Transcription
So, let me ask you, how quickly do you read?
"As quickly as I can, your honor."
How many pages per minute do you think you read?
"Page a minute, probably."
If the defendant in this case filed a 19-page objection and 6 minutes after that was uploaded to the system, 6 minutes, the circuit court filed the answer with multiple handwritten interlineations. Do you think that we can fairly assume that in those six minutes that she read, considered, and gave due weight to the defendant's objection in this case?
Welcome back to the Lackluster Channel. In spring of 2024, a man named Michael Fosler targeted and groomed a 13-year-old in Lonoke County, Arkansas. The girl was being homeschooled at the time and was caring for a terminally ill relative. A 67-year-old man began texting her, and by July of 2024, the girl had disclosed to one of her family members that she was assaulted. The girl's father, Aaron Spencer, is a combat veteran, and upon hearing of these allegations, he and his wife, Heather, reported the abuse to the authorities.
Soon after, Michael Fosler is arrested and he's charged with 43 felony counts, including internet stalking of a child, fourth-degree SA, indecency with a child, and possession and distribution of CP. As it turns out, Michael Fosler was an ex-police chief in Indiana and had ties to several law enforcement authorities in Arkansas. And not long after his arrest and arraignment, he was released on an extremely low bond. No electronic monitoring was imposed, and only a no-contact order was issued.
During this time, the girl is put into therapy, continues homeschooling, and the family continues to care for her. Just a few months later, on October 8th of 2024, at about 1:00 in the morning, the Spencers hear a dog barking. It's their dog. So Aaron goes to investigate, and what he finds is that instead of his daughter sleeping in her bed, there's a stuffed animal hidden under a hoodie. Heather Spencer immediately calls 911 as Aaron leaves the house, jumping into his truck to search for his daughter. The entire family is now looking for the child, as no one knows where she's gone.
And what they find is a Cash App transaction from Fosler to the daughter that says "Door Dash." As Aaron Spencer is driving through his neighborhood looking for his daughter, he spots Michael Fosler's white F-150 driving through his streets. As he passes the truck, he can see Michael Fosler driving and his daughter in the passenger seat. Aaron Spencer immediately calls 911 to report locating them and begins following the vehicle. Aaron follows Michael's vehicle down Highway 236 East for quite some time, flashing his headlights and honking his horn, but the truck won't pull over.
And when there's no response from the driver at intersection 236 and Highway 13, Aaron rams Michael's truck into a ditch. Aaron exits his vehicle and draws a Glock 19, ordering Michael to get out of the car. According to reports from Aaron, Michael was preventing his daughter from exiting the vehicle. And after arguing with the man, Michael eventually exited his truck with an unknown object in his hand, rushing Aaron, which is when Aaron shoots Michael multiple times. He then retrieves his daughter, returns to his truck, reloads his pistol, and calls 911 again. Aaron is arrested and booked into the Lonoke County jail but is released the next day on $150,000 bond.
After the shooting, the Lonoke County Sheriff put out this statement.
"I'm your Lo County Sheriff John Staley. In the early hours of Tuesday, October 8th, Lo County deputies responded to a report of a missing juvenile. While en route, got a call of a shooting. After consultation with the prosecuting attorney, an arrest was made with a preliminary charge of first-degree murder. Arkansas State Law provides guidance on when and how charges are filed in criminal cases. As this is an ongoing investigation, only limited details can be released. As your sheriff, it is our duty to conduct a thorough and factual investigation. Law enforcement does not file charges. We gather evidence and submit a case to the prosecutor who will then decide whether or not to file charges. Currently, official charges have not been filed. I have not nor will I advocate for any specific charge. This is a tragic situation and my thoughts and prayers are with all those involved. We will continue our investigation and submit the findings to the prosecutor for review."
But it isn't until November 27th of 2024, nearly a month and a half later, that prosecutors charged Aaron with second-degree murder and commission of a felony with a firearm. About a week later, on December 2nd, Spencer pleaded not guilty to the second-degree murder charge. That same day, Judge Barbara Elmore limited all pre-trial publicity. And just two days later, the state filed a motion for a gag order, citing extensive media coverage of the case. It should be noted that Barbara Elmore was also the judge who was ruling over the Michael Fosler case and was the one to release him on bond. His charges were dismissed as a result of being deceased. And now she will rule over Aaron Spencer. The circuit court granted the gag order without even holding a hearing. This would effectively seal all the records in the case and limit any interaction between the family and the press.
