vol 1 issue 1 by Reynolds National Center for Courts and Media

Winter 2011

Reynolds Courts & Media Law Journal

donald w. reynolds national center for

COURTS&MEDIA

Reynolds Courts & Media Law Journal Volume 1, Issue 1 Winter 2011

Jerome Ceppos, Publisher Ben Holden, Editor Eric P. Robinson, Managing Editor Bonnie Scranton, Design Editor Zanny Marsh, Marketing Director

University of Nevada Prof. Nancy Rapoport; Ryan Ward Arizona State University Prof. Rick Rodriguez University of Missouri Prof. Charles N. Davis; Michael T. Martinez; David Wolfgang Washington and Lee University Prof. Toni Locy

Cover photo: Tim Johnson—Reuters/Corbis © 2011, Donald W. Reynolds Center for Courts and Media and the University of Nevada, Reno. All rights reserved. Material in publications of the Donald W. Reynolds Center for Courts and Media, including our web site, may be copied or downloaded for personal, noncommercial use only. Otherwise, this material may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of Donald W. Reynolds Center for Courts and Media, or, in the case of materials owned by third parties, the owner of that content. The opinions expressed in this publication are those of the author(s), and are not necessarily those of the University of Nevada, Reno; nor the Donald W. Reynolds Foundation.

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Affiliated Institutions University of Nevada Donald W. Reynolds School of Journalism, Reno William S. Boyd School of Law, Las Vegas National Judicial College Arizona State University Walter Cronkite School of Journalism and Mass Communication Conference of Court Public Information Officers University of Missouri University of Missouri School of Law Missouri School of Journalism

Board of Editors Hon. William Dressel, President, National Judicial College Stewart Cheifet, University of Nevada Charles Davis, University of Missouri Toni Locy, Washington and Lee University Nancy B. Rapoport, University of Nevada Rick Rodriguez, Arizona State University Christina Wells, University of Missouri

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Reynolds Courts & Media Law Journal Contents After Enron: Have Modern Media Wrecked Traditional Venue Law?

Power Failure: The Rise and Fall of Enron John R. Emshwiller �� Page 3 Out of Houston? The Venue Argument in the Skilling Case Walter H. Bush and Christopher B. Freeman �� 19

Who Was That Masked Man?

A Better Approach to “Unmasking” in Public Figure/Public Concern Libel Suits Ben Holden ��33

Summary Guide to the Courts and Media

A Basic Guide for Judges Eric P. Robinson ��49

Reynolds Courts & Media Law Journal

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(1906-1993)

Donald W. Reynolds

edia entrepreneur Donald Worthington Reynolds was born in 1906 and spent his childhood in Oklahoma City often “hawking” copies of the Oklahoma News at the railroad depot. He soon realized the newspaper business was in his blood, and set his sights on the University of Missouri’s School of Journalism, working at a meat packing plant to pay for his studies. Upon graduation in 1927, Mr. Reynolds worked in a variety of newspaper-oriented positions. He purchased and then sold his first newspaper, using the proceeds to launch the Donrey Media Group. During World War II, Mr. Reynolds served as the officer in charge of the Pacific and London editions of YANK. He received the Legion of Merit, Purple Heart and Bronze Star before being honorably discharged in 1945 as a major. After the war, Mr. Reynolds expanded his business, ultimately owning one of the nation’s largest privately held media companies. Upon Mr. Reynolds’ death in 1993, the Donrey Media Group was sold, resulting in a substantial bequest from the Reynolds estate to provide for the Donald W. Reynolds Foundation to continue his philanthropy, focusing on journalism; aging and quality of life; cardiovascular research; and general nonprofit programs in the states of Arkansas, Nevada and Oklahoma. These grants often include a capital component, reflecting Mr. Reynolds life-long passion for building. The Donald W. Reynolds National Center for Courts and Media and the Reynolds Courts & Media Law Journal are both funded by the Foundation.

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Donald W. Reynolds National Center for Courts and Media

he Donald W. Reynolds National Center for Courts and Media is a national center for research and scholarship on the interaction between the courts and the media, particularly the conflicts between free speech rights under the First Amendment and the fair trial rights of the Sixth Amendment. By providing a forum for debate and discussion of the inherent tension between an independent judiciary and the freedoms of speech and of the press, and Centerâ&#x20AC;&#x2122;s goals are to propose solutions to these inherent conflicts, and to help judges and journalists develop insight into their respective roles in safeguarding American democracy and freedom. The Center is funded by the Donald W. Reynolds Foundation. In its research, publications and programs, and through its affiliations with the National Judicial College and the Donald W. Reynolds School of Journalism at the University of Nevada, Reno, the Center works with a wide variety of individuals with roles in the courts and the media, as well as observers of their interactions. These include judges, court clerks, court information officers and current and future attorneys; current and future journalists, editors and other creators of media content; and academics, organizations and other observers concerned with these issues.

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By working with these various stakeholders, the Center hopes to give the judiciary a better understanding of and appreciation for the vital role played by the media in establishing an informed citizenry, while also allowing journalists and other content creators to better understand and appreciate the judiciaryâ&#x20AC;&#x2122;s ethical and legal obligations to ensure the fundamental fairness of court proceedings. More journalists also need to realize their First Amendment freedoms exist solely because judges interpret the Constitution to protect freedom of the press. And more judges need to realize that their independence rests on the publicâ&#x20AC;&#x2122;s confidence in the fundamental fairness and integrity of the judicial system; a trust that is directly dependent on the information the public receives from the media.

s part of this effort, the Center is pleased to announce the creation of the Reynolds Courts & Media Law Journal, which will publish legal and scholarly articles on the interaction of the courts and the media, and the impact and implications of this interaction. By helping to reduce the conflict between the independent judiciary and the free press, the Reynolds Center seeks to promote and reinforce both of these crucial pillars of our democratic society.

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National Advisory Council The National Advisory Council is the administrative oversight unit for the Center. It is composed of both the judiciary and the media, print and electronic. The Council sets the focus of the Center and establishes its policies. Floyd Abrams—Partner, Cahill Gordon & Reindel LLP, New York, N.Y. Hon. Janet Berry—Judge, District Court, Second Judicial District, Reno, Nev. Walter H. Bush—Shareholder, Carlton Fields, Atlanta, Ga. Dave Busiek—News Director, KCCI-TV, Des Moines, Iowa Jerry Ceppos—Dean, Reynolds School of Journalism, University of Nevada, Reno, Nev. Lucy A. Dalglish—Executive Director, Reporters’ Committee for Freedom of the Press, Arlington, Va. Linda C. Deutsch—Legal Affairs Reporter, The Associated Press, Los Angeles, Ca. Hon. William F. Dressel—President, The National Judicial College, Reno, Nev. Mark Hinueber—General Counsel, Stephens Media Group, Las Vegas, Nev. Hon. Richard A. Jones—Judge, U.S. District Court, Seattle, Wash. Warren L. Lerude—Professor, Reynolds School of Journalism, University of Nevada, Reno, Nev. Samuel S. Lionel—Shareholder, Lionel, Sawyer & Collins, Las Vegas, Nev. Karole Morgan-Prager—Vice President, General Counsel & Corporate Secretary, McClatchy Newspapers, Inc., Sacramento, Ca. Kelli L. Sager—Partner, Davis Wright Tremaine, LLP, Los Angeles, Ca. Alexander M. Sanders, Jr.—former Chief Judge, South Carolina Court of Appeals (retired), President Emeritus, College of Charleston, Charleston, S.C. David A. Sellers—Assistant Director of Public Affairs, Administrative Office of the U.S. Courts, Washington, D.C. Dave Tomlin—Legal Counsel, The Associated Press, New York, N.Y. Barbara Wall—VP & Associate General Counsel, Gannett Co. Inc., McClean, Va. Hon. Hiller B. Zobel—Judge, Boston, Mass. Superior Court Judge (retired)

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From The National Judicial College

he Reynolds Courts & Media Law Journal is an important step in the evolution of the Donald W. Reynolds National Center for Courts and Media, which began 10 years ago with a single conference held at the National Judicial College. Since that modest beginning, the Center became a recognized hub of thought and discussion about the relationship between the courts and the media. While this relationship is sometimes marked with disagreement, in the end the third and fourth estates, both bulwarks of our democracy, need to work and coexist together. The National Judicial College has been a partner with the Center in this effort since the beginning, and will continue to work with the Center to examine the myriad issues involving the judiciary and the media. The NJC invites judges, lawyers and journalists to use the Journal as a resource addressing the evolving relationship between the courts and media, and as a forum for discussing these important issues. William Dressel

