30 news groups ask Idaho Supreme Court to reject gag order

By REBECCA BOONE

Associated Press

BOISE — Thirty news organizations have asked the Idaho Supreme Court to overturn a gag order in a case against a man accused of stabbing four University of Idaho students to death.

The challenge, filed Monday evening, comes just a few days after an attorney representing the family of one of the victims filed an opposition to the gag order in state court, saying it is overly broad and places an undue burden on the families.

Bryan Kohberger, 28, is charged with four counts of first-degree murder and burglary in connection with the stabbing deaths in Moscow, Idaho. Prosecutors have yet to reveal if they intend to seek the death penalty.

The bodies of Madison Mogen, Kaylee Goncalves, Xana Kernodle and Ethan Chapin were found on Nov. 13, 2022, at a rental home across the street from the University of Idaho campus. The slayings shocked the rural Idaho community and neighboring Pullman, Washington, where Kohberger was a graduate student studying criminology at Washington State University.

The case garnered widespread publicity, and in January Latah County Magistrate Judge Megan Marshall issued the sweeping gag order, barring attorneys, law enforcement agencies and others associated with the case from talking or writing about it.

The coalition of news organizations, which includes The Associated Press, contends the gag order violates the right to free speech by prohibiting it from happening in the first place.

“Justice cannot survive behind walls of silence. For that reason, ‘a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field,’” coalition attorney Wendy Olson wrote in the court filing, quoting historic court rulings about prior restraints on free speech.

In the gag order, Marshall said the speech restriction was needed to protect Kohberger's right to a fair trial.

“More speech does not mean a less fair trial; the speech at issue must be the kind that could prejudice a jury. And even when publicity may cause prejudice, the answer is not always to suppress the speech,” Olson wrote. “Other remedies like the passing of time, a change in venue, voir dire, jury instructions, and jury sequestration can cleanse any jury taint without offending the right to speech.”

Despite the great public interest in the case, there have not been any notable leaks of information that would prejudice Kohberger's right to a fair trial, Olson said.

The news organizations in the coalition would have published additional information about the slayings if the gag order wasn't in place, she wrote. For instance, police in Pennsylvania told one reporter they can't say whether they are reviewing unsolved cases that could be linked to Kohberger because of the gag order, and the mayor of Moscow told another reporter he can't talk about overall community healing because of the gag.

Several journalists have had public record requests rejected or left unfilled because agencies in Idaho and Washington fear they would run afoul of the order.

“Petitioners do not make the news; they report the news. They cannot report what they cannot gather,” Olson wrote.

The attorney representing Kaylee Goncalves' family, Shanon Gray, filed a separate court action on Friday asking the Latah County magistrate judge to hold a hearing on the gag order or to clarify it. The current order is “overbroad and vague,” wrote Gray.

The gag order prevents "all comments or opinions” regardless of whether they could bias jurors, and it even remains in effect once jurors are instructed to avoid news coverage of the case, Gray noted, calling the order unconstitutional.

The order also prevents the victims' families from having attorneys talk to the media on their behalf, Gray said.

“It would place an undue burden on the Victims’ families,” if they are unable to have a spokesperson transmit their thoughts and opinions to news organizations or others, Gray wrote.

It's not immediately clear what next steps will be in the case. Generally the Idaho Supreme Court will ask both sides to respond to requests like the one from the news coalition before issuing a ruling, though sometimes it will rule immediately based on the initial request.

Likewise the magistrate judge in Latah County also could set a hearing on the petition from the Goncalves' attorney or could decide to amend or retain the current gag order.