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From AJR,   October/November 2003  issue

Taming the Media Circus   

The judge in the Kobe Bryant case goes too far in imposing media restrictions.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

"What's in a name?" To Shakespeare, not much. But to Eagle County, Colorado, Judge Frederick Gannett, publishing the name of the accuser in the Kobe Bryant sexual-assault case could determine whether a news organization will be allowed to attend the court proceedings--or even be held in contempt of court.

On July 29, Gannett issued a "Decorum Order," which spells out restrictions on media conduct in and around the courthouse. Among other things, the order says the news media cannot obstruct the hallways, use cameras and cell phones, or interview people inside the Eagle County Justice Center. It also prohibits taking pictures of "the alleged victim and her family, witnesses, prospective jurors and jurors as they come and go from the Courthouse."

It was predictable that Gannett would attempt to short-circuit any possibility of a "media circus" in the Bryant case by imposing some restrictions on the press. And as attorneys for several news organizations acknowledged in their motion seeking clarification of the order, the judge has authority to implement reasonable procedures to keep things running smoothly, and to preserve Bryant's Sixth Amendment right to a fair trial.

But Gannett's order is too vague and ambiguous, the media contend, and would discourage journalists from engaging in lawful reporting activities. Would Bryant be considered a "witness," for example, which would prohibit any photographs of him walking into the Justice Center? And how could a photographer tell whether a person strolling the grounds is a "potential juror," or just an interested member of the public? The practical effect of the order, the media argue, would be to prohibit all newsgathering in the vicinity of the courthouse.

This kind of tug-of-war between news media and judge has played out over and over again in high-profile cases around the country, especially in the wake of the O.J. Simpson trial. Judges often issue initial orders governing media conduct that exceed what the Constitution allows them to do. When the media object, the judges usually listen to what the lawyers have to say, strike compromises, refine the orders, and a grudging truce is declared. Neither side gets everything it wants, but usually the media get enough leeway to do their jobs.

But Gannett's order went beyond the usual, with its terse threat that "any media or other person who broadcasts, publishes or otherwise disseminates the image or name of [the alleged victim] may be subject to exclusion from certain proceedings and/or other legal sanctions." Media lawyers immediately condemned this provision as unconstitutional, citing U.S. Supreme Court cases that forbid courts to impose sanctions on the press for publishing the name of a rape victim, as long as the name was obtained lawfully.

The press, and the public, have a First Amendment right to attend criminal proceedings, a right that can be curtailed only under very limited circumstances. The idea that a reporter could be barred from the courtroom, or punished in some other way, for publishing information that has already been widely disseminated on the Internet, talk radio and even, briefly, on the state court's official Web site, is clearly contrary to the opinions of the high court.

But there's a complicating factor. Most news organizations already "voluntarily" elect not to publish the identities of rape victims, as a matter of ethics or editorial policy. Why shouldn't a judge assume that it is no big deal to convert that ethical precept into a legal obligation?

It has happened before. In the early '80s, a Washington state judge refused to allow the press to attend a suppression hearing unless reporters agreed to abide by "voluntary" guidelines. The state Supreme Court upheld the order as reasonable, "particularly in view of the fact that the commitment is a moral one...and not enforceable in a court of law."

But the court missed the critical distinction. The fact that the media's commitment was a "moral," not a legal, one was precisely what made the judge's order unreasonable, and should have precluded the trial court from imposing it as a prerequisite to covering a hearing.

Yet judges continue to try. In 1989, the U.S. Supreme Court ruled that a Florida newspaper could not be held liable for publishing a rape victim's name obtained from a report in the press room of the sheriff's department. But Justice Byron White, in a dissenting opinion joined by Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor, wistfully observed, "It is not too much to ask the press...to respect simple standards of decency and refrain from publishing a victim's name, address and/or phone number."

Judge Gannett would probably agree. And he is free to "ask." But he cannot, consistent with the First Amendment, punish those who decline his request.