Gag order on Idaho murder case ‘likely unconstitutional’, lawyer says

Gag order issued by judge in Idaho murders case ‘likely unconstitutional’, says outside criminal defense attorney Philip Holloway

“The gag in the #IdahoMurders case is likely unconstitutional under the #1stAmendment”, Holloway wrote in a tweet Monday. Holloway is not directly involved in the Idaho murder case.

Following the arrest of Bryan Kohberger, 28, in the deaths of Kaylee Goncalves, 21, Madison Mogen, 21, Ethan Chapin, 20, and Xana Kernodle, 20, a judge in Latah County, Idaho, has issued a restraining order, or gag order, prohibiting anyone involved in the case from speaking about it publicly.

Kohberger was charged with four counts of first-degree murder and one count of burglary after the four University of Idaho students were found fatally stabbed at an off-campus residence hall in November. Since the four were killed, the case has sparked worldwide interest, with many internet sleuths sharing their speculations and theories about the crime. Kohberger did not plead guilty in the case and his former lawyer said the 28-year-old was “eager to be cleared”.

Last month, Latah County Judge Megan Marshall issued the gag order barring the state and the defense team from discussing any aspect of the case. The gag order was later amended to prohibit “any attorney representing the witness, victim or victim’s family” from speaking on the case, prompting Shannon Gray, the Goncalves family attorney, to appeal, arguing that it should not be included in the order.

A person walks outside the Latah County Courthouse on January 4, 2023 in Moscow, Idaho. Inset, Bryan Kohberger walks in during a hearing in Latah County District Court on January 5, 2023 in Moscow, Idaho. On Monday, February 6, 2023, a defense attorney said the gag order in the Idaho murders case may be unconstitutional.
David Ryder; Ted S. Warren – Pool/Getty Images

While speaking with Fox News’ American NewsroomHolloway explained that “these gag orders are what we in law call a prior restraint on free speech. Now a prior restraint is basically a court order that says to someone, ‘Listen, you don’t can’t go out and talk about something even before you want to or before you try to go out and talk about it.'”

“So obviously it’s like turning off their switch to their First Amendment,” Holloway said.

Holloway further discussed the gag order with Newsweek and said, “Prosecutors and defense attorneys already have their own set of rules that they are required to follow which are intended to ensure a fair trial for each party.”

“The First Amendment, if it stands for anything, is the premise that you can speak your mind and speak to the media without fear of going to jail,” Holloway said. Newsweek.

Holloway also said Newsweek that it is possible that the gag order will be changed following Gray’s appeal.

“The gag could be changed. It could be something that’s done by agreement, it could be something as short as a full appeal,” Holloway said. “If the appeal is followed in its entirety, it is possible that this entire gag order could be overturned and returned to the trial court with something less broad.”


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