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Mega Edition: The Order Denying The AP's Motion To Remove 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, we're gonna dive back into the court documents
• 0:06
  Speaker 1: and we're going to take a look at Judge Judge
• 0:09
  Speaker 1: and the order denying the Associated Press's motion to vacate
• 0:14
  Speaker 1: the amended non Dissemination Order. Now, this is a gigantic one,
• 0:18
  Speaker 1: kind of like the one for Shannon Gray. So we're
• 0:21
  Speaker 1: gonna do it the same way. We're gonna break it
• 0:23
  Speaker 1: down into multiple parts and make it more digestible.
• 0:27
  Speaker 2: So let's get started.
• 0:29
  Speaker 1: Case number c R twenty nine Dash twenty two DASH
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  Speaker 1: twenty eight h five, Order denying the Associated Press's motion
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  Speaker 1: to vacate the Amended non Dissemination Order, State of Idaho
• 0:41
  Speaker 1: Plaintiff versus Brian C. Coberger, the defendant introduction. This order
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  Speaker 1: addresses the motion to vacate the amended non dissemination Order
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  Speaker 1: filed by interveners, a coalition of twenty media outlets that
• 0:55
  Speaker 1: will be collectively referred to as the Associated Press. Amended
• 1:00
  Speaker 1: non Dissemination Order does not restrict or restrain, or in
• 1:03
  Speaker 1: any way enjoin the press from reporting on or publishing
• 1:07
  Speaker 1: information they obtain through their own investigations or interviews. The
• 1:12
  Speaker 1: amended Non Dissemination Order is not a gag order on
• 1:15
  Speaker 1: the media. Instead, the amended non dissemination Order restricts attorneys
• 1:20
  Speaker 1: directly involved in the case who are representing a party,
• 1:23
  Speaker 1: a witness, or a victim's family, and the agents for
• 1:27
  Speaker 1: those attorneys, including law enforcement, from making certain statements about
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  Speaker 1: the case to the media or to the public, because
• 1:35
  Speaker 1: membership in the bar is a privilege burdened with conditions.
• 1:38
  Speaker 1: Genteel versus State Bar of Nevada, five zero one US
• 1:42
  Speaker 1: ten thirty ten sixty six one eleven, Supreme Court, twenty
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  Speaker 1: seven to twenty twenty seven forty one, fifteen L. Dot
• 1:50
  Speaker 1: ed Dot two d. Eight eighty eight, nineteen ninety one.
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  Speaker 1: The Supreme Court has recognized that speech of lawyers representing
• 1:58
  Speaker 1: clients in pennie In cases may be regulated under a
• 2:02
  Speaker 1: less demanding standard than that established of regulation of the
• 2:06
  Speaker 1: press id.
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  Speaker 2: At.
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  Speaker 1: Ten seventy six, one eleven. Supreme Court at. Twenty seven
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  Speaker 1: forty four. As officers of the court, court personnel and
• 2:16
  Speaker 1: attorneys have a fiduciary responsibility not to engage in public
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  Speaker 1: debate that will rebound to the detriment of the accused
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  Speaker 1: or that will obstruct the fair administration of justice Idaho at.
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  Speaker 1: Ten seventy four, one eleven Supreme Court at twenty seven
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  Speaker 1: forty four. The purpose of the amended non dissemination order,
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  Speaker 1: which was stipulated to by the parties, is to protect
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  Speaker 1: defendant Brian Coberger and his right to affair trial by
• 2:44
  Speaker 1: an impartial jury, as guaranteed by the sixth Amendment. Few,
• 2:48
  Speaker 1: if any, interests under the Constitution are more fundamental than
• 2:52
  Speaker 1: the right to affair trial by impartial jurors, and an
• 2:56
  Speaker 1: outcome effected by extra judicial statements would violate that fundamental
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  Speaker 1: right Idaho at. Ten seventy five, one eleven Supreme Court
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  Speaker 1: at twenty seven forty five. The Associated Press's motion to
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  Speaker 1: vacate the amended non dissemination order is denied. The Court
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  Speaker 1: has the authority to regulate the speech of attorneys participating
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  Speaker 1: in this case and the agent for those attorneys, to
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  Speaker 1: ensure that Coburger is not denied his right to affair
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  Speaker 1: trial by an impartial jury because of extra judicial prejudicial statements. However,
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  Speaker 1: this Court will issue or revised amended non dissemination order
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  Speaker 1: that clarifies what cannot be discussed and what can be discussed.
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  Speaker 1: The revised Amended Non Dissemination Order One is limited to
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  Speaker 1: apply only to speech that is substantially likely to have
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  Speaker 1: a materially prejudicial effect on the right to affair trial.
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  Speaker 1: Two applies equally to all attorneys participating in the case,
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  Speaker 1: and three is neutral as the points of view, and
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  Speaker 1: four restricts attorney's comments only until after the trial and
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  Speaker 1: any sentencing proceedings that might take place. The revised amended
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  Speaker 1: non Dissemination Order is reasonable considering the facts of this case.
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  Speaker 1: One the evidence presented by the defense showing the pervasiveness
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  Speaker 1: of media coverage, including coverage prejudicial to Coburger and coverage
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  Speaker 1: that includes extra judicial statements by an attorney participating in
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  Speaker 1: the case, and two the impact such prejudicial news coverage
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  Speaker 1: has on potential jurors and the fair administration of justice.
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  Speaker 1: The restriction imposed serves as a legitimate purpose, and the
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  Speaker 1: very limited incidental effects of the revised amended non Dissemination
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  Speaker 1: Order on the media's First Amendment rights are overridden by
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  Speaker 1: the compelling interest in ensuring that Coburger's right to a
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  Speaker 1: fair trial under the sixth Amendment is not jeopardized. Background
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  Speaker 1: on November thirteenth, twenty twenty two, four University of Idaho
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  Speaker 1: students Kayegan, Si Solvice, Madison Mogan, Xana Kernodle, and Ethan
• 5:03
  Speaker 1: Chapin were found deceased in Gonsalvis, Mogan and Kernodle's off
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  Speaker 1: campus home in Moscow, Idaho. The cause of death for
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  Speaker 1: each was ruled a homicide. As news of the tragedy broke,
• 5:15
  Speaker 1: media outlets from around the country descended upon Moscow. As
• 5:19
  Speaker 1: law enforcement investigated, news stations, newspapers, and social media were
• 5:24
  Speaker 1: flooded with stories and speculation about the homicides and law enforcements,
• 5:29
  Speaker 1: investigative efforts and abilities. Throughout the course of the investigation,
• 5:34
  Speaker 1: the Moscow Police Department, in partnership with the University of Idaho,
• 5:38
  Speaker 1: the Layta County Prosecutor's Office, and the Idaho State Police
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  Speaker 1: held press briefings to answer questions and reassure the public appropriately.
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  Speaker 1: The information released was limited to protect the integrity of
• 5:51
  Speaker 1: the ongoing investigation. On December thirtieth, twenty twenty two, Coberger
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  Speaker 1: was arrested and charged with four counts of murder in
• 5:59
  Speaker 1: the first and one count of burglary. Again, media outlets
• 6:04
  Speaker 1: descended upon Moscow, and the news coverage quickly focused on Coburger.
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  Speaker 1: That same day that Coburger was charged, his attorney filed
• 6:13
  Speaker 1: a motion for non dissemination order, asking the magistrate judge
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  Speaker 1: to enter an order barring parties, their attorneys, investigators, law
• 6:21
  Speaker 1: enforcement personnel, and potential witnesses from discussing the case with
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  Speaker 1: any public communications media thereafter. On January third, twenty twenty three,
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  Speaker 1: the defense and the state filed a stipulation for non
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  Speaker 1: dissemination order prohibiting attorneys, investigators, and law enforcement personnel from
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  Speaker 1: making any extra judicial statement, written or oral concerning this
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  Speaker 1: case other than quotation from a reference or a reference to,
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  Speaker 1: without comment, the public records of the court in this case.
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  Speaker 1: That same day, the magistrate judge entered a non dissemination
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  Speaker 1: order prohibiting the parties to the case, including investigators, law
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  Speaker 1: enforcement personnel, attorneys, and agents of the prosecuting attorney or
• 7:07
  Speaker 1: defense attorney, from making extra judicial statements written or oral
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  Speaker 1: concerning this case other than a quotation from a reference to,
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  Speaker 1: without comment, the public records of the case. On January thirteenth,
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  Speaker 1: twenty twenty three, the Magistrate Judge held an inn chambers
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  Speaker 1: off the record conference with letaw County Prosecuting Attorney, William W. Thompson,
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  Speaker 1: Junior Senior Deputy Prosecutor, Ashley S. Jennings Defense Counsel and C. Taylor,
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  Speaker 1: attorneys for two witnesses in the case, and Shannon Gray,
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  Speaker 1: attorney for the Gonsalvas family. A summary of the meeting,
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  Speaker 1: as prepared by the parties in the case, was filed
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  Speaker 1: with the Idaho Supreme Court on March third, twenty twenty three,
• 7:50
  Speaker 1: as part of a declaration of Deborah A. Ferguson in
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  Speaker 1: the case of Petition for rid of Mandamus or a
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  Speaker 1: rid of Prohibition Number five zero four A two twenty
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  Speaker 1: twenty three WL three zero five zero eight two nine, Idaho,
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  Speaker 1: April twenty fourth, twenty twenty three. The purpose of the
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  Speaker 1: conference was to address the applicability of the non dissemination
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  Speaker 1: order to the attorneys, both present as parties to the
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  Speaker 1: case and the attorneys participating in the case. The Magistrate
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  Speaker 1: judge reminded the attorneys that this case is a high
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  Speaker 1: profile case with both national and international media coverage, and
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  Speaker 1: that they each have a duty under the Idaho Rules
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  Speaker 1: of Professional Conduct to not interfere with the party's right
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  Speaker 1: to a fair trial. The magistrate advised the attorneys that
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  Speaker 1: it was not their job to disseminate information to the media.
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  Speaker 1: The magistrate judge stated that the non dissemination order did
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  Speaker 1: not restrict the attorney's non party clients from speaking to
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  Speaker 1: the media, but reiterated the importance of the case being
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  Speaker 1: tried in a court of law and not the media,
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  Speaker 1: and encouraged each attorney to advise their clients accordingly in
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  Speaker 1: order to preserve the right to a fair trial by
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  Speaker 1: an impartial jury. On January eighteenth, twenty twenty three, the
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  Speaker 1: magistrate judge, based on the stipulation of the parties, entered
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  Speaker 1: the amended non dissemination order to balance Coburger and the
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  Speaker 1: State's right to a fair trial and the right to
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  Speaker 1: free expression as afforded under both the United States and
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  Speaker 1: Idaho Constitution. The magistrate noted that to preserve the right
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  Speaker 1: to a fair trial, some curtailment of the dissemination of
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  Speaker 1: information in this case is necessary and authorized under law.
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  Speaker 1: The amended non dissemination Order reads, it is hereby ordered
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  Speaker 1: one the attorneys for any interested party in this case,
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  Speaker 1: including the prosecuting attorney, defense attorney, and any attorneys representing
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  Speaker 1: a witness victim or a victim's family, as well as
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  Speaker 1: the parties to the above entitled action, including but not
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  Speaker 1: limited to, investigators, law enforcement personnel, and agents for the
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  Speaker 1: prosecuting attorney or defense attorney, are prohibited from making extra
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  Speaker 1: judicial statements, written or oral, concerning this case, except without
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  Speaker 1: additional comment a quotation from a reference to the official
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  Speaker 1: public record of the case.
