Title: End the Secrecy: Judicial Overreach in the Aaron Spencer Case

A Lonoke County judge entered a sweeping gag and sealing order after Aaron Spencer intervened to stop a man already charged with abusing his child. The Arkansas Supreme Court has now granted Spencer’s petition for certiorari and vacated that order as a gross abuse of discretion. That is the correct constitutional result.

On May 29, 2025, the Arkansas Supreme Court finally vacated Lonoke County Circuit Judge Barbara Elmore’s unconstitutional gag order in Spencer v. State of Arkansas (2025 Ark. 91). While the court correctly identified the order as a “gross abuse of discretion,” their ruling was unfortunately compromised by leaving open the possibility for a “more narrowly tailored” gag order.

This qualification itself is constitutionally problematic. Any attempt to gag Aaron Spencer—whether broad or narrow—represents judicial overreach and a violation of fundamental constitutional rights.

The Arkansas Supreme Court’s decision rightly acknowledged that Judge Elmore’s gag order was “far too broad” and “impermissibly vague.” The court recognized that the order violated Spencer’s First Amendment rights to free speech and his Sixth Amendment rights to a public trial. Yet, in a display of judicial caution, the court suggested that a more narrowly tailored gag order might somehow pass constitutional muster.

This suggestion reveals a fundamental misunderstanding of constitutional principles. The notion that any gag order could be constitutionally applied to Aaron Spencer is itself contrary to established First Amendment jurisprudence.

Prior restraint doctrine is crystal clear. The Supreme Court has held that prior restraints are “the most serious and the least tolerable infringement on First Amendment rights.” See Nebraska Press Association v. Stuart, 427 U.S. 539, 559–61 (1976). Such restraints require proof of a specific, imminent threat to fair trial rights, serious consideration of alternatives, and narrow tailoring on the record. Criminal proceedings are presumptively open to the public and press. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571–81 (1980); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505–10 (1984).

The Lonoke order failed these standards spectacularly. But any future order would necessarily fail as well, because the very act of silencing a father who acted to protect his child from a known predator is itself an attack on fundamental constitutional principles.

When judges violate their oath to uphold the Constitution by suppressing speech that is central to public discourse and the administration of justice, they are engaging in judicial overreach of the highest order. They are replacing our constitutional system with one of arbitrary judicial power, where fundamental rights exist only at the pleasure of the bench.

There is only a narrow lane where speech limits may stand. In Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32–37 (1984), the Court upheld a protective order restricting dissemination of information obtained through compelled discovery that was not yet part of the public record. That rule does not authorize blanket bans on speaking about hearings, filings, or a pending criminal case. The Spencer gag was not a discovery order. The Arkansas Supreme Court vacated it because it was overbroad and unsupported.

Federal appellate courts have policed trial-participant gags the same way. The Sixth Circuit vacated a broad speech ban as a direct prior restraint in CBS, Inc. v. Young, 522 F.2d 234, 237–42 (6th Cir. 1975). The Seventh Circuit used mandamus to undo an order lacking specific findings of a serious and imminent threat in Chase v. Robson, 435 F.2d 1059, 1061–63 (7th Cir. 1970). The Fourth Circuit condemned a sweeping participant gag and ordered it vacated in In re Murphy-Brown, LLC, 907 F.3d 788, 796–803 (4th Cir. 2018).

Arkansas law aligns with this doctrine. In Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 781–84, 20 S.W.3d 301, 306–09 (2000), the Arkansas Supreme Court held that a gag on the press was an unconstitutional prior restraint and emphasized the heavy presumption against validity and the need for narrow tailoring. That same court has now applied those principles in Spencer, but with the problematic qualification that some future violation might be acceptable.

The facts that now appear in public filings are straightforward. Michael Fosler, a retired police chief, had been charged months earlier with sexual offenses against Spencer’s minor daughter and was out on bond subject to a no-contact order. Spencer found his missing daughter in Fosler’s truck. A confrontation followed, and Fosler died of gunshot wounds. Those are the case facts as summarized in the Arkansas Supreme Court opinion.

Under Arkansas justification statutes, force in defense of a person is permissible, and deadly force is justified where the actor reasonably believes the other person is committing or about to commit a felony involving force or violence or is using or about to use unlawful deadly force. See Ark. Code Ann. § 5-2-606; § 5-2-607. On these facts, the defense-of-others justification is squarely implicated.

My opinion, grounded in the cases and the statute:

1. The judge’s order was unconstitutional, and any future gag order would be equally unconstitutional. The Arkansas Supreme Court was right to vacate the order but wrong to suggest that a more narrowly tailored version might be acceptable. This qualification itself constitutes a failure of the court to fully protect constitutional rights.
2. The court should be sued and enjoined from re-issuing any speech restrictions that do not satisfy strict scrutiny. Appropriate relief includes declaratory judgment and a permanent injunction premised on the prior-restraint line of cases and Arkansas precedent in Zimmerman. Any judge who attempts to impose such restrictions is engaging in judicial overreach.
3. The judge should face removal and discipline for violating clearly established First Amendment law. This conduct represents a serious abuse of judicial power and a violation of the judge’s constitutional oath. The practical remedies are impeachment, censure, and professional sanctions.
4. Aaron Spencer should walk. Arkansas law codifies defense of others. The record reflects an active, repeat threat to a minor and a violation of a no-contact order. On these facts, justification is a viable path to acquittal. Any attempt to silence him about these facts is an abuse of judicial power that violates fundamental constitutional rights.

Open the records. Keep the courtroom open. Apply the First Amendment and Arkansas justification law as written. Hold judges accountable who violate their constitutional oaths. Then send Spencer home.