From The Reynolds School of Journalism

or ten years, the National Judicial College and the Reynolds School of Journalism at the University of Nevada, Reno have been partners in the development of the Donald W. Reynolds National Center for Courts and Media, and its analysis and study of the interaction between the media and the courts. Bill Dressel and I are pleased to continue the partnership that gave birth to the National Center for Courts and Media by unveiling this journal, which will bring this continuing discussion to a higher level of recognition and scholarship. The related conferences that will be held in cities around the country also will bring these issues to the fore in the communities and courthouses where judges, lawyers and journalists confront them daily. In my 36 years in journalism, I was fortunate to work for companies that proudly spent millions of dollars to safeguard the rights of the press and the public in their dealings with Americaâ&#x20AC;&#x2122;s courts, even if that meant litigation. Todayâ&#x20AC;&#x2122;s economic problems limit those expenditures. But the continued work of the National Center for Courts and Media will allow journalists, lawyers and court officials to discuss and resolve these issues in a more amicable, productive manner and facilitate new cooperation between these two important institutions of our democracy. Jerome Ceppos

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Letter From the Director

he Donald W. Reynolds National Center for Courts and Media is changing. Launched in 2001, the Center’s mission was and remains to manage conflicts between the right to a free press and the right to a fair trial. At the outset, the Center focused on two big events: a national conference and a news reporter training session on covering the courts. Our new approach is to regionalize the national conference—taking the show on the road, so to speak—and to capture and explore some of the day’s cutting-edge legal issues in a scholarly law journal. That is, without the benefit of a campus law school. When we began planning the Journal, some folks said we were nuts. Some still do. But with our partners—the law schools at the University of Nevada, Las Vegas and the University of Missouri-Columbia—it has been a labor of love. We have journalism affiliates in former USA Today legal reporter Tony Loci from Washington & Lee University, as well as former Sacramento Bee executive editor Rick Rodriguez, now a professor at Arizona State University’s Cronkite School of Journalism. Authors Walter H. Bush (also a Center board member) and John R. Emshwiller did a stellar job under completely unreasonable deadline pressure. And I want to extend a special thanks to managing editor Eric Robinson, without whom this Journal would never have been remotely possible. Finally, I am personally grateful to the Donald W. Reynolds Foundation and J-School Dean Jerry Ceppos, who believed in this new vision from the start. Ben Holden

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Volume 1, Issue 1

After Enron

Preface

After Enron: Have Modern Media Wrecked Traditional Venue Law?

n colonial america, a “jury of one’s peers” was just that: a criminal defendant and the jurors who determined his fate were from the same community, and often knew one another before their encounter in court. Now, lawyers on both sides of a criminal prosecution usually try to weed out potential jurors who knew the defendant(s) prior to trial, in order to minimize the chance of juror bias. But even though most of our communities—and jury pools— are much larger than they were historically, there are still individual criminal defendants whose fame—in some cases, notoriety—pervades a community. Such was the case with Jeffrey Skilling and the other principals of Enron, the energy trading company that failed spectacularly in November 2001: the largest corporate bankruptcy in American history until that time. In Houston, where the company was based, Enron’s disintegration had repercussions beyond the company’s downtown headquarters. Many of Enron’s 19,000 employees were suddenly unemployed, including 4,000 headquarters employees who were given 30 minutes to clean out their desks. And their retirement plans, heavily invested in Enron stock, lost virtually all their value. Enron was also a major local philanthropist: including being the largest contributor to the local United Way, the company also funded professorships at local universities, and donated to a variety of Houston arts and cultural groups and institutions. In 1999, the company purchased the rights to name the Houston Astros stadium. All this came crashing down with Enron’s Reynolds Courts & Media Law Journal

demise, and had huge repercussions for the community and residents of Houston. Yet the federal trial judge presiding over the criminal case against former Enron president Jeffrey Skilling, Enron founder Kenneth Lay, and Richard Causey, Enron’s chief accounting officer, denied their motion for a change of venue in light of extensive pre-trial publicity, holding that “isolated incidents of intemperate commentary about the alleged crimes and their perpetrators do not rise to the level of ‘inflammatory’ where, as here, for the most part, the reporting appears to have been objective and unemotional.” On this point, both the Fifth Circuit Court of Appeals and the U.S. Supreme Court affirmed. The following two articles examine the Skilling prosecution, focusing on the question of whether the extensive coverage of the demise of Enron and the subsequent prosecutions should have led the court to grant a venue change in Skilling’s case. The Enron prosecutions came as courts began having to deal with new forms of

After Enron social, interactive media—including text messaging, Facebook, Twitter—which are increasingly ubiquitous amongst jurors. The rise of these new forms of media present judges with new challenges in managing juries and courtrooms. In the Skilling case, the court applied the standards it announced in cases from the mid-1960s: Rideau v. Louisiana, 373 U.S. 723 (1963), Estes v. Texas, 381 U.S. 532 (1965), and Sheppard v. Maxwell, 384 U.S. 333 (1966). In each of these cases, the

court had found that intense media coverage of trial proceedings—to the point of disruption in the courtroom—created a presumption of juror bias. By its timing, the court’s ruling in Skilling is likely to be the roadmap that lower courts will follow in dealing with new interactive, social technologies. So it is important to understand the unique facts and context of the Skilling prosecution, and the legal implications of media coverage of the case.

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Power Failure

Power Failure: The Rise and Fall of Enron By John R. Emshwiller

n January 30, 2006, Kenneth Lee Lay and Jeffrey Keith Skilling, the former top executives of Enron Corp., strode into the federal courthouse in Houston, a squat rectangle of a building amidst the city’s skyscrapers, for what would be one of the most important days of their lives. Inside, they would encounter dozens of strangers, average citizens drawn from the nation’s fourth largest city. Twelve of those people would decide whether Lay and Skilling would remain free men or perhaps spend the rest of their lives in a federal prison.* Each man had donned a gray suit, a serious outfit for a serious occasion. Skilling accented his with a white shirt and blueand-green-striped tie, while Lay opted for a blue shirt and red-print tie. Each had a table full of attorneys with them. Leading the Lay team was Mike Ramsey, a veteran and well-regarded Houston criminal defense lawyer. At the head of Skilling’s team was Daniel Petrocelli, a partner at the Los Angeles-based law firm of O’Melveny & Myers LLP, whose biggest claim to fame was winning the wrongful death lawsuit against O.J. Simpson in connection with the murders of Nicole Simpson and Ronald Goldman. This would be Petrocelli’s first criminal trial. He had already declared the trial of Skilling and Lay to be “probably the *

most important case in business history.” The press—and a horde from around the country had descended on Houston, some getting in line outside the courthouse before daybreak to assure themselves a seat inside —were also labeling the upcoming proceedings as one of the biggest corporate criminal trials ever. And why not? Enron Corp., not yet a half decade past its swift and spectacular collapse into bankruptcy in the fall of 2001, had already assumed a special niche in the annals of business scandals, right up there with the Teapot Dome scandal and Charlie Ponzi’s scheme which gave a name to such swindles. In the years since its collapse, Enron’s name had appeared in over 336,000 news stories, with almost all of the references having to do with scandal, shame and infamy. Enron had become a new yardstick by which other business scandals were measured. Enron’s December 2001 bankruptcy filing had been the biggest in American business history (though WorldCom later claimed that distinction). Sifting through the complexities of Enron’s remains in bankruptcy produced over $1 billion in fees for lawyers and experts. The company’s fall had sparked what was probably the largest federal criminal investigation ever of one company. At its height, the Justice

The details of the trial of Lay and Skilling in this article, and of the backgrounds of the defendants and the case, are based on the author’s coverage of the case for The Wall Street Journal.

