1998 chips away at freedom of the press

Monday, January 4, 1999

In an environment in which no news usually is good news, 1998 would appear to have been a fairly good year for the freedom of the press.

The U.S. Supreme Court didn’t issue any landmark media decision. Congress didn’t pass any law abridging press freedom. The president didn’t conduct even his private affairs in secret.

Unfortunately, however, the media were not freer at the end of 1998 than they were at the beginning. Newsgathering in particular took several significant blows during the year, as did the overall openness of the judicial system. Subpoenas to reporters became more commonplace, as did closed courtrooms, anonymous juries and sealed depositions. The law in most cases did not change, but judges’ application of it did. As a result, reporting the news today is indisputably more problematic than it was a year ago.

The media, of course, did not lose every court battle in 1998. A number of courageous judges threw out libel suits, rejected requests to close courtrooms and upheld reporters’ rights to keep sources and materials confidential. Those cases, however, were the exception rather than the rule. The most significant media losses were seen in three areas — closing the judicial system, requiring the media to provide evidence and restricting newsgathering. Examples of these losses can be found throughout the country.

  • Closing the judicial system. Almost every high-profile case found judges limiting media access to the judicial system and the participants in it. The judge in the Unabomber case refused to disclose the names of jurors. Mountains of evidence in the Paula Jones case were kept under seal, even after portions had been leaked to the media. Despite a federal law that clearly allowed the media to attend Bill Gates’ deposition, access to that proceeding was denied. In a corruption trial involving a state welfare official, an Illinois federal judge sealed documents and permitted Gov. Jim Edgar’s testimony to be videotaped in private. A federal appeals court upheld a Louisiana trial court order prohibiting jurors from discussing their deliberations. A judge in Los Angeles banned several reporters from covering a prosecutor’s opening statement after they refused to promise not to report what they heard. A judge in Florida closed his courtroom during testimony about possible prosecutorial abuse and then ordered the witnesses who testified not to reveal what they had said. Judges in several other states also issued gag orders to prevent attorneys and witnesses from speaking with the media about their cases.

  • Requiring the media to provide evidence. Attempts by prosecutors and other lawyers to learn the identities of confidential sources and to obtain other unpublished information were once routinely rejected. Today, however, judges are granting these requests with alarming frequency. Reporters in California and North Carolina are awaiting appellate court decisions to learn whether they must disclose their confidential sources or serve jail sentences. A reporter in Georgia was ordered to testify about an interview subject’s mental state. A Pennsylvania court required a reporter to surrender his notes from an interview. A New Orleans television station was one of several stations across the country ordered to provide lawyers with unaired portions of interviews. Several newspapers also were forced to turn over unpublished photographs, including the Casper, Wyo., Star-Tribune.

  • Restricting newsgathering. Two cases testing whether the media should be allowed to accompany law enforcement officials executing search warrants on private property are currently before the U.S. Supreme Court — Hanlon v. Berger and Wilson v. Layne. In October, California became the first state to adopt anti-paparazzi legislation, which allows celebrities and crime victims to recover damages from reporters, photographers and camera operators who trespass in order to obtain pictures or audiotapes of the celebrity or crime victim engaging in a personal or family activity. Similar legislation is pending in Congress. Lexington police interpreting a Kentucky law claim that they have a right to censor addresses, phone numbers and information about injuries from traffic accident reports. Despite new legislation designed to increase access to information about campus crime, university officials across the country still routinely refuse to release many crime reports and disciplinary records.

  • These setbacks and the trends that they exemplify are easier to document than explain. An underlying theme in many of these cases, however, is a frustration with how the media gather and report news. Knowing that they can’t control how the media cover a case or report a story, many judges and legislators attempt to obtain more orderly coverage by restricting access to events, people and documents. What judges perceive as media excesses also appear to make them less sympathetic to First Amendment rights.

    Unfortunately, nothing about the end of 1998 and the beginning of 1999 suggests that any of these trends will reverse, or even slow. To the contrary, the increasing role of the Internet and other technology in news reporting and the increasing competition among media entities suggests that newsgathering will be even more aggressive in 1999. If 1998 is any indication, we should expect judges and legislators to react unfavorably to that aggressive reporting and to continue chipping away at media freedoms.

    — Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.