Celebrity privacy claims trump public justice

Sunday, August 1, 2004

Pop mega-star Michael Jackson is in a special kind of trouble, and he wants a special kind of justice — essentially secret justice, exempt from the First Amendment.

The 45-year-old singer faces up to 20 years in prison if convicted on charges of child molestation. The investigation and court proceedings have been cloaked in secrecy. The public interest in open trials has had to make way for Jackson’s claims of privacy and the judge’s concerns about a fair trial.

Grand jury transcripts have been sealed. So have more than 40 search warrants. So has a motion to suppress evidence and most of a motion to dismiss charges. The names of five alleged co-conspirators have been kept secret. The trial judge has imposed a sweeping gag order on the prosecution and defense attorneys.

But that is not enough for Jackson. His attorney has filed a motion with California’s 2nd District Court of Appeals seeking to extend and expand barriers to public interest and press access in the case.

“What he is really seeking is a blanket celebrity exception to the First Amendment that would turn the notion of public access upside down,” said Theodore Boutrous Jr., the lawyer representing a coalition of press organizations challenging the Jackson motion. “As the official record stands right now, the public does not even know the actual allegations that form the basis of the felony indictment.”

Jackson’s latest attempt to hide the proceedings against him from public view is understandable, but regrettable. What is not understandable is that the prosecutor and the judge in the case, both of whom supposedly breathe less rarefied air than the inhabitants of superstardom, strongly support Jackson’s motion, too.

The danger here is that the principle of public justice becomes subordinate to the comfort level of the celebrity defendant, the prosecutor and the judge — even though that principle is significant and legitimate. Certainly, there may be a voyeuristic component of public interest in celebrity trials. But no one could argue with any persuasion that the press and the public should avert their eyes when a superstar with millions of young fans has been charged with molesting a child.

Here is how the trial judge, Santa Barbara County Superior Court Judge Rodney Melville, defines his intriguing approach to celebrity justice: “The public may know little more about the facts of this case than that Mr. Jackson has been indicted on serious charges and that a jury will be asked to consider the evidence that may be presented to it and determine his guilt or innocence based upon that evidence.”

There is ample evidence that Judge Melville’s approach is not all that uncommon.

High-profile Americans — whether from the ranks of entertainment, politics or business — routinely lay claim to special treatment before the courts because of their fame, position or power. Incredibly, some judges grant that special status. The trial judge in the Martha Stewart case shut the public out of the jury-selection process in a decision overturned by a higher court. The trial judge in the Kobe Bryant case imposed an unprecedented prior restraint on the press, a decision upheld by the Colorado Supreme Court. And earlier this year, a unanimous U.S. Supreme Court sanctioned the notion that the survivors of the famous or infamous share their privacy rights.

Judges also routinely bow to demands for protective orders, sealed settlements, anonymous witnesses and juries, in effect shutting the courthouse door on the public.

Such developments provide a glimpse of our future. If the California appeals court grants Michael Jackson’s self-serving assault on public justice, then we have arrived in that gloomy tomorrow.

All of us value our privacy and in many ways identify with those caught up in the privacy-rending mill of a newsworthy court case. But no one knows when or where this idea of one person’s privacy trumping the First Amendment rights of the public and the press will end. We can hope that it will stop somewhere short of private justice, conducted in secret, for the rich and famous.

While Judge Judy and a growing gaggle of television judges dispense a virtual brand of justice for the common folk, a growing number of real-life courtrooms succumb to the notion that the demands of celebrities for private justice supersede the demands of real justice for public accountability.

If this approach to celebrity trials becomes generally acceptable and casually applied, then there is a great danger that our justice will be shaped less by laws and scrutiny by the public than by the fame or notoriety of the defendants.

In that instance, the public courtroom is converted to a star’s chamber, where it is not so much the defendant on trial as the judicial system itself.