34:47
  Speaker 1: eighty one F. Dot two d fourteen forty three, fourteen
• 34:51
  Speaker 1: forty six, Ninth Circuit, nineteen eighty six. Internal quotation marks
• 34:56
  Speaker 1: and citation omitted, but in the Ninth Circuit's view, a
• 35:00
  Speaker 1: court order prohibiting an individual from speaking with the media
• 35:04
  Speaker 1: does not infringe that right to gather information because the
• 35:08
  Speaker 1: media never has any guarantee of or write to interview
• 35:12
  Speaker 1: council in a criminal trial. Trial council are of course
• 35:16
  Speaker 1: free to refuse interviews, whether or not restrained by court order.
• 35:20
  Speaker 1: If such an individual refuses an interview, the media has
• 35:24
  Speaker 1: no recourse to relief based upon the First Amendment. That
• 35:29
  Speaker 1: reasoning is misguided, as a court prohibiting a person from
• 35:32
  Speaker 1: speaking to the media is different than an individual deciding
• 35:36
  Speaker 1: not to speak to the media.
• 35:38
  Speaker 2: To start.
• 35:38
  Speaker 1: An interviewee's decision not to speak to the media is
• 35:41
  Speaker 1: generally not a state action. As a result, the First
• 35:44
  Speaker 1: Amendment typically does not govern the interviewee's decision to not
• 35:49
  Speaker 1: answer questions e g. Manhattan Committee, Access Court versus Halleck,
• 35:54
  Speaker 1: one thirty nine, Supreme Court nineteen twenty one, nineteen twenty six,
• 35:58
  Speaker 1: twenty nineteen. N is a private actor, not a state actor,
• 36:02
  Speaker 1: and MNN therefore is not subject to First Amendment constraints
• 36:07
  Speaker 1: on its editorial discretion. By contrast, a gag order issued
• 36:11
  Speaker 1: by state court, even to enforce the request of a
• 36:14
  Speaker 1: private party is a state action and thus must comport
• 36:17
  Speaker 1: with the First Amendment. See a Pio versus Bank of
• 36:20
  Speaker 1: New York, three twenty four f.
• 36:23
  Speaker 2: Dot three d.
• 36:24
  Speaker 1: Ten ninety one, ten ninety three, Ninth Circuit, two thousand
• 36:27
  Speaker 1: and three. What would otherwise be private conduct? Ie Placing
• 36:32
  Speaker 1: a racially restrictive covenant in a deed can violate the
• 36:36
  Speaker 1: Fourteenth Amendment when state action in the form of a
• 36:39
  Speaker 1: court order is sought to enforce its restrictive provisions. The
• 36:44
  Speaker 1: Ninth Circuits reasoning also ignores the reality of news coverage.
• 36:48
  Speaker 1: There is no reporting without information. The media does not
• 36:52
  Speaker 1: make the news, it reports the news. If a court
• 36:55
  Speaker 1: order is an individual not to provide information to the media,
• 36:59
  Speaker 1: then the media has nothing to report. The media may
• 37:02
  Speaker 1: technically be allowed to ask questions to gather the news,
• 37:05
  Speaker 1: but it has no real expectation of an answer. The
• 37:09
  Speaker 1: law should recognize, or at least assume, that individuals will
• 37:13
  Speaker 1: follow court orders. As a result, a court order regulating
• 37:17
  Speaker 1: an individual speech to the media also regulates the media.
• 37:21
  Speaker 1: The media has no realistic opportunity to publish the information
• 37:25
  Speaker 1: that the sources of the information are ordered not to provide.
• 37:29
  Speaker 1: Interveners are not, as radio and television news suggests, seeking
• 37:34
  Speaker 1: an order compelling anybody to speak with them. Interveners instead
• 37:38
  Speaker 1: are challenging a state action prohibiting speech and asking for
• 37:42
  Speaker 1: a realistic opportunity to gather and report information on a
• 37:46
  Speaker 1: matter of public interest. The Second Circuit's decision and application
• 37:50
  Speaker 1: of Dow, Jones and Company is also unpersuasive. The Court's
• 37:55
  Speaker 1: analysis there begins by observing the distinction observed in radio
• 37:59
  Speaker 1: and television news, which is flawed for the reasons already
• 38:03
  Speaker 1: described eight forty two F.
