Judge Megan Marshall had issued the initial gag order on Jan. 3, shortly after Kohberger's arrest, restricting comment from prosecutors, the defense, law enforcement and other officials.
On Jan. 18, she expanded the scope of her order, restricting attorneys for the victims and their families from speaking with the media.
IDAHO MURDERS AMENDED GAG ORDER NOW SILENCES ATTORNEYS FOR VICTIMS AND WITNESSES
The Goncalves family attorney, Shanon Gray leaves Latah County courthouse with the family on January 5, 2023. It was the first time they had come face-to-face with the suspected killer of Kaylee Goncalves. (Fox News Digital)
"The attorneys for any interested party in this case, including the prosecuting attorney, defense attorney, and any attorney representing a witness, victim, or victim‘s family, as well as the parties to the above entitled action, including but not limited to investigators, law enforcement personal (sic), and agents for the prosecuting attorney or defense attorney, are prohibited from making extra judicial statements (written or oral) concerning this case, except, without additional comment, a quotation from or reference to the official public record of the case," she wrote.
However, the victims' families are not parties to the case, Gray wrote.
"Properly construed, the Order does not apply to the Victims’ families in this matter," Gray argued in a court filing Friday. "The only ‘parties’ to the case are the People and the Defendant. Accordingly, as a non-party citizens, the Victims' surviving family members are free to speak to the public and the media under the First Amendment to the Constitution. Simply put, their rights to freedom of speech cannot be restricted through a judicial prior restraint."
Lastly, he argued that the entire point of the gag order is to protect the defendant's right to a fair trial and impartial jury pool.
Latah County Magistrate Judge Megan Marshall speaks during a January 2023 hearing for Bryan Kohberger, inset, the suspect in the stabbing deaths of four students near the University of Idaho. (Kai Eiselein/Pool)
"Once the jury has been selected the non-dissemination order becomes moot and therefore would not be allowed to be in full force for the 'entirety of the case,'" he argued.
He has requested a hearing on the matter and is asking the court to amend or clarify the order.
Furthermore, he argued, as their attorney, he is also allowed to speak on their behalf.
"As attorney for one of the Victim’s families, I am allowed to relay to the media any of the opinions, views, or statements of those family members regarding any part of the case (as they are allowed to speak about the case under the First Amendment)," he wrote.
UNIVERSITY OF IDAHO STUDENT STABBINGS TIMELINE
Kaylee Goncalves speaks with local law enforcement on Aug. 16 after a noise complaint was issued. (Moscow Police Department)
INSIDE IDAHO MURDERS SUSPECT BRYAN KOHBERGER'S UNUSUALLY LONG ROUTE HOME TO PENNSYLVANIA
Edwina Elcox, a Boise-based criminal defense attorney who has handled murder cases in the past and previously represented the alleged "Cult Mom" Lori Vallow, told Fox News Digital Friday that she agrees with Gray's position.
"Victims, or the families of victims, in a criminal case are not parties to the case," she said. "The Court absolutely does not have any authority to order non-parties to do or not do something in these circumstances."
The victims of Nov. 13 University of Idaho massacre, from left to right: Kaylee Goncalves, Ethan Chapin, Xana Kernodle and Madison Mogen. (Instagram @xanakernodle / @maddiemogen / @kayleegoncalves)
Still, there is precedent allowing for gag orders if the judge finds they are necessary to ensure a fair trial, according to Neama Rahmani, a Los Angeles-based trial attorney and former federal prosecutor.
"It’s an uphill battle for the Goncalves family," he told Fox News Digital. "The Supreme Court has upheld gag orders on witnesses and their lawyers. The victims may testify during the guilt and penalty phases of a death penalty trial."
The FBI and Pennsylvania police arrested Kohberger at his parents' house in the Poconos Mountains on Dec. 30.
IDAHO MURDERS: BTK SERIAL KILLER ON SOLITARY CONFINEMENT AND BRYAN KOHBERGER, ‘I KNOW HOW HE FEELS’
Bryan Kohberger appears in court on January 12, 2023. (POOL)
He is charged with four counts of first-degree murder in the deaths of Goncalves and her best friend Maddie Mogen, both 21, along with Xana Kernodle, 20, and her boyfriend Ethan Chapin, also 20. He faces an additional charge of felony burglary.
Marshall has ordered Kohberger held without bail at the Latah County Jail.
His preliminary hearing was scheduled for June 26 – where his defense attorney is expected to challenge the evidence against him and cross-examine the lone eyewitness, a surviving roommate who heard crying and saw a masked man with "bushy eyebrows" leaving minutes after the murders.