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  Speaker 2: Two.
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  Speaker 1: This order specifically prohibits any statement which a reasonable person
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  Speaker 1: would expect to be disseminated by means of public communication,
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  Speaker 1: that relates to the following A Evidence regarding the occurrences
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  Speaker 1: or transactions involved in this case. B The character, credibility, reputation,
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  Speaker 1: or criminal records of a party, victim, or witness, or
• 10:38
  Speaker 1: the identity of a witness, or the expected testimony of
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  Speaker 1: a party, victim or witness. C The performance or results
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  Speaker 1: of any examination or test, or the refusal or failure
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  Speaker 1: of a person to submit to an examination or test.
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  Speaker 1: D Any opinion as to the merits of the case
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  Speaker 1: or the claims or defense of a party. Any information
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  Speaker 1: a lawyer knows or reasonably should know is likely to
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  Speaker 1: be inadmissible as evidence in a trial, and that would,
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  Speaker 1: if disclosed, create a substantial risk of prejudicing an impartial trial,
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  Speaker 1: and f any information reasonably likely to interfere with a
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  Speaker 1: fair trial in this case afforded under the United States
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  Speaker 1: and the Idaho Constitution, such as the existence or contents
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  Speaker 1: of any confession, admission, or statement given by the defendant,
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  Speaker 1: the possibility of a plea of guilt, or any opinions
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  Speaker 1: as to the defendant's guilt or innocence. On February sixth,
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  Speaker 1: twenty twenty three, the Associated Press filed a petition for
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  Speaker 1: a rid of mandamus or a rid of prohibition with
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  Speaker 1: the Idaho Supreme Court related to the amended non dissemination order.
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  Speaker 1: On April twenty fourth, twenty twenty three, the Idaho Supreme
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  Speaker 1: Court issued an opinion dismissing the Associated Press's petition, finding
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  Speaker 1: that although the did have standing to challenge the amended
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  Speaker 1: non dissemination order, they must first present their petition to
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  Speaker 1: the trial court Thereafter. On May second, twenty twenty three,
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  Speaker 1: the Associated Press filed a motion to intervene and the
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  Speaker 1: motion to vacate the amended non dissemination order. The magistrates
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  Speaker 1: set a scheduling conference for May twenty second, twenty twenty three.
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  Speaker 1: On May sixteenth, twenty twenty three, and the indictment was
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  Speaker 1: filed against Colberger and this Court began presiding over the
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  Speaker 1: case on May twenty second, twenty twenty three. After Coberger's arraignment,
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  Speaker 1: this Court conducted a scheduling conference and set a briefing
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  Speaker 1: schedule and hearing for oral argument. The Associated Press's motion
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  Speaker 1: to vacate the amended non dissemination order was extensively briefed,
• 12:47
  Speaker 1: and both the state and Coburger submitted extensive briefing in
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  Speaker 1: opposition to the motion. Oral argument was heard on June ninth,
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  Speaker 1: twenty twenty three. The State was represented by William W.
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  Speaker 1: Thompson and Bradley J. Rudley Leta County Prosecutor's Office. Colberger
• 13:05
  Speaker 1: was represented by Ann C. Taylor and JW. Logsden Cootney
• 13:09
  Speaker 1: County Public Defender's Office. The Associated Press was represented by
• 13:14
  Speaker 1: Wendy Olsen and Corey Krone. During the hearing, the defense
• 13:19
  Speaker 1: put on the testimony of two expert witnesses. First Gen. R. Saucier,
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  Speaker 1: Senior Vice President of Truscope North America, testified in some
• 13:28
  Speaker 1: miss Saucier testified to the quantity of media coverage in
• 13:33
  Speaker 1: this case. It is undisputed that media coverage in the
• 13:36
  Speaker 1: case is rampant and ongoing, including on television, the Internet,
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  Speaker 1: social media, and radio. New surrounding the case is being
• 13:45
  Speaker 1: reported by reliable sources of news, unreliable news outlets, and
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  Speaker 1: individuals engaged in spreading or fueling rumors, theories, and unfounded speculation.
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  Speaker 1: It is also worth noting that Miss Saucier's testimony and
• 13:59
  Speaker 1: the exist bit she showed demonstrate that in the share
• 14:03
  Speaker 1: of the voice media coverage category, Shannon Gray's stories in
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  Speaker 1: the media had the highest potential reach at five hundred
• 14:10
  Speaker 1: and sixty one million, one hundred and twelve thousand, five
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  Speaker 1: hundred and seventy three impressions yo. That is a ton
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  Speaker 1: of impressions, with impressions being the opportunities to see a story.
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  Speaker 1: Example a to Defendant's objection to media's motion to vacate
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  Speaker 1: the amended non dissemination order. Shannon Gray is the attorney
• 14:30
  Speaker 1: for the Gonsalvas family and is bound by the amended
• 14:34
  Speaker 1: non dissemination order. The defense also submitted several news articles
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  Speaker 1: demonstrating that at least some portion of the news, if
• 14:42
  Speaker 1: not most of it, is prejudicial. The Goldberger see motion
• 14:46
  Speaker 1: to take judicial notice of press coverage. Second, doctor Amani
• 14:51
  Speaker 1: l A'lalay, social psychologist and social cognition researcher, testified to
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  Speaker 1: the impact such media can have not a potential jur
• 15:01
  Speaker 1: It was doctor l a l lay opinion that vacating
• 15:05
  Speaker 1: the non dissemination order would increase the potential for bias
• 15:09
  Speaker 1: among prospective jurors, both initially and throughout the trial. Doctor
• 15:14
  Speaker 1: l Allay further opined that my review of research illustrates
• 15:18
  Speaker 1: that anti defendant pre trial publicity increases the probability of
• 15:23
  Speaker 1: guilty verdicts, and that this bias persists despite the receipt
• 15:27
  Speaker 1: of trial arguments and evidence admonitions to disregard the publicity
• 15:32
  Speaker 1: information and jury deliberation. Commentary by individuals with status expertise eg. Attorneys,
• 15:40
  Speaker 1: police judges in media coverage creates more potential for bias jurs.
• 15:46
  Speaker 1: Example d to defendant's objection to media's motion to vacate
• 15:51
  Speaker 1: the amended non dissemination order. All right, folks, we're going
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  Speaker 1: to wrap up here and in the next episode, we're
• 15:57
  Speaker 1: gonna pick back up with Section three issues presented. All
• 16:02
  Speaker 1: of the information that goes with this episode can be
• 16:05
  Speaker 1: found in the description box what's up, everyone, and welcome
• 16:09
  Speaker 1: back to the program. This episode, we're going to pick
• 16:12
  Speaker 1: up where we left off with the order denying the
• 16:16
  Speaker 1: AP's request to vacate the gag order. Part three. Issues presented.
• 16:24
  Speaker 1: The Associated Press argues that the amended non Dissemination Order
• 16:28
  Speaker 1: restrains their constitutional right to gather news before it can
• 16:32
  Speaker 1: be exercised, in violation of the First Amendment. Memorandum in
• 16:36
  Speaker 1: support of motion to vacate the Amended Non Dissemination Order
• 16:40
  Speaker 1: at fifteen, the Associated Press asserts that their First Amendment
• 16:45
  Speaker 1: rights are being violated because the media does not make
• 16:48
  Speaker 1: the news, it reports the news. The argument continues that
• 16:53
  Speaker 1: if a court order is an individual not to provide
• 16:56
  Speaker 1: information to the media, then the media has nothing to report.
• 17:00
  Speaker 1: Intervener's speech is thus being restrained before they can even
• 17:04
  Speaker 1: speak id at fifteen. Thus, the Associated Press alleges that
• 17:09
  Speaker 1: the Amended Non Dissemination Order is a prior restraint on
• 17:13
  Speaker 1: the media and does not survive the strict scrutiny test
• 17:17
  Speaker 1: applied to prior restraints on the press. This decision addresses
• 17:22
  Speaker 1: the following one. The obligation of the court to ensure
• 17:26
  Speaker 1: that Coberger's right to a fair trial is not being
• 17:29
  Speaker 1: jeopardized by prejudicial extra judicial statements. Two the court's authority
• 17:34
  Speaker 1: to impose restrictions on the speech of those attorneys and
• 17:37
  Speaker 1: their agents involved in this case. And three the standard
• 17:41
  Speaker 1: applied to reviewing constitutional challenges by the media to non
• 17:46
  Speaker 1: dissemination orders aimed at trial participants, especially lawyers. Finally, this
• 17:52
  Speaker 1: decision applies the law to the facts of this case
• 17:55
  Speaker 1: in addressing the Associated Press's argument that the amended non
• 17:59
  Speaker 1: dissemination order violates their First Amendment rights Section number four law.
• 18:06
  Speaker 1: In nineteen ninety six, the US Supreme Court recognized the
• 18:10
  Speaker 1: defendant's right to a trial by an impartial jury free
• 18:13
  Speaker 1: from outside influences in the face of massive, pervasive, and
• 18:17
  Speaker 1: prejudicial publicity Shephard versus Maxwell, three eighty four US three
• 18:23
  Speaker 1: thirty three, three thirty five, three sixty two eighty six.
• 18:27
  Speaker 1: Supreme Court, fifteen oh seven, fifteen oh eight, fifteen twenty two,
• 18:31
  Speaker 1: sixteen l Dot ed Dot two six hundred, nineteen sixty six,
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  Speaker 1: While recognizing that a responsible press has always been regarded
• 18:41
  Speaker 1: as the handmaiden of effective judicial administration, especially in the
• 18:45
  Speaker 1: criminal field. ID at three fifty eighty six. Supreme Court
• 18:49
  Speaker 1: at five point fifteen, and the Court chastised the trial
• 18:53
  Speaker 1: judge for not taking strong measures to ensure Shepherd's right
• 18:56
  Speaker 1: to a fair trial Idaho at three sixty two eighty six.
• 19:00
  Speaker 1: Supreme Court at fifteen twenty two. In Shepherd, there was
• 19:05
  Speaker 1: not a non dissemination order on trial participants or any
• 19:09
  Speaker 1: gag order on the media. Notably, in overturning Shepherd's conviction,
• 19:13
  Speaker 1: the Court listed several things that the trial court should
• 19:16
  Speaker 1: have done. One, the judge should have adopted stricter rules
• 19:20
  Speaker 1: governing the use of courtroom by newsmen and should have
• 19:24
  Speaker 1: more closely regulated the conduct of newsmen in the courtroom.
• 19:27
  Speaker 1: Two the court should have insulated the witnesses. All of
• 19:32
  Speaker 1: the newspapers and radio stations apparently interviewed prospective witnesses at will,
• 19:37
  Speaker 1: and in many instances disclosed their testimony. Three the court
• 19:42
  Speaker 1: should have made some effort to control the release of leads,
• 19:45
  Speaker 1: information and gossip to the press by police officers, witnesses,
• 19:49
  Speaker 1: and the council for both sides. Much of the information
• 19:53
  Speaker 1: thus disclosed was inaccurate, leading to groundless rumors and confusion.