• 38:05
  Speaker 2: Dot two d. At six oh eight.
• 38:07
  Speaker 1: The Second Circuit additionally noted that the parties subject to
• 38:10
  Speaker 1: the gag order there requested the order and urged its affirments.
• 38:15
  Speaker 1: A party's preference to not speak to the press does
• 38:18
  Speaker 1: not mean a state action adopting that preference is lawful.
• 38:22
  Speaker 1: A party's preference to not speak is typically not a
• 38:25
  Speaker 1: state action, but it becomes a state action when the
• 38:27
  Speaker 1: court issues an order see a.
• 38:29
  Speaker 2: Powell three twenty four f. Dot three d.
• 38:32
  Speaker 1: At ten ninety three. And here, not everyone subject to
• 38:36
  Speaker 1: the gag order requested it. In fact, one of the
• 38:39
  Speaker 1: victim's families is actively challenging it. Given the flawed reasoning
• 38:44
  Speaker 1: in radio and television news and Dow Jones. This Court
• 38:48
  Speaker 1: should reject those decisions and adopt the better reason decisions
• 38:52
  Speaker 1: and Young and People Versus Sledge, eight seventy nine and
• 38:56
  Speaker 1: W Dot two d eight eighty four, Michigan Court of Appeals,
• 39:00
  Speaker 1: twenty fifteen. In Young, the six Circuit Court recognized that
• 39:05
  Speaker 1: the media has no realistic opportunity to gather and publish
• 39:08
  Speaker 1: the news when a court forbid sources of information from
• 39:12
  Speaker 1: talking to the media. It wrote, although the news media
• 39:15
  Speaker 1: are not directly enjoined from discussing the case, it is
• 39:19
  Speaker 1: apparent that significant and meaningful sources of information concerning the
• 39:24
  Speaker 1: case are effectively removed from them and their representatives. To
• 39:29
  Speaker 1: that extent, their protected right to obtain information concerning the
• 39:32
  Speaker 1: trial is curtailed and impaired five twenty two f Dot
• 39:37
  Speaker 1: two d at two thirty nine. In Sledge, the Michigan
• 39:40
  Speaker 1: Court of Appeals similarly explained, although the gag order does
• 39:44
  Speaker 1: not directly prohibit the media from discussing the case, it
• 39:48
  Speaker 1: prohibits the most meaningful sources of information from discussing the
• 39:52
  Speaker 1: case with the media. Therefore, the right of the media
• 39:55
  Speaker 1: to obtain information from all potential trial participants. Is in
• 39:59
  Speaker 1: Paired eight seventy nine and dot W Dot two dot
• 40:03
  Speaker 1: d at eight ninety three simply put radio and television news,
• 40:08
  Speaker 1: and Dow Jones put forum over function. They observe a
• 40:12
  Speaker 1: technical distinction between a gag order naming the media and
• 40:16
  Speaker 1: a gag order naming a third party, but they ignore
• 40:19
  Speaker 1: that in reality, both orders directly regulate the media. Richmond Newspapers,
• 40:26
  Speaker 1: four forty eight US at five seventy six. We have
• 40:29
  Speaker 1: recognized that without some protection for seeking out the news,
• 40:33
  Speaker 1: freedom of the press could be eviscerated. Young in Sledge
• 40:36
  Speaker 1: understand that reality. This Court should follow the better reasoning
• 40:40
  Speaker 1: of Young in Sledge and hold a gag order must
• 40:43
  Speaker 1: be narrowly drawn and cannot be upheld if reasonable alternatives
• 40:48
  Speaker 1: are available, having a lesser impact on First Amendment freedoms
• 40:52
  Speaker 1: Young five point twenty two f. Dot two d At
• 40:56
  Speaker 1: two thirty eight, number five. The Court should a apply
• 41:00
  Speaker 1: strict scrutiny even if it does not find that the
• 41:03
  Speaker 1: gag order is a prior restraint, regardless of whether prior
• 41:07
  Speaker 1: restraint jurisprudence applies, the Court's task here is to balance
• 41:11
  Speaker 1: intervener's first Amendment with mister Coberger's sixth Amendment interests, and
• 41:16
  Speaker 1: neither right is superior. As a result, the court should
• 41:19
  Speaker 1: aim to give both rights the maximum effect possible. It
• 41:23
  Speaker 1: needs to protect the accused as fully as possible, and
• 41:26
  Speaker 1: it needs to restrict publication as little as possible. Nebraska Press.
