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Arkansas S. Ct. Vacates Gag Order on Man Accused of Murdering His Teenage Daughter's Alleged Sex Abuser

The order also covered the man's family and public officials, as well as the lawyers in the case.

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From Thursday's decision in Spencer v. State, written by Justice Courtney Hudson and joined by Justices Rhonda Wood, Shawn Womack, Cody Hiland, and Nicholas Bronni:

On November 27, 2024, Spencer was charged by felony information with second-degree murder … for the shooting death of sixty-seven-year-old Michael Fosler…. The circumstances of the shooting were as follows. In July 2024, Fosler had been charged with numerous sexual offenses against Spencer's teenage daughter, and he was released on bond. On the night of the shooting, Spencer awoke to his dog barking and realized that his daughter was gone. Spencer found a "hoodie" on a stuffed animal placed in her bed. As a result, he left in his truck to search for her. Spencer located Fosler's truck—with his daughter inside—and he forced Fosler's truck off the highway. After an altercation, Spencer called 911 to report that he had shot Fosler. Fosler died at the scene.

On December 4, 2024, the State filed a motion for gag order alleging that Spencer's arrest had garnered media coverage throughout the state and the nation. Attached to the motion was a press release from Spencer's attorneys, Erin Cassinelli and Michael Kaiser, criticizing the decision to charge Spencer criminally as "targeting [a] heroic father." The State also pointed to a television interview in which defense counsel allegedly stated that they felt confident that the community would side with Spencer "because every one of them would have done the same thing for their child or their neighbor's child or member of their family." The State argued that a gag order was necessary to preserve the integrity of the jury pool and to ensure the right of a fair trial for both the State and the defendant.

The trial court ordered:

It is the Order of this Court that no party to this action, nor any attorney or agency connected with this case, directly or indirectly, nor any judicial employee or officer of this Court, nor any public official now holding office, including but not limited to law enforcement officials, nor any agent, deputy or employee of any such persons, nor any person subpoenaed to testify at the trial of the case[,] [n]either shall the defendant nor his family shall do any of the following:

  1. [R]elease or authorize the release for public dissemination of any purported extrajudicial statement of the Defendant relating to this case;
  2. Release or authorize the release of any documents or exhibits or any evidence, the admissibility of which may have to be determined by the Court;
  3. Make any statement for public dissemination as to the existence or possible existence of any document, exhibit, or any other evidence;
  4. Express outside of the Court an opinion or make any comment for public dissemination as to the weight, value, or effect of any evidence as tending to establish the guilt or innocence of the Defendant;
  5. Make any statement outside of Court for public dissemination as to the weight, value, or effect of any testimony that has been given;
  6. Issue any statement for public dissemination as to the identity of any prospective witnesses, or their probable testimony or the effect thereof;
  7. Make any out of court statement for public dissemination as to the weight, value, source, or effect of purported evidence alleged to have been accumulated as a result of the investigation of this matter;
  8. Make any statement for public dissemination as to the content, nature, substance, or effect of any testimony which may be given at any proceeding related to this matter with any attorney of record or any agent thereof.

The order expressly excluded:

  1. Factual statements of the Defendant's name, age, residence, occupation, or family status;
  2. The circumstances of the arrest, namely the time and place of arrest, the identity of the arresting and investigating officers and agencies, and length of the investigation;
  3. The nature, substance, and text of the charges, including a brief description of the offense(s) charged;
  4. Quotations from, or any reference without comment to, public records of the Court in this case, or to other public records or communications heretofore disseminated to the public;
  5. The scheduling and result of any stage of the judicial proceeding held in open court or in an open public session;
  6. Any request for assistance in obtaining evidence;
  7. Discussion by any witness or prospective witness of any matter in connection with the case with any of the attorneys representing the Defendant or the State.

The Arkansas Supreme Court unanimously vacated the order, reasoning:

Here, the circuit court's order is extremely broad as to the persons restrained from speaking. It restrains the parties; their attorneys; "any public official now holding office," along with their staff; witnesses; court staff; and the defendant's family. The order is also extremely restrictive as to what information is being shielded from public view. It restricts filings and perhaps courtroom proceedings from public view. The order implicates Spencer's right to a public trial as well as the public's right to know how its officials are conducting these criminal proceedings. The State points out that Spencer raises arguments regarding the gag order's application to public officials and to his family, the restriction on public and press access to the court file, and the due-process rights of nonparties as to entry of the order without notice. However, Spencer clearly has standing to bring this petition requesting that this court vacate the gag order in his criminal case, and we will address Spencer's arguments to the extent necessary to resolve the issues raised in the petition….