• 19:57
  Speaker 1: Four the judge should have at least warned the newspapers
• 20:01
  Speaker 1: to check the accuracy of their accounts.
• 20:03
  Speaker 2: Five. It is obvious that the judge should have further
• 20:07
  Speaker 2: sought to.
• 20:08
  Speaker 1: Alleviate inaccurate prejudicial news by imposing control over the statements
• 20:13
  Speaker 1: made to the news media by counsel, witnesses, and especially
• 20:17
  Speaker 1: the coroner and police officers Idaho at three fifty eight
• 20:21
  Speaker 1: through three sixty eighty six, Supreme Court at fifteen twenty
• 20:25
  Speaker 1: fifteen twenty one. In summary, the Court stated that the
• 20:30
  Speaker 1: trial court might well have proscribed extra judicial statements by
• 20:34
  Speaker 1: any lawyer, party, witness, or court official which divulge prejudicial matters,
• 20:40
  Speaker 1: such as the refusal of Shepherd to submit to interrogation
• 20:44
  Speaker 1: or to take any lie detector tests, the identity of
• 20:47
  Speaker 1: prospective witnesses or their probable testimony, any belief in guilt
• 20:52
  Speaker 1: or innocence, or like statements concerning the merits of the
• 20:55
  Speaker 1: case id at three sixty one eighty six, Supreme Court
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  Speaker 1: at fifteen twenty one. In this manner, Shepherd's right to
• 21:03
  Speaker 1: a fair trial free from outside influence would have been
• 21:07
  Speaker 1: given added protection without corresponding ker tellmen of the news media.
• 21:11
  Speaker 1: Had the judge, the other officers of the court, and
• 21:14
  Speaker 1: the police placed the interest of justice first, the news
• 21:17
  Speaker 1: media would have soon learned to be content with the
• 21:20
  Speaker 1: task of reporting the case as it unfolded in the
• 21:23
  Speaker 1: court room, not pieced together from extra judicial statements id.
• 21:28
  Speaker 1: At three sixty two eighty six. Supreme Court at fifteen
• 21:31
  Speaker 1: twenty two, in addressing the tension between the First Amendment
• 21:36
  Speaker 1: and the sixth Amendment, the Court stated, from the cases
• 21:39
  Speaker 1: coming here, we note that unfair and prejudicial news comment
• 21:43
  Speaker 1: on pending trials has become increasingly prevalent. Due process requires
• 21:48
  Speaker 1: that the accused receive a trial by impartial jury, free
• 21:52
  Speaker 1: from outside influences. Given the pervasiveness of modern communications and
• 21:56
  Speaker 1: the difficulty of effacing prejudicial publicity from the minds of
• 22:01
  Speaker 1: the jurors, the trial courts must take strong measures to
• 22:04
  Speaker 1: ensure that the balance is never weighed against the accused,
• 22:08
  Speaker 1: and appellate tribunals have the duty to make an independent
• 22:11
  Speaker 1: evaluation of the circumstances. Of course, there is nothing that
• 22:16
  Speaker 1: prescribes the press from reporting events that transpire in the
• 22:20
  Speaker 1: court room. But where there is a reasonable likelihood that
• 22:23
  Speaker 1: prejudicial news prior to trial will prevent a fair trial,
• 22:27
  Speaker 1: the judge should continue the case until the threat abates
• 22:31
  Speaker 1: or transfer it to another county not so permeated with publicity.
• 22:35
  Speaker 1: In addition, sequestering of the jury was something the judge
• 22:39
  Speaker 1: should have raised suspontee with counsel. If publicity during the
• 22:43
  Speaker 1: proceedings threatens the fairness of the trial, a new trial
• 22:47
  Speaker 1: should be ordered. But we must remember that reversals are
• 22:51
  Speaker 1: but palliatives. The cure lies in those remedial measures that
• 22:56
  Speaker 1: will prevent the prejudice at its inception. The court must
• 23:01
  Speaker 1: take such steps by rule and regulation that will protect
• 23:04
  Speaker 1: their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense,
• 23:10
  Speaker 1: the accused, witnesses, court staff, nor enforcement officers coming under
• 23:15
  Speaker 1: the jurisdiction of the Court should be permitted to frustrate
• 23:19
  Speaker 1: its function. Collaboration between Council and the press as to
• 23:23
  Speaker 1: information affecting the fairness of a criminal trial is not
• 23:27
  Speaker 1: only subject to regulation, but highly sensorable and worthy of
• 23:31
  Speaker 1: disciplinary measures id. At. Three sixty two and sixty three
• 23:36
  Speaker 1: eighty six. Supreme Court, fifteen oh seven at fifteen twenty two.
• 23:42
  Speaker 1: The Associated Press relies heavily on CBS Incorporated versus Young,
• 23:47
  Speaker 1: five twenty two f dot two D two thirty four
• 23:51
  Speaker 1: six Circuit nineteen seventy five in support of their position
• 23:55
  Speaker 1: that the amended non dissemination order is unconstitutional and must
• 23:59
  Speaker 1: be vacated. In that case, the Appellate Court issued a
• 24:02
  Speaker 1: decision addressing a non dissemination order entered in a civil case.
• 24:07
  Speaker 1: There the non dissemination order prohibited all council and court
• 24:11
  Speaker 1: personnel all parties concerned with this litigation, whether plaintiffs or defendants,
• 24:17
  Speaker 1: their relatives, close friends, and associates, from discussing in any
• 24:22
  Speaker 1: manner whatsoever these cases with members of the news media,
• 24:26
  Speaker 1: or the public. Idea two thirty six. The press challenged
• 24:30
  Speaker 1: the order as violating the press's right under the First Amendment.
• 24:34
  Speaker 1: The Court held as follows. Before a trial court can
• 24:38
  Speaker 1: limit defendants and their attorney's exercise of First Amendment rights
• 24:42
  Speaker 1: of freedom of speech, the record must contain sufficient specific
• 24:46
  Speaker 1: findings by the trial court establishing that the defendants and
• 24:50
  Speaker 1: their attorney's conduct is a serious and eminent threat to
• 24:54
  Speaker 1: the administration of justice. Craig versus Harney, three thirty one
• 24:58
  Speaker 1: US three sixty seven, three seventy three sixty seven. Supreme
• 25:03
  Speaker 1: Court twelve forty nine, twelve fifty three ninety one L.
• 25:06
  Speaker 2: Dot ed.
• 25:07
  Speaker 1: Fifteen forty six, nineteen forty seven, applying either the standard
• 25:12
  Speaker 1: that the speech must create a clear and present danger
• 25:15
  Speaker 1: Wood versus Georgia, three seventy US three seventy five eighty
• 25:19
  Speaker 1: two Supreme Court thirteen sixty four, eight l. Dot Ed
• 25:24
  Speaker 1: Dot two five sixty nine, nineteen sixty two, of a
• 25:27
  Speaker 1: serious and eminent threat to the administration of justice, or
• 25:31
  Speaker 1: the lesser standard that there must be a reasonable likelihood
• 25:35
  Speaker 1: United States versus Tirina, four twelve f. Dot two d
• 25:39
  Speaker 1: six sixty one, TENH. Circuit. Nineteen sixty nine a serious
• 25:44
  Speaker 1: and imminent threat to the administration of justice. We hold
• 25:47
  Speaker 1: that the trial Court's order is constitutionally impermissible Idea two
• 25:52
  Speaker 1: thirty nine. The Court reasoned that the order issued by
• 25:56
  Speaker 1: the trial court constituted a prior direct restraint upon freedom
• 26:01
  Speaker 1: of expression. In sweeping terms, it seals the lips of
• 26:04
  Speaker 1: all parties concern with this litigation, whether plaintiffs or defendants,
• 26:09
  Speaker 1: their relatives, close friends, and associates, from discussing in any
• 26:14
  Speaker 1: manner whatsoever these cases with members of the news media
• 26:18
  Speaker 1: or the public. Although the news media are not directly
• 26:21
  Speaker 1: enjoined from discussing the case, it is apparent that significant
• 26:25
  Speaker 1: and meaningful sources of information concerning the case are effectively
• 26:30
  Speaker 1: removed from them and their representatives. To that extent, their
• 26:34
  Speaker 1: protected rights to obtain information concerning the trial is curtailed
• 26:39
  Speaker 1: and impaired. The Court continued, we find the order to
• 26:43
  Speaker 1: be an extreme example of a prior restraint upon freedom
• 26:46
  Speaker 1: of speech and expression, and one that cannot escape the
• 26:49
  Speaker 1: prescriptions of the First Amendment unless it is shown that
• 26:54
  Speaker 1: have been required to obviate serious and eminent threats to
• 26:58
  Speaker 1: the fairness and integrity of the trial ID.
• 27:01
  Speaker 2: Two forty.