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Power Failure Department’s specially formed Enron Task Force had a dozen lawyers and twice that many investigators. Some 30 people, from former senior Enron executives to Wall Street bankers, had been charged with felonies. Nearly half had pleaded guilty. But on this January morning in Houston, with the mugginess of south Texas still lurking a few weeks away for a trial that promised to go on for months, all the media blizzard and investigative muscle were coming to a climax. The two men most responsible for building Enron into the titan it became—and who were also the prime targets of the massive federal criminal probe—were finally being brought before a jury of their peers on charges of conspiracy and fraud and, in Skilling’s case, insider trading. The impartiality, or possible lack thereof, of any jury in the case had been a matter of loudly voiced concern by the defense teams for both Lay and Skilling. Enron’s collapse had cost thousands of jobs in Houston, the company’s headquarters. Many of those people, as well as others in the city, had lost large chunks of their personal wealth, which had been tied up in Enron stock that plummeted from over $70 a share at the company’s height to zero after its fall. The defense had asked that the trial be moved to another city, such as Denver or Atlanta, on the grounds that an impartial jury couldn’t be found in Houston, given all that had happened in the city as a result of Enron’s fall. Government prosecutors opposed the move, arguing that among the several million people living in Houston and its environs, twelve open-minded men and women could surely be found. Sim Lake, the federal judge presiding over the case, agreed and turned down the defense’s change of venue motion. He ordered detailed questionnaires be sent to hundreds of prospective jurors to try to weed out anyone with pre-existing biases against the two defendants. Judge Lake also made it clear that he planned to try to pick the entire jury in one day, January 30. Opening arguments were planned for the next day.

As the various players in the nation’s latest “Trial of the Century” took their places on that opening day, it was all too easy to forget that not so many years earlier Enron had been viewed as one of the shining success stories of late 20th century American capitalism, a bricks-and-mortar giant that had brilliantly—and profitably— made the transition to the 21st century world of doing business in cyberspace.

The Birth of a Giant

hile Enron in its heyday could be mentioned in the same breath as corporate titans ranging from General Electric to General Motors, it was in fact a relatively young company. It had been born in 1985 out of the merger of two large but relatively unknown natural gas pipeline companies. With the help of a high-priced consulting firm, the new company came up with what it thought was a jazzy new name: Enteron Corp. However, some people quickly pointed out that “enteron” was actually a word used to describe the human digestive system, leading one early shareholder to crack, “we’re trying to figure out which end of the enteron we are.” Company officials quickly ditched Enteron and replaced it with Enron. The board of the new company did better selecting a chief executive. Lay had been the head of one of the two merged pipeline companies and had been told that if he stayed with Enron, he’d be in line to become chief executive within two years. But within four months, directors were so impressed with Lay that they asked him to become chairman and chief executive. He was, a board member would later say, “the strongest man around.” The strength at least partly grew from a hardscrabble youth anchored in faith and family. Born in 1942 in the tiny town of Tyrone, Mo., Lay, with his parents and two sisters, had grown up poor. After the family feed store failed, Lay’s father, Omer Lay, worked at various sales jobs, with money so tight for a time that the family had to Volume 1, Issue 1

Power Failure live with relatives. The family was deeply religious and Omer, who’d served as a lay preacher along with his day jobs, was eventually hired as a regular minister for two Southern Baptist congregations. Lay worked from the time he was a boy, plowing fields or hauling hay for 25 cents an hour. From early on, he was joiner, active in the affairs around him. At Hickman High School, he’d been president of the madrigal singers, winner of an American history award, an honors student, a member of the track team and chairman of the homecoming festivities. At the University of Missouri he was president of a fraternity, Beta Theta Pi, that so prided itself on academic achievement that members were required to study five hours a day, though only three on Sunday. He was always able to impress older powerful men, both in his early business career and during a stint in the Navy working at the Pentagon during the Vietnam War. Such connections helped him rise swiftly and surely. One such connection led to a job at the Federal Power Commission where Lay, who eventually earned a doctorate in economics, began to learn about the nation’s natural gas system and form his beliefs in the need to deregulate energy markets: beliefs that would prove fundamental to the shaping of Enron. After a stint as an energy undersecretary in the Nixon Administration, Lay migrated back to the business world, where he ascended through the executive ranks at various companies. Along the way, he divorced his first wife, with whom he’d had two children, and married his secretary. Linda Lay became his lifelong companion and biggest booster. The feeling was mutual. At an annual meeting of Enron shareholders, Lay once referred to Linda as the company’s “chief inspiration officer.” She jealously guarded his welfare, once dressing down an Enron official for failing to include dinner for her husband during a flight on the Enron corporate jet. She also frequently e-mailed inspirational Bible verses to her husband. Reynolds Courts & Media Law Journal

As he took the reins at Enron, Lay faced some immediate challenges, such as paying down the large amount of debt that the merged company was carrying. Those problems produced a couple of money-losing years for Enron. But by end of the 1980s, the company seemed to have turned the corner and Lay looked, rightly as it turned out, to the coming decade as one of enormous opportunity for Enron. The state and federal governments had begun decontrolling the market for natural gas in the 1980s, allowing prices to fluctuate and buyers to shop around. They made a similar decontrol move in electricity in the early 1990s. Such efforts shook up the energy markets, upsetting some of the traditional big corporate players in the energy world. But Lay looked at deregulation as both good for consumers—holding the promise of cheaper, more abundant energy—and potentially an enormous business opportunity for Enron. He had a well-regarded executive, Rich Kinder, as the company’s president. Kinder oversaw day-to-day operations while Lay focused more on helping to shape national energy policy, which he viewed as crucial to Enron’s future success. He supported and befriended numerous politicians, mostly notably two men with Texas connections who each spent time living at 1600 Pennsylvania Ave.: George Herbert Walker Bush and his son George W. Bush. Though the first President Bush was particularly close to Lay, the second President Bush knew him well enough to sometimes refer to him by the nickname “Kenny Boy.” In 1990, Enron had a new hire who would, even more than Lay, be associated with building the company into a colossus. More than ten years younger than Lay, Jeff Skilling had been born in Pittsburgh but grew up in Aurora, Ill., the second oldest of four children: three boys and a girl. Compared with Lay, Skilling had a relatively affluent, middle-class childhood, where he showed an early aptitude for gadgets. As a teenager he worked at a local cable television station, and in his spare time wired his

Power Failure family’s speakers to create a control room in the basement where he and his siblings would take turns pretending to be DJs. His older brother Tom grew up to be a wellknown TV weatherman in Chicago. Skilling got his first major taste of Texas as an undergraduate at Southern Methodist University. He moved on to Harvard Business School. There, he found his calling, dazzling professors and fellow students. He graduated a Baker scholar, a distinction given to the top five percent of the class. His success at, arguably, America’s most prestigious university helped land him a job at, arguably, America’s most prestigious business consulting firm, McKinsey & Co. Founded in 1926, McKinsey’s client list included hundreds of the world’s biggest companies, sovereign governments and heads of state, even the Vatican. It had dispensed advice on matters ranging from the reorganization of American railroads to the introduction of supermarket bar coding. McKinsey had been doing work for Enron since shortly after its 1985 formation. Skilling rocketed upward at the firm, becoming one of the youngest directors in McKinsey’s history and head of its energy practice. His work on new financing approaches for the natural gas market attracted Enron’s attention. He moved to Enron to head a unit to help finance gas producers. Over time, he built a huge and very profitable gas-trading business, which then branched out into trading other commodities, such as electricity, over the Internet. As this trading operation grew into the profit-making heart of Enron, Skilling steadily moved up the corporate ladder, seemingly headed for the top. Of course, like every aspiring executive at a major corporation, Skilling faced competition. Enron had no shortage of Type A personalities. A company official once bragged that the saying around Enron was, “If you are not on the edge, you are taking up too much room.” Skilling’s main competition was another Harvard M.B.A., Rebecca Mark. Like Skill-

ing, Mark had become a favorite of Lay, and by 1996 was heading Enron’s international operation, which had power projects stretching from Brazil to India. But, ultimately, the money machine that the trading operation had become under Skilling won out. In 1997, he was named Enron’s president, chief operating officer and de facto heir apparent to Lay. Along the way, Skilling collected his own coterie of followers—known to some within Enron as the “billionaire boys”—whom he brought along with him as he rose. Many, like their boss, exhibited a certain brashness and arrogance. Skilling would take his favorites on what became known within the company as “mighty men” adventure trips, such as racing motorcycles down the Baja peninsula or tearing around in Land Rovers through the Australian outback, blowing out tires and munching on grub worms with the Aborigines. One member of Skilling’s team would have a particularly large impact on the history of Enron. Andrew Fastow came from the banking business to Enron in 1990, as one of Skilling’s first hires. Born in 1961 in Washington, D.C., one of the three children, he grew up in various east coast suburbs as his father worked as a buyer for supermarket and department store chains. While an undergraduate at Tufts University, he met his future wife, Lea Weingarten, who was the member of a prominent Houston business family. Fastow had gotten an M.B.A. from Northwestern University and was hired by Skilling for his ability in helping put together financing deals. After Skilling became Enron’s president, Fastow was promoted to chief financial officer. While they were the two men most associated with Enron, Skilling and Lay were very different types in a number of ways. Perhaps because of the poverty he experienced growing up, Lay had come to love the finer, and more expensive things, in life: eating four-star dinners, drinking vintage wines and flying on the corporate jet. He and Linda lived in a spectacular Volume 1, Issue 1

