When judges keep press at bay, the public is thereal loser

Monday, June 14, 1999

Last week, a federal court of appeals in
California issued an opinion that might be
characterized fairly as a footnote in the infamous
Unabomber case. Even so, it represents yet another
step in the incremental distancing of the
judiciary from the citizenry.

This slow but certain withdrawal from the public
arena invariably is linked to some judges’
penchant for punishing the press for the public’s
own good.

The case at hand concerned a news media challenge
to court secrecy imposed by U.S. District Judge
Garland Burrell in the criminal proceedings
against Theodore Kaczynski, who waged a campaign
of terror over a 17-year period; in 16 bombings,
three people were killed and 29 were injured.

More than a year after Kaczynski’s decision to
plead guilty to avoid a trial, the Ninth U.S.
Circuit Court of Appeals last Monday dismissed the
Unabomb Trial Media Coalition’s petition, ruling
that there was no need to determine whether Judge
Burrell’s secrecy orders were legal since the
circumstances were so unique that the press was
unlikely to encounter them again in the future.

Interestingly, this was a ‘per curiam’ opinion,
meaning it was not signed by a particular judge.
Noting how long it took the three-judge court
— consisting of Donald P. Lay, Alex Kozinski
and Thomas G. Nelson — to decide to declare
the case moot, Terry Francke, general counsel for
the California First Amendment Coalition,
commented: ‘The per curiam form of the opinion
suggests that the judges would have preferred to
have the whole matter go away rather than decide
the tough issues implicated in Judge Burrell’s

The media coalition — representing The
Associated Press, four newspapers and a number of
radio and television stations covering the
sensational trial — tried to put the best
face on the Ninth Circuit ruling, expressing
relief that the court didn’t seize the opportunity
to endorse or even broaden judges’ ability to
restrict public and press access to such

Here’s what Judge Burrell had done that the media
coalition wanted the appeals court to declare

  • He had ordered that the names of jurors and
    other identifying information about them not be
  • He had banned photographs, pictures or
    sketches of jurors ‘within the environs of the
  • He had sealed portions of the prosecution’s
    charge against Kaczynski.
  • He had declared Kaczynski’s amended notice
    about his mental status defense to be a part of
    the discovery process, therefore not accessible to
    the public or press.

Those are not minor matters. There was intense
public interest in the proceedings. The press
serves as the eyes and ears for the public in such
cases. Slamming the courtroom door on the press is
the same as shutting out the public. Moreover, it
rejects the notion that the more public the trial
the more trust in the outcome.

Clearly, the judges were not impressed by the fact
that Kaczynski is seeking a new trial, or the fact
that since the O.J. Simpson trials judges in
high-profile as well as not-so-high-profile cases
have been more inclined to ban cameras in their
courtrooms and to restrict other aspects of press
coverage. In fact, in the Ninth Circuit opinion
reveals an anti-press tone.

That tone troubled First Amendment attorney
Francke. He wrote in the past weekend’s CFAC
newsletter: ‘If substantial media interest in a
trial per se constitutes a menacing circumstance
warranting secret promises of anonymity to the
jury, for example, it is precisely in the most
closely watched cases that even the most
impeccable reporting will be stymied by secret
assurances, sealed motions and other pre-emptive
subtractions from the public record.’

Subtractions from the public record are an
inconvenience to the press, of course, but of
larger import they are a denial of the public’s
vital role in the delivery of justice.

Generally, courts shut off full access to criminal
proceedings only when three conditions are met: to
do so serves a compelling interest, it is probable
the compelling interest would be harmed, and there
are no alternatives to closure.

In order to reach this conclusion, the Ninth
Circuit Court asserted, ‘we are struck by the
acutely case-specific nature of the court’s
orders.’ The judges doubted that the press would
‘suffer these same injuries in the future.’ That
betrays an ignorance of what is happening again
and again in courtrooms across the nation as the
public and the press are regarded as pests or
worse with no real part to play in the
dispensation of justice.

Thus, judges across the nation are growing bolder
in denying the public full access to the
courtroom. Indeed, there are many constituencies
pushing for a more closed court system, including
prosecutors and defense attorneys, defendants, and

Further, there are judges who equate more secrecy
in the court with more order in the court. There
are jurors who want to perform their civic
responsibility in total anonymity and not have to
comment upon or explain their decisions. There are
citizens who blindly and blithely accept the
notion that it is the press, not them, being
penalized; thus, they become complicit in the
degradation of their own democratic role.

Yet the public and press roles in the judicial
system remain essential. The courts as an
institution are no more immune to arrogance,
incompetence, corruption, and error than the
press. The difference is that the press cannot
summon the awesome power of law enforcement,
cannot compel citizens to appear before it or
sentence people to prison or death.

That is why the framers of our Constitution
imposed on the courts the discipline of full
public scrutiny and the accountability it demands.
Without it, our judicial system could be set
dangerously adrift.

Too often, the rationale for restricting access to
some parts of the judicial process is that it will
prevent a high-profile trial from becoming a
‘media circus.’ Too much secrecy in the judiciary
is the greater threat. There is something worse
than a circus, and that is a Star Chamber.

A judicial system that closes in on itself, that
doesn’t trust the public or the press, invites the
prospect of high-profile trials that indeed are
circuses, where judges serve as ringmasters and
the press, at its worst, is no more than a
sideshow barker.

At its best, of course, the press instills in the
public the respect and confidence our independent
judiciary deserves. But the press can only perform
at its best when the courts grant maximum access
to records and proceedings.

Paul McMasters may be contacted at pmcmasters@freedomforum.org.