• 27:02
  Speaker 1: In this Court's view, the Young's Court's reliance on the
• 27:05
  Speaker 1: high standard applied in Craig versus Harney three thirty one
• 27:09
  Speaker 1: US three sixty seven, sixty seven, Supreme Court twelve forty
• 27:14
  Speaker 1: nine ninety one L dot Ed fifteen forty six, nineteen
• 27:18
  Speaker 1: forty seven, and Wood versus Georgia three seventy US three
• 27:22
  Speaker 1: seventy five eighty two, Supreme Court thirteen sixty four eight
• 27:26
  Speaker 1: dot L dot Ed two D five sixty nine, nineteen
• 27:30
  Speaker 1: sixty two is misplaced. Both of those cases dealt with
• 27:35
  Speaker 1: contemp proceedings and did not address non dissemination orders restricting
• 27:39
  Speaker 1: extra judicial statements by specific persons to preserve the right
• 27:44
  Speaker 1: to a fair trial. In Harney, three media personnel were
• 27:48
  Speaker 1: found guilty of criminal contempt and sentenced to three days
• 27:51
  Speaker 1: in jail for publications during an ongoing civil case in
• 27:55
  Speaker 1: which they criticized the presiding judge. The judge found the
• 27:59
  Speaker 1: news reports were designed to falsely represent to the public
• 28:03
  Speaker 1: the nature of the proceedings and to prejudice the influence
• 28:06
  Speaker 1: the court to grant a new trial. In reversing the
• 28:09
  Speaker 1: decision of the trial court, the Court held that given
• 28:12
  Speaker 1: the editorial, all of which the Court below found in it,
• 28:18
  Speaker 1: we failed to see how it could be any realistic sense,
• 28:21
  Speaker 1: create an imminent and serious threat to the ability of
• 28:24
  Speaker 1: the court to give fair consideration to the motion for rehearing. Harney,
• 28:29
  Speaker 1: three thirty one US at three seventy eight sixty seven,
• 28:33
  Speaker 1: Supreme Court at twelve fifty six. This Court agrees that
• 28:37
  Speaker 1: any attempt by a court to hold the media in
• 28:39
  Speaker 1: contempt and even jail them for publications critical to the
• 28:43
  Speaker 1: court should be viewed under the strictest scrutiny. However, the
• 28:47
  Speaker 1: facts that Harney have no similarity to the restrictions on
• 28:51
  Speaker 1: the speech of trial participants in this case or in
• 28:55
  Speaker 1: the Young case. In Wood, a grand jury was impaneled
• 28:59
  Speaker 1: and in spe diructed by the judge to investigate a
• 29:02
  Speaker 1: voting issue within the county. While the grand jury was
• 29:05
  Speaker 1: in session, the elected sheriff issued a public statement criticizing
• 29:09
  Speaker 1: the judge for singling out the African American community and
• 29:13
  Speaker 1: essentially attempting, through the judicial process to intimidate in silence
• 29:17
  Speaker 1: the African American vote. The sheriff also wrote a letter
• 29:21
  Speaker 1: to the grand jury implying that the court's charge was false,
• 29:25
  Speaker 1: among other things. A month later, the sheriff was cited
• 29:28
  Speaker 1: for contempt. Following a trial where the court failed to
• 29:32
  Speaker 1: make any findings or articulate any reasoning for its decision,
• 29:36
  Speaker 1: the sheriff was found guilty of contempt and sentenced to
• 29:40
  Speaker 1: twenty days in jail. In overturning the contempt conviction, the
• 29:43
  Speaker 1: Supreme Court held that as an elected official, the sheriff
• 29:47
  Speaker 1: had the right to enter the field of political controversy,
• 29:50
  Speaker 1: particularly whereas political life was at stake. The role that
• 29:55
  Speaker 1: elected officials play in our society makes it all that
• 29:58
  Speaker 1: more imperative that they be allowed freely to express themselves
• 30:01
  Speaker 1: on matters of current public importance. Our examination of the
• 30:06
  Speaker 1: context of petitioner statements and circumstances under which they were
• 30:10
  Speaker 1: published leads us the Court to conclude that they do
• 30:14
  Speaker 1: not present the danger to the administration of justice that
• 30:17
  Speaker 1: should vitiate the freedom to express his opinions in the
• 30:21
  Speaker 1: manner chosen would three seventy US at. Three ninety four
• 30:25
  Speaker 1: Dash ninety five eighty two. Supreme Court at. Thirteen seventy five. Again,
• 30:31
  Speaker 1: the facts in would have no similarities to the amended
• 30:34
  Speaker 1: non dissemination order in this case or the facts in Young. Additionally,
• 30:39
  Speaker 1: the Young Court's finding that before the trial court can
• 30:43
  Speaker 1: limit defendants and their attorney's exercise of First Amendment rights
• 30:46
  Speaker 1: of freedom of speech, the record must contain sufficient specific
• 30:50
  Speaker 1: findings by the trial court establishing that defendants and their
• 30:54
  Speaker 1: attorney's conduct is a serious and eminent threat to the
• 30:58
  Speaker 1: administration of justice is at odds with the Supreme Court's
• 31:02
  Speaker 1: later holding and genteel that will be discussed below. But
• 31:07
  Speaker 1: C eleven versus U. S. District Court of Central California,
• 31:11
  Speaker 1: seven sixty four f Dot two D five ninety five
• 31:14
  Speaker 1: ninety five Ninth Circuit, nineteen eighty five. The trial court
• 31:19
  Speaker 1: imposed a restraining order prohibiting attorneys involved in the case
• 31:23
  Speaker 1: from communicating with the media regarding the merits of the
• 31:26
  Speaker 1: case and reviewing the restraining order. The Ninth Circuit applied
• 31:29
  Speaker 1: strict scrutiny regardless of the standard applied to a constitutional
• 31:34
  Speaker 1: challenge by a lawyer restricted by a non dissemination order.
• 31:38
  Speaker 1: Un less demanding standard is applied when the media challenges
• 31:41
  Speaker 1: such an order. Radio and Television News Association of Southern
• 31:46
  Speaker 1: California versus U. S. District Court for Central California, seven
• 31:50
  Speaker 1: eighty one F Dot two d fourteen forty three, fourteen
• 31:54
  Speaker 1: forty four, Ninth Circuit, nineteen eighty six. In nineteen seventy six,
• 31:59
  Speaker 1: the U. S. Supreme Court again addressed the tensions between
• 32:02
  Speaker 1: the First Amendment and the Sixth Amendment in Nebraska Press
• 32:05
  Speaker 1: Association for Stewart for. Twenty seven US five point thirty nine,
• 32:11
  Speaker 1: ninety six. Supreme Court, twenty seven ninety one forty nine
• 32:15
  Speaker 1: L Dot e Dot d two D six eighty three,
• 32:18
  Speaker 1: nineteen seventy six. Even then, in nineteen seventy six, the
• 32:23
  Speaker 1: Court acknowledged that the speed of communication and the pervasiveness
• 32:27
  Speaker 1: of the modern news media has exasperated the tension between
• 32:31
  Speaker 1: the First Amendment and the Sixth Amendment Nebraska Press for
• 32:35
  Speaker 1: twenty seven US at. Five forty eight ninety six, Supreme Court,
• 32:39
  Speaker 1: twenty seven ninety eight. Unlike in this case, Nebraska Press
• 32:43
  Speaker 1: dealt with a restraint on the media's ability to publish
• 32:47
  Speaker 1: or broadcast specific information, ie. A restraint on freedom of
• 32:51
  Speaker 1: the press, and not a restraint on freedom of speech.
• 32:55
  Speaker 1: The Court recognized that when the case is a sensational one,
• 32:59
  Speaker 1: tensions develop between the right of the accused a trial
• 33:02
  Speaker 1: by an impartial jury and the rights guaranteed others by
• 33:05
  Speaker 1: the First Amendment id. At five point fifty one ninety six,
• 33:09
  Speaker 1: Supreme Court at twenty seven ninety nine. The Court noted
• 33:12
  Speaker 1: that a prior restraint on speech is most serious and
• 33:16
  Speaker 1: the least tolerable infringement on the First Amendment rights, while
• 33:20
  Speaker 1: also acknowledging that when the death penalty is on the table,
• 33:23
  Speaker 1: it is not requiring too much that a defendant be
• 33:26
  Speaker 1: tried in an atmosphere undisturbed by so huge a wave
• 33:30
  Speaker 1: of public passion id.
• 33:32
  Speaker 2: At five point.
• 33:32
  Speaker 1: Fifty two ninety six, Supreme Court at twenty seven ninety nine.
• 33:37
  Speaker 1: Quoting Irvin versus Dowd. Three sixty six US seven seventeen seven,
• 33:42
  Speaker 1: twenty eight eighty one. Supreme Court, sixteen thirty nine, sixteen
• 33:46
  Speaker 1: forty five six L Dot e d Dot two D
• 33:49
  Speaker 1: seven fifty one, nineteen sixty one. The Court stated that
• 33:53
  Speaker 1: it is not asking for too much to suggest that
• 33:57
  Speaker 1: those who exercise First Amendment rights in newspaper papers or
• 34:00
  Speaker 1: broadcasting enterprise directs some effort to protect the rights of
• 34:04
  Speaker 1: an accused to a fair trial by unbiased jurors Ida
• 34:08
  Speaker 1: at five sixty ninety six, Supreme Court at twenty eight
• 34:13
  Speaker 1: zh three. Emphasis added in a footnote in the concurring
• 34:17
  Speaker 1: opinion authored by Justice Brennan, The following was noted. A
• 34:21
  Speaker 1: significant component of prejudicial pre trial publicity maybe traced the
• 34:26
  Speaker 1: public commentary on pending cases by court personnel, law enforcement officials,
• 34:31
  Speaker 1: and the attorneys involved in the case. In Shepherd versus Maxwell, Supra,
• 34:36
  Speaker 1: we observe that the trial court might well have prescribed
• 34:39
  Speaker 1: extra judicial statements by any lawyer, party witness, or court
• 34:44
  Speaker 1: official which divulge prejudicial matters three eighty four US at.
• 34:49
  Speaker 1: Three sixty one eighty six, Supreme Court at fifteen twenty one.
• 34:54
  Speaker 1: See also id At three sixty eighty six, Supreme Court at.
• 34:58
  Speaker 1: Fifteen twenty one. The US should have further sought to
• 35:01
  Speaker 1: alleviate this problem of publicity that misrepresented the trial testimony
• 35:06
  Speaker 1: by imposing control over the statements made to the news
• 35:09
  Speaker 1: media by counsel, witnesses, and especially the coroner and police
• 35:14
  Speaker 1: officers id at three fifty nine, three sixty three eighty
• 35:18
  Speaker 1: six Supreme Court at. Fifteen twenty one, and fifteen twenty two.
• 35:23
  Speaker 1: As officers of the court, court personnel and attorneys have
• 35:27
  Speaker 1: a fiduciary responsibility not to engage in public debate that
• 35:31
  Speaker 1: will rebound to the detriment of the accused or that
• 35:34
  Speaker 1: will obstruct the fair administration of justice. It is very
• 35:38
  Speaker 1: doubtful that the Court would not have the power to
• 35:41
  Speaker 1: control release of information by these individuals in appropriate cases c. R. Sawyer,
• 35:48
  Speaker 1: three sixty US six twenty two, seventy nine, Supreme Court,
• 35:52
  Speaker 1: thirteen seventy six, three l. Dot ed Dot two D.
• 35:57
  Speaker 1: Fourteen seventy three, nineteen fifty nine, and to impose suitable
• 36:01
  Speaker 1: limitations whose transgression could result in disciplinary proceedings.
• 36:07
  Speaker 2: Cf.
• 36:07
  Speaker 1: Dot New York Times Company versus United States, four h
• 36:11
  Speaker 1: three US at seven twenty eight Dash thirty ninety one.
• 36:15
  Speaker 1: Supreme Court at twenty one, forty eight and forty nine,
• 36:18
  Speaker 1: Stuart Jay joined by White Junior, concurring Similarly, in most cases,
• 36:24
  Speaker 1: courts would have ample power to control such actions by
• 36:27
  Speaker 1: law enforcement personnel. All right, folks, we're going to wrap
• 36:31
  Speaker 1: up part two right here, and then we're gonna pick
• 36:34
  Speaker 1: up right where we left off in the next episode.
• 36:38
  Speaker 1: All of the information that goes with this episode can
• 36:40
  Speaker 1: be found in the description box. What's up, everyone, and
• 36:45
  Speaker 1: welcome back to the program. In this episode, we're picking
• 36:48
  Speaker 1: right back up with the order denying the AP's request
• 36:52
  Speaker 1: for the gag order to be vacated. Shepard and Nebraska
• 36:57
  Speaker 1: Press leave no doubt that inappropriate case, the court has
• 37:01
  Speaker 1: the authority to regulate the speech of attorneys involved in
• 37:05
  Speaker 1: a case, as well as their agents, such as law enforcement,
• 37:08
  Speaker 1: to prevent prejudicial pre trial statements to preserve the right
• 37:13
  Speaker 1: to affair trial by an impartial jury. In nineteen eighty
• 37:16
  Speaker 1: five and nineteen eighty six, the Ninth Circuit Court of
• 37:19
  Speaker 1: Appeals addressed a situation strikingly similar to the one now
• 37:23
  Speaker 1: before the Court in two separate opinions. As way of background,
• 37:28
  Speaker 1: defendant Richard Miller, a former FBI agent, was charged with espionage.
