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American Journalism Review
Stifling Free Expression To "Protect" Jurors  | American Journalism Review
 AJR  Columns :    THE PRESS & THE LAW    
From AJR,   December 1992

Stifling Free Expression To "Protect" Jurors   

By Lyle Denniston

The myopia that sometimes causes judges to focus only on what is directly in front of them in court was on display recently in Harris County, Texas. Open discussion of important legal questions has suffered as a result.

State courts in Harris County have been trying some of the thousands of damage lawsuits filed nationwide by workers (or their survivors) claiming they were afflicted with lung disease by exposure to asbestos fibers. For many years asbestos was used widely in pipe and duct insulation; many juries have found that inhaling the fibers caused lung disease.

Some of the suits have been filed against a company headed by an outspoken executive who is determined to fight back outside of the courthouse while his lawyers battle inside. That executive is Glenn W. Bailey, chairman and president of Keene Corp.

Keene went out of the asbestos products business 20 years ago, but it is still contesting workers' legal claims. Bailey has become a prolific letter writer, speaker and author of opinion articles on the subject, and the company has placed aggressively worded ads in newspapers. He is determined to convey the message that Keene has been wronged by what he calls "the asbestos monster."

Bailey may be completely off-base in his complaints, but the First Amendment would seem to protect his right to air them. That apparently is not always so in Harris County.
Bailey's company got into trouble there early last March when District Judge Sharolyn Wood was trying a case against Keene. The jury was deliberating when Keene placed an ad in the Houston Chronicle, published in Harris County; it was one that had appeared frequently before, decrying the very expensive "punitive damages and legal fees" that the company has had to pay in asbestos verdicts.

Judge Wood was so incensed by what she considered jury tampering that she held Keene in contempt of court and fined it the maximum $500. "I see this as an absolute attack on the integrity of trial by jury and trials as we know them in this nation," she said. "I take it most seriously." Wood was silent on Keene's claims that the ad was protected by the First Amendment.

That ad in the Chronicle also influenced another judge presiding over a case against Keene: District Judge Tony Lindsay. At the request of lawyers for the workers in that case, and without looking into alternative ways of insulating the jury from potential outside influence, Lindsay barred Keene from advertising in Harris County newspapers about asbestos litigation before a verdict.

Keene protested, and the judge narrowed his order to ban "advertising regarding punitive damages and attorneys' fees in reference to asbestos litigation" until the verdict. Keene's appeals to higher courts failed including one to the U.S. Supreme Court, where only two of the nine justices expressed any interest in the constitutional dispute.
What is striking about the judges' orders is that judicial action against Keene was seen not as the last resort but as the first line of attack after the ads appeared. It is basic constitutional law, made clear repeatedly by the Supreme Court, that judges are obliged to try other measures to avoid jury influence before resorting to orders against public expression.

What is equally striking is how easily these two judges (and they are hardly unique in this) leaped to the conclusion that beyond-the-courthouse commentary inevitably meant inside-the-courtroom bias. There is little evidence that what is said outside of court influences jurors; no one has shown convincingly that it does.

And yet, judges who otherwise speak in grand praise of jurors will fret that the same jurors can't or won't keep their minds on the evidence should they hear or read anything else about the case. That attitude is the result of judicial myopia of the most acute kind.

Wood's contempt order and fine emerged from little if anything beyond an exaggerated fear for the "integrity" of the jury trial process. Her order might have been more convincing if she had displayed some proof to back up her anxiety.

Lindsay's order was even more the product of fear without foundation. The trial before him had not even begun; it was entirely within his power to say and do things to insulate the jurors if he feared their objectivity would be compromised. Instead, he went first for a classic "prior restraint" the kind of blame-in-advance control that the Supreme Court has repeatedly ruled unconstitutional.

Whatever one thinks of Keene Corp., or of Glenn Bailey and his published tirades, the publicity they generate over asbestos lawsuits is obviously a part of the national debate on product liability. Many jurors no doubt know someone who has sued, or talked about suing, over some injury traced to one product or another. But they know how to put that out of their minds, because most take their public service on the jury far more seriously than Judges Wood and Lindsay would think. And there's not a shred of proof that they can be bamboozled by Glenn Bailey. l



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