Fast forward to early February of 2025. Aaron Spencer filed a petition for writ of certiorari with the Arkansas Supreme Court seeking to vacate the gag order, arguing that it violated his First Amendment rights as well as his constitutional rights to a fair and public trial. In early March, the Arkansas Supreme Court agreed to hear arguments about the case, specifically about the gag order, and put a stay on the circuit court case. A stay is basically hitting the pause button, ensuring that the case does not move forward. This is important because the case was supposed to be heard by a jury on March 19th of 2025.
"We are here today on a gag order imposed at the inception of a criminal case in the circuit court. Gag orders should be a last resort, not a first impulse in any case. And I would submit to you that's fairly settled law. The criminal justice system does not favor justice in the dark. And that is what is happening in Lonoke County. Aaron Spencer is a father and a husband. His daughter was assaulted severely by a man named Michael Fosler. Michael Fosler was arrested and charged with over 40 criminal offenses relating to his behavior against Mr. Spencer's child. He was released by the circuit court of Lonoke County with very little restriction."
"So council, if I can interrupt you right there, just a factual clarification. Was it the same judge who issued the gag order was the judge in that case?"
"Yes, sir. And thank you for that question. Uh, you, you caught exactly where I was going. It was the same circuit court and the same prosecutor who uh participated in Michael Fosler's criminal proceeding. And that's important in additional respects. There is no public record of his appearance that I can find before the circuit court. There's no record of what bond the state sought, why the court imposed such a low bond, why there were no restrictions or supervision as to his conduct. And of course, that led to him taking Aaron Spencer's daughter in the middle of the night to continue to her."
"Council, I have a question. We live stream our court proceedings and, um, this is a public hearing. So, um, and it's live-streamed. It's also saved on our website. Is that violating the current gag order?"
"That is an excellent question. And also on my list of things to discuss before this court. This gag order is so overbroad that I don't know that I can answer that question, um, precisely. My belief is that this court has asked for this argument and I cannot fulfill my duty to this court without explaining the facts and the law that apply to it. But the way the gag order is written, none of you could speak about the case from the bench here. The governor herself couldn't speak about the case if she wanted to. No public official could speak about the case."
"Council, uh, you know, in preparation for the argument, um, all the court has two law clerks on staff, two attorneys. Are we in violation of the order when we were discussing it with our law clerks in preparation over the last few weeks?"
"Arguably you could be because arguably you're discussing it for purposes of public dissemination. I mean, presumably you intended to come here and ask questions about it and you intend to publish an opinion uh that pertains to it. So I suppose arguably you could be. That seems outrageous."
"So that, let even if you assume that that's all true. I mean, I guess I'm confused. What's your standing to to raise those arguments as to non-parties? I mean, I understand that Mr. Spencer can raise the argument as to him and raise it presumptively as to counsel, but is anybody else covered by this order? What is what standing do you have?"
"Yes, sir. Um, there are several, there are several things that sort of uh fall into that category, but as a general matter, the overbreadth doctrine allows courts to consider First Amendment um restraints that affect third parties. So, um, I think that's discussed in the Murphy Brown case, which cites a couple of Supreme Court cases for that point. But for, for overbreadth to apply as a general matter, you have to first allege that this can be constitutionally applied to you. The reason why we conduct the overbreadth analysis is because it's constitutional as applied to you, but it's unconstitutional theoretically. It's applied to others. Here, your argument is it's not constitutional as applied to you. So I'm a little bit confused how we get to overbreadth."
"Well, either way, I think it's unconstitutional as applied to my client, uh, in part because it's overbroad and it encompasses both his right to speak and his right to receive speech. Um, the First Amendment covers the communication itself on both ends, which is why all the cases um and"
"Are there cases that treat overbreadth that way? I mean, I'm not familiar with any Supreme Court."
"No, that's a bit of a different doctrine. So think of all of the cases um that, well, most of the cases that are out there involve the press, right? The press is coming forward and saying, you know, we oppose this gag order that you have imposed that prevents all the parties from speaking, and the press is the recipient of that speech. And some, most often the defendant doesn't want the speech, but the press is still allowed to bring that motion. At times the parties bring the motion, but they are addressing whether they can speak and whether speech can be provided, for instance, in public records. Then I, I guess my question is, if, if we found the gag order is unconstitutional to you, your client, is that sufficient, or are you seeking more relief, and that's why you've argued overbreadth? Because normally, if, if we said it was unconstitutional as applied to you, the analysis would stop. There's a stack of First Amendment cases that say that the analysis stops. Is, would you be satisfied with that relief, or are you seeking to invalidate the entire gag order? And again, what's the standing for that?"