• 37:33
  Speaker 1: The case received extensive local and national media coverage. After
• 37:37
  Speaker 1: attorneys for both the prosecution and the defense engaged in
• 37:41
  Speaker 1: extra judicial statements to the media, the trial court entered
• 37:45
  Speaker 1: and order prohibiting all attorneys in the case from making
• 37:48
  Speaker 1: any statements to members of the news media concerning any
• 37:52
  Speaker 1: aspect of the case that bears upon the merits to
• 37:55
  Speaker 1: be resolved by the jury. Levigne versus U. S. District
• 37:59
  Speaker 1: Court for Central District of California, seven sixty four f.
• 38:03
  Speaker 2: Dot two d.
• 38:04
  Speaker 1: Five ninety five ninety three, Ninth Circuit, nineteen eighty five.
• 38:09
  Speaker 1: In Levigne, the Court addressed a challenge to the non
• 38:12
  Speaker 1: dissemination order brought by defense counsel. The Court framed the
• 38:16
  Speaker 1: issue as addressing the clash between the basic and fundamental
• 38:20
  Speaker 1: right to a fair criminal jury trial and the First
• 38:23
  Speaker 1: Amendment right of attorneys to engage in free speech Ida
• 38:28
  Speaker 1: at five ninety one. In reviewing the restraining order, the
• 38:31
  Speaker 1: Ninth Circuit noted the District Court's order applies only to
• 38:35
  Speaker 1: trial participants. The Supreme Court has suggested that it's appropriate
• 38:40
  Speaker 1: to impose greater restrictions on the free speech rights of
• 38:43
  Speaker 1: trial participants than on the rights of non participants. The
• 38:48
  Speaker 1: case for restraints on trial participants is especially strong with
• 38:52
  Speaker 1: respect to attorneys Idea at five ninety five. The Court
• 38:56
  Speaker 1: nevertheless applied strict scrutiny. Accordingly, the district Court's order may
• 39:00
  Speaker 1: be upheld only if the government establishes that one the
• 39:04
  Speaker 1: activity restrained poses either a clear and present danger or
• 39:09
  Speaker 1: a serious and eminent threat to a protected competing interest,
• 39:14
  Speaker 1: two the order is narrowly drawn, and three less restrictive
• 39:19
  Speaker 1: alternatives are not available Idea at five ninety six. Internal
• 39:23
  Speaker 1: citations omitted. The Court concluded that the speech of the
• 39:27
  Speaker 1: lawyers did pose a serious and eminent threat to the
• 39:31
  Speaker 1: administration of justice, and that the trial court's choice of
• 39:34
  Speaker 1: remedy was appropriate. However, the Court found that the non
• 39:38
  Speaker 1: dissemination order was overbroad and directed the District Court as follows.
• 39:44
  Speaker 1: It is apparent that many statements that bear upon the
• 39:47
  Speaker 1: merits to be resolved by the jury present no danger
• 39:51
  Speaker 1: to the administration of justice. After the filing of this opinion,
• 39:55
  Speaker 1: the District Court must determine which types of extra judicial
• 39:58
  Speaker 1: statements pose a serious and eminent threat to the administration
• 40:02
  Speaker 1: of justice. In this case, the district Court then must
• 40:06
  Speaker 1: fashion in order specifying the prescribed types of statements. With
• 40:11
  Speaker 1: regard to statements by the prosecution, it would be appropriate
• 40:14
  Speaker 1: for the district Court to order the government to observe
• 40:17
  Speaker 1: the self imposed limitations set forth in twenty eight CE
• 40:21
  Speaker 1: dot f dot or Section fifty dot two b nineteen
• 40:25
  Speaker 1: eighty four. With regard to statements by the defense, it
• 40:28
  Speaker 1: would be appropriate to prescribe statements relating to one or
• 40:32
  Speaker 1: more of the following subjects. One the character, credibility, or
• 40:37
  Speaker 1: reputation of a party. Two the identity of a witness
• 40:40
  Speaker 1: or the expected testimony of a party or a witness.
• 40:44
  Speaker 1: Three the contents of any pre trial confession, admission, or
• 40:48
  Speaker 1: a statement given by a defendant, or that person's refusal
• 40:52
  Speaker 1: or failure to make a statement. Four the identity or
• 40:56
  Speaker 1: nature of physical evidence expected to be presented, or the
• 41:00
  Speaker 1: absence of such physical evidence. Five the strengths or weaknesses
• 41:04
  Speaker 1: of the case of either party, And six any other
• 41:09
  Speaker 1: information the lawyer knows or reasonably should know is likely
• 41:13
  Speaker 1: to be inadmissible as evidence and would create a substantial
• 41:17
  Speaker 1: risk of prejudice if disclosed Ida at five ninety nine,
• 41:22
  Speaker 1: citing model Rules of Professional Conduct Rule three dot six,
• 41:26
  Speaker 1: nineteen eighty three. ABA Standards for Criminal Justice Standard eight
• 41:30
  Speaker 1: Dash one dot one, nineteen eighty two, Model Code of
• 41:34
  Speaker 1: Professional Responsibility DR seven Dash one oh seven, nineteen seventy nine.
• 41:40
  Speaker 1: The case then went back to the trial court. The
• 41:43
  Speaker 1: trial court amended its restraining order to adopt six categories
• 41:46
  Speaker 1: of speech by lawyers specified by the Ninth Circuit Court
• 41:50
  Speaker 1: as appropriate to prescribe. The Radio and Television News Association
• 41:55
  Speaker 1: then filed for a rid of mandamus, with the Ninth
• 41:58
  Speaker 1: Circuit Court arguing at the restraining order, even as amended,
• 42:02
  Speaker 1: posed an unconstitutional prior restraint infringing freedom of the press
• 42:08
  Speaker 1: Radio seven eighty one f Dot two d at fourteen
• 42:11
  Speaker 1: forty four. The Ninth Circuit addressed the media's challenge in
• 42:16
  Speaker 1: Radio like here, the media argued that the order, by
• 42:20
  Speaker 1: effectively denying media access to the trial participants, constitutes an
• 42:25
  Speaker 1: unconstitutional restraint on the media's ability to gather news idea
• 42:29
  Speaker 1: at fourteen forty five. Much of the Court's opinion, concluding
• 42:33
  Speaker 1: that the trial court's amended restraining order was reasonable and
• 42:37
  Speaker 1: served as a legitimate purpose, is worth repeating. The impact
• 42:41
  Speaker 1: on the media in this case is significantly different from
• 42:45
  Speaker 1: situations where the media has denied access to a criminal
• 42:48
  Speaker 1: trial or is restricted in disseminating any information it obtains.
• 42:54
  Speaker 1: In contrast, the District Court's order in this case is
• 42:57
  Speaker 1: not directed towards the press at all. On the com contrary,
• 43:00
  Speaker 1: the media is free to attend all of the trial
• 43:03
  Speaker 1: proceedings before the District Court and to report anything that happens.
• 43:07
  Speaker 1: In fact, the press remains free to direct questions at
• 43:10
  Speaker 1: trial council. Trial councils simply may not be free to answer.
• 43:15
  Speaker 1: In sum, the media's right to gather news and disseminate
• 43:18
  Speaker 1: it to the public has not been restrained. As we
• 43:22
  Speaker 1: noted in Levin, the District Court's order raises the freedom
• 43:25
  Speaker 1: of the press issue that is analytically distinct from the
• 43:29
  Speaker 1: issues that were raised in Associated Press and CBS. Rather,
• 43:33
  Speaker 1: the RTNA asserts a First Amendment right of full access
• 43:37
  Speaker 1: to trial participants. This assertion is not supported by constitutional
• 43:42
  Speaker 1: case law Cepel Versus Prokineer, four seventeen US eight seventeen
• 43:48
  Speaker 1: eight twenty nine through thirty five ninety four. Supreme Court
• 43:52
  Speaker 1: twenty eight hundred, twenty eight oh seven through eleven forty
• 43:55
  Speaker 1: one l dot ed Dot two d four ninety five,
• 43:59
  Speaker 1: nineteen seven four. In holding that freedom of the press
• 44:02
  Speaker 1: was not infringed by government restrictions on interviews with prison inmates,
• 44:07
  Speaker 1: Court rejected media assertion of right of access to the
• 44:10
  Speaker 1: sources of what is regarded as newsworthy information. The press
• 44:16
  Speaker 1: does enjoy a constitutional interest in access to our criminal
• 44:20
  Speaker 1: courts and criminal justice process. In Richmond Newspapers, four forty
• 44:25
  Speaker 1: eight US five point fifty five, five seventy six, one hundred,
• 44:29
  Speaker 1: Supreme Court twenty eight fourteen twenty eight, twenty seven.
• 44:33
  Speaker 2: Sixty five L.
• 44:34
  Speaker 1: Dot ed Dot two d nine seventy three, nineteen eighty plurality,
• 44:39
  Speaker 1: The Supreme Court affirmed the First Amendment right of access
• 44:43
  Speaker 1: or right to gather information granted to the press with
• 44:46
  Speaker 1: respect to criminal trials. However, the Court described that right
• 44:50
  Speaker 1: only as a right to sit, listen, watch, and report.
• 44:54
  Speaker 1: In Nixon versus Warner Communications Incorporated. Four thirty five US
• 44:59
  Speaker 1: five eighty nine six nine ninety eight, Supreme Court, thirteen
• 45:03
  Speaker 1: oh six thirteen eighteen.
• 45:05
  Speaker 2: Fifty five L. Dot ed Dot two d five.
• 45:08
  Speaker 1: Seventy nineteen seventy eight, the Supreme Court held that the
• 45:12
  Speaker 1: First Amendment generally grants the press no right to information
• 45:16
  Speaker 1: about a trial superior to that of the general public.
• 45:20
  Speaker 1: See also Brandsburg versus Hayes, four to eight US six
• 45:24
  Speaker 1: sixty five, six eighty four, ninety two. Supreme Court twenty
• 45:28
  Speaker 1: six forty six, twenty six fifty eight thirty three l.
• 45:31
  Speaker 1: Dot ed Dot two d. Six twenty six, nineteen seventy two.
• 45:36
  Speaker 1: First Amendment does not grant the press a constitutional right
• 45:40
  Speaker 1: of special access to information not available to the public. Generally,
• 45:45
  Speaker 1: as with the public, the press has no greater privilege
• 45:48
  Speaker 1: than the right to attend the trial. In short, the
• 45:52
  Speaker 1: media's right to gather information during criminal trial is no
• 45:55
  Speaker 1: more than a right to attend the trial and report
• 45:58
  Speaker 1: on their observations. KPNX Broadcasting Company, six seventy eight p.
• 46:04
  Speaker 2: Dot two d at.
• 46:05
  Speaker 1: Four thirty nine through four forty two, nineteen eighty four,
• 46:09
  Speaker 1: Holding that limitations on the media's ability to interview trial
• 46:12
  Speaker 1: participants do not violate the First Amendment, the media is
• 46:16
  Speaker 1: granted access to the same information, but nothing more that
• 46:20
  Speaker 1: is available to the public. The district Court, having determined
• 46:24
  Speaker 1: that free speech rights of the trial council must be restrained,
• 46:28
  Speaker 1: the media has no greater right than the public to
• 46:30
  Speaker 1: hear that speech. The media never has had any guarantee
• 46:34
  Speaker 1: of or write to interview council in a criminal trial.
• 46:38
  Speaker 2: Trial council are.
