Court Filing
Electronically Filed
7/3/2025 7:37 PM
Fourth Judicial District, Ada County Trent Tripple, Clerk of the Court
By: Jennifer Keyes, Deputy Clerk Wendy J. Olson, Bar No. 7634 wendy.olson@stoel.com Cory M. Carone 11422 cory.carone@stoel.com Anders Pedersen, Bar No. 11626 anders.pedersen@stoel.com
STOEL RIVES LLP
101 S. Capitol Boulevard, Suite 1900 Boise, ID 83702
Telephone: 208.389.9000
Facsimile: 208.389.9040 Attorneys for Interested Parties
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA
STATE OF IDAHO,
Plaintiff, Case No. CR01-24-31665
V. MEMORANDUM IN SUPPORT OF
MOTION TO BE HEARD AS
BRYAN C. KOHBERGER, INTERESTED PARTIES AND VACATE
NONDISSEMINATION ORDER
Defendant.
AMERICAN BROADCASTING
COMPANIES, INC., D / B / A / ABC NEWS;
THE ASSOCIATED PRESS; BONNER
COUNTY DAILY BEE; CBS NEWS; CNN;
COWLES PUBLISHING, D / B / A / THE
SPOKESMAN-REVIEW; COEUR D'ALENE
PRESS; DAILY MAIL;
EASTIDAHONEWS.COM, LLC, D / B / A /
EAST IDAHO NEWS; FOX NEWS; IDAHO
PRESS CLUB; ION MEDIA NETWORKS,
LLC, D / B / A COURT TV; KXLY; LEWISTON
TRIBUNE / TPC HOLDINGS INC.; MOSCOW-
PULLMAN DAILY NEWS / TPC HOLDINGS
MEMORANDUM IN SUPPORT OF MOTION TO BE HEARD AND VACATE
NONDISSEMINATION ORDER-1
129532455.3 0099999-00006
INC.; SCRIPPS MEDIA, INC., D / B / A / KIVI-
TV; SOCIETY OF PROFESSIONAL
JOURNALISTS; STATES NEWSROOM,
D / B / A / IDAHO CAPITAL SUN; TEGNA;
THE MCCLATCHY COMPANY, LLC, D / B / A
THE IDAHO STATESMAN; THE NEW
YORK TIMES COMPANY; NBC NEWS;
NEWSNATION; and UNIVERSITY OF
IDAHO STUDENT MEDIA / THE
ARGONAUT,
Interested Parties.
I. INTRODUCTION
On July 2, 2025, Brian Kohberger pled guilty to the murders of four University of Idaho students and to one count of burglary. Mr. Kohberger's plea sharply changed the Sixth Amendment fair trial / First Amendment balance in this case. Mr. Kohberger will never face a jury to determine his guilt, nor will a jury have any role in determining whether the death penalty is the proper punishment. All that remains is for the Court, not a jury, to impose a sentence. But even then, the parties have waived a presentence investigation and Mr. Kohberger has agreed that he will not argue for anything less than consecutive life sentences without the possibility of parole.
Even before Mr. Kohberger was arrested, the Court entered and has enforced a nondissemination order restricting the individuals involved with the case from making extrajudicial statements.¹ See Declaration of Wendy Olson in Support of Motion to Be Heard as Interested Parties and Vacate the Nondissemination Order (“ Olson Decl. ”), Ex. A. These nondissemination orders have been predicated on a singular justification: preservation of 1 The current nondissemination order (" Nondissemination Order ") is the third iteration of such an order. The Court first imposed a nondissemination order on January 3, 2023. No media members were heard on the first two orders. Following a hearing in which many media outlets were represented by undersigned counsel, the Court entered the Revised Amended Nondissemination Order on June 23, 2023.
MEMORANDUM IN SUPPORT OF MOTION TO BE HEARD AND VACATE
NONDISSEMINATION ORDER-2
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Mr. Kohberger's right to a fair trial. Olson Decl., Exs. A and B. But Mr. Kohberger's change of plea and the terms of his plea agreement have rendered that justification moot. In the absence of this justification, the Nondissemination Order's infringement on the First Amendment is impermissible. Indeed, at the conclusion of the plea hearing, the State said only that it opposed the Court's suggestion to discontinue the order because it would be easier for the parties in preparing for sentencing. This cannot justify the continued imposition on free speech. The Nondissemination Order is now plainly overbroad and therefore runs afoul of the First Amendment. Accordingly, the Media Coalition² respectfully requests that this Court vacate the Nondissemination Order immediately.
II. ARGUMENT
A. The Nondissemination Order should be vacated immediately because its sole justification no longer exists, and thus, it impermissibly prohibits free speech For the Nondissemination Order to be valid, it must serve a legitimate government purpose that overrides the effects of the restriction on the Media Coalition's First Amendment rights. Radio & Television News Ass'n of S. Cal. v. U.S. Dist. Ct. for Cent. Dist. of Cal. (“ Radio ”), 781 F.2d 1443, 1447 (9th Cir. 1986). A nondissemination order that is vague, overbroad, unduly restrictive, or not narrowly drawn is an unconstitutional obstacle to news gathering. Associated Press v.
Second Judicial District, 172 Idaho 113, 119, 529 P.3d 1259, 1265 (2023). The Nondissemination Order in this case no longer passes constitutional muster.
2 The Media Coalition is made up of the 24 media organizations as listed in the caption. This is largely the same coalition of media parties that were allowed to intervene in this matter regarding the Nondissemination Order and to be heard as interested parties regarding other issues related to media access.
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1. The Nondissemination Order is no longer justified by the need to preserve a fair trial By its own terms, the need for the Nondissemination Order is moot. The Nondissemination Order provides a singular justification for its restrictions: “ To preserve the right to a fair trial [.] " Olson Decl., Ex. A; see also id., Ex. B at 2. That justification no longer exists.
