It was bad enough when only lawyers were censored in Illinois

Friday, March 31, 2000

The new Illinois Supreme Court rules muzzling lawyers undeniably threaten
free speech. A potentially larger threat, however, is the overreaction from some
prosecutors and police implementing those rules.

The new rules, which took effect March 16, purportedly preserve parties’
rights to fair trials by drastically limiting what lawyers can say about pending
cases. Lawyers, for example, cannot speak about a witness’ expected testimony or
credibility, information that might not be admissible at trial or the existence
of a confession. In addition, prosecutors now are required to exercise
“reasonable care” to prevent other law enforcement personnel from making
prohibited statements.

In some counties, “reasonable care” has become unreasonable disregard for the
public’s right to know. In Madison County, the local police department cut off
public access to all information after prosecutors informed them of the rules.
News reporters therefore no longer have access to police blotters and other
basic arrest information that previously had been available. St. Clair County
prosecutors are also considering implementing the access restrictions in the
police departments there.

(Editor’s note: Madison County State’s Attorney Bill Haine said yesterday that police should provide lists identifying who has been arrested and what they are charged with, but that more detailed information should still be withheld. Haine told police to drop the total blackout many had adopted following his request.)

In an interview with the Associated Press, Granite City, Ill., Police Chief
Dave Ruebhausen justified this approach in stark terms. While the new rules
aren’t “completely restrictive,” he said, they’re “restrictive enough that our
district attorney and the local chiefs feel it’s not worth the risk to say

This “say nothing” interpretation of the new rules, however, is not supported
by the rules or by other Illinois laws. The rules, for example, specifically
provide that information contained in public records is exempt from the
restrictions. Also exempt are the identity and residence of a suspect and the
fact, time and place of an arrest. Moreover, a 1999 Illinois law requires police
to release such information within 72 hours of a request.

With these clear requirements to provide basic factual information, it is
difficult to empathize with police departments that claim to be confused about
their responsibilities under the new rules. A more plausible scenario,
unfortunately, is that these police departments are using the rules as an excuse
to more rigidly control the flow of information from their offices.

As an Associated Press investigation demonstrated last year, police and other
public officials throughout Illinois routinely ignore the state’s
freedom-of-information laws. Illinois Attorney General Jim Ryan responded by
attempting to strengthen those laws, but legislators so far have rejected those
attempts. The overly broad interpretations of the new state Supreme Court rules
set back open government in Illinois even further.

The new rules — which are designed to comply with restrictions on
extrajudicial speech approved by the U.S. Supreme Court in 1991 — were announced
in October. A proposed December effective date was postponed when several
high-profile prosecutors asked the Illinois court to reconsider the rules. The
court then announced on March 16 that it was adopting the rules as originally
drafted, effective immediately.

Both the Illinois State’s Attorneys Association and the Illinois Press
Association have threatened to challenge the rules. The prosecutors are
concerned primarily with the prospect of being held accountable for statements
made by other law enforcement personnel. The IPA, on the other hand, believes
the rules unconstitutionally infringe on the free-speech rights of all lawyers
and on the media’s right to gather news about court proceedings.

“Extrajudicial statements by lawyers, from the various points of view in
litigation, are not inherently evil, as presumed by the proposed rule,” the IPA
wrote to the court before the rules were adopted. “To the contrary,
extrajudicial statements by lawyers are an integral part of the traditional news
gathering process of newspapers across Illinois and serve the valid purpose of
explaining the operation of the judicial system to the public.”

The IPA, of course, is correct. Regardless of whether the new rules are
constitutional, they will result in news coverage of the judicial system that is
often incomplete, sterile and difficult to understand. While the public will be
the ultimate loser under this approach, the Illinois Supreme Court apparently is
willing to pay that price in order to ensure fair trials.

Even the Illinois Supreme Court, though, didn’t intend its rules to prevent
the news media and the public from obtaining information from public records and
police blotters. In overreacting to the rules, the police and prosecutors in
Madison and St. Clair counties ironically might find themselves in trouble more
for their silence than for their speech.

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


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