Power Failure condo that filled an entire floor near the top of the Huntingdon, Houston’s most exclusive residential tower. He owned homes in Aspen and Galveston, the beach community where Houstonians went to get away for summer weekends. Lay easily mixed with the business and political elites and was so involved in local civic affairs that he came to be known as “Mr. Houston.” After George W. Bush was elected president in 2000, many believed that Lay would eventually retire from Enron and go to a top government job, perhaps a cabinet post. Skilling, by contrast, had little interest in the trappings of wealth and power. While Lay sipped Evian water from cut crystal and had his coffee served on special blueand-gold Noritake china, Skilling drank Diet Cokes from a Styrofoam cup. For him, riding the corporate jet was simply a way to get from point A to point B. His professed favorite lunch spot was Arby’s. He had little interest in politics or socializing. Indeed his only real interest besides his three children seemed to be building Enron into an ever bigger, better and more powerful company. While many viewed him as arrogant, Skilling could at times be strangely vulnerable and moody. He would have down periods and sometimes strange ideas. In the mid-1990s, while heading Enron’s by then huge trading operation, he came up with a bizarre-sounding plan to head the unit just half of each month and have another executive take over for the other half. That Lay seriously considered the idea was testament to how much he wanted to accommodate his star executive and how, even then, Enron was willing to look at chucking the normal rules of corporate behavior: a trait that would become much more prominent in the years ahead. Eventually, Skilling decided to chuck the part-time idea. Skilling struck some as aloof, though others believed he was just shy. A half-pack a day smoker, he rarely joined others outside Enron headquarters—a non-smoking building—to light up. Instead, he and his buddy Cliff Baxter, another Enron execuReynolds Courts & Media Law Journal

tive, would go to a nearby parking lot, one not routinely used by company employees. Or Skilling would get in his car and drive around the block while having a smoke before heading back to the office. Skilling did make efforts to humanize himself for Enron employees. At one point, the public relations department sent employees a list of 20 questions put to Jeff Skilling with answers supplied by him. There were some unusual replies. Asked what he would do if he weren’t working at Enron, Skilling said: “Fly DC-3s for the CIA in Africa.” Who would he most like to meet? “Nelson Mandela or Johnny Carson.” His favorite fictional character? “Yosemite Sam.”

Skilling collected his own coterie of followers—known to some within Enron as the “billionaire boys.” In December 2000, Lay announced plans to turn the chief executive’s job over to the then 47-year-old Skilling, effective Feb. 1, 2001. Lay would retain the chairman’s position. While Lay, at the time 58, said he had no plans to join the just-elected Bush Administration, many observers believed the announcement was the first step for Lay to eventually head to Washington. “The best time for succession is when the successor is ready and when the company is well positioned for the future,” Lay said in Enron’s press release announcing Skilling’s promotion. “Jeff is a big part of Enron’s success and is clearly ready to lead the company.” At the time, Enron was riding high. In 2000, its revenues reached $100 billion annually, making it by that measure the seventh largest company in America. While much of that revenue came from trading natural gas and energy—which produces revenue far more quickly than manufacturing and selling, say, automobiles—it was nonetheless an impressive number. As 2001

Power Failure moved along, the company was on track to hit $200 billion in revenue, a remarkable growth rate for a company that size. Fortune magazine had named it America’s “most innovative company” for six years in a row. The company had helped bring about major changes in the way natural gas and electricity was bought and sold around the country. In April 2001, barely two months into Skilling’s term as chief executive, Worth magazine gave him the number two spot on its list of America’s 50 best chief executives. The only person ahead of Skilling was Microsoft’s Steve Ballmer.

Enron’s Power Failure

y early 2001, Enron was attracting lots of press attention, though not for the issues that all too soon would become inextricably linked with its name. Instead, reporters were wrestling with the question of whether Enron, with its friends newly ensconced in Washington, was in a position to dominate and perhaps even dictate national energy policy. The California electricity crisis only added to Enron’s image of power. The nation’s most populated state had partially deregulated its electricity market and by 2001 that effort had produced a gigantic mess. Electricity shortages had produced rolling blackouts in parts of the state. Wholesale electricity prices had skyrocketed, eventually causing the state’s biggest utility, Pacific Gas & Electric, to file for bankruptcy protection. Californians, along with many others around the country, were up in arms, angry and frightened that things could go so wrong so quickly in connection 1. 2. 3. 4.

with one of the modern world’s most vital products, electricity. A good deal of the anger in California was directed at big energy-trading companies, whom critics argued were manipulating electricity supplies and prices in order to make huge windfall profits. The biggest such energy trader, and the one attracting much of the anger, was Enron. On a visit to San Francisco for a speech, Skilling was pelted on the side of the head with a blueberry pie by one angry citizen. Publicly, Skilling took the incident good-naturedly. “Tell her she’s got a good arm,” he told reporters.1 Privately, however, Skilling and his three children were shaken by the incident, one Enron insider later said. Such was the rancor in the Golden State that Lay stopped traveling there for a time. Perhaps not a bad idea given a remark made by then California Attorney General Bill Lockyer to The Wall Street Journal concerning his office’s criminal investigation into the electricity crisis. “I’d love to personally escort Lay to an eight-by-ten cell that he could share with a tattooed dude who says ‘Hi, my name is Spike, honey.’” 2 The remark left Enron’s normally voluble chief spokesman, Mark Palmer, temporarily grasping for a response when asked for comment. Ultimately, he said Lockyer’s remark “is so counterproductive it doesn’t merit a response.”3 Skilling apparently disagreed. In a speech to an energy industry gathering in Las Vegas shortly after the Lockyer remark, Skilling said: “You know what the difference is between the state of California and the Titanic? … At least when the Titanic went down, the lights were on.”4 Nor did Skilling

Rebecca Smith and John R. Emshwiller. 24 Days: How Two Wall Street Journal Reporters Uncovered the Lies that Destroyed Faith in Corporate America (2004), at 16. See John R. Emshwiller, California Blame Games Yields No Score: Probes Reveal Little Evidence Suppliers Acted Illegally, Wall Street J., May 22, 2001, AZ. Id. Kurt Eichenwald with Diana B. Henriques, Enron’s Many Strands: The Company Unravels; Enron Buffed Image to a Shine Even as It Rotted From Within, N.Y. Times, Feb. 10, 2002, http://www.nytimes.com/2002/02/10/business/enron-s-many-strands-company-unravels-enronbuffed-image-shine-even-it-rotted.html Volume 1, Issue 1

Power Failure save his barbs for just states. Early in his tenure as CEO, Skilling, during a conference call with stock analysts, referred to one particularly nettlesome questioner as an “asshole.” Such remarks didn’t do anything to soften Skilling’s public image. Beneath the public controversies, Enron, for all its triumphs, was also experiencing some internal problems. While the energy trading business was a massive profit machine, several foreign projects had turned into big, costly headaches, including a big power plant Enron had built in India. The company’s broadband unit, aimed at supplying high-speed Internet service to users, was also turning into a costly sinkhole as the market for such services became glutted and prices plunged. Plus, while the California electricity crisis had produced some big short-term profits for energy traders, it had dampened the prospects for wider deregulation of energy markets around the U.S. And there was no bigger advocate—and potential beneficiary—of energy deregulation in the corporate world than Enron. Still, none of these headaches prepared anyone for an announcement of August 14, 2001 that would shake Enron and, in a sense, mark the beginning of the end for the company: after just six months in the CEO job, Skilling was resigning from Enron. Lay would re-assume the chief executive’s position, while remaining as chairman. The announcement said Skilling was leaving for personal reasons. During a conference call with reporters, analysts and investors that day, Skilling reiterated he was leaving “solely for personal and family reasons” and added that “I’d just as soon keep those private.” He also said: “I can’t stress enough that this has nothing to do with Enron.” For his part, Lay told the conference call that while he regretted Skilling’s decision, “I certainly respect his reasons,” which he also didn’t go into. However, Lay added, “I can honestly say that I have never felt better about the company.” Reynolds Courts & Media Law Journal

Business reporters around the country wrote their first-day stories of the Skilling resignation, which didn’t necessarily mean they were satisfied with the explanation they had received. While “personal reasons” can be a powerful force, so too can the drive and ambition that makes someone spend years, often at the expense of family relations and friendships, to get to the top of a giant corporation. And here was Skilling throwing all that hard work and success away only six months after gaining the prize that could have been his to hold for a decade or more. While Skilling had at times seemed as ambivalent as he was ambitious—he was, after all, the man who contemplated being an Enron executive only every other week—his sudden departure just didn’t make sense to many observers.