• 46:39
  Speaker 1: Of course free to refuse interviews, whether or not restrained
• 46:43
  Speaker 1: by court order. If such an individual refuses an interview,
• 46:47
  Speaker 1: the media has no recourse to relief based upon the
• 46:50
  Speaker 1: First Amendment. In some the media's collateral interests in interviewing
• 46:55
  Speaker 1: trial participants is outside the scope of protection offered by
• 46:59
  Speaker 1: the First Amends. The media's desire to obtain access to
• 47:03
  Speaker 1: certain sources of information that otherwise might be available is
• 47:07
  Speaker 1: not a sufficient interest to establish an infringement of freedom
• 47:11
  Speaker 1: of the press in this case. Consequently, we are not
• 47:15
  Speaker 1: required to consider whether the District Court's amended restraining order
• 47:19
  Speaker 1: can withstand strict scrutiny as a prior restraint on constitutional
• 47:23
  Speaker 1: freedom of the press. We need only examine whether the
• 47:27
  Speaker 1: restrictions imposed are reasonable and whether the interests of the
• 47:31
  Speaker 1: government override the very limited incidental effects of the order
• 47:36
  Speaker 1: on First Amendment rights. The restrictions imposed also must not
• 47:41
  Speaker 1: serve an illegitimate purpose. The District Court found that the
• 47:45
  Speaker 1: restrictions on the extra judicial statements of trial Council to
• 47:50
  Speaker 1: the press were necessary to reduce prejudicial publicity. We cannot
• 47:55
  Speaker 1: say it was unreasonable for the District Court to conclude
• 47:58
  Speaker 1: that statements by trial counsel on matters bearing on the
• 48:01
  Speaker 1: merits of the trial might impair the fairness of the
• 48:05
  Speaker 1: trial or threaten the integrity of the judicial process. Nor
• 48:09
  Speaker 1: is there any indication in that record that the District
• 48:12
  Speaker 1: Court's order was intended to conceal the workings of the
• 48:16
  Speaker 1: criminal justice system. The press remains free to attend the
• 48:20
  Speaker 1: trial and scrutinize the fairness of the proceedings. On the
• 48:24
  Speaker 1: basis of this limited standard of review, the District Court's
• 48:27
  Speaker 1: amended restraining order is reasonable and serves a legitimate purpose.
• 48:33
  Speaker 1: Radio makes clear that strict scrutiny does not apply to
• 48:36
  Speaker 1: challenges by the press of non dissemination orders that do
• 48:40
  Speaker 1: not restrain the media but instead restrain trial participants, as
• 48:44
  Speaker 1: in this case. Instead, the standard to be applied is
• 48:48
  Speaker 1: whether the restrictions imposed are reasonable and whether the interests
• 48:52
  Speaker 1: of the government override the very limited incidental effects of
• 48:56
  Speaker 1: the order on the First Amendment rights, and whether the
• 49:00
  Speaker 1: restrictions imposed serve a legitimate purpose. Id At fourteen forty seven.
• 49:06
  Speaker 1: All right, folks, that's gonna do it for part three.
• 49:09
  Speaker 1: In the next episode, we're gonna pick up where we
• 49:11
  Speaker 1: left off and keep it rolling. All of the information
• 49:14
  Speaker 1: that goes with the episode can be found in the
• 49:16
  Speaker 1: description box. What's up everyone, and welcome back to the program.
• 49:21
  Speaker 1: In this episode, we're picking right back up where we
• 49:24
  Speaker 1: left off with the order denying the AP's request to
• 49:29
  Speaker 1: have the gag order lifted. As expressly recognized by the
• 49:35
  Speaker 1: Supreme Court in nineteen ninety one, the speech of those
• 49:38
  Speaker 1: participating before the courts can be limited. Genteel, five oh
• 49:42
  Speaker 1: one US at. Ten seventy two, one eleven, Supreme Court
• 49:46
  Speaker 1: at twenty seven forty three. In Genteel, Genteel, a defense attorney,
• 49:51
  Speaker 1: held a press conference after his client was indicted. Genteel
• 49:55
  Speaker 1: proclaimed that the evidence at trial would prove his client
• 49:58
  Speaker 1: was innocent and that crooked were the ones responsible for
• 50:02
  Speaker 1: stealing the drugs and money at issue. Genteel also commented
• 50:06
  Speaker 1: on other aspects of the defense's case. Six months later,
• 50:10
  Speaker 1: Gentiel's client was acquitted. Thereafter, the Nevada State Bar filed
• 50:14
  Speaker 1: a complaint against Genteel, alleging that he violated Nevada Supreme
• 50:19
  Speaker 1: Court Rule one seventeen, which prohibited a lawyer from making
• 50:23
  Speaker 1: extra judicial statements to the press that had substantial likelihood
• 50:27
  Speaker 1: of materially prejudicing a trial. However, Rule one seventeen expressly
• 50:33
  Speaker 1: allowed a lawyer to state, without elaboration, the general nature
• 50:37
  Speaker 1: of the defense. The State Bar's disciplinary board found Genteel
• 50:41
  Speaker 1: in violation of Rule one seventeen and recommended that he
• 50:45
  Speaker 1: be reprimanded. Ultimately, the Supreme Court held that Nevada Supreme
• 50:50
  Speaker 1: Court Rules Rule one seventeen, as applied to the facts
• 50:53
  Speaker 1: of Genteel's case, was unconstitutionally vague. The Court noted that
• 50:59
  Speaker 1: the safe harbor provision misled Genteel into thinking that he
• 51:03
  Speaker 1: could make the statements he made without discipline. Despite the
• 51:07
  Speaker 1: holding that Rule one seventeen was unconstitutionally void for a
• 51:11
  Speaker 1: vagueness as applied, the Court continued to recognize that the
• 51:15
  Speaker 1: speech of lawyers representing clients and pending cases may be
• 51:19
  Speaker 1: regulated under a less demanding standard than that established for
• 51:23
  Speaker 1: regulation of the press. In Nebraska Press Association vers. Stuart
• 51:28
  Speaker 1: for twenty seven US five thirty nine ninety six, Supreme
• 51:32
  Speaker 1: Court twenty seven ninety one forty nine l Dot ed
• 51:36
  Speaker 1: Dot two D six eighty three, nineteen seventy six, and
• 51:39
  Speaker 1: the cases which preceded it. Lawyers, representing clients and pending
• 51:44
  Speaker 1: cases are key participants in the criminal justice system, and
• 51:48
  Speaker 1: the state may demand some adherents to the precepts of
• 51:52
  Speaker 1: that system in regulating their speech as well as their
• 51:55
  Speaker 1: conduct id at. Ten seventy four one eleven. Supreme Court at.
• 51:59
  Speaker 1: Two twenty seven forty four Emphazis added. As officers of
• 52:03
  Speaker 1: the court, court personnel and attorneys have a fiduciary responsibility
• 52:08
  Speaker 1: not to engage in public debate that will rebound to
• 52:11
  Speaker 1: the detriment of the accused or that will obstruct the
• 52:14
  Speaker 1: fair administration of justice. Because lawyers have special access to
• 52:18
  Speaker 1: information through discovery and client communications, their extra judicial statements
• 52:23
  Speaker 1: pose a threat to the fairness of appending proceeding, since
• 52:27
  Speaker 1: lawyer's statements are likely to be received as especially authoritative Idea.
• 52:33
  Speaker 1: Ten seventy four one to eleven. Supreme Court at. Twenty
• 52:36
  Speaker 1: seven forty four Dash forty five, quoting Nebraska Press for
• 52:40
  Speaker 1: twenty seven US at six oh one N Dot twenty
• 52:44
  Speaker 1: seven ninety six. Supreme Court at. Twenty eight twenty three
• 52:48
  Speaker 1: and DOT twenty seven. The key takeaways from Lavigne and
• 52:53
  Speaker 1: Genteel are that a court can to protect the right
• 52:56
  Speaker 1: to a fair trial prohibit lawyers involved in a case
• 53:00
  Speaker 1: from making extra judicial statements to the press, so long
• 53:04
  Speaker 1: as the regulation is not overbroad, is clear, and provides
• 53:08
  Speaker 1: notice of what is prohibited. While the Levine Court applied
• 53:12
  Speaker 1: strict scrutiny, Genteel suggests that a less demanding standard applies
• 53:16
  Speaker 1: to restrictions on the speech of lawyers participating and pending cases.
• 53:21
  Speaker 1: The ability of a court to restrict the speech of
• 53:23
  Speaker 1: a lawyer participating in a case is rooted in a
• 53:26
  Speaker 1: lawyer's status as an officer of the legal system and
• 53:30
  Speaker 1: a public citizen having special responsibility for the quality of
• 53:34
  Speaker 1: justice I dot RP dot C preamble. A lawyer's responsibilities.
• 53:40
  Speaker 1: A lawyer should demonstrate respect for the legal system and
• 53:43
  Speaker 1: for those who serve it, including judges, other lawyers, and
• 53:46
  Speaker 1: public officials. While it is a lawyer's duty, when necessary,
• 53:50
  Speaker 1: to challenge the restitute of official action, it is also
• 53:54
  Speaker 1: a lawyer's duty to uphold legal process id As an
• 53:58
  Speaker 1: officer of the court, a lawyer had as a duty
• 54:00
  Speaker 1: to preserve the integrity of the legal system search for
• 54:03
  Speaker 1: the truth, while maintaining a professional, courteous, and civil attitude
• 54:08
  Speaker 1: toward all persons involved in the process. Lawyer's license to
• 54:12
  Speaker 1: practice law in Idaho are governed by the Idaho Rules
• 54:16
  Speaker 1: a Professional Conduct. Rule three dot six A specifically states
• 54:21
  Speaker 1: that a lawyer who is participating or who has participated
• 54:25
  Speaker 1: in the investigation or litigation of a matter shall not
• 54:28
  Speaker 1: make an extra judicial statement that the lawyer knows or
• 54:32
  Speaker 1: reasonably should know will be disseminated by means of public communication,
• 54:36
  Speaker 1: and will have a substantial likelihood of materially prejudicing and
• 54:40
  Speaker 1: adjudicative proceeding in the matter. Comment five to Rule three
• 54:44
  Speaker 1: dot six give specific examples of subjects that are more
• 54:48
  Speaker 1: likely than not to have material prejudicial effect on a preceding,
• 54:52
  Speaker 1: particularly when they refer to a criminal matter or any
• 54:56
  Speaker 1: other proceeding that can result in incarceration. One, the character, credibility, reputation,
• 55:03
  Speaker 1: or a criminal record of a party, suspect in a
• 55:06
  Speaker 1: criminal investigation, or witness, or the identity of a witness,
• 55:10
  Speaker 1: or the expected testimony of a party or witness. Two
• 55:14
  Speaker 1: in a criminal case or proceeding that could result in incarceration,
• 55:18
  Speaker 1: the possibility of a plea of guilty to the offense,
• 55:21
  Speaker 1: or the existence or contents of a confession, admission, or
• 55:26
  Speaker 1: statement given by a defendant or suspect, or that person's
• 55:29
  Speaker 1: refusal or failure to make a statement. Three, the performance
• 55:34
  Speaker 1: or results of any examination or test, or the refusal
• 55:38
  Speaker 1: or a failure of a person to submit to an
• 55:40
  Speaker 1: examination or test, or the identity or nature of physical
• 55:45
  Speaker 1: evidence expected to be presented. Four any opinion as to
• 55:50
  Speaker 1: the guilt or innocence of a defendant or suspect in
• 55:54
  Speaker 1: a criminal case or proceeding that could result in incarceration.
