COMMENTARY: Judicial overreach

District Judge Jessica Peterson has managed a remarkable feat: violating the same bedrock First Amendment principles twice in just over a week.

Her repeated efforts to dictate what the Las Vegas Review-Journal and other news outlets may publish about the Nathan Chasing Horse sexual assault trial are so obviously unconstitutional that they raises questions about whether she’s fit to decide important constitutional questions. Actually, they not only raise those questions, they answer them — and the answer is no.

First, on Jan. 13, Peterson issued a sweeping “decorum order” prohibiting the press from conducting courthouse interviews and from publishing “any personal identifying information” about victims, witnesses and jurors without their permission. The order was a “prior restraint,” or an advance prohibition of disfavored reporting, which the Supreme Court has long considered the “most serious” of First Amendment violations.

After the Review-Journal challenged this gag order, Peterson retreated. She issued an amended order that backed away from some restrictions while maintaining others. But any judge who ever believed the initial order was acceptable either doesn’t understand the First Amendment or chose to ignore it. The news business is in enough trouble — newspapers shouldn’t have to pay lawyers to explain to judges that they don’t have censorship powers.

Then, just eight days later, Peterson one-upped herself. On Wednesday, she ordered Review-Journal reporters and a photographer removed from her courtroom because they refused to promise not to name an alleged victim whose identity already appeared in public court records. As the Review-Journal has explained, it (and most newspapers) typically don’t publish names of sex crime victims. But that decision is for journalists, not judges.

The law here couldn’t be clearer. In 1989 in Florida Star v. B.J.F., the Supreme Court established that newspapers cannot be punished for publishing lawfully obtained truthful information — specifically, names of victims of sex crimes. The case involved a newspaper that published a rape victim’s name obtained from a publicly released police report. Despite Florida’s statute prohibiting such publication, the newspaper’s violation of its own internal policy and genuine privacy concerns, the court ruled the First Amendment protected publication.

The bar for prior restraints is even higher than for the after-the-fact punishment at issue in Florida Star. Plus, the alleged victim in question has been identified in public court filings. It is abundantly clear to everyone that Peterson’s antics don’t have a legal leg to stand on.

These aren’t close calls. As reported by the Review-Journal after Peterson’s first illegal edict, First Amendment attorney Marc Randazza called the order “one of the most absurd overreaches I’ve seen from a judge when it comes to trial coverage anywhere except in a history book.” Chris Peterson of the ACLU of Nevada called it an “unconstitutional gag order. Attorney Maggie McLetchie noted that “barring the media from talking to people on the premises is patently unconstitutional.”

In light of that response and her own retreat, it is not likely that Peterson did not know her order expelling journalists from the courtroom was similarly problematic.

Peterson scored dismally in the Review-Journal’s 2025 judicial performance evaluation. Only 54.2 percent of attorneys who evaluated her believed she should remain on the bench. She received particularly low marks on whether she accurately applies the law. You don’t say.

These aren’t technical errors or close judgment calls. They are violations so clear that any first-year law student who studied the Pentagon Papers in their constitutional law class would recognize them. It’s like a judge not knowing that warrants are needed to search people’s homes, or that criminal defendants are entitled to legal counsel.

The press has every right to attend public trials and to make its own editorial decisions about what to publish. When judges forget these fundamentals — especially when they forget them repeatedly, defiantly and within days of the last time — they are ignoring the oath of office.

The only person who should have been kicked out of Peterson’s courtroom is Peterson.

Seth Stern is the chief of advocacy at Freedom of the Press Foundation and a First Amendment lawyer.