Delving In

he change of CEO at a company as large and important as Enron was big news for The Wall Street Journal as the nation’s premier business newspaper. After the hurried first-day story, the editors wanted a follow-up piece that would, hopefully, give a fuller exploration of Skilling’s decision to leave. As a Journal reporter in Los Angeles, the bureau that covered Enron, I was given that story assignment since the person that regularly covered the company, Rebecca Smith, was away on vacation. My main task was to try to get a one-on-one phone interview with Skilling to see if he’d give more of an explanation about his departure decision. Though I’d helped Rebecca cover the California electricity crisis, I knew little about the inner workings of Enron. After putting in a request with Enron to interview Skilling, I went to an online database to pull up the company’s most recent public filing with the Securities and Exchange Commission. As it happened, the previous day Enron had filed its financial report for the second quarter, which ended June 30. Not having much time, I fell back on

Power Failure habits I’d learned long ago from other Wall Street Journal reporters on how to quickly read an SEC filing. It involved focusing on certain key sections that held the highest chance of having some newsworthy information. One such section contained so-called “related-party transactions.” These are deals that involve a senior person in the company, such as an executive or director, having some outside business relationship with the firm. Such dealings could involve an outside director who heads a

As I read the related-party section of the Enron report, I felt a kick of adrenaline. I’d never seen a disclosure quite like it before. firm that has a supply contract with the company. Or they could involve some relative of the chief executive getting a consulting contract or a job with the company. The SEC required the reporting of related-party transactions because they represented a potential conflict where the official might put his or her economic interest ahead of the company and its shareholders. While such dealings were usually small potatoes in terms of dollars, they were often embarrassing to those involved, and frequently newsworthy. As I read the related-party section of the Enron report, I felt a kick of adrenaline. I’d never seen a disclosure quite like it before. An unnamed “senior officer” had run and partly owned some partnerships that appeared to be doing vast amounts of business with Enron. The disclosure itself was complex and nearly indecipherable, throwing off phrases such as “share settled costless collar arrangements,” “combined notional value” and the “contingent nature of existing restricted forward contracts.” Though it was impossible to know exactly what impact these partnership dealings had on

Enron, the potential impact seemed large. The transactions being discussed involved hundreds of millions of dollars. I immediately wondered whether Skilling could be that unnamed senior officer and whether these partnerships had something to do with his departure from Enron. I immediately called Palmer, Enron’s chief spokesman, and asked if Skilling had been the unnamed executive. No, he replied, it was Andy Fastow. Who, I asked, was Andy Fastow? Enron’s chief financial officer, Palmer replied evenly. He added that the partnerships were quite mundane and not newsworthy, had been around for two years and dutifully reported on in Enron’s SEC filings. They’d been set up to help the company hedge against “market risks” from the fluctuating values of its giant investment portfolio, he said. Hanging up, I didn’t quite buy Palmer’s assurances. Having outside partnerships, headed and partly owned by a top official, doing giant amounts of business with the company seemed quite unusual and like a major conflict of interest, at least potentially. Still, I couldn’t help feeling a pang of disappointment upon hearing that the executive hadn’t been Skilling. A potentially quick and easy scoop had just evaporated. However, I didn’t have much time to contemplate the matter. A few minutes later, Skilling—still ever willing to talk with the press—called. That interview turned into one of the strangest I’d ever conducted. It started out normally enough, with Skilling reiterating that he’d resigned strictly for personal and family reasons, which he still declined to go into. But then we began talking about the fall in Enron’s stock price. The bull market of the late 1990s, fueled by the near mania over Internet stocks, had crested in March of 2000 and now, nearly 18 months later, Enron’s share price, like that of hundreds of other major companies, had fallen sharply. Enron’s stock had gone from a high of over $70 a share to about $40. As Skilling talked about the stock price, Volume 1, Issue 1

Power Failure his voice became much more subdued as if he was almost talking to himself. He talked about how much it bothered him to see the stock price fall, particularly since so many employees he saw every day at Enron headquarters had such large parts of their personal wealth in company shares. His demeanor changed markedly. I finally asked if he thought he would have stayed at Enron had the stock price not fallen. There was a silence on the other end of the line, for what seemed like a long time. Then Skilling replied in a small, almost boyish voice, “I guess so.” Well, I thought as the interview ended soon after, that explanation certainly sounds different than Enron’s official position that Skilling had resigned for purely personal reasons. His statements about the stock price became the lead for the Journal’s next day story about the resignation. It was only after I hung up with Skilling that I recalled that I had forgotten to ask him about those suspicious-looking Fastow partnerships.

Enron Falls

o this day, I still wonder about the meaning of that interview. As the world subsequently learned, Enron’s stock price played a key role in transactions set up through the Fastow partnerships, transactions done to help mask hundreds of millions of dollars of losses the company had suffered on various investments in the U.S. and overseas. As Enron’s stock price fell, those transactions came under increasing pressure, pushing the company ever closer to having to report the losses. Did the increasingly shaky nature of those transactions play a role in Skilling’s sudden resignation? Did he, as some suspect, see the end coming and decide to bail? Or did Skilling—always a reluctant CEO, a man who liked building businesses more than running them—simply see the falling stock price as something more personal, a sign that investors liked Lay better than they liked him? Some of Skilling’s supporters later argued that Skilling took the Reynolds Courts & Media Law Journal

falling stock price in that very personal vein and that it, along with real family issues, pushed him to resign. Skilling, long after his resignation, continued to insist that he had no qualms about Enron’s financial strength when he departed the company. I didn’t mention the Fastow partnerships in the story about the Skilling interview. But they stuck in my mind. Rebecca Smith and I mentioned them a short time later in a story about Lay resuming the chief executive’s job. That mention produced a call from a source. This person contended there were far deeper and darker things than we knew connected to the partnerships, known as LJM-1 and LJM-2, the names derived from combining the first letters of the first names of Fastow’s wife and two children. This person gave us an initial road map that helped us begin digging into a part of Enron that up to then had largely been hidden from public view. Beginning in mid-October 2001, the Journal published a series of stories about the LJM partnerships and some related dealings. Lay, Skilling and other senior Enron officials would later blame those stories for sparking Enron’s sudden collapse. Whatever the truth of that assertion, Enron’s stock price fell dramatically after the stories started running, as doubts about the company’s financial strength rose among investors and others. Fastow was pushed out, a mere day after Lay had given him a public vote of confidence. Other companies doing business with Enron’s giant energy trading operation—its financial heart—began demanding more and more cash and collateral as security to do deals. Though the company drew down all of its credit lines—billions of dollars worth—it began experiencing a severe cash crisis. Ultimately, its only option was to file for bankruptcy protection. Enron’s collapse marked the beginning of a spate of corporate scandals, including ones at WorldCom, HealthSouth and Tyco International. Collectively, the scandals helped push through major reforms,

Power Failure including the Sarbanes-Oxley Act,5 which President Bush signed into law on July 30, 2002. Among other things, the law made corporate CEOs more directly responsible for the accuracy of company SEC filings, with potential criminal penalties for failing to do so. The SEC, the nation’s chief securities cop, was promised vastly beefedup funding and staff. Prison sentences for white-collar crimes were ratcheted up to the point that a senior executive convicted of fraud at a major public company could potentially face life in a federal prison for a first offense.