• 41:31
  Speaker 1: Four twenty seven US at five sixty six. The only
• 41:34
  Speaker 1: way to satisfy those twin goals is to apply a
• 41:37
  Speaker 1: standard that allows a gag order only when one the
• 41:40
  Speaker 1: prohibited speech is almost certain to materially prejudice the criminal defendant,
• 41:45
  Speaker 1: and two nothing else can prevent or cure the prejudice.
• 41:50
  Speaker 1: Anything less risks underfencing the First Amendment, a less demanding
• 41:54
  Speaker 1: test will be over inclusive at times, restricting protected speech
• 41:59
  Speaker 1: that does not create prejudice or that creates prejudice that
• 42:02
  Speaker 1: can be remedied in other ways. The First Amendment will
• 42:07
  Speaker 1: then be under enforced, as protected speech will be suppressed
• 42:11
  Speaker 1: even if the speech does not infringe the criminal defendants
• 42:14
  Speaker 1: right to a fair trial. The outcome is intolerable because
• 42:19
  Speaker 1: any First Amendment infringement that occurs with each passing day
• 42:23
  Speaker 1: is irreparable. Nebraska Press Association versus Stuart four to twenty
• 42:28
  Speaker 1: three US thirteen twenty seven, thirteen twenty nine, nineteen seventy five,
• 42:34
  Speaker 1: Black Munjay in chambers. All Right, folks, that's gonna wrap
• 42:38
  Speaker 1: up this portion, and in the next episode we're gonna
• 42:40
  Speaker 1: pick up where we left off. All of the information
• 42:44
  Speaker 1: that goes with this episode can be found in the
• 42:47
  Speaker 1: description box. What's up everyone, and welcome back to the program.
• 42:52
  Speaker 1: In this episode, we're gonna finish off the declaration of
• 42:55
  Speaker 1: Wendy Olsen when it comes to the non dissemination order,
• 43:00
  Speaker 1: so let's get right back to it.
• 43:02
  Speaker 2: Number six.
• 43:04
  Speaker 1: The gag order fails under strict scrutiny. A gag order
• 43:08
  Speaker 1: survives strict scrutiny only if one the activity of restrained
• 43:12
  Speaker 1: poses either a clear and present danger or a serious
• 43:16
  Speaker 1: and imminent threat to a protected competing interest. Two the
• 43:20
  Speaker 1: order is narrowly drawn, and three less restrictive alternatives are
• 43:25
  Speaker 1: not available. Eleven seven sixty four Ft. Two d At
• 43:29
  Speaker 1: five ninety five. The gag order fails under each prong.
• 43:35
  Speaker 1: There is no evidence that the speech at issue poses
• 43:38
  Speaker 1: a clear and present danger or a serious an imminent
• 43:41
  Speaker 1: threat to mister Coberger's right to a fair trial. Parties
• 43:44
  Speaker 1: offered no evidence in support of their stipulation, and the
• 43:48
  Speaker 1: court has not collected any evidence, held any evidentiary hearings,
• 43:53
  Speaker 1: or made any factual determinations. There is also no indication
• 43:57
  Speaker 1: that the individuals subject to the gag order will disseminate
• 44:01
  Speaker 1: information that will prejudice mister Coburger. Law enforcement release limited
• 44:06
  Speaker 1: information during its investigation and after mister Coberger's arrest, including
• 44:11
  Speaker 1: at the press conference announcing the arrest. As the prosecution
• 44:15
  Speaker 1: moves forward, the parties attorneys must comply with the Idaho
• 44:19
  Speaker 1: Rule a Professional Conduct three dot six, and the prosecution
• 44:23
  Speaker 1: must comply with rule three dot eight even without the
• 44:27
  Speaker 1: gag order. The party's attorney's willingness to enter the stipulation
• 44:31
  Speaker 1: suggests they intend to strictly comply with those rules. In
• 44:35
  Speaker 1: any event, The gag order does not target prejudicial speech.