"I don't think that the court has to go that far because I think that it's unconstitutional as to Aaron Spencer, and that that would cover all of the concerns because there's really not a part of this order that is uh sub, sufficiently clear that indicates a substantial uh compelling interest that's narrowly tailored. So I, I think that if the court decides that the order itself does not comply with constitutional mandates, then that is sufficient to get to the end, which is that it needs to be submitted back to the circuit court for a proper analysis."
"So a slightly different variation on this question than what I took some of your arguments to be framed as. Yes, they were sometimes framed in terms of overbreadth. I thought maybe you were making a facial challenge as to the gag order itself and just arguing it's unconstitutional in all of its applications. Am I wrong about that?"
"Or that's a tough question for me to answer. I think I, I believe that it is um facially unconstitutional, but I don't think the court has to reach that point. Um, I think for purposes of our argument, pointing out the circuit court's um disregard for the rights of the people that it encompassed in the order and for the over"
"That sounds like a facial challenge, right? That when you start talking about other people, if, if it's an overbreadth challenge and we decide that it's unconstitutional as to you, the analysis stops. So you've either got to say it's a facial challenge, or it's not really an overbreadth challenge at that point. So which, which is it if you're talking about other people?"
"Well, I, what the point that I'm trying to make is I think that that is important evidence of the order's overbreadth and the problem with the circuit court's lack of analysis. I think that"
"Council, it perhaps, and what I thought I heard you say earlier was that it wasn't just that you're arguing that prohibiting the defendant's speech. Um, it was his receiving speech as well. And is that why it, in a sense, it's you're arguing it's unconstitutional, the restrictions on others, is because it prevents them from him receiving their speech?"
"Your honor, thank you, Justice Wood. My point there was just that the First Amendment protections are both as to recipient and speaker. In this instance, our position is that Aaron Spencer, the attorneys, the people that represent him, his family, uh, any interested party should both be able to speak and have access to the information necessary to speak. So, for instance, closing all court records, and by the way, there is not, there were no court records made public. So, even the affidavit of arrest or the charging document aren't public. Um, but he has a right to access those records and share them with other people. That is speech."
"But the, the, I, that seems to be slicing it. I mean, putting too much emphasis on one point. I mean, courts seal records all the time for various reasons. Now, maybe you don't think there's sufficient justification here. There, as far as I can tell, there really are no fact findings here. So maybe it's not warranted here, but there's not some abstract right. I mean, I don't think you can identify a case, can you? Where the courts have recognized an abstract right to access information that says courts can't seal their records?"
"I, I, I'm sorry, your honor. I believe that the right to a public trial includes the right of public access to court records. I believe we"
"Does it include the right to release evidence"
"uh"
"that you obtain in discovery then in your view?"
"No, I think discovery is treated differently. Discovery is regulated under court rules. uh, I'm as an attorney prevented from disseminating discovery material. There's no need for a gag order in that respect. The court rules cover that. So I, I think the case law also suggests that discovery, the United States Supreme Court has addressed that discovery is a, a separate and protected class. I'm dealing only with the public record aspect, and I agree with you that, um, absolutely the court can seal records after the appropriate analysis has been undertaken that shows a need to do so. In this instance, we have sealed every public record. In fact, I noticed that since we filed the final brief in this case, the circuit court uh clerk has added some notations to the electronic docket online. But while we were doing briefing, you couldn't even see the title of documents that were filed. There's no record of my client's entry of a not-guilty plea."
"The public was prevented."
"Did you read correctly at some point that the arraignment was actually sealed? The arraignment."
"Uh, the court would not allow community members in the arraignment. I raised an objection. It was not well taken, and so they were not allowed in the courtroom."
"So no, no members of the public, no members of the press allowed at the arraignment?"
"I can't swear to that because my back was to them. But I watched the bailiff and heard him tell numerous members of the public that the court had ordered that only two uh members of the defendant's family and I believe two members of the victim's family would be permitted in. Whether or not he ultimately let somebody slide in, I cannot attest to that. But he turned away a line of people. Uh, and it wasn't a, you know, 100 people. It was about eight or 10, and he turned them all away."
"But council, we haven't even, you're not raising, are you raising a right to public trial? Because we haven't, I mean, extended that beyond, um, border. I mean, we haven't extended that to arraignment and further."
