Information flow dammed at the source

Friday, April 10, 1998

If there were any doubts before, there shouldn’t be now. The backlash is here.

For years, both defenders and critics of the media have warned that the media’s excesses, whether perceived or real, would provoke attempts to limit First Amendment freedoms. For every Geraldo who seeks to reform his image, however, a Jerry Springer comes along to remind the public—and especially judges and legislators—that the First Amendment does not blush or blanch.

Judges and legislators have responded by taking matters into their own hands. Frustrated by the way the media reports information, these officials have brazenly attempted to prohibit the media from obtaining information in the first place. In the last week of March, for example, two states sought to seal arrest and search warrants, a police department resisted efforts to disclose settlement documents in a civil suit and a Rhode Island legislator introduced a bill to prohibit publication of addresses in obituaries. The first week of April was no better, as defense attorneys fought efforts to unseal court records in the Oklahoma City bombing case, Oklahoma legislators considered a bill that would allow rape victims to use false names in public records and New York City Mayor Rudolph Giuliani faced a lawsuit brought by several groups alleging that he had continually stonewalled the release of city financial information.

These efforts to conceal public information feed on each other. For that reason if no other, government officials everywhere undoubtedly were encouraged to resist media requests for information when U.S. District Court Judge Susan Webber Wright stubbornly refused in early March to unseal President Clinton’s deposition in the Paula Jones case. Judge Wright justified her decision, in part, by citing the “callous disregard” of the media for the parties’ right to a fair trial. Of such concern to the parties was this right that Ms. Jones herself fully disclosed the content of the deposition less than two weeks later.

Others involved in the judicial process are similarly nonplussed by the presumption of openness that historically has been considered the foundation of a fair and equitable justice system. In the Oklahoma City bombing case, for example, many of the sealed records the media are seeking to have opened describe only the taxpayer funds paid to Timothy McVeigh’s lawyers. Although McVeigh’s trial has been completed, his lawyers claim that the possibility of a new trial mandates that the defense costs remain secret.

According to defense attorney Rob Nigh, “Revelation of those materials at this time would undermine counsels’ efforts and effectiveness during a new trial.” Any embarrassment that Nigh might have felt in taking such a preposterous position clearly was outweighed by his fear that he would have to justify this use of taxpayer money.

“A public debate about the amount of expenditures made on Mr. McVeigh’s behalf,” Nigh continued, “would lead to vilification of defense counsel and Mr. McVeigh, at a time when all of the court’s and parties’ attention should be directed at conducting a fair trial in the context of the information that is already in the public domain.”

While the judge in the bombing case has not ruled on Nigh’s argument, Lancaster County (Pa.) Court Judge Lawrence F. Stengel undoubtedly would accept it if given the chance. Judge Stengel has issued a gag order in a controversial murder prosecution that prohibits everyone associated with the case from speaking with the media. Gag orders like these typically have been justified by a desire to preserve an unbiased jury pool. In this case, however, Judge Stengel reasoned that the prohibitions were necessary to prevent the lawyers from being “distracted” by the media.

“This court can see no good reason why the parties and their counsel must or should make public statements regarding their strategy, their opinion as to the credibility of their opponents, their opinion as to the veracity or credibility of witnesses … and the merits of their opponent’s legal arguments,” Judge Stengel wrote. “While these statements may provide compelling headlines, they serve no purpose in the litigation process.”

When did media reporting of criminal cases become acceptable only when it serves a purpose in the litigation process? Doesn’t the public expect and deserve compelling headlines? Has the desire for secrecy so infected our judicial system that a judge would seal records of taxpayer expenditures in order to protect attorneys embarrassed by their own high fees?

The primary problem with attempting to curb the media’s behavior by denying access to information is that these efforts display a fundamental misunderstanding of the First Amendment. Most of us would agree that the media frequently lack perspective, good taste and good manners. But responsible, polite journalism rarely needs protection. The drafters of the First Amendment realized that their work would allow (and perhaps even encourage) biased reporting and irresponsible news judgment. They believed, however, in the ultimate ability of the public to discern the truth and to create the marketplace for news that it desires.

Today’s judges and legislators need to remember that the lofty goals of the First Amendment are achieved not when news is reported in an orderly, controlled fashion but when the media produce a busy and noisy marketplace of ideas. However horrified our government officials may be about the media’s behavior, they must swallow their desire to punish news reporters and instead learn to trust the public.

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.