Let’s hope U.S. v. Cleveland decision was an aberration

Wednesday, April 22, 1998

Life for reporters covering the judicial system is about to become even more interesting.

Traditionally, reporters — like everyone else in the courtroom — have waited anxiously for the jury’s verdict. Now, however, reporters — unlike everyone else — also will have to wait nervously to learn whether the judge will prohibit them from speaking to the jurors after the verdict.

How often judges ban the media from interviewing jurors will determine the impact of the U.S. Supreme Court’s decision not to review the appellate court opinion in United States v. Cleveland. In Cleveland, the United States Court of Appeals for the Fifth Circuit upheld a trial court order prohibiting the media from interviewing jurors about their deliberations. While the Supreme Court rarely indicates why it chooses not to review a case, its silence in this one may encourage some judges to restrict media access to jurors.

The trial and appellate court decisions in Cleveland signify an increasing desire by judges to protect juror privacy. Many courts in high-profile cases have sought to limit reporting about jurors by refusing to disclose the jurors’ identities. Other judges have gone out of their way to discourage jurors from speaking with the media after their verdicts. Until Cleveland, however, few judges had gone so far as to order that reporters not ask jurors about their deliberations.

The trial court in Cleveland claimed its order was necessary to prevent harassment of jurors and to ensure fair trials in future cases. The appellate court took a different approach, finding that the order was required to protect the secrecy of jury deliberations. The court then turned the First Amendment on its head and concluded that the order actually served the First Amendment by allowing jurors to speak freely during deliberations without fear that their comments would be revealed after the verdict.

While defenders of the First Amendment had hoped that the Supreme Court would review Cleveland and overrule the lower court opinions, they should not read too much into the Court’s refusal to hear the case. As a legal matter, the decision to decline to hear a case is not considered to be an affirmation of the lower court ruling. Moreover, as a statistical matter, the Court takes only a small percentage of the cases presented to it. As egregious as the rulings in Cleveland are, the Court may have passed on the case in the belief that the interview ban was aberrational.

To ensure that the ban is aberrational, the media and their lawyers will need to demonstrate to other courts the fallacies in the Cleveland rulings. First, the notion that jurors have a First Amendment right to secrecy is ridiculous. Juries have functioned properly for over 200 years without guaranteed confidentiality, and no reason exists to create such a privilege now. Indeed, if such a privilege existed, it would have to apply to all cases, as jurors in high-profile criminal cases have no greater First Amendment rights than do jurors hearing more routine accident lawsuits. A true privilege also would require that any juror “injured” by a breach of confidentiality would have the right to bring an action against the “leaking” party, whether it be a fellow juror or a member of the media. No court ever has recognized such a right, and it is unlikely that courts will embrace the Cleveland free-speech theory if they understand the logical conclusions of doing so.

Second, the rulings in Cleveland are contrary to the Supreme Court’s holdings that establish at least some First Amendment protection for newsgathering. While the media has in the past argued that the First Amendment entitles them to special rights of access to people and places, the Court so far has refused to recognize such a right. The Court, however, has stated that the media may not be prohibited from accessing persons and places open to the public. The restrictions in Cleveland failed to satisfy even this standard, as they applied only to persons who wished to “interview” the jurors about their deliberations. Jurors remained free to discuss their deliberations with friends, families and book publishers. However far the First Amendment right to gather news extends, it requires that the media be able to obtain information that is available to the public generally.

Third, the trial judge’s order in Cleveland is without any evidentiary support. The judge assumed that jurors would be “harassed” by reporters after the verdict. This assumption flies in the face of the presumption of openness that historically has marked our judicial system. The judge’s approach also is unnecessarily paternalistic, as no evidence existed that the media would have ignored or disrespected any juror’s “no comment.”

Finally, the rulings in Cleveland rest on the unsupported assumption that the judicial system somehow is harmed if jurors are asked to explain the bases for their decisions. The harm, however, is never identified, except that every jury in a high-profile case is for some reason presumed to be more fragile and more in need of protection than the last one. The real harm is the shroud of secrecy that slowly is enveloping more and more of our judicial system. Judges must restore openness to all aspects of our court system, even if jurors are inconvenienced in the process.

At its core, Cleveland is a case about the First Amendment right to gather news. The Supreme Court has for years avoided addressing this issue directly, and its decision to do so again is not terribly surprising. The difference between Cleveland and the other cases left unreviewed, however, is that the lower courts in Cleveland restricted a recognized right, while the other courts simply refused to extend that right.

If lower courts begin following Cleveland and restricting the recognized right to gather news even further, the Supreme Court, by not acting, will inadvertently have created an environment in which it must act to preserve First Amendment 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.