"No, your honor, I'm not. Um, but it is an important uh consideration here because I may not, Aaron Spencer may not have taken so much issue with this gag order if it didn't seem like this entire proceeding and the entire proceeding of Michael Fosler were being conducted in secret. And the public members of Lonoke County have a great interest in knowing how this happened and knowing why its public officials are making the decisions that they are."
"Miss Cassinelli, you said something a minute ago that made me think that you, the remedy you're seeking here is for this court to remand or send this back to Lonoke County Circuit Court to have a hearing. Is that what you're asking for?"
"I'm asking this court to vacate the gag order and guide uh the court and all courts in Arkansas with some kind of analysis, some kind of careful balancing, some direction, and order the circuit court and all circuit courts to conduct such analysis before they impose a gag order to ensure that it is appropriately narrowly tailored, only uh as is necessary to prevent substantial prejudice. That's what I'm asking for. And I, in this instance, the circuit court undertook no analysis, took no evidence. So there is nothing on which a tailored gag order could be created and imposed."
"So the standard you just articulated, which, and which case does that come from? I mean, I know that there the cases say various things at various times. It's a little bit unclear what the US Supreme Court has told us the standard is here. Where are you getting your standard from? What is the closest match? Is it the same standard applied to everybody that the gag order applies to, or is it just the standard that applies to you and your client?"
"So, I would submit to you that the standard doesn't matter under any of the standards that have been laid forth by the Supreme Court. Um, this gag order fails. Um, I could talk all day long about whether Gentile sets a standard or Nebraska Press should be used, but I don't think my, my evaluation is that there is not a rigid test. I think the Supreme Court has said repeatedly, like the clear and present danger is not a formula. It is an indication of the careful balancing that should be done to ensure that a gag order is, is uh addressed only to a substantial and compelling public interest."
"The balancing language, where does that come from? I'm not familiar with a case that says balance."
"Nearly every US Supreme Court case talks about the, the weighing or the balancing. Does it actually apply a balancing test as one would traditionally think of it, or does it just say we balance the, in, in formulating the standard, we balance the interest, or is it a pure balancing test?"
"It is not a pure balancing test. The court has been clear that it is unique to every case. Um, but that it has to have the hallmarks of applying the heavy presumption of unconstitutionality as to a prior restraint such as a gag order. And in response to Justice Hudson's question, you were asked, you know, what, what are you seeking here? Are you just seeking a sending it back for a hearing? And, and you said you'd like guidance, but what I just heard from you is an amorphous test that doesn't really provide that. I mean,"
"Unfortunately, the United States Supreme Court hasn't addressed this situation because most often it's a defendant's um assertion of a right uh to a fair trial that was uh not honored because of change of venue, or it's a press case. Um, so I think we're looking to this court to help us, in the state, to help us combine those cases and come up with what is the proper direction. But I do not mean to insinuate or indicate at all that there is a rigid balancing because I think that the constitutional rights at issue don't allow for that. It's going to"
"Do I take from your answer then that you, you think the standard varies depending on whether the state has asked for it versus you've asked for it?"
"No, I do not think the, the standard varies. I think that the circumstances of the case are necessarily going to make, for instance, the state's compelling interest in a fair trial is going to have a different weight under the circumstances of each different case, as will the need to narrowly tailor the order. It necessarily has to be specific to the case, but we could use some real guidance as to what courts have to do to evaluate those issues."
"Your time has expired. You can continue and do your rebuttal or"
"Thank you. Thank you."
"The attorney for respondent. [Applause] Thank you. Uh, Madame Chief Justice, and may it please the court, I'm Assistant Attorney General Joseph Carl Luki, here today on behalf of the respondent, the state of Arkansas. The circuit court's gag order in this case was an appropriate exercise of its discretion uh that helps achieve its primary constitutional duty to ensure a fair trial occurs in this case and that justice is done. Reviewing th this order and Spencer's claims under the intermediate scrutiny standard set out in Gentile versus State Bar of Nevada."
"Counselor, what would be the harm in sending this back to circuit court for an evidentiary hearing?"
"I, I think the harm is that there is sufficient evidence in the record uh to support the order here. Uh, it is undisputed. They didn't dispute it below. They haven't disputed it here that there was sufficient media attention, expansive media attention that supports the idea that there is a substantial likelihood of material prejudice based on statements from trial participants. And so, and then the other thing you have is the statement that was attached to the, the state's order, which represented an effort on the bar part of the defendants and and his attorneys to try this case in the press. And when you have a clear attempt to try the court case in the court of public opinion rather than in the courtroom, then it is appropriate to prevent."
