Here's a piece on efforts by a coalition of media outlets to overturn a gag order in the proceedings surrounding the murder of four University of Idaho students last November. A Magistrate in the murder trial of the accused killer – Bryan Kohberger – issued a gag order which prohibits attorneys, prosecutors, law enforcement agencies and others involved in the case from talking to the news media. The media coalition asked the Idaho Supreme Court to strike down the order on First Amendment grounds, but that court sent the matter back to the Magistrate to rule on the request.
Here's a good summary of gag orders and the interplay between the First Amendment right of the press and public to be informed versus the defendant's right to a fair trial. The theory behind gag orders essentially is that lose lips sink not only ships but fair trials. Courts seem to think that left ungagged, the press and public will be so inundated with information about the trial, that there is no way the defendant will get a fair hearing. I've never bought into that line of thinking.
Now, full disclosure, as a media lawyer, I am biased toward transparency. But putting that aside for a moment, there are inevitably problems with gag orders. First, not everyone follows the news religiously. So, finding 12 jurors who've not been exposed to the pre-trial publicity is not impossible. Lawyers for the defense and prosecution get to ask potential jurors what they've heard or read about the proceedings, and can exclude jurors who've made up their minds in advance. Second, there are less extreme measures than shutting down the media's ability to cover a trial. If the publicity is really intense, the court can order a change of venue. Indeed, as a matter of constitutional law, courts are required to consider changing venue before issuing a gag order.
But more than the technical issues, I have trouble with the concept that silence is the answer. The truth is that information about the proceedings will leak out, and rumors and gossip will flourish. Prohibiting the people who actually know what they're talking about from talking will make the situation worse, not better. I hope when the Idaho Magistrate reconsiders the gag order, common sense prevails.