• 44:40
  Speaker 1: It targets any speech concerning the case, with no consideration
• 44:44
  Speaker 1: of whether the speech would be prejudicial or helpful to
• 44:47
  Speaker 1: mister Colberger. At bottom, there is not a clear and
• 44:51
  Speaker 1: present danger or a serious an eminent threat that, absent
• 44:55
  Speaker 1: the gag order, publicity will prejudice mister Coburger's right to
• 44:59
  Speaker 1: a fair trial. Second, as explained, above, The gag order
• 45:03
  Speaker 1: is not narrowly drawn. It is directed at a wide,
• 45:06
  Speaker 1: in vague group of people, and it governs any statement
• 45:09
  Speaker 1: concerning the case, good or bad for mister Colberger. The
• 45:13
  Speaker 1: gag order does not narrowly target speech that could be
• 45:16
  Speaker 1: most prejudicial, but rather wrongly assumes that all speech about
• 45:21
  Speaker 1: the case is prejudicial. As a result, sources of newsworthy
• 45:26
  Speaker 1: information have declined to provide information about topics like how
• 45:30
  Speaker 1: the Moscow community is healing, how many cell phone towers
• 45:33
  Speaker 1: are around where the murders occurred, the size of mister
• 45:36
  Speaker 1: Colberger's cell, the meals mister Colberger receives, and mister Colberger's
• 45:41
  Speaker 1: job applications to the Pullman Police Department. Because of the
• 45:44
  Speaker 1: gag Order or its predecessor, those topics of speech, while
• 45:49
  Speaker 1: arguably subject to the gag Order, are unlikely to prejudice
• 45:53
  Speaker 1: mister Colberger, yet they are suppressed. Third, the parties have
• 45:57
  Speaker 1: not explained why other less restrictive alternatives would not prevent
• 46:02
  Speaker 1: or remedy any prejudice to mister Coburger. For example, prejudicial
• 46:07
  Speaker 1: publicity can be mitigated by a change of venue, trial postponement.
• 46:11
  Speaker 1: A searching vor Dyer emphatic jury instructions and sequestering of jurors.
• 46:17
  Speaker 1: Dal Jones, eight forty two f. Dot two d At
• 46:20
  Speaker 1: six eleven, citing Shepherd three eighty four US three thirty
• 46:23
  Speaker 1: three and Nebraska Press four twenty seven US five thirty nine.
• 46:28
  Speaker 1: The need to consider less restrictive alternatives here at this
• 46:32
  Speaker 1: early stage of the case is particularly acute. No trial
• 46:36
  Speaker 1: has been scheduled. Indeed, the preliminary hearing is not until
• 46:40
  Speaker 1: June twenty twenty three, and given the seriousness of the charges,
• 46:44
  Speaker 1: trial is likely more than a year away. The parties
• 46:47
  Speaker 1: and the court have ample time to assess whether unrestrained
• 46:51
  Speaker 1: speech about mister Colberger and the facts and circumstances of
• 46:55
  Speaker 1: the crimes with which he has charged unfairly prejudices rights
• 46:59
  Speaker 1: to a fair trial, and if a danger emerges, there
• 47:02
  Speaker 1: will be plenty of time to remedy it. Number seven,
• 47:06
  Speaker 1: the gag order fails under less exacting scrutiny. Courts that
• 47:10
  Speaker 1: do not apply strict scrutiny to gag orders like the
• 47:13
  Speaker 1: one here, still require some factual findings to support the
• 47:17
  Speaker 1: gag order. In Dow Jones, for example, the Second Circuit
• 47:20
  Speaker 1: Court considered whether there is a reasonable likelihood that pre
• 47:24
  Speaker 1: trial publicity will prejudice a fair trial, and an exploration
• 47:28
  Speaker 1: of whether other available remedies would effectively mitigate the prejudicial publicity.