The Story Lives On

ut amidst the wave of corporate scandals, Enron stood out in the minds of the public and the press. Perhaps it was because of the company’s size, success and audaciousness. Perhaps it was because of Lay’s ties to the top levels of American government. Perhaps it was the extra kick added when, on the same day in January 2002, two pieces of news surfaced. One came when Arthur Andersen, Enron’s outside auditor, disclosed it had destroyed large amounts of company-related documents just as federal investigators were beginning to look at the energy giant. The other came when the Bush White House said Enron emissaries had approached the administration prior to the bankruptcy in a failed effort to get the government to prop up the failing company. The twin demons of document destruction and possible White House intervention raised the specter of a second Watergate-like scandal, and pushed the press coverage of Enron to a new level 5. 6. 7. 8. 9.

of frenzy. Andersen officials insisted that the document destruction had been part of its routine document management practices. And the Bush Administration noted that the pleas for help had been turned down. But neither of those statements did anything to dampen the fury. On some days, major newspapers, such as the Journal and The New York Times, were running as many as a dozen stories about Enron. The Houston Chronicle, that city’s major newspaper, along with local TV and radio stations, did hundreds of stories on Enron’s collapse. And from court filings, it appeared that members of Skillng and Lay’s defense teams read, watched or listened to pretty much all of them. One Skilling court filing recounted how the Chronicle “featured scores of emotional stories on employees who ‘lost nearly everything.’ There were heart-wrenching profiles of those affected (‘The Faces of Enron’); updates on their plight long after the fact; poignant photographs; and touching letters written by victims themselves (“I [am] now faced with selling the house, the car, and the dog just to survive”).”6 The paper’s website, said another Skilling filing, devoted “thousands of web pages to the ‘minutiae hungry’ coverage of this case and incendiary calls” for indictments and convictions.7 One newspaper column, headlined “Your Tar and Feathers Ready? Mine Are” called for a “witch hunt,” said one of the court filings.8 Various letters and postings and quotes from citizens compared Skilling and Lay to Al Qaeda, Hitler, Satan, “child molesters, rapists, embezzlers, [and] terrorists,” who should “go to jail” and “go to hell.”9 Skilling was physically threatened on

Pub.L. 107-204, 116 Stat. 745 (2002). Br. of Defendant-Appellant Jeffrey K. Skilling, 2007 WL 2804318 at *130, (5th Cir. Sept. 14, 2007), U.S. v. Skilling, 554 F.3d 529 (5th Cir. 2009). Reply Br. of Defendant-Appellant Jeffrey K. Skilling (5th Cir. Sept. 14, 2007), at 140, U.S. v. Skilling, 554 F.3d 529 (5th Cir. 2009). Br. for Petitioner, Skilling v. U.S., 2009 WL 4818500, at *5 (U.S. Dec. 11, 2009) (No. 08-1394, 561 U.S. ___, 130 S.Ct. 2896, 177 L.Ed.2d 619 (June 24, 2010)). Br. of Defendant-Appellant Jeffrey K. Skilling, 2007 WL 2804318, *131 (5th Cir. Sept. 14, 2007), U.S. v. Skilling, 554 F.3d 529 (5th Cir. 2009). Volume 1, Issue 1

Power Failure multiple occasions and Lay traveled with armed bodyguards, said one defense court filing.10 The filing also recounted how one local rap musician produced a song with the following line: “For everybody out there/ who lost a dime/drop a ‘S’ off of Skilling/it’s killing time.”11 Despite the public frenzy around Enron, the criminal investigation of the company moved slowly. Or at least too slowly for some observers. While other scandals had produced charges, “not a single charge has been brought against the executives of the firm that was first in what has become a season of corporate scandal: Enron,” Lou Dobbs said in late June 2002 on his CNN show, Moneyline.12 It wasn’t for lack of trying. The Enron Task Force had brought together some of the department’s top talent, headed by Leslie Caldwell, a veteran and no-nonsense prosecutor who had cut her teeth going after mobsters in New York. But unlike some of the other corporate scandals, where evidence of fraud had been fairly clear cut and senior executives were willing to cut deals and cooperate with prosecutors, Enron was a devilishly complex company, where knowledge of the most suspect activities were known only to a few. And those few weren’t talking, at least initially. Except, perhaps not surprisingly, Skilling. Within days of Enron’s bankruptcy, he voluntarily met with SEC officials and answered extensive questions. He gave interviews to the press. When subpoenaed to testify before Congress, Lay and Fastow both invoked their Fifth Amendment privilege to remain silent. Skilling, however, testified before both House and Senate panels. And he made no apologies. “It is

my belief that Enron’s failure was due to a classic run on the bank, a liquidity crisis spurred by lack of confidence in the company,” he said. “At the time of Enron’s collapse, the company was solvent, and the company was highly profitable, but apparently not liquid enough.” 13 Skilling’s statements presented the outline of what would become his and Lay’s defense at their 2006 trial: that there was nothing fundamentally wrong with Enron, certainly nothing criminal. Instead, this argument went, the company had failed because of a “perfect storm” of events in the fall of 2001 that were outside of the company’s control. Investors, already spooked by the long decline in the stock market, post the dotcom bubble, were still dealing with the after effects of the awful events of 9/11. The Journal stories raised enough questions that they helped set off a panic that stock traders used to drive down Enron’s share price, at great profit to themselves. It’s not clear that Skilling’s willingness to talk in the wake of Enron’s collapse did him much good, though it clearly did him some harm. During his 2006 trial, prosecutors used some seemingly contradictory statements from his SEC interviews to impeach his credibility when he took the stand.

Making a Case

f course, in early 2002, prosecutors still had a long way to go to get Skilling, or other senior Enron executives, to trial. Caldwell and her colleagues on the Enron Task Force approached the investigation much like they would have a probe going after an organized-crime family. They pored through documents and called in witnesses

10. Id. 11. Id. 12. Moneyline (CNN broadcast, July 26, 2002), transcript at http://transcripts.cnn.com/TRANSCRIPTS/ 0207/26/mlld.00.html. 13. Prepared Testimony of Jeffrey K. Skilling, House Committee on Energy and Commerce, Subcommittee on Oversight and Investigations (Feb. 7, 2002), available at http://news.findlaw.com/ wsj/docs/enron/skilling20702tst.html.

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Power Failure looking for crimes involving lower-level figures in hopes they could then convince those figures to cooperate and provide evidence about figures higher up the corporate food chain. Over the next two-plus years that strategy took prosecutors up the ladder. Among those pleading guilty were former senior Enron executives, including Fastow. Several of those who pled, including Fastow, ended up testifying against Lay and Skilling. The government’s record when cases went to trial was a good deal less shiny, at least once the cases got to appellate courts. For instance, the conviction of Arthur Andersen for destroying Enron documents was unanimously overturned by the Supreme Court.14 Unfortunately, the decision did little good for the giant accounting firm, which had effectively been put out of business by the criminal conviction. Similarly, convictions won in a case against former officials from Merrill Lynch & Co. for a deal the brokerage giant did with Enron were largely overturned on appeal.15 The factual underpinnings for the 2004 indictments of Skilling and Lay involved a hodgepodge of activities at Enron. Among the alleged transgressions: a lastminute cooking of the books one quarter that increased per-share earnings by a mere one penny to meet analysts’ earnings estimates; hiding large losses through the LJM partnerships and lying to investors about troubles in parts of Enron, such as the high-speed Internet operation and the retail electricity business. However, as the January 30, 2006 trial

date approached, prosecutors were hardly secure in the belief that they would win convictions against the two most important figures in the Enron saga. As John Hueston, one of the three lead prosecutors (along with Kathryn Ruemmler and Sean Berkowitz), later wrote in a 2007 law journal piece,16 the case had “fundamental weaknesses that we knew might lead to acquittals.”17 Among the problems, he wrote, was “no ‘smoking gun’ documents implicated either defendant. Electronic mail, normally a repository of unguarded comment and slips of the tongue was of little use: Lay made no use of email; Skilling only sparingly.”18 Plus, both defendants were arguing that they couldn’t be guilty of financial manipulations because they relied upon expert outside accountants and lawyers for advice. To maximize their chances of winning, the prosecutors took a step that would later cause them problems. They successfully pushed to allow the jury to consider more than one criminal theory on the lead count of conspiracy. The jury could convict on either conspiracy to commit securities fraud or conspiracy to commit honest services fraud. By 2006, the latter was a frequently used but increasingly controversial tool used by federal prosecutors in white-collar crime cases. Critics, including senior jurists, contended that the charge of depriving shareholders of their right to your honest services was far too vague and could encompass behavior that was much more a civil violation than a criminal one.19 While using the honest services fraud theory carried

14. See Arthur Andersen LLP v. United States, 544 U.S. 696 (2005). 15. See United States v. Brown, 459 F.3d 509 (5th Cir. 2006), cert. denied, 550 U.S. 933 (2007). 16. John Hueston, Behind the scenes of the Enron trial: creating the decisive moments. 44 Amer. Crim. L. Rev. 197 (2007), available at http://www.irell.com/assets/attachments/American_Criminal_ Law_Review24.PDF. 17. Id. at 197. 18. Id. 19. In fact, the U.S. Supreme Court later held that the government has misapplied the theory in Skilling’s case and sent the matter back to the Fifth Circuit to determine what to do with his conviction. See Skilling v. U.S., 561 U.S. ___, 130 S.Ct. 2896, 177 L.Ed.2d 619 (June 24, 2010) (No. 08-1394), discussed infra.