"Wasn't there just one statement here?"
"We feel very confident that this community is going to come to Aaron's side because every one of them would have done the same thing for their child or their neighbor's child or member of their family."
"I mean, you only attached, I think, one statement from defense counsel. I mean, that seems like a little bit of a jump to say there's been one statement that, that the defendant says was in response to something that, that the prosecutor had said cryptically. Like, that seems like a bit of a jump, doesn't it?"
"There is only the one statement in the record. That's correct, Justice Bronny. But I think when you read that statement, you can see the intent behind it. And the fact that it was in response or may have been in response to statements made from the state. Those statements aren't in the record. The fact that the state may or may not have made statements only further supports the need for the gag order. The fact that both sides are talking means that a gag order is appropriate. And when you read the substance of the statement, it contains a style of argument that wouldn't be allowed in court. It has evidence as to the character of the accused and the character of the victim that may or may not be admissible. And so this court, the circuit court needed to ensure that the case is decided based on the evidence that comes from the witness stand. And that's what the gag order does."
"But you, you jump from one point to the other. I guess where I'm confused is I'm, I'm not aware of a case that says you have a right to the state or anybody else a right to a trial without any publicity, which almost seems like what happened here. The circuit court decided there should not be any publicity. Instead, your right is to an impartial jury, right? And why wouldn't things like voir dire be sufficient for dealing with that? I didn't see any findings to that effect here. Um, one, I think because voir dire was raised in, uh, the defendant's briefing below, it's implicit that it was rejected by the circuit court. I think you can find an implicit finding there. And I think what the Shepard versus Maxwell case says and what Gentile itself says is that when we're looking at ensuring a fair trial, the court has to act prospectively to prevent prejudice before it happens."
"Counselor, let me ask you something. I think you just said that it was included in the defendant's objection below. Are you talking about the 19-page objection that they filed to the, the request for the gag order?"
"Yeah, I think they mentioned"
"So, how quick, and you said that because it was included, it's fair to assume that the circuit court considered that and rejected that. Is that a fair assessment of your argument on that point?"
"I, I think you can assume that."
"Okay. So, let me ask you, how quickly do you read?"
"As quickly as I can, your honor."
"If you had to guess, how many pages per minute do you think you read?"
"If I'm reading carefully, a page a minute, probably."
"So, if the defendant in this case filed a 19-page objection and six minutes after that was uploaded to the system, after the clerk accepted it and uploaded it to the system, the circuit court, 6 minutes, the circuit court filed the answer with multiple handwritten interlineations in the order, excuse me. Do you think that we can fairly assume that in those six minutes from the time the 19-page objection went live until the time the circuit court filed her order that she read, considered, and gave due weight to the defendant's objection in this case?"
"First of all, I would reject the premise of the question. I don't think there's any evidence. They have alleged six minutes in their briefing. Uh, but all we have in the, the limited record before this court is the file stamps. And the file stamps of the order and the file stamp of the response indicate two separate days. That's all this court has to consider. And I don't know that we can know for sure whether or not the court had access to the response before it was pushed through by the clerk. I can't speak to that. I know the response was before the court and it had the opportunity to consider it. So I think we can find an implicit finding here."
"Let me ask you another question. You, when you're talking about discretion, and I think that's what Justice Wax's getting to. You said the court exercised discretion. This order is substantially the same as an order that we vacated in 2020. So, I guess how much discretion really was there, and it wasn't a carefully crafted order because it's obviously looks like a standard order that's being passed around either by prosecutors or by judges at the circuit court level."
"I think you're dealing with who's making the petitioner here. The petitioner is the defendant and not the press. And we treat press cases differently than those of the defendant. And I think when you're looking at the order here and whether it's narrowly tailored, I, I would compare"
"But we vacated it completely. We didn't just vacate it as to the press. We completely vacated it."
"And it had the same limits as to the defendant, the family, the friends, judicial officers. It was exact, I mean, same same language. I can't, I'm not aware of that case so I can't speak to that and I apologize uh for that, but what I would ask this court to do is compare the restrictions here uh with the restrictions that were present in the rule in Gentile, and they are very similar. The rule in Gentile, the Gentile is found in the appendix to one of the opinions, and that was found to be narrowly tailored for First Amendment purposes. And so I think that this order"
"For purposes of the defendant's counsel, perhaps. But one, it wasn't a prior restraint, right? In Gentile. So that's different. And that was a case about defendant's counsel. Here, I think you can see, correct, that this order goes beyond defendant's counsel and applies to the defendant. Why doesn't that make a difference? Where do you get from Gentile that that standard applies to others?"