• 47:34
  Speaker 1: Other courts have required similar findings see Newsjay Court versus Foxman,
• 47:39
  Speaker 1: nine thirty nine f.
• 47:41
  Speaker 2: Dot two d.
• 47:42
  Speaker 1: Fourteen ninety nine, fifteen fifteen, and sixteen eleven Circuit nineteen
• 47:46
  Speaker 1: ninety one. Noting that after a full hearing where the
• 47:50
  Speaker 1: press could be heard, the district court found evidence of
• 47:53
  Speaker 1: the potential inability of impaneling an impartial jury and concluded
• 47:58
  Speaker 1: that there was no less restrictive means of safeguarding the
• 48:01
  Speaker 1: defendant's six Amendment rights. Radio and Television News Association of
• 48:07
  Speaker 1: Southern California, seven eighty one f. Dot two d at
• 48:11
  Speaker 1: fourteen forty seven. Considering whether a gag order is reasonable
• 48:15
  Speaker 1: and overrides First Amendment interests one Kevin F. O'Malley at
• 48:20
  Speaker 1: All Fed Jury prac and Instruction Section two dot four,
• 48:25
  Speaker 1: West Law, sixth Edition, updated February twenty twenty three. A
• 48:30
  Speaker 1: gag order must be no greater than the necessary to
• 48:33
  Speaker 1: protect the interest involved. Hence, a gag order may be
• 48:37
  Speaker 1: entered where there is a reasonable or serious threat less
• 48:40
  Speaker 1: restrictive alternatives or not adequate, and the order would effectively
• 48:44
  Speaker 1: prevent the threatened harm to the defendant's right to a
• 48:48
  Speaker 1: fair trial. Footnotes omitted seventy five George L. Bloom at
• 48:54
  Speaker 1: All American Juris, Second Trial, Section one thirty five West Law,
• 48:59
  Speaker 1: second Addition, updated February.
• 49:01
  Speaker 2: Twenty twenty three.
• 49:03
  Speaker 1: A court may issue a participant gag order only when
• 49:07
  Speaker 1: the press and general public are given an opportunity to
• 49:10
  Speaker 1: be heard on the question of the issuance of the order.
• 49:13
  Speaker 1: The court describes those reasonable alternatives that the court considered
• 49:18
  Speaker 1: and rejected. The order is narrowly tailored to serve the
• 49:22
  Speaker 1: interests of protecting the defendant's right to a fair trial,
• 49:24
  Speaker 1: and the court is made a specific finding that there
• 49:27
  Speaker 1: was a substantial probability that the defendant's right to a
• 49:30
  Speaker 1: fair trial would be prejudiced by publicity that would occur
• 49:34
  Speaker 1: in the absence of a gag order. Again, the parties
• 49:37
  Speaker 1: here have offered no evidence of any risk of prejudice
• 49:40
  Speaker 1: to mister Coburger or offered any explanation while alternatives to
• 49:45
  Speaker 1: the gag order would not suffice. So far, there has
• 49:48
  Speaker 1: been publicity surrounding mister Coberger's prosecution, but no indication that
• 49:53
  Speaker 1: the publicity has been prejudicial. Since the murders occurred, law
• 49:58
  Speaker 1: enforcement and now the attorneys have judiciously shared information with
• 50:02
  Speaker 1: the public, there is no suggestion that anybody now subject
• 50:06
  Speaker 1: to the gag order has previously made extra judicial statements
• 50:10
  Speaker 1: that may have biased the jury pool. In fact, mister
• 50:12
  Speaker 1: Colburger may be less prejudiced if well informed and responsible
• 50:16
  Speaker 1: individuals share some information rather than allowing the gag Order
• 50:21
  Speaker 1: to create a vacuum for mere speculation on the Internet.
• 50:25
  Speaker 2: But even if there were some evidence.
