Gag Reflex

The Arkansas Supreme Court vacated a gag order in a high-profile criminal case

On November 27, 2024, Spencer was charged by felony information with second-degree murder, along with a firearm enhancement under Arkansas Code Annotated section 16-90-120, for the shooting death of sixty-seven-year-old Michael Fosler. The State alleged that on October 8, 2024, Spencer knowingly caused Fosler’s death under circumstances manifesting extreme indifference to the value of human life, a Class A felony under Arkansas Code Annotated section 5-10-103 (Repl. 2024). 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 State proposed eight content-based limitations on the speech of any party; any attorney or agency connected with this case, directly or indirectly; any judicial employee or officer of the court; any public official now holding office, including but not limited to law enforcement officials, their agents, deputies, or employees; and any person subpoenaed to testify in the trial of the case.

The gag order was entered without a hearing

The order goes on to require (1) that a copy of the order be attached to any subpoena served on any witness in this matter and (2) redaction of any information violating the gag order from any paperwork related to the case that might be disseminated to the public. The order further states that it will “be in force until this case has been disposed of, or until this Court orders otherwise. This Order will help ensure all parties get a fair trial.” Finally, the order provides that “[t]he entire case is now sealed.” Thus, the circuit court adopted the requested prohibitions contained in the State’s motion for gag order, with the qualifications listed in provisions (1)–(7) and the sua sponte sealing of “the entire case.”

The court considered both attorney and third party speech

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.

Conclusion

The circuit court’s gag order is far too broad and too restrictive of speech protected by the First Amendment and article 2, section 6 of the Arkansas Constitution. It is also impermissibly vague. Further, the order was entered without the requisite findings discussed above and wholly without a factual basis. Therefore, we hold that the circuit court’s order constitutes a plain, manifest, clear, and gross abuse of discretion for which there is no other adequate remedy; accordingly, we issue a writ of certiorari and vacate the order. By this ruling, we do 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. However, we emphasize that a gag order “should be a last resort, not a first impulse.” In re Murphy-Brown, LLC, 907 F.3d at 800.

RHONDA K. WOOD, Justice, concurring.

Aaron Spencer argues that the judicial gag order violates both the United States Constitution and the Arkansas Constitution. He is correct that it violates the Arkansas Constitution. I write separately because, as a matter of the state-primacy doctrine, I believe we should resolve this case under the Arkansas Constitution before resorting to application of the U.S. Constitution. The test adopted by the majority is appropriate to apply under the Arkansas Constitution as explained below.

There are strong reasons to stick to state constitutional law in cases like this one. First, our role as stewards of the Arkansas Constitution is best honored by examining and interpreting it instead of the U.S. Constitution. There is underdevelopment of many state constitutional issues, and we do Arkansans a disservice by avoiding the Arkansas Constitution to focus on the federal one. When states cede to the federal, it creates the possibility of states being a “mere row of shadows.” In fact, we encourage litigants to raise Arkansas constitutional arguments, and we should respond accordingly and address those raised arguments when appropriate. This is especially true in an area of law where the United States Supreme Court has yet to set a clear standard. We are addressing gag orders issued in Arkansas courts, and our test should not be subject to the uncertainty of federal law when we can base it on state-law grounds. Why not settle it for Arkansas now and interpret our constitution as giving additional free-speech protection to our citizens? I fully join the majority’s test because it is supported under an originalist interpretation of the Arkansas Constitution.

(Mike Frisch)