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Power Failure risks, the prosecutors evidently decided they needed all the weapons they could bring in this final, climactic Enron battle. While the defense complained loudly about what it viewed as the anti-Enron news coverage leading up to the trial, there were defenders of Lay and Skilling in the media, particularly in the online world. In his blog “Houston’s Clear Thinkers,”20 attorney Tom Kirkendall consistently criticized the mainstream media’s coverage of Enron, including my articles, and the “witch-hunt mentality” that shaped the criminal investigations. The result, Kirkendall wrote just before the trial began, was that “many otherwise thoughtful and intelligent people believe that they understand the Enron morality play so thoroughly that they seemingly lose the capacity for independent thought regarding Enron and reject any notion of ambiguity or fair-minded analysis in ferreting out the truth of what really happened.”21

Jurors Reach a Verdict

hether that description applied to the twelve jurors in the Lay-Skilling trial is still a matter being debated. Whatever one thinks of the jury’s impartiality, after nearly five months of testimony, including both defendants taking the stand, the jurors overwhelmingly backed the prosecutors’ version of the Enron story. On May 25, 2006, Skilling was convicted on 19 of 28 counts, including conspiracy, fraud and insider trading. He was acquitted on nine counts of insider trading. Lay was convicted on all six conspiracy and fraud counts he faced, as well as four bank fraud counts from a mini-trial held before presiding Judge Lake while the jury was deliberating in the main case.

During press interviews after their verdicts, some of the jurors claimed they actually went into the case sympathetic to the defendants. “In all honesty, at the very beginning of the trial, I admired both men,” said juror Wendy Vaughan, a small business owner. “I thought they were brilliant.”22 Jurors said their opinions shifted under the weight of the evidence and because of the defendants’ demeanor on the witness stand. Mr. Lay and Mr. Skilling seemed “very controlling people at times,” said juror Douglas Baggett, noting that at times they were “even telling their attorneys what to do” from the witness stand. He added that the LJM partnerships run by Fastow contributed to the decision to convict. Mr. Baggett called the partnerships “the first domino …. Most every one of the counts went back to LJM.”23 Reached by phone at his home the night of the verdict, Skilling said that when he was pronounced guilty on the first count of conspiracy, “that floored me. God, there was no conspiracy.”24 He said that the relatively short jury deliberations, a little over five days, had raised his hopes. But “we were just on a tilted football field,” he said, referring to going on trial in Enron’s headquarters city.25 Judge Lake initially set sentencing of the two men for Sept. 11, which some in the courtroom took as an ominous sign for the defendants, given the meaning of that date. However, the sentencing was later pushed back by several weeks. Lay, while in Aspen over the Fourth of July weekend, suffered a fatal heart attack at the age of 64. Though it had been known to only a few, he suffered for some time from heart problems, problems that likely

20. http://blog.kir.com/ 21. Tom Kirkendall. Emshwiller’s Enron surprise, Houston’s Clear Thinkers blog (Jan. 20, 2006), http:// blog.kir.com/archives/2006/01/emshwillers_enr.asp. 22. John R. Emshwiller, Gary Mcwilliams and Ann Davis, Symbol of an Era: Lay, Skilling Are Convicted of Fraud, Wall Street J., May 26, 2006, at A1. 23. Id. 24. Id. 25. Id. Reynolds Courts & Media Law Journal

Power Failure weren’t helped by the Enron ordeal. Skilling, standing alone before Judge Lake, in many ways the last major figure standing from an era of corporate scandals, received a 24-year prison sentence. If he fully serves that term, Skilling will be in his 70s before he again experiences freedom.

Skilling Scores a Victory on Appeal

is legal team, which had gone through tens of millions of dollars defending him, had no intention of giving up the fight. They appealed, first to the Fifth Circuit and then to the Supreme Court,26 where the Skilling forces finally won at least some measure of a victory. The High Court granted certiorari in the Skilling appeal on two grounds: that the government had misapplied the honest services fraud theory and that Skilling couldn’t get a fair trial in Houston.27 The Supreme Court’s acceptance of the honest services fraud issue didn’t surprise observers, given the controversy that was already swirling around the Justice Department’s use of that provision of the law. It also accepted two other cases related to honest services fraud.28 However, the justices’ willingness to hear the venue argument did come as a surprise, since the Supreme Court hadn’t dealt with that issue for many years, evidently satisfied to leave the matter to lower courts that routinely had turned down change of venue requests

by defense counsel. So the court’s review of the Skilling’s arguments raised the possibility of a perhaps significant new ruling in this area. When the Supreme Court handed down its decision in June 2010, Skilling couldn’t muster a majority on the venue question, which he lost on 6-3 vote.29 Writing for the minority on this point, Justice Sonia Sotomayor argued that the majority opinion “understates the breadth and depth of community hostility toward Skilling and overlooks significant deficiencies in the District Court’s jury selection process.”30 Justice Sotomayor wrote that two-thirds of the 283 prospective jurors who responded to the questionnaires sent out by the court “expressed views about Enron or the defendants that suggested a potential predisposition to convict. In many instances, they did not mince words, describing Skilling as ‘smug,’ ‘arrogant,’ ‘brash,’ ‘conceited,’ ‘greedy,’ ‘deceitful,’ ‘totally unethical and criminal,’ ‘a crook,’ ‘the biggest liar on the face of the earth,’ and ‘guilty as sin.’”31 Skilling did better on the honest-services issue, with the justices unanimously ruling that the Justice Department had been too broadly applying the statute, which they said should only be used in cases involving bribes or kickbacks.32 Neither was alleged in Skilling’s case. “This paves the way to completely exonerating Jeff Skilling,” said defense attorney Petrocelli, who added that the decision “has profound implications for

26. U.S. v. Skilling, 554 F.3d 529 (5th Cir. 2009) (affirming conviction), aff’d in part, vacated in part, and remanded, Skilling v. U.S., 561 U.S. ___, 130 S.Ct. 2896, 177 L.Ed.2d 619 (June 24, 2010) (No. 08-1394) (reversing conviction). 27. 561 U.S. ____,130 S.Ct. 393, 175 L.Ed.2d 267 (Oct 13, 2009) (No. 08-1394) (granting certiorari). 28. See Weyhrauch v. U.S,, 561 U.S. ___, 129 S.Ct. 2863, 174 L.Ed.2d 575 (U.S. Jun 29, 2009) (No. 081196) (granting certiorari in part) and Black v. U.S., 129 S.Ct. 2379, 173 L.Ed.2d 1291 (U.S. May 18, 2009) (No. 08-876) (granting certiorari). The Court later vacated and remanded the lower courts’ decisions in both these cases, based on its ruling in the Skilling case. See Weyhrauch v. U.S., 561 U.S. ___, 130 S.Ct. 2971, 177 L.Ed.2d 705 (U.S. Jun 24, 2010) (per curiam), and Black v. U.S., 130 S.Ct. 2963, 177 L.Ed.2d 695 (U.S. Jun 24, 2010). 29. Skilling v. U.S., 561 U.S. ___, 130 S.Ct. 2896, 177 L.Ed.2d 619 (June 24, 2010) (No. 08-1394) (vacating conviction and remanding). 30. Id., 130 S.Ct. at 2942. 31. Id., 130 S.Ct. at 2944–45. 32. Id., 130 S.Ct. at 2931.

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Power Failure every workplace in this country. All employees are now free from the risk of the government criminalizing behavior that does not clearly violate the laws.”33 However, it remained to be seen how much the Supreme Court victory would aid Skilling in getting out of prison. The justices ordered the Fifth Circuit Court of Appeals to re-review his conviction in light of their honest-services decision to see how many, if any, of the 19 counts on which Skilling was convicted would be affected.34 At the Nov. 1, 2010 argument before the appeals court, Petrocelli and his colleagues, not surprisingly, argued that all 19 counts had been tainted by the use of the honest services fraud theory. Thus, they argued, Skilling’s conviction should be entirely vacated and he should be released from prison and given a new trial: if the government chose to retry the case. The government, also not surprisingly, argued that all 19 counts should remain since prosecutors had presented jurors with more than enough

evidence to convict Skilling on the still legally valid theory of conspiracy to commit securities fraud.35 The three-judge panel handling the case was the same group that had initially turned down Skilling’s appeal prior to the Supreme Court ruling. In a possibly ominous development for the former Enron president, the panel turned down his request for bail pending the outcome of the appeal. This appeared to signal that the jurists, at least at that point in their deliberations, didn’t believe enough counts would be knocked out to result in Skilling’s immediate release from a prison sentence that began in December 2006. As Skilling finished his fourth year in prison and waited for the appellate court ruling, another anniversary loomed. December 2011 would mark the 10th anniversary of Enron’s bankruptcy filing, an inglorious end to a once-glittering business empire whose rise and fall had been so entwined with the life of Jeff Skilling.