Mr. Kohberger has pled guilty. He has waived his right to an appeal. Thus, there is no possible set of circumstances under which Mr. Kohberger will ever face a jury to determine his guilt or to determine whether the death penalty should be imposed. No trial will occur. Thus, there is no need to preserve Mr. Kohberger's " right to a fair trial " because he has already admitted guilt.3 Moreover, the effects of the Nondissemination Order are more than “ collateral ” on the Media Coalition's First Amendment rights. Radio, 781 F.2d at 1447. Nondissemination orders strip journalists of a crucial tool for informing the public and exercising their First Amendment rights. Declaration of Rebecca Boone in Support of Motion to Be Heard as Interested Parties and Vacate Nondissemination Order (“ Boone Decl. ”), ¶¶ 10; see also People v. Sledge, 312 Mich. App.
516, 530, 879 N.W.2d 884, 893 (2015) (“ Although the gag order does not directly prohibit the media from discussing the case, it prohibits the most meaningful sources of information from discussing the case with the media. ”). It has long been recognized that the media acts “ as surrogates for the public. " Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573, 100 S. Ct. 2814, 2825, 65 L. Ed. 2d 973 (1980); see also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491, 95 S. Ct.
1029, 43 L. Ed. 2d 328 (1975) (“ [I] n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily 3 Indeed, it appeared that even the Court saw no reason to continue enforcing the Nondissemination Order following Mr. Kohberger's change of plea until the State requested that it remain in effect until after sentencing.
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upon the press to bring to him in convenient form the facts of those operations. ”). More so, " [t] he free press is the guardian of the public interest [.] ” Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir.
2012). One of the most basic rules for fair reporting is to seek comment from the subjects of a news story. Boone Decl., ¶ 8. Offering subjects of news coverage the opportunity to comment, or to respond to criticism or allegations of wrongdoing, is a core part of most journalism codes of ethics. Id. Seeking comment and insight from the people closest to an event or a news story allows the media to provide context, convey diversity of opinions, give voice to the voiceless and hold the powerful to account. Id., ¶¶ 9.
Now that there is no need to preserve Mr. Kohberger's Sixth Amendment right to a fair trial, the infringement on the Media Coalition's First Amendment rights cannot be justified. Thus, the Court should vacate the Nondissemination Order.
2. There are no other legitimate justifications for continuing enforcement of the Nondissemination Order There is no other legitimate justification for leaving the Nondissemination Order in place.
At the change of plea hearing, the State justified its request for the continuation of the Nondissemination Order by claiming that it would give them space to prepare for the upcoming sentencing. This justification is not a legitimate government interest.
The Media Coalition has been unable to locate any authority that supports the notion that providing an attorney space from media requests is sufficient to justify the imposition of a nondissemination order. The relevant authority provides one justification for this type of free speech restriction — the accused's right to a fair trial. See, e.g., Nebraska Press Assʼn v. Stuart, 427 U.S. 539, 562–63, 96 S. Ct. 2791, 2804, 49 L. Ed. 2d 683 (1976); KPNX Broad., 139 Ariz. 246, 4 Mr. Kohberger did not object to continuing to enforce the Nondissemination Order, but did not himself request that it remain in effect.
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257, 678 P.2d 431, 442; Radio, 781 F.2d at 1448. The State's apparent desire to not have media requests while it finishes its work on this case cannot justify infringing on First Amendment rights.
Under the State's reasoning, every nondissemination order could be justified. This cannot be so.
III. CONCLUSION
Simply put, the Nondissemination Order no longer serves a legitimate purpose. For the reasons stated in this memorandum, the Media Coalition respectfully requests that this Court grant its motion and vacate the Nondissemination Order.
DATED: July 3, 2025. STOEL RIVES LLP / s / Wendy J. Olson Wendy J. Olson Cory M. Carone Anders Pedersen Attorneys for Interested Parties
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 3rd day of July 2025, I served a true and correct copy of the within and foregoing MEMORANDUM IN SUPPORT OF MOTION TO BE HEARD AND VACATE NONDISSEMINATION ORDER upon the following named parties by the method indicated below, and addressed to the following:
William W. Thompson, Jr. Hand Delivered Prosecuting Attorney Via Facsimile Ashley Jennings U.S. Mail Senior Deputy Prosecuting Attorney Via email Joshua D. Hurwit X Via iCourt efile & serve at:
Special Deputy Prosecuting Attorney paservice@latahcountyid.gov Latah County Prosecutor's Office Anne C. Taylor Hand Delivered Anne Taylor Law, PLLC Via Facsimile U.S. Mail Via email X Via iCourt efile & serve at:
info@annetaylorlaw.com Jeffrey D. Nye Hand Delivered Special Assistant Attorney General Via Facsimile Madison Allen U.S. Mail Special Assistant Attorney General X Via email Via iCourt efile & serve at:
jeff.nye@ag.idaho.gov madison.allen@ag.idaho.gov Jay W. Logsdon Hand Delivered Idaho State Public Defender's Office Via Facsimile First District Public Defender U.S. Mail Via email X Via iCourt efile & serve at:
jay.logsdon@spd.idaho.gov Elisa G. Massoth Hand Delivered Elisa G. Massoth, PLLC Via Facsimile U.S. Mail Via email X Via iCourt efile & serve at:
emassoth@kmrs.net
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Bicka Barlow Hand Delivered Pro Hac Vice Via Facsimile U.S. Mail Via email X Via iCourt efile & serve at:
bickabarlow@sbcglobal.net / s / Wendy J. Olson Wendy J. Olson
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