Should judges gag victims' families?

At the start of the case, Judge Megan Marshall issued the initial gag order Jan. 3 to restrict comments from prosecutors, the defense, law enforcement and other officials. That is fairly common. However, on Jan. 18, she expanded the scope to include attorneys for the victims and their families from speaking with the media. …

In Gentile v State Bar of Nevada, 501 U.S. 1030, 1072-1074 (1991), the Supreme Court recognized that “The speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2781 (1976) …”

However, this order extends far beyond that scope. Lawyers for family members are representing clients who are not parties to the case. That negates the premise of gag orders allowed by the Court in Gentile.

[This is an insult to the families of victims and should be overturned on appeal. Judges have jurisdiction to the parties in a case, but that does not include the families of the victims in criminal cases. Prosecutors do not act on their specific behalf — they act on behalf of the state or locality that gives them the authority to prosecute criminal charges. This edges up to the kind of gag orders issued in Canada to non-parties to proceedings, especially the media … a topic which I have some experience in handling during the Adscam inquiry in 2005. An appellate court should strike this down and admonish the judge to keep her orders limited to the parties and witnesses in the case. — Ed]