"Um, I think two things in, in response to that. Um, your honor, in terms of why it would apply to the defendant and other parties, uh, Gentile when talk, well, it did specifically address lawyers, it's, uh, some of its language said because lawyers have special access to information through discovery, client communications, extrajudicial statements, uh, their statements are likely to be seen at received as authoritative. All the parties here that are restrained are in the same boat. A statement from the defendant is likely to be received as authoritative because he knows what happened, and so the same justification that applies to lawyers would apply to him. I would also say that while Gentile dealt with a subsequent punishment, the bar rule at issue there was a prior restraint on the attorney's speech. It was a rule that existed that was restraining the entire attorney's speech. He was then subsequently punished. But I think it can be viewed as a prior restraint. That one, you could, you could make the argument in Gentile that was people directly connected. I, there is language to that effect. But here we have an order that applies to any public official now holding office."
"Yeah. And I don't, I, first my first response to that, your honor, would be that those claims aren't uh in front of this court. There, the defendant doesn't have standing to raise them. Um, and then secondly, while I say that, that, you know, public officials may be, that may be broad and probably could be reformed, the idea that some public officials like the sheriff who investigated the case, court clerk, other people who might have knowledge that were specifically directed, I think would fall into the same category as attorneys, defendants."
"So answer the question that was raised earlier by one of the other justices. We're public officials. We all have clerks and administrative assistants. This morning I sat in my office and discussed this case with the three people that work for me and we talked about the evidence and we talked about the issues involved. Did I, did I violate Judge Elmore's gag order?"
"No. Uh, says any public official now holding office."
"Uh, because the restraints in the gag order are for public dissemination. Your discussions in your chamber are private and in fact, they're, you know, exempted from FOIA that you have a right to in crafting a"
"Facebook post by the lieutenant governor covered, not covered by this gag order?"
"Arguably covered by this gag order, and I think the state would concede that that's probably inappropriate. She doesn't have any special knowledge of"
"You say inappropriate, do you mean unconstitutional?"
"I don't know that it's necessarily unconstitutional, but I don't think it, it was an, I don't think that claim is before this court."
"So your boss is the attorney general. Every legislative session, the attorney general has a package of bills. Let's say he wants to go to the legislature and ask for a bill that addresses this very situation. He wants to add an affirmative defense to the statute in this type of scenario and has to give the reason why he wants to do that. So he lays out the facts of this case."
"I mean, we're party litigants to this case. I'm responding."
"Okay. Let's say it's the governor's package."
"I, I think the governor"
"The governor violate Judge Elmore's gag order in doing that?"
"I, I think the, the term public officials is probably, if that claim, if the public officials claim were before this court, it's pro, the general proposition of public officials is probably too broad and should be reformed."
"So what about family?"
"Who's family? Is that spouse and kids? Is that"
"The fourth cousin you met once at a family reunion 30 years ago? That's talking about it at the coffee shop."
"And I think that is part of the problem with the, the general term family and it's the limits of the English language that we, that perhaps that should, that was not something the state requested. That's something the circuit court did on its own. I do think it is appropriate to restrain certain family members for the reasons I said. Spencer can't filter his through speech through his wife or his mother or people that they would see as authoritative. But I think"
"Are you reading that in then? Are you reading in the provision that talks about release to, to Justice's question, release any purported extrajudicial statement? Are you reading that as a limitation into the family language, or I guess I'm a little confused as the position?"
"I'm sorry, could you repeat that?"
"So the first here is basically you can't launder the statement provision, um, any purported extrajudicial statement of the defendant. Are you reading that limitation into the family provision or"
"I, I think the order says that the family is a restrained party and that is a restrained speech. So I think that would apply. I think that's a fair reading of the order."
"So council, if defendant planned to call his daughter to testify. He couldn't publicly announce that. Correct."
"Uh, no, under the terms of the gag order, the identity of witnesses are protected. Thank you."
