Gag order unconstitutional, ACLU says
Matsch directive violates free speech, group says
By Lynn Bartels | Rocky Mountain News Staff Writer
Friday, April 18, 1997

The ACLU's legal director in Denver says a federal judge's sweeping gag order in the Oklahoma City bombing trial violates the First Amendment.

"I think this gag order is a classic prior restraint on speech,'' Mark Silverstein said Thursday.

The American Civil Liberties Union chapter in Southern California successfully fought a similar gag order in the Rodney King case, he said.

U.S. District Judge Richard Matsch of Denver on Wednesday issued the blunt order to all participants in Timothy McVeigh's trial.

It barred the defendant, lawyers, and court and law enforcement personnel involved in the case from speaking publicly outside the courtroom.

"One reason I think this violates the First Amendment is it prohibits even the most harmless comments,'' Silverstein said.

Defense attorney Stephen Jones has often spoken briefly with the press on his way to and from the Denver federal courthouse.

Asked how jury selection is proceeding, he usually says, "Slow.''

Now even that is forbidden.

Matsch's order also bars McVeigh from saying anything publicly, a decision Silverstein calls "unusual.''

"I don't recall ever reading where the defendant was forbidden to speak,'' Silverstein said. "This order is so broad it could prohibit the defendant from saying, 'I'm innocent. There is reasonable doubt.'''

Silverstein worked in the California ACLU office in 1993 when U.S. District Judge John Davies slapped attorney Harland Braun with a gag order.

Davies presided over the federal civil rights trial of four Los Angeles police officers accused in the King beating. Braun represented one officer.

The gag order came after Braun criticized the prosecution during a TV interview. Braun then contacted the ACLU.

"He believed it deprived him of his rights to speak out on his own behalf and ... on the behalf of his client,'' Silverstein said.

The ACLU filed a petition with the 9th Circuit Court of Appeals, which ordered the district court to vacate the gag order.