Media oppose gag order request
Free speech cited in Vilas fraud case
Attorney General Brad Schimel’s request for a gag order in a securities fraud case against two Vilas County brothers is overbroad, unconstitutional and is not needed to ensure a fair trial, attorneys for nine media organizations said in a court filing Tuesday.
Schimel last month asked the court to ban all parties involved in the prosecution or defense of David Eliason, 40, and Brian Eliason, 38, from “talking to the media or the public regarding the case.”
“The court should deny the (proposed gag order) because it seeks an unconstitutional prior restraint on freedom of speech and freedom of the press under the First Amendment,” Steven Mandell, attorney for the Milwaukee Journal Sentinel and the eight other media organizations, wrote in a motion to oppose the gag order.
The Eliason brothers were each charged in February with 10 felony counts of securities fraud for failing to fully disclose the risks involved in buying an investment they were pitching. Northwoods investors lost about $3 million on the 2009 investments in commercial and residential real estate that they sold through Eliason Inc.
The state sought the gag order after Stephen Kravit, who represented both brothers at the time, released a four-page news release arguing the Eliasons were innocent of the criminal charges.
“This case is unusual in that the defendants are willing speakers,” Mandell wrote in the motion filed in Vilas County Court Tuesday morning. “In fact, defendants are vigorously challenging the State’s proposed gag orders as violating their constitutional rights.”
The Eliason name is well known in Vilas County. Family members are involved in several businesses, including real estate and lumber. Those companies and other members of the family are not involved in the criminal case, although Don Eliason, the brothers’ father, lost more than $1 million on the investment. He does not consider himself a victim, Kravit said.
The brothers also run a Wausau insurance agency whose business has been hurt by the “intense negative publicity in Wausau, Rhinelander, Minocqua, and Eagle River,” David Eliason wrote in an affidavit filed with the court this week.
The affidavit was filed with a brief by Kravit that also opposed the gag order.
The Eliason case has been covered by various media including the Journal Sentinel, the Minocqua-based Lakeland Times and WAOW in Wausau.
“We believe this is an important issue not only for the coalition of media organizations we represent but also for the public,” Mandell said in a statement. “That’s why we are asking the court to deny the state’s attempt to gag the parties and shut off the flow of information to the public.”
In addition to the Journal Sentinel, other organizations that joined in the motion are: the Wisconsin Newspaper Association; the Wisconsin
Broadcasters Association; USA Today Network-Wisconsin, which owns the Wausau Daily Herald; Madison Newspapers Inc., which owns the Wisconsin State Journal; Lakeland Printing Inc.; Quincy Media Inc., owner of WAOW in Wausau; Gray Television Corp., owner of WSAW and WZAW in Wausau; and Rockfleet Broadcasting/ Northland Television Inc., which owns WJFW in Rhinelander.
“This matter is of intense local concern and, because of the prominence of the defendants, has also drawn statewide interest,” wrote Mandell, who noted that Schimel’s request for a gag order also helped boost interest by the media.
Schimel’s motion argues that publicity about the case “could have a substantial effect on the ability to impanel a fair and impartial jury” in the county that had a 2010 population of 21,430.
Mandell, however, countered that any prejudicial publicity could be countered through questioning of potential jurors and other legal methods.
“The state proposed only the most extreme measure — a gag order (and a particularly overbroad gag order at that) — at the outset of the case instead of considering measures that do not impede (the media’s) right to gather the news,” Mandell wrote.
A spokesman for Schimel declined to comment Tuesday.