"Then why is that necessary if they, you can publicly say the arresting investigating officers and agencies are public and they're going to be necessarily witnesses? So why can the defendant not release his witnesses? But obviously the state can publicly name some of their witnesses. And I think that first, I think that the defendant's daughter could be a witness either for the state or for the defendant. Same as the investigating officers could be witnesses for either. And I just think that the terms of the order says that you're allowed to identify the arresting officers, but you're not allowed to release witness lists, and that's to try to ensure a fair trial by preventing witness."
"A fair trial for who?"
"A fair trial for the public and a fair trial for Mr. Spencer. It's a fair trial for all parties involved and for the people of this state."
"Your primary interest then is in avoiding tainting the jury pool. Is that, that's the state's interest here, or is there another interest?"
"Yeah. Well, I think it's in ensuring a fair trial, which involves tainting the jury pool and protecting the witnesses from harassment. I think there's twofold. I think if you read the restriction in the order about the identity of witnesses, that would go towards protecting witnesses. But what about then the restrictions on making statements about a witness's testimony after the witness has already testified? What purpose does that possibly serve with respect to either the jury pool or intimidating witnesses?"
"I think it depends upon whether those statements are made in a pre-trial hearing or in a trial. I could see, I could see and concede that when the jury has already been seated, that there wouldn't be reasons to restrict statements anymore to the press as long as the jury is sufficiently sequestered or sufficiently instructed not to press accounts."
"It feels as if the discussions that you're having with, um, with my colleague are having well-reasoned discussions about where this perhaps could have been limited more, um, tailored more, and that that would have been the benefit, um, of having a hearing in front of the trial court where the trial court could have had these discussions about what really the harms were out there, what, you know, you were trying to prevent, um, and that that would have happened rather than sort of whether it happened in a day or six minutes, um, a quick form response."
"I think the circuit court had all the information it needed in front of it to craft the order that it did, and I think that that order is narrowly tailored. Uh, it specifically targets public dissemination of the evidence in this case and just that, and that's to prevent uh"
"And the fatal flaw with that is that we vacated a virtually identical order in 2020. I, and I, I think that Gentile would say that"
"It doesn't really matter, does it? If, I mean, that's US. We're saying an Arkansas case."
"I think when we're applying the First Amendment, what the United States Supreme Court says, uh, matters."
"Well, I don't, I would disagree when they've raised an Arkansas, um, constitutional right here."
"And I don't know that we, that"
"We can give more protections. Correct."
"We can give more protections. I, they had did not develop an Arkansas constitutional argument. I don't think while they did cite it, they did not develop it. They"
"Do without a hearing, isn't it?"
"I, I think they could have developed it in their briefing. They had a full briefing schedule. This court requested additional briefing."
"I have a question for you. On the last page of the order, right above the judge's signature, it says the entire case is now sealed."
"What does that mean? It means that the public docket and the docket entries are no longer public. That's what I took it to mean."
"That's what you took it to mean. Do we know what that means? Does that mean that, uh, we're not going to let the public into the various hearings and portions of the trial that happen going forward? What do we have any extrapolation somewhere else in another document from the judge to kind of expound on, you know, what she meant when she said the case is now sealed? The entire case is now sealed."
"Um, no. The only thing I'm aware of is the order before this court. And I think when we talk about sealing, I, I took that to mean sealing of the record. Uh, the defendant has a right to a fair public trial. And I have no reason to believe that that's not going to happen. Uh, I'm out of time. I would ask this court to deny the petition for writ of."
"Thank you."
"Counselor, as it applies to the other party, the, the non-parties and the non-participants. So essentially the family members and the, let me make sure I get the precise language. Any public official now holding office. As it applies to them by having a gag order on them. Is there any prejudicial impact on your client's, um, rights to a fair trial or, or your client's constitutional rights otherwise? And if so, what is that prejudicial impact?"
"I would say there, I would say there is a prejudicial impact. Uh, each case that, um, I believe in state court and in federal court that's evaluated gag orders, uh, in, in a similar way has addressed the scope of coverage as to third parties or groups of covered third parties. Um, I should have made that more clear earlier. Uh, whether or not it was specific as to a very precise prejudicial effect on the defendant. However, to answer your question, I do believe there's a prejudicial effect. I think my client has a right for the public to be aware of what's going on in his case, for the public to be able to access records so that the public can make its own, uh, assessments of how it feels about its public officials and about how its criminal justice system is being operated. He is a member of the public. While he's also a criminal defendant, he is a citizen of Lonoke County, and so is his family, and so are his children. And so I think it does impact him and prejudice him both as a citizen and as a criminal defendant. And I think every case that's, uh, analyzed this has without real discussion, um, evaluated the scope as it applies to other people, uh, as well as the scope of its application to different types of speech and other matters. So I think that that's a proper consideration, and it also, as I said before, contributes to, uh, the court's, uh, finding that the order is not narrowly tailored."
