The Gag Order on Matthew Shepard’s Murderer: Your Turn

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By: Mark Fitzgerald

Five years ago, a few lonely civil libertarians and editorial writers, almost all of them in Wyoming, were the only voices protesting the lifelong gag order that was part of the sentencing agreement that spared Aaron McKinney the possibility of execution for his part in the grisly 1998 murder of gay college student Matthew Shepard.

I was one of those voices. None of my reporting for E&P, nor the editorial we ran, did much to spur national indignation at this unprecedented example of prior restraint that sought to silence not just the execrable McKinney but also the public defender’s office financed by the taxpayers of Wyoming.

Coming at the end of the separate trials of a loathsome pair of killers — a wrenching experience that involved both the unavoidable recounting of the horrifying details of Shepard’s death and the unnecessary demonstrations by a professional anti-gay preacher — the gag order was a quickly forgotten detail that failed utterly to spark any public outrage.

Suddenly, though, people are talking about it. On Friday, the ABC News show “20/20” will broadcast an investigation into the Shepard case that challenges the long-held notion that his murder was a hate crime by two men who targeted a young gay man for death. Aaron McKinney was one of the people interviewed for the show, in defiance of the gag order.

I wrote a column in this space last week that welcomed the development, because the order was about more than McKinney and his First Amendment rights. The lifelong gag violated the public of its right to know what was happening with the judiciary and the prison system.

Not everybody agreed with that sentiment. Here’s a sampling of the e-mails I’ve received on this, and my replies.

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Sir,
Your concern about free speech is misplaced. You should be worried about the stripping of the rights of gays to live and be happy. What about the gagging of gays in the military. What about the denial of our rights to marry those whom we choose to spend our lives with and for?

Sincerely,
Gilbert S. Williams
Spring Hill, Fla.

My reply:
Sir,
It seems to me that preserving the right to free speech is the best way to work towards all those ends.

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Speaking journalist to journalist, you know as well as I do that no one ever has to talk about anything they don’t want to talk about. You also know that part of the freedom of speech that the U.S. Constitution grants to U.S. citizens is the right to give up or to trade away that freedom. Thus it is that every day people legally and voluntarily agree never to talk about certain subjects and events: people who work for the CIA, people who join the military, people who work in industry R&D, people who enter into legal settlements in civil and criminal cases, and so forth.

Aaron McKinney evidently entered into such an agreement, along with his public defenders, in order to save himself from possible execution. This agreement not to speak to the media was neither a “gag order” nor “prior restraint,” both of which suggest an order imposed on someone against his will. It was a condition that he apparently freely accepted as part of a deal to save his own skin. If he did not want to enter into that agreement, or if he did not like the fact that the parents of the person he murdered helped craft the agreement, he and his lawyers had every right to reject it. They could have taken their chances with the usual sentencing procedure.

He voluntarily made a deal to avoid that procedure. Happens every day. It was his choice. He voluntarily chose to exercise his freedom of speech by trading in one small portion of that freedom for an agreement that he would not be subject to execution.

This is not “astonishing.” This is not “extraordinary.” This is not “an extremely dangerous precedent.” This is not “a kind of totalitarianism.” This is all-American deal-making: Someone trades in something they possess and value in order to obtain something else that they value more. McKinney traded a tiny portion of his freedom of speech for the right to avoid execution.

If McKinney and his lawyers are now breaking that agreement, then they should also lose what they obtained by offering their silence. If McKinney and his lawyers cannot abide by their own agreement not to discuss the case, then the court should reconvene to determine whether McKinney should now be executed.

There is no “First Amendment right of the public to hear all sides of an emotional, wrenching case” if some people on one side or another have chosen or agreed voluntarily not to speak about the case. Freedom of the press is not the freedom to force people to talk. A criminal, like a nuclear researcher, has every right to give up a portion of his freedom of speech—to agree to silence, now and forever—in order to obtain something valuable to him. The individual American’s right to choose to exercise or to give up his constitutional right to free speech trumps the ambiguous notion of “the public’s right to know” every time.

How it’s “good news” for anyone that criminals can renege on deals they’ve made to save their skins and then suffer no consequences is beyond me.

My question would be this: How were the Shepards ever na?ve enough to think that the young thief, drug abuser, and killer who murdered their son would ever live up to an agreement he made to save his own life? Now that’s a story for “20/20.”