• 50:27
  Speaker 1: Of prejudicial publicity, there are other ways to ensure mister
• 50:30
  Speaker 1: Colberger has a fair trial. To start, his trial date
• 50:34
  Speaker 1: has not even been set and will presumably occur well
• 50:37
  Speaker 1: in the future. The passing of time reduces risk of
• 50:41
  Speaker 1: jury tank. Additionally, when time for trial arrives, a change
• 50:45
  Speaker 1: in venue, probing vordire and clear jury instructions can all
• 50:50
  Speaker 1: ensure mister Coburger has a fair trial. At bottom, the
• 50:54
  Speaker 1: gag order suppresses speech without any justification that violates the
• 50:59
  Speaker 1: First Amendment, no matter the test applied. B the gag
• 51:03
  Speaker 1: order violates the Idaho Constitution for the same reasons courts
• 51:08
  Speaker 1: of address simultaneously the First Amendment of the US Constitution
• 51:13
  Speaker 1: and Article one, section nine of the Idaho Constitution Bingham
• 51:17
  Speaker 1: versus Jefferson County Number four fifteen CV.
• 51:23
  Speaker 2: DASH zero zero two four five DASH.
• 51:26
  Speaker 1: DCN twenty seventeen, WL forty three, one eighty four to two,
• 51:32
  Speaker 1: at six and Dot four D DOT Idaho, September twenty ninth,
• 51:37
  Speaker 1: twenty seventeen. So the court can find that the gag
• 51:41
  Speaker 1: order violates the Idaho Constitution for the same reasons that
• 51:45
  Speaker 1: it violates the US Constitution. But the court need not
• 51:49
  Speaker 1: treat Idaho's constitution in lockstep with the US Constitution. If,
• 51:54
  Speaker 1: for example, the Court is persuaded that under federal law,
• 51:57
  Speaker 1: gag orders need not survive strict scrutiny, it should consider
• 52:01
  Speaker 1: whether they must do so under Article one, section nine
• 52:05
  Speaker 1: of the Idaho Constitution. Unlike the First Amendment, Article one
• 52:09
  Speaker 1: section nine provides that a person may publish on all subjects.
• 52:13
  Speaker 1: For criminal trials, all subjects would include both information presented
• 52:18
  Speaker 1: inside the courtroom and information presented outside the court room.
• 52:23
  Speaker 1: As explained above. When balancing the right to speech with
• 52:26
  Speaker 1: the right to affair trial, the court's aim should be
• 52:29
  Speaker 1: to recognize each right as much as possible. Only when
• 52:33
  Speaker 1: speech necessarily infringes the right to affair trial, is there
• 52:37
  Speaker 1: a justification for curtailing the speech. And again, strict scrutiny
• 52:42
  Speaker 1: is an exacting standard that insures speech is curtailed when
• 52:46
  Speaker 1: and only when necessary. So, even if some federal courts
• 52:50
  Speaker 1: have interpreted the First Amendment to yield short of the
• 52:54
  Speaker 1: outer boundaries of the right to affair trial by adopting
• 52:57
  Speaker 1: tests that are over inclusive when kurtis telling speech, this
• 53:01
  Speaker 1: Court should interpret Article one, Section nine as more broadly
• 53:06
  Speaker 1: protecting all speech that falls short of infringing the right
• 53:09
  Speaker 1: to a fair trial, either because there is not sufficient
• 53:12
  Speaker 1: certainty that the speech will be prejudicial, or because other
• 53:17
  Speaker 1: remedies short of restricting speech can prevent or cure the
• 53:21
  Speaker 1: prejudice conclusion Intervener's request that the Court vacate the gag
• 53:26
  Speaker 1: Order because it violates the US Constitution and the Idaho Constitution.
• 53:32
  Speaker 1: This document was dated May one, twenty twenty three, and
• 53:36
  Speaker 1: it was signed by Wendy Olsen. All right, so that
• 53:39
  Speaker 1: concludes our look at the declaration of Wendy j Olsen
• 53:43
  Speaker 1: When it comes to getting rid of the gag Order.
• 53:47
  Speaker 1: All of the information that goes with this episode can
• 53:50
  Speaker 1: be found in the description box.