"The state was saying is that they thought that perhaps some of what you said in a statement, you could not have said in court. Would you agree with that?"
"I'm sorry. I could not have said"
"You could not have said in a court, in the court. You could not have made some of those statements."
"Well, I have sort of agree and disagree. Okay."
"Well, and so I guess following that, um, is that once you did that, was there a legitimate concern by the court that maybe you were going to keep going further, and then that justified the court issuing some sort of gag order, if maybe not this far, against at least counsel?"
"I think the court, um, and I think the Trump court talks about this in that opinion, that context is important, and that has been completely ignored by the state in its briefing before this court. That statement was made before arraignment, before there was any proceeding. It is a criticism of a public official. It doesn't include any information that is prejudicial or would be inadmissible. Um, the character of my client will be at issue because he is of outstanding character, and there's nothing that's going to impact that. Michael Fosler's, uh, rapes of his, of Mr. Spencer's child, our public record. It is a part of this case, and the, that statement is geared very specifically towards the prosecutor's decision to charge him after months of us cooperating and after knowing the circumstances that led us to that point, the very person who was responsible for Michael Fosler's case. So"
"So was there a, a potential of suggesting jury nullification?"
"I do not believe so because I think in a justification context, that the jury has to assess what a reasonable person in Aaron Spencer's shoes would have done. Uh, there really wasn't a golden rule type argument, definitely not in the written statement. Um, I want the court to know that the one, uh, comment that I made on camera at arraignment, which is also when a prosecutor made a comment on camera, um, what's recounted in the motion is a, is a mash. Um, there were, I made brief statements, but they were related to the circuit court's having iced the community out of the proceeding. So, if you don't take them in context, you may think that I'm talking about the jury as the community, but I'm actually, in, in full context, was talking about the community's involvement and support of him in that proceeding and being told to go home. So, I think if the court had taken evidence, then we could have fleshed all this out. I don't, uh, my practice is not to try my cases in the press, and I would have probably agreed to some restrictions as necessary, um, depending on what they were, but the court didn't evaluate any of those things, and of course, the court didn't find out what I was speaking in response to. The public has a right to a fair trial. Sure, but they also have a right to hear my client's speech and to know what's going on in their judicial system. Thank you."
By May 29th, the Arkansas Supreme Court had heard the case and declared the gag order to be overly broad, vague, and lacking a factual basis. The court held that the order constituted a plain, manifest, clear, and gross abuse of discretion, and granted Aaron Spencer's petition for writ, issued the writ, and vacated the circuit court's gag order. But the court did not preclude the possibility of a subsequent narrowly tailored gag order after an evidentiary hearing.
"Today, a strong ruling from the state's high court. The gag order violated Spencer's First Amendment rights with three justices saying they thought the case should have been removed from Judge Elmore's court. Cassinelli released a statement praising the ruling and applauding the clear guidelines that it lays out for future gag orders. Justice Hudson writing that gag orders should be a last resort and not a first impulse. Spencer pleaded not guilty last year. He has a pre-trial hearing scheduled for August 8th."
This is obviously an evolving case as it continues. Now, the Arkansas Supreme Court did request that Barbara Elmore be removed from the case, and that this case was given to a different circuit judge. Whether or not that happens is unknown at this time, but you can be sure that I'll bring you updates as this case moves forward. In the meantime, there are some things that you can do. First, the family has set up a Give and Go. That link will be among the first links in the pinned comment and description down below. Next, there's a Change.org petition that you can sign, and of course, a Facebook group called "We Support Aaron Spencer" where you can find the most relevant up-to-date information about the case and ways to help the family.
I'm going to keep digging on this case because Michael Fosler seems to have more connections than I care to admit. Everyone from the Lonoke County Sheriff, Michael Fosler himself, to Judge Barbara Elmore, all seem extremely suspicious. Doesn't make sense that Judge Barbara Elmore can look over Michael Fosler's case and then after he dies, look over Aaron Spencer's case. So I'll be investigating conflicts of interest and much, much more. If you know anything about this case that I've left out, be sure to email me. Or does it seem to be par for the course for the American justice system? Let me know down below. Otherwise, I'll see you in the next video. [Music]