I assume from this report that E&P now supports the wholesale voiding of all voluntary agreements not to speak about certain subjects, in favor of “the public’s right to know.” And that E&P thinks that those who make such agreements should suffer no consequences for breaking them: no consequences for soldiers who give away military secrets, no consequences for researchers who take their discoveries to competing companies, no consequences for government officials who blow the cover of undercover operatives behind enemy lines, no consequences for murderers who avoid execution by agreeing to keep quiet and then decide, well, they want to talk after all.

Maybe you think that’s a bright and shining day for journalism and the First Amendment, but I certainly do not.

That is not freedom. It is chaos.

It is particularly insulting for you to compare Aaron McKinney’s deal-making to save himself from execution to the U.S. government’s gagging of prisoners in the “war on
terror.” A convicted killer who gagged himself for self-protection with his own lawyers’ consent is hardly the equivalent of hundreds of foreign citizens imprisoned and gagged by the government without legal representation. If for no other reason, for that you should be ashamed of yourself.

Bruce C. Steele
Editor-in-Chief
The Advocate and Advocate.com

My reply:
I have many reasons to be ashamed of myself, but supporting the public’s right to know is not one of them. In fact, there are rights Americans cannot sign away. They cannot agree to sell themselves into slavery, for instance. There are any number of labor rights that cannot be “voluntarily” voided. And, anyway, an agreement made under the threat of execution by lethal injection is hardly voluntarily. If that’s “all-American deal-making,” it’s a most peculiar kind, a sort of capitalism that Stalin, creator of the “non-person” forgotten in the Gulag, would admire. If Aaron McKinney wants to take a vow of silence on his foul deeds, that’s fine with me. What I object to — what every journalist and citizen should object to — is allowing the government to impose that silence. Especially since it doesn’t just shut McKinney up — it shuts all of us out.

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Mark,
I’m one of the producers of the ABC “20/20” story coming up. Just want you to know how much I appreciated your incisive, right-on-the-money comments last week. This is a story that has been only dimly grasped to date and you touched on one of its most important and neglected topics: our precious constitutional right to free speech.

Thanks for writing about what matters. It has a brave rippling effect on the rest of us.

Steve Jimenez

My reply:
I look forward to watching your piece.

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Mark Fitzgerald argues that the gag orders on McKinney and Henderson and their lawyers deny the public its “right to know.” But the gag orders were a critical part of the bargain that spared both men the death penalty. Given the particularly brutal nature of the crime, I believe it likely both men would have been sentenced to death, and those sentences carried out. How then, if they are dead, could Matthew Shepard’s’ killers exercise their right to free speech? How could they help keep the public informed if they are dead?

Does Mr. Fitzgerald argue that the death penalty itself is a denial of freedom of speech, and a denial of the public’s right to know, and does he argue against it at least in part on that basis?

Bruce Garrett
Baltimore, Maryland

My reply:
The point is, they are not dead and remain a source of information for historians, journalists, and others on a case that continues to interest the public, as the success of the many theatre productions of “The Laramie Project” demonstrates.

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I completely agree with your analysis of the gag order in the Shepard case. We have a right to know — good, bad, ugly.

My best,
Rick Garcia
Equality Illinois

Garcia is political director of Equality Illinois, which lobbies for legislation on behalf of gay, lesbian, bisexual, and transgendered Illinoisans. He may be best remembered among E&P readers as the person who openly distributed to news organization a previously unreleased incident report of Mike Royko’s arrest for drunk driving. That information about a public figure was in the “ugly” category.

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I just read your E&P column about the McKinney gag order. Just great, thank you. I wrote a long piece on the Shepard case for Harper’s magazine which came out before the McKinney trial, raising the questions that “20/20” explores, among others. But after Dennis Shepard intoned “I grant you life” and announced the gag order, I couldn’t get anyone in the mainstream press interested in the abomination of it all. I remember being on Court TV after the trial, and even there this gag order didn’t rouse much concern. It’s just such evidence of how media panics make some victims more equal than others, and dissolve critical thought into Jell-O. I’m about to write an op-ed for the L.A. Times on the justice issues in the case, but if “20/20” did nothing else, simply defying that agreement was huge.

JoAnn Wypijewski
New York City

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The efforts to stifle or even stop the ABC program from airing are alarming. After centuries of lies and persecution, gay people should not be standing in the way of efforts to get at the truth, to ensure justice. The Shepard case is long overdue for reexamination, I hope the effort continues well beyond the 20/20 show.

William K. Dobbs
New York City

In his role as co-founder of QueerWatch, gay-rights activist Dobbs monitored the Shepard trial in Laramie and worked to call national attention to the gag order in the sentencing agreement. He’s referring to an e-mail campaign asking ABC News to shelve the Shepard piece scheduled for Friday.

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