Based on the U.S. Supreme Court's limited precedents in the area, the Arkansas Supreme Court concluded:

In the absence of Supreme Court precedent, the federal circuits and the states have taken different approaches to gag orders. Some courts have adopted the "clear and present danger" or "serious and imminent threat" standard [citing the D.C., 6th, 7th, and 9th Circuits, as well as the Hawaii and Nevada Supreme Courts]. Other courts have adopted the "substantial likelihood of material prejudice" standard [citing the 3d and 5th Circuits]. Still other courts have adopted a "reasonable likelihood" of prejudice standard [citing the 4th and 10th Circuits and the Kentucky Court of Appeals].

When determining which standard to apply, we must initially recognize whose speech is being restricted. We can identify three categories of persons potentially subject to gag orders: (1) attorneys of record; (2) non-attorney trial participants (such as criminal defendants, witnesses, and court staff); and (3) the public at large (i.e., those who are not participating in the trial).3 Because the gag order entered here included members of all three categories, we review each to establish the appropriate standards. {We do not address gag orders on the press in this opinion because the order before us does not impose restrictions on the press, nor does any member of the press challenge it.}

First, we address attorney speech. The Supreme Court has recognized that speech by an attorney is subject to greater regulation than speech by others. See Gentile v. State Bar of Nevada (1991). The Court recognized that states have historically regulated admission to the bar and exercised authority to discipline attorneys; attorneys have access to non-public information and are viewed as authoritative, both of which pose a greater potential risk to the fairness of a trial; and attorneys are officers of the court. Id. at 1066. For these same reasons, we find it appropriate to allow greater regulation of attorney speech in the context of a criminal trial than would be permissible for the speech of non-attorney trial participants or members of the public. Thus, we hold that attorneys in Arkansas may be restrained from extrajudicial speech that poses a substantial likelihood of material prejudice to an ongoing criminal proceeding. This is consistent with attorneys' existing obligation under Rule 3.6 of the Arkansas Rules of Professional Conduct regarding trial publicity.

Next, we consider the free-speech rights of non-attorney trial participants. These persons are not subject to the same rules and restrictions as attorneys. But, as participants in the trial, their speech has the potential to have a greater impact than the speech of non-trial participants. See Sheppard v. Maxwell (1966) ("Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.") Thus, we conclude that free-speech protections for non-attorney trial participants are greater than those of attorneys of record but less than those of the public at large. Therefore, we hold that the speech of non-attorney trial participants may be restrained only to the extent that it poses a serious and imminent threat of material prejudice to an ongoing criminal proceeding.

Finally, we address prior restraints on the public, whose speech is afforded the most protection in the context of gag orders. Restraining the speech of the public raises obvious issues regarding lack of due process. We cannot fathom why the circuit court believed it could prohibit the speech of "any public official now holding office." In fact, it is difficult to foresee any circumstance in which a prior restraint on the speech of a member of the public, which would include a public official, could be constitutional.

Having established the legal standards to be applied, we turn to the additional findings a circuit court must make in every case to justify the entry of a gag order restricting the speech of any individual. First, the circuit court must determine whether alternative measures would protect the parties' right to a fair trial. See Nebraska Press Ass'n v. Stuart (1976). Here, Spencer suggests that extensive voir dire of prospective jurors, using an expanded jury pool, giving cautionary instructions, changing venue, or postponing the trial are alternatives that should be considered before restraining speech, but the circuit court heard no evidence and made no findings in this regard. In addition, the circuit court must find that a gag order would be likely to accomplish the goal of preventing prejudice to the proceedings. Again, there was no such finding in this case. Finally, a gag order must be narrowly tailored to prohibit only what is necessary to protect the integrity of the ongoing judicial proceedings. In other words, the restrictions imposed must not be overly broad. Here, many of the prohibitions on speech listed in the gag order were overly broad. For example, prohibiting the public expression of an opinion as to "the weight, value, or effect of any evidence as tending to establish the guilt or innocence of the [d]efendant" by any public official is clearly overbroad.

In sum, before entering a gag order, a circuit court must specifically find, based on evidence in the record, that (1) the prospectively limited speech would pose a sufficient threat of material prejudice to an ongoing criminal proceeding, depending on whether the limitation applies to attorneys of record, non-attorney trial participants, or members of the public; (2) after consideration of alternative less restrictive measures, none would sufficiently protect the parties' right to a fair trial; (3) the prohibitions would be likely to prevent material prejudice to the proceedings; and (4) the prohibitions are narrowly tailored to prohibit only what is necessary to prevent material prejudice to the ongoing proceedings.