• 55:58
  Speaker 1: Five information the lawyer knows or reasonably should know is
• 56:03
  Speaker 1: likely to be inadmissible as evidence in a trial, and
• 56:07
  Speaker 1: that would, if disclosed, create a substantial risk of prejudicing
• 56:11
  Speaker 1: an impartial trial. Or six the fact that a defendant
• 56:15
  Speaker 1: has been charged with a crime, unless there is an
• 56:18
  Speaker 1: included therein a statement explain that the charge is merely
• 56:21
  Speaker 1: an accusation, and that the defendant is presumed innocent until
• 56:26
  Speaker 1: and unless proven guilty. Rule three dot six also expressly
• 56:31
  Speaker 1: allows lawyers participating in a matter to state the following
• 56:35
  Speaker 1: one the claim, offense or defense involved, and except when
• 56:40
  Speaker 1: prohibited by law, the identity of the persons involved, two
• 56:44
  Speaker 1: information contained in a public record. Three that an investigation
• 56:48
  Speaker 1: of a matter is in progress. Four, the scheduling or
• 56:52
  Speaker 1: result of any step in litigation. Five or a quest
• 56:56
  Speaker 1: for assistance in obtaining evidence and information sssary THERETO. Six
• 57:02
  Speaker 1: a warning of danger concerning the behavior of a person
• 57:05
  Speaker 1: involved when there is a reason to believe that there
• 57:08
  Speaker 1: exists a likelihood of substantial harm to an individual or
• 57:12
  Speaker 1: to the public interest, and seven in a criminal case.
• 57:15
  Speaker 1: In addition, sub paragraphs one through six, the identity, residence, occupation,
• 57:22
  Speaker 1: and family status.
• 57:23
  Speaker 2: Of the accused. Two, if the accused has.
• 57:25
  Speaker 1: Not been apprehended, information necessary to aid an apprehension of
• 57:30
  Speaker 1: that person. Three the fact, time and place of arrest,
• 57:35
  Speaker 1: and four the identity of investigating and arresting officers or agencies,
• 57:40
  Speaker 1: and the length of the investigation. Comment one to Rule
• 57:45
  Speaker 1: three dot six recognizes the difficulty in striking a balance
• 57:49
  Speaker 1: between protecting the right to a fair trial and safeguarding
• 57:52
  Speaker 1: the right to free expression. Preserving the right to a
• 57:55
  Speaker 1: fair trial necessarily entails some curtailment of the information that
• 58:00
  Speaker 1: may be disseminated about a party prior to trial, particularly
• 58:04
  Speaker 1: where a trial by jury is involved. Similarly, Comment six
• 58:09
  Speaker 1: to Rule three dot six states that the criminal jury
• 58:12
  Speaker 1: trials will be the most sensitive to extra judicial speech.
• 58:16
  Speaker 1: The American Bar Association has also promulgated standards for conduct
• 58:20
  Speaker 1: of Attorneys. Standard eight Dash two dot one govern's conduct
• 58:25
  Speaker 1: of lawyers participating in a criminal matter. Standard eight Dash
• 58:29
  Speaker 1: two dot one reads a subject to any additional limitations
• 58:34
  Speaker 1: imposed by local or professional rules during the pendency of
• 58:38
  Speaker 1: a criminal matter, a lawyer participating in that criminal matter
• 58:42
  Speaker 1: should not make cause to be made, condone, or authorize
• 58:46
  Speaker 1: the making of a public extra judicial statement if the
• 58:49
  Speaker 1: lawyer knows or reasonably should know that it will have
• 58:52
  Speaker 1: a substantial likelihood of one influencing the outcome of that
• 58:57
  Speaker 1: or any related criminal trial, or prejudicing the jury veneer,
• 59:03
  Speaker 1: even if an untainted panel ultimately can be found. Two
• 59:08
  Speaker 1: unnecessarily heightening public condemnation of a defendant or a person
• 59:13
  Speaker 1: or entity who has been publicly identified in the context
• 59:17
  Speaker 1: of a criminal investigation, or a witness or victim, or
• 59:21
  Speaker 1: undermining the public's respect for judicial process. ABA Standards for
• 59:26
  Speaker 1: Criminal Justice, Fair Trial, and Public Discourse, fourth Edition, twenty sixteen,
• 59:33
  Speaker 1: all Right folks, that's going to do it for this one.
• 59:35
  Speaker 1: In the next episode, we're going to wrap up the
• 59:38
  Speaker 1: order denying the AP's request to remove the gag order.
• 59:43
  Speaker 1: All of the information that goes with this episode can
• 59:46
  Speaker 1: be found in the description box. What's up everyone, and
• 59:51
  Speaker 1: welcome back to the program. In this episode, we're going
• 59:54
  Speaker 1: to wrap up the order denying the AP's request to
• 59:58
  Speaker 1: remove the gag Part five analysis. While only the occasional
• 1:00:06
  Speaker 1: case presents a danger of prejudice from pre trial publicity
• 1:00:10
  Speaker 1: Genteel five oh one US at. Ten fifty four one
• 1:00:14
  Speaker 1: to eleven, Supreme Court at twenty seven thirty four, this
• 1:00:17
  Speaker 1: case is recognized by the Idaho Supreme Court has drawn
• 1:00:21
  Speaker 1: widespread publicity, garnering worldwide media attention and much speculation, and
• 1:00:26
  Speaker 1: therefore pre trial publicity does present a real danger of prejudice.
• 1:00:31
  Speaker 1: Petition for rid of Mandamus or rid of Prohibition Number
• 1:00:35
  Speaker 1: fifty forty eighty two, twenty twenty three, w L three
• 1:00:39
  Speaker 1: zero five zero eight two nine at one, Idaho, April
• 1:00:44
  Speaker 1: twenty fourth, twenty twenty three. Recognizing the high profile nature
• 1:00:48
  Speaker 1: of the case and the extensive coverage it has received,
• 1:00:52
  Speaker 1: along with the need to minimize possible pre trial prejudice
• 1:00:55
  Speaker 1: the party stipulated to enter of the original non dissemination
• 1:00:59
  Speaker 1: order and the amended non dissemination order id as was
• 1:01:04
  Speaker 1: noted by District Judge Stephen W. Boyce in his memorandum
• 1:01:07
  Speaker 1: decision and order prohibiting video and photographic coverage in the
• 1:01:13
  Speaker 1: case of State of Idaho versus Lori Noreen Valo aka
• 1:01:17
  Speaker 1: Lori Noreen Valo DA Bell case numbers CR twenty two,
• 1:01:21
  Speaker 1: Dash twenty one, DASH sixteen twenty four, agreement between the
• 1:01:25
  Speaker 1: State and defense on any issue in a capital case
• 1:01:28
  Speaker 1: is rare. Further confirming to the Court the legitimacy and
• 1:01:32
  Speaker 1: level of concern Council have raised, the same is true
• 1:01:36
  Speaker 1: in this instance.
• 1:01:38
  Speaker 2: One.
• 1:01:39
  Speaker 1: This Court has an obligation to take measures to ensure
• 1:01:43
  Speaker 1: Coburger's right to a fair trial, including prescribing potentially prejudicial
• 1:01:48
  Speaker 1: extra judicial statements by any lawyer participating in the case. Few,
• 1:01:53
  Speaker 1: if any, interests under the Constitution are more fundamental than
• 1:01:56
  Speaker 1: the right to affair trial by impartial jurors d and
• 1:02:00
  Speaker 1: an outcome effected by extra judicial statements would violate that
• 1:02:04
  Speaker 1: fundamental right. Genteel five oh one US at ten seventy
• 1:02:08
  Speaker 1: five one eleven, Supreme Court at twenty seven forty five.
• 1:02:12
  Speaker 1: This Court also recognizes the important role that the press
• 1:02:16
  Speaker 1: plays in the judicial system. A responsible press has always
• 1:02:20
  Speaker 1: been regarded as the handmaiden of effective judicial administration, especially
• 1:02:26
  Speaker 1: in the criminal field Shepherd, three eighty four US at.
• 1:02:29
  Speaker 1: Three fifty eighty six, Supreme Court at fifteen fifteen. However,
• 1:02:34
  Speaker 1: with the advent of the Internet and social media in
• 1:02:38
  Speaker 1: Petition for rid of Mandamus or rid of Prohibition Number
• 1:02:41
  Speaker 1: fifty four eighty two, twenty twenty three w L. Three
• 1:02:45
  Speaker 1: zero five zero eight two nine at eleven, Idaho, April
• 1:02:49
  Speaker 1: twenty fourth, twenty twenty three, the tensions between the First
• 1:02:52
  Speaker 1: Amendment and the sixth Amendment continue to increase. As we
• 1:02:56
  Speaker 1: outlined in Shepherd Trial, courts must make strong measure to
• 1:03:00
  Speaker 1: ensure that the balance is never weighed against the accused Shepherd,
• 1:03:05
  Speaker 1: three eighty four US at. Three sixty two eighty six,
• 1:03:08
  Speaker 1: Supreme Court at fifteen twenty two. In this case, the
• 1:03:12
  Speaker 1: amended non dissemination order in place by the party stipulation
• 1:03:16
  Speaker 1: to protect Coburger's right to a fair trial is not
• 1:03:19
  Speaker 1: directed to the press at all. Like in radio and
• 1:03:22
  Speaker 1: television news. The amended non dissemination order is aimed at
• 1:03:26
  Speaker 1: attorneys participating in the case and their agents, such as
• 1:03:29
  Speaker 1: law enforcement. The Supreme Court has made clear that a
• 1:03:33
  Speaker 1: trial court can proscribe extra judicial statements by any lawyer,
• 1:03:37
  Speaker 1: party witness, or court official which divulged prejudicial matters. Shepherd,
• 1:03:43
  Speaker 1: three eighty four US at. Three sixty one, eighty six,
• 1:03:46
  Speaker 1: Supreme Court at fifteen twenty one. See also Nebraska Press
• 1:03:51
  Speaker 1: for twenty seven US at. Six oh one and Dot
• 1:03:54
  Speaker 1: twenty seven ninety six Supreme Court at. Twenty eight, twenty
• 1:03:58
  Speaker 1: three and Dot twenty seven. By doing so, the trial
• 1:04:01
  Speaker 1: court can help to ensure a trial free from outside
• 1:04:05
  Speaker 1: influence without corresponding curtailment of the news media. Sheppard, three
• 1:04:10
  Speaker 1: eighty four US at. Three sixty two, eighty six, Supreme
• 1:04:14
  Speaker 1: Court at. Fifteen twenty two. Emphasis added. Such restraining orders
• 1:04:19
  Speaker 1: raise or freedom of the press issue that is analytically
• 1:04:23
  Speaker 1: distinct from prior restraints on the media Radio seven eighty
• 1:04:27
  Speaker 1: one f. Dot two d At fourteen forty six. Non
• 1:04:31
  Speaker 1: dissemination orders that restrain the speech of lawyers representing clients
• 1:04:35
  Speaker 1: and pending cases may be regulated under a less demanding
• 1:04:38
  Speaker 1: standard than the established for regulation of the press in
• 1:04:42
  Speaker 1: Nebraska Press Association versus Stuart, four, twenty seven US five
• 1:04:46
  Speaker 1: point thirty nine ninety six, Supreme Court, twenty seven, ninety one,
• 1:04:50
  Speaker 1: forty nine l. Dot ed Dot two D. Six eighty three,
• 1:04:54
  Speaker 1: nineteen seventy six. Genteel, five oh one US at ten
• 1:04:58
  Speaker 1: seventy four eleven, Supreme Court at. Twenty seven forty four.