33. Jess Bravin, Justices Limit Fraud Law, The Wall Street J. Online, June 25, 2010, http://online.wsj.com/article/SB10001424052748704911704575326644174012942.html. 34. Id., 130 S.Ct. at 2935. 35. For more on these arguments, see John Emshwiller, Enron’s Skilling to Seek Release, Wall Street J., Nov. 1, 2010.

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Out of Houston?

Out of Houston? The Venue Argument in the Skilling Case By Walter H. Bush and Christopher B. Freeman “Houston, we have a problem.” Thus begins the Memorandum of Jeffrey Skilling in support of his Motion for Change of Venue in United States v. Skilling, Lay and Causey.1 In this article we will track the course of proceedings in Skilling relating to the efforts of the former Enron CEO to demonstrate to the trial court that he could not get a fair trial in Houston and, post-conviction, to show not only that the refusal to transfer venue and the related rulings on the conduct of voir dire were in error, but also that his conviction was tainted with jury bias. The proceedings in Skilling from the trial court through the Supreme Court not only raise interesting and relevant issues of fair trial/pre-trial publicity in our evolving media environment, but also present a context in which to review and consider existing precedent in light of this evolution.

Rideau and Its Progeny

he Skilling case was not the first time the Supreme Court wrestled with the issue of to what extent publicity both before and during a trial either presumptively or

actually impacts a criminal defendant’s right to a trial by fair and impartial jurors. In the foundational case of Rideau v. Louisiana, 373 U.S. 723 (1963), the Supreme Court held that the pretrial publicity in that case raised so great a presumption of prejudice that the defendant’s due process rights were violated that an examination of voir dire was unnecessary. Rideau had robbed a bank in a small Louisiana town, kidnapped three bank employees, and killed one of them.2 Without Rideau’s consent and without counsel present, the police filmed their interrogation of Rideau and obtained his confession.3 On three separate occasions shortly before trial, the confession was broadcast on a local television station to audiences ranging from 20,000 to 53,000 individuals.4 In response, Rideau moved for a change of venue, arguing that he could not receive a fair trial in the town where the crime occurred, which had a population of only 150,000.5 The trial court denied his motion, and Rideau was convicted. The Supreme Court reversed. Central to the Court’s holding was the fact that “to the tens of thousands of people who saw

Defendant Jeffrey Skilling’s Memorandum in Support of Joint Motion to Transfer Venue (S.D. Tex. Nov. 8, 2004), U.S. v. Causey, et al., Case No. 4:04-cr-00025 (S.D. Tex. 2004). 2. Rideau v. Louisiana, 373 U.S. 723, 723-24 (1963). 3. Id. at 724. 4. Id. 5. Id. at 723.

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Out of Houston? and heard [the videotaped confession],” the interrogation “in a very real sense was Rideau’s trial—at which he pleaded guilty.”6 Under these circumstances, the Court “d[id] not hesitate to hold, without pausing to examine a particularized transcript of the voir dire,” that “[t]he kangaroo court proceedings” following the televised confession violated due process.7

The Court dispelled of the notion that telecasting—a relatively new technology at that time—was dangerous because it was new Two years later, in Estes v. Texas, the Supreme Court determined that “[m]assive pretrial publicity totaling 11 volumes of press clippings” had given a swindling case “national notoriety.”8 Pretrial hearings were carried live by both radio and television, and news photography was permitted throughout.9 At least 12 cameramen were present in the courtroom, and it “[wa]s conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings,” denying the defendant the “judicial serenity and calm to which [he] was entitled.”10 Although the bulk of the disruption occurred during pretrial proceedings, the Supreme Court asserted that “[pretrial publicity] may be more harmful that publicity during the trial for it may well set the

community opinion as to guilt or innocence.”11 The Court dispelled of the notion that telecasting—a relatively new technology at that time—was dangerous because it was new: “It is true that our empirical knowledge of its full effect on the public, the jury or the participants in a trial, including the judge, witnesses and lawyers, is limited. However, the nub of the question is not its newness, but as Mr. Justice Douglas says, ‘the insidious influences which it puts to work in the administration of justice.’”12 In Estes, the televised pretrial hearing reached approximately 100,000 viewers, and the courtroom was a mass of wires, television cameras, microphones and photographers. The Supreme Court held this “emphasized the notorious nature of the coming trial, increasing the intensity of the publicity on the petitioner and[,] together with the subsequent televising of the trial beginning 30 days later[,] inherently prevented a sober search for the truth.”13 Finding a presumption of prejudice, the Supreme Court reversed the jury’s guilty verdict. Finally, in Sheppard v. Maxwell, 384 U.S. 333 (1966), news reporters extensively covered the story of Sam Sheppard, who was accused of bludgeoning his pregnant wife to death.14 Having decided Estes during the prior term, the Supreme Court noted that the press coverage of the Estes trial was “not nearly as massive and pervasive as the attention given by the Cleveland newspapers and broadcasting stations to Sheppard’s prosecution,” which the Court characterized as “months of virulent publicity.”15

6. 7. 8. 9. 10. 11. 12.

Id. at 726. Id. at 726–27. Estes v. Texas, 381 U.S. 532, 535 (1965). Id. at 536. Id. Id. Id. at 541 (quoting Douglas, The Public Trial and the Free Press, 33 Rocky Mt. L.Rev. 1 (1960).). 13. Id. at 550–551. 14. Sheppard v. Maxwell, 384 U.S. 333, 335–36 (1966). 15. Id. at 353–354.

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Out of Houston? Moreover, “bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard.”16 Jurors were forced to “run a gantlet [sic] of reporters and photographers each time they entered or left the courtroom.” The court even permitted the erection of a press table for reporters inside the bar and within a few feet of the jury box, which the Supreme Court found to be unprecedented.17 As it had in Estes, the Supreme Court held that “[i]n this atmosphere of a ‘Roman holiday’ for the news media,” the publicity both before and during trial was inherently prejudicial and deprived Sheppard of a fair trial consistent with due process.18 In each of these cases, the Supreme Court overturned a “conviction obtained in a trial atmosphere that [was] utterly corrupted by press coverage.” However, as the Court later explained in Murphy v. Florida, these decisions “cannot be made to stand for the proposition that juror exposure to … news accounts of a crime … alone presumptively deprives the defendant of due process.”19 Viewed against this backdrop, the proceedings in Skilling presented novel legal questions: even in a high-population venue such as Houston,20 is pretrial publicity of a case involving what remains one of the biggest corporate criminal trials ever, and involving a corporation whose spectacular

collapse affected thousands, presumptively prejudicial to the right to a fair trial? Furthermore, are the standards different when the crimes alleged are financial, which potentially affect thousands of unknown persons in unknown ways, rather than gruesome and violent, but personal and affecting only those directly involved?

Skilling’s Motion to Change Venue

killing contended that his trial must be transferred to another metropolitan venue, such as Phoenix, Denver, or Atlanta, and that he and his co-defendants21 could not receive a fair trial in Houston because: • unlike any other venue, residents of Houston and its surrounding communities had a personal, emotional, and economic stake in the case, resulting from Enron’s dramatic rise and fall and the profound effect the company had on the region’s history; • unlike any other venue, the media in Houston covered the demise of Enron and the ensuing criminal prosecutions with a fervent, inflammatory, and demonstrably prejudicial point of view; • unlike any other venue, Skilling and his co-defendants were so uniformly vilified and demonized in the Houston area that they were widely presumed to be guilty until proven innocent; and • unlike any other venue, voir dire and other lesser remedies would be wholly inadequate to eliminate the pervasive latent

16. 17. 18. 19. 20.

Id. at 355. Id. Id. at 355, 363 (quoting State v. Sheppard, 165 Ohio St. 293, 