The court concluded that the gag order was "far too broad and too restrictive of speech protected by the First Amendment," and was also unconstitutionally vague (e.g., in failing to define "family"). It therefore vacated the order; and though it did "not foreclose the possibility that, after an evidentiary hearing, the circuit court may issue a subsequent gag order narrowly tailored to specific factual findings supported by the record," it "emphasize[d] that a gag order 'should be a last resort, not a first impulse.'"

The court also faulted the trial court for sealing the case:

Here, after the court's order was entered, the case filings were removed from public view. The inherent authority to seal parts of court files is tempered by the requirements that a request to seal part of a file must be particularized, that there must be some good cause for sealing part of a file, such as a trade secret, and that it should be in effect for only so long as is necessary to protect the specified interest.

Not only are the written records inaccessible to the public, but also, the briefs and statements from counsel at oral argument indicate that the Lonoke County Circuit Court's courtroom was at least partially closed to the public during Spencer's arraignment. Although it appears the circuit court intends to close further proceedings to the public, we caution the court from doing so without an evidentiary basis and adherence to the required constitutional analysis set out in Waller v. Georgia (1984)…. "[T]he right to a public trial is one of the most important safeguards in the prosecution of persons accused of crime."

Justice Rhonda Wood also wrote a separate opinion, arguing that the court should have focused instead on the Arkansas Constitution (but reached the same result under the same test as it adopted with regard to the First Amendment).

Justice Bronni also added, joined by Shawn Womack, Cody Hiland:

Public officials aren't immune from public criticism—judges and prosecutors included. Because the circuit court's gag order violates that principle, I join the majority's opinion granting the writ and vacating that order. But that sweeping order is only one part of a troubling pattern of attempts to shield this case from public view—beginning with a nonpublic arraignment and ending with a handwritten note sealing "[t]he entire case" from public view. We cannot allow that pattern to continue unchecked.

So I'd invoke this court's superintending authority and reassign this matter to a new circuit court judge. Anything less suggests that what's happened so far is within the acceptable range of disagreement or administration—and it isn't.

Begin with the gag order itself. On its face, that order targets a broad swath of people, barring them from "[e]xpress[ing] … an opinion, or mak[ing] any comment" about whether the evidence "tend[s] to establish the guilt or innocence of the Defendant." Worse, the order itself was sealed, raising serious concerns about selective enforcement. And it doesn't explain why such an extreme remedy was warranted, instead just declaring it would "help ensure all parties get a fair trial."

Nor did the circuit court explain why it extended the gag order beyond what even the State thought was appropriate, broadening it to cover the defendant's family and, even more significantly, sealing "[t]he entire case." On the contrary, the circuit court entered that order just six minutes after the clerk docketed the defendant's 19-page opposition to the State's motion—or barely enough time to make a pot of coffee. That approach cannot be squared with the First Amendment, and it underscores that the gag order wasn't a last resort but an unconstitutional impulse.

Context suggests why. The same circuit court that issued the gag order here also granted Michael Fosler's release on bail. It's that decision—which the defendant's lawyers called a decision to release "a predator" who "repeatedly violated [the defendant's] child … on a low bond"—that set off a chain of events that led to the fatal confrontation that's the subject of this case. And it's that criticism that the State claimed, and the circuit court effectively concluded, justified gagging the defendant, his lawyers, and others. This sequence raises serious concerns. Indeed, if openness "enhances … the appearance of fairness so essential to public confidence in the system," then secrecy has the opposite effect—it erodes trust.

The effort to shield these proceedings from public view also didn't begin with the gag order; it started with the circuit court's decision to arraign the defendant away from public view. And even setting aside the potential constitutional concerns raised by a nonpublic arraignment, that decision highlights the order on review here isn't an isolated problem. Rather, it suggests a Star Chamber-like atmosphere. We cannot allow that to continue.

Ultimately, judges and prosecutors enjoy "no greater immunity from criticism than other persons or institutions." Nor should they. "Public vigilance serves us well, for 'the knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.'" Instead, "justice should not only be done, but should manifestly and undoubtedly be seen to be done."

So I join the majority's decision granting the writ and vacating the gag order, but I would go a step further. The repeated attempts to veil these proceedings in "[s]ecrecy … can only breed ignorance and distrust of the courts and suspicion concerning the competence and impartiality … of the entire criminal justice system." …

Chief Justice Karen Baker and Justice Barbara Webb didn't participate. Erin Cassinelli and Michael Kiel Kaiser (Lassiter & Cassinelli) represent Spencer.