Giving Voice to the First Amendment
It’s been over a month since the defense filed their motion to Enjoin Legal Counsel From Making Extrajudicial Statements regarding Litigation, AKA the gag order.
Two weeks after that filing, the plaintiffs fired back with their opposition, which was then followed by one on behalf of the Media Intervenors, of which we are included. Last week, the defense responded to both oppositions, twice as it turned out.
It’s possible that this dust up, which started with Wone family attorney Patrick Regan’s tough talking outside of Judge Brook Hedge’s courtroom following the the September 16 status hearing, may be resolved at the next status on December 8.
And if the Intervenors get their way, there will be a full airing of the issue that day, not outside the courtroom, but this time inside.
Filed late last week, attorneys for the Media Intervenors have asked Judge Hedge for oral arguments to oppose the gag order. Specifically, counsel wants to address four points as stated in the request:
(1) the Constitutional application of the proposed order in a civil, rather than criminal, case context;
(2) the circular logic that since D.C. Professional Conduct Rule 3.6 is subject to interpretation, it should not be interpreted; instead, prior restraint of all counsel statements is necessary;
(3) the First Amendment rights of the media when as here one party to the litigation objects to the proposed order as opposed to when the parties are effectively in agreement; and,
(4) the implications of the defendants’ quoting repeatedly, in their Motion and Responses, the alleged offending statement thereby republishing it to the same media to whom they seek to bar identical extrajudicial statements.
It’s undetermined how Hedge will view this request. The 10:00am status hearing on December 8 already has a key item on the agenda, an overarching Fifth Amendment argument which we’ll look at early next week. A decision on that issue could impact the defendants’ depositions and the future contours of the case for both sides.
For those who recall Ward counsel Robert Spagnoletti’s arguments on the Sixth Amendment (and Due Process) at the summer’s criminal trial, the status hearing on December 8 could see a reprise of those colorful performances. And maybe we’ll get to see how the Spag manages First Amendment issues too, that day.
PRAECIPE CONCERNING MEDIA INTERVENERS’ MOTION TO INTERVENE