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An Idaho judge presiding over a high-profile quadruple murder trial caused chaos by entering an overbroad and incomprehensible gag order. Everyone from the mayor to the police chief has cited the order in refusing to talk to the press about the national news story, and numerous agencies have cited the order in denying open records requests. 

In extreme situations, judges have limited power to gag parties and attorneys appearing before them. The Idaho judge, however, went far out of bounds by gagging everyone from law enforcement personnel to attorneys representing victims. She even implied that others not specifically mentioned in her order might also be censored. 

We wrote on our blog about the dangers of unconstitutional gag orders and the need for qualified judges who understand and value the First Amendment. 

Journalist arrested for reporting at a press conference

Trespassing generally means being on someone else’s property without permission. It seems obvious, then, that a journalist can’t trespass by reporting from a press conference to which they were invited for that exact purpose. 

Tell that to law enforcement officers in East Palestine, Ohio, who arrested NewsNation Correspondent Evan Lambert at Gov. Mike DeWine’s news conference regarding a train derailment. Officers reportedly ordered Lambert to not broadcast while the governor was speaking. They demanded he leave the conference, and then tackled and handcuffed him. 

There is, of course, no law against broadcasting while the governor is speaking. The arrest would have been unconstitutional even if DeWine had ordered it, but the governor says he has no problem with journalists reporting during his press conferences. 

It seems this was a case of power-tripping officers lashing out at Lambert for not immediately obeying them. But as an appellate court once explained in another case involving the wrongful arrest of a journalist, a police officer “is not a law unto himself; he cannot give an order that has no colorable legal basis and then arrest a person who defies it.” Prosecutors should drop all charges — and Lambert should sue. 

Officials continue to disregard open records laws

Last week we wrote about the increasingly creative excuses officials think up to weasel their ways out of open records laws and transparency in general. The trend shows no sign of slowing down. New York, for example, became the latest state to repeal COVID restrictions for everyone but journalists, allowing legislators to operate outside earshot of the press. 

Florida Gov. Ron DeSantis — who spent his week on an anti-press crusade — claimed “executive privilege” to evade a request for communications with the “six or seven pretty big legal conservative heavyweights” he has said help him choose judges for the Florida Supreme Court. Somehow a judge went along with it, despite the privilege’s non-existence.

Hopefully, that ruling will be overturned. But if there were an executive privilege, there certainly could not be a legislative one as well — otherwise there’s hardly anyone left besides bureaucrats to remain subject to open records laws. 

Not so fast, says the Washington State Legislature, which had to reveal in response to another records request that, since 2021, 22 legislators’ records have been withheld from requesters pursuant to the “legislative privilege.” The problem is that the provision of the state constitution cited for the purported privilege says nothing whatsoever about public records. 

Officials presumably know the privileges they’re claiming don’t exist, but they also know they can buy time while the courts consider their baseless objections at taxpayer expense. It won’t change until they face political and financial consequences.    

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