• 1:05:03
  Speaker 1: Emphasis added. Lawyers have a fiduciary responsibility not to engage
• 1:05:08
  Speaker 1: in public debate that will rebound to the detriment of
• 1:05:11
  Speaker 1: the accused or that will obstruct the fair administration of
• 1:05:14
  Speaker 1: justice id In a case as high profile as this one,
• 1:05:19
  Speaker 1: a non dissemination order echoing the responsibilities of a lawyer
• 1:05:23
  Speaker 1: found in the Idaho Rules of Professional Conduct does not
• 1:05:26
  Speaker 1: violate the attorney's First Amendment rights. The parties have a
• 1:05:30
  Speaker 1: legitimate concern about information being disseminated to the media by
• 1:05:34
  Speaker 1: way of attorneys participating in the case. Obviously, the state
• 1:05:39
  Speaker 1: and defense are privy to confidential information, but so to
• 1:05:43
  Speaker 1: our attorneys representing a victim's family or a witness, As
• 1:05:46
  Speaker 1: noted by the Court in Genteel. Because lawyers have special
• 1:05:50
  Speaker 1: access to information through discovery and client communications, their extra
• 1:05:55
  Speaker 1: judicial statements pose a threat to the fairness of appending proceeding,
• 1:05:59
  Speaker 1: since lawyers statements are likely to be received as especially authoritative. Genteel.
• 1:06:04
  Speaker 1: Five oh one, US at. Ten seventy four, one eleven,
• 1:06:07
  Speaker 1: Supreme Court at. Twenty seven forty four, forty five, quoting
• 1:06:11
  Speaker 1: Nebraska Press four twenty seven, US at. Six oh one
• 1:06:15
  Speaker 1: and Dot twenty seven ninety six. Supreme Court at. Twenty eight,
• 1:06:19
  Speaker 1: twenty three and Dot twenty seven. This concern was echoed
• 1:06:23
  Speaker 1: by defense expert doctor l Alaliley, who wipine that commentary
• 1:06:28
  Speaker 1: by individuals with status expertise e g. Police attorneys and
• 1:06:33
  Speaker 1: judges in media's coverage create more potential for bias jurors.
• 1:06:38
  Speaker 1: Example D to defend his objection to media's motion to
• 1:06:41
  Speaker 1: vacate the amended non dissemination order, membership of the bar
• 1:06:46
  Speaker 1: is a privilege burdened with conditions Genteel. Five oh one
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  Speaker 1: US ten sixty six one eleven, Supreme Court at. Twenty
• 1:06:54
  Speaker 1: seven forty requiring attorneys involved in the case to comply
• 1:06:58
  Speaker 1: with I dot R dot P dot six as echoed
• 1:07:02
  Speaker 1: in the revised Amended non Dissemination Order. It is not
• 1:07:05
  Speaker 1: unreasonable and does not unconstitutionally impinge upon the First Amendment.
• 1:07:11
  Speaker 1: This Court has an obligation to help protect Coburger's constitutional
• 1:07:14
  Speaker 1: right to a fair trial, and this is just one
• 1:07:17
  Speaker 1: measure that the US Supreme Court has endorsed in appropriate
• 1:07:21
  Speaker 1: cases to help ensure the sixth Amendment is not violated. Thus,
• 1:07:25
  Speaker 1: this Court has the authority to restrain prejudicial speech by
• 1:07:29
  Speaker 1: attorneys participating in the case number two. Strict scrutiny does
• 1:07:34
  Speaker 1: not apply to the media's constitutional challenge of the amended
• 1:07:39
  Speaker 1: non Dissemination Order. When the media challenge is in order
• 1:07:42
  Speaker 1: restraining the speech of lawyers participating in a pending case,
• 1:07:46
  Speaker 1: the court need only examined whether the restrictions imposed are
• 1:07:50
  Speaker 1: reasonable and whether the interests of the government override the
• 1:07:53
  Speaker 1: very limited incidental effects of the order on the First
• 1:07:57
  Speaker 1: Amendment rights. The restrictions imposed also must not serve as
• 1:08:01
  Speaker 1: illegitimate purpose Radio seven eighty one f. Dot two d
• 1:08:06
  Speaker 1: At fourteen forty seven. This is not a strict scrutiny.
• 1:08:09
  Speaker 1: The rationale for a lower standard of constitutional review is
• 1:08:13
  Speaker 1: because the impact on the media. It's significantly different from
• 1:08:17
  Speaker 1: situations where the media is denied access to a criminal
• 1:08:21
  Speaker 1: trial or is restricted to disseminating any information it it
• 1:08:25
  Speaker 1: obtains idea at fourteen forty six. Strict scrutiny would apply
• 1:08:30
  Speaker 1: in such a case. While the press does have a
• 1:08:32
  Speaker 1: right of access or a right to gather information with
• 1:08:35
  Speaker 1: respect to criminal trials, that right is described only as
• 1:08:39
  Speaker 1: a right to sit, listen, watch, and report idea at
• 1:08:42
  Speaker 1: fourteen forty six. The media's desired to obtain access to
• 1:08:46
  Speaker 1: certain sources of information that otherwise might be available is
• 1:08:50
  Speaker 1: not a sufficient interest to establish an infringement on freedom
• 1:08:54
  Speaker 1: of the press in this case, id at fourteen forty seven.
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  Speaker 1: As such, strict scrutiny does not apply. Number three. The
• 1:09:04
  Speaker 1: restrictions on the extra judicial statements of Council and their
• 1:09:07
  Speaker 1: agents to the press are necessary to reduce prejudicial publicity
• 1:09:12
  Speaker 1: and protect Coburger's right to a fair trial. The evidence
• 1:09:16
  Speaker 1: presented by the defense shows that one, media coverage in
• 1:09:20
  Speaker 1: this case is rampant and ongoing. Two, at least some,
• 1:09:24
  Speaker 1: if not most, of the news coverage is prejudicial to Coburger. Three,
• 1:09:28
  Speaker 1: a portion of the statements being made to the media
• 1:09:31
  Speaker 1: are coming from an attorney participating in the case. For
• 1:09:35
  Speaker 1: vacating the non dissemination order would increase the potential for
• 1:09:38
  Speaker 1: bias among prospective jurors, both initially and throughout the trial,
• 1:09:43
  Speaker 1: and five anti defendant pre trial publicity increases the probability
• 1:09:48
  Speaker 1: of guilty verdicts, and that this bias persists despite the
• 1:09:52
  Speaker 1: receipt of trial arguments, evidence, admonitions to disregard the publicity, information,
• 1:09:58
  Speaker 1: and jury deliberation commentary by individuals with status expertise e g.
• 1:10:03
  Speaker 1: Police attorneys and judges in media coverage creates more potential
• 1:10:08
  Speaker 1: for bias jurors. Example, d to defend its objection to
• 1:10:12
  Speaker 1: media's motion to vacate the Amended non Dissemination Order as
• 1:10:17
  Speaker 1: currently drafted. The Amended Non Dissemination Order is arguably over
• 1:10:21
  Speaker 1: broad and vague in some areas. However, it does serve
• 1:10:25
  Speaker 1: a legitimate purpose, and restricting the speech of attorneys participating
• 1:10:28
  Speaker 1: in the case is reasonable. The very limited incidental effects
• 1:10:33
  Speaker 1: of the speech restrictions on the media's First Amendment rights
• 1:10:36
  Speaker 1: are overridden by the compelling interest in ensuring a fair
• 1:10:39
  Speaker 1: trial by an impartial jury. Statements by counsel participating in
• 1:10:44
  Speaker 1: the case on matters bearing on the merits of the
• 1:10:47
  Speaker 1: case might impair the fairness of the trial or threaten
• 1:10:51
  Speaker 1: the integrity of the judicial process. The amended non Dissemination
• 1:10:55
  Speaker 1: Order is not intended to conceal the workings of the
• 1:10:58
  Speaker 1: criminal justice system from the public. The media is not
• 1:11:02
  Speaker 1: restrained in any way and is free to attend hearings
• 1:11:05
  Speaker 1: and report on what they observe and hear. For these reasons,
• 1:11:09
  Speaker 1: the media's request that the amended non Dissemination Order be
• 1:11:13
  Speaker 1: vacated is denied. However, because the Amended non Dissemination Order
• 1:11:19
  Speaker 1: is arguably overbroad and vague, the Court will issue or
• 1:11:22
  Speaker 1: revised amended non Dissemination Order to further clarify and narrow
• 1:11:27
  Speaker 1: what speech by lawyers participating in the case and their
• 1:11:30
  Speaker 1: agents is allowed and prohibited by giving specific examples. The
• 1:11:35
  Speaker 1: revised Amended non Dissemination Order is narrowly drawn to prohibit
• 1:11:39
  Speaker 1: only extra judicial statements that have a substantial likelihood of
• 1:11:44
  Speaker 1: materially prejudicing the case. The restriction on attorney's speech applies
• 1:11:49
  Speaker 1: equally to all attorneys participating in depending case, and will
• 1:11:53
  Speaker 1: restrict the attorney's comments only until after the trial and
• 1:11:57
  Speaker 1: any sentencing proceedings. The regulation of attorney's speech meets the
• 1:12:01
  Speaker 1: less demand standard set forth and genteel as well as
• 1:12:04
  Speaker 1: strict scrutiny. The restrictions are necessary to protect Coburger's right
• 1:12:09
  Speaker 1: to a fair trial and the fair administration of justice.
• 1:12:13
  Speaker 1: As to the media's constitutional challenge. The restrictions imposed on
• 1:12:17
  Speaker 1: attorneys participating in the case and their agents are not
• 1:12:21
  Speaker 1: only reasonable and legitimate considering the high profile nature of
• 1:12:24
  Speaker 1: this case, but also meet the strict scrutiny standard. Conclusion,
• 1:12:30
  Speaker 1: the Associated Press request that the Amended non Dissemination Order
• 1:12:34
  Speaker 1: be vacated is denied. However, the revised Amended Non Dissemination
• 1:12:38
  Speaker 1: Order will replace the Amended non Dissemination Order and will
• 1:12:42
  Speaker 1: clarify the narrow restrictions on speech the individuals whose speech
• 1:12:47
  Speaker 1: is restrained. So ordered this twenty third day of June
• 1:12:51
  Speaker 1: twenty twenty three, and this was signed by Judge Judge
• 1:12:55
  Speaker 1: all right. So that concludes the order denying the request
• 1:12:59
  Speaker 1: by the UP to have the non dissemination order vacated.
• 1:13:03
  Speaker 1: All right, folks. Obviously we got more on the way,
• 1:13:06
  Speaker 1: but that's gonna do it for this one. All of
• 1:13:08
  Speaker 1: the information that goes with this episode can be found
• 1:13:11
  Speaker 1: in the description box.