News/Commentary

Idaho murder victim’s family using First Amendment to fight judge’s gag order

February 4, 2023 | | Print Article

The family of one of the University of Idaho victims is challenging a gag order that was placed on the case last month.

As previously reported, four University of Idaho students — Ethan Chapin, Xana Kernodle, Madison Mogen, and Kaylee Goncalves — were found stabbed to death at their off-campus rented home on Nov. 13th in Moscow, Idaho.

Weeks after the murders, a suspect — Bryan Kohberger — was arrested in late December. Shortly thereafter, a local judge in the Moscow area applied a gag order to the case.

“On January 3, 2023, Latah County Magistrate Judge Megan Marshall issued a nondissemination order in regard to the murder case against Bryan C. Kohberger,” Moscow police said in a statement at the time.

“The order prohibits any communication by investigators, law enforcement personnel, attorneys, and agents of the prosecuting attorney or defense attorney concerning this case,” the statement continued.

Fast-forwarding to the present, on Friday the attorney representing victim Kaylee Goncalves’ family filed a motion challenging the gag order.

Seen above, the motion makes the case that the gag order should only apply to the relevant parties involved in the people — the “People” writ large and the “Defendant.”

“The only ‘parties’ to the case are the People and the Defendant. Accordingly, as a non-party citizens, the Victims surviving family members are free to speak to the public and the media under the First Amendment to the Constitution,” the motion reads.

“Simply put, their rights to freedom of speech cannot be restricted through a judicial prior restraint. Gentile makes clear that only the rights of attorneys who are actively engaged in litigating a pending matter can be restricted without satisfying the rigorous prior restraints standard set forth in Nebraska Press Association v Stuart,” it continues.

Gentile is a reference to a 1991 case.

“[T]he U.S. Supreme Court in 1991 ruled in favor of attorney Dominic Gentile who had been disciplined by the State Bar of Nevada for violating a rule of professional conduct when making statements to the press,” according to Middle Tennessee State University’s First Amendment Encyclopedia.

“The court in a narrow decision found Nevada’s law too vague. Lawyers don’t forfeit all rights of free speech as members of a profession, but courts have ruled they can be limited in certain ways, most notably in what they say inside a courtroom,” the encyclopedia notes.

The Supreme Court specifically ruled that Gentile wasn’t violating the relevant gag order by relaying to the media the thoughts of his clients.

Similarly, attorney Shanon Gray argues in the motion that he should be allowed to relay to the media the thoughts of Goncalves’ family without violating the gag order.

“As attorney for one of the Victim’s families, I am allowed to relay to the media any of
the opinions, views, or statements of those family members regarding any part of the case (as they are allowed to speak about the case under the First Amendment),” he wrote.

“This is different from offering up my own opinion regarding the facts and issues
surrounding the case. It would place an undue burden on the Victims’ families if the attorney whom they have retained to represent their interests was prohibited from serving as their spokesperson (conduit) to the media and other parties in transmitting the Victims’ families thoughts and opinions,” he added.

From the looks of it, the public’s reaction to Gray’s motion is mixed. Some argue that Gonclaves’ family is jeopardizing the case:

But others say they have the right to be as outspoken as they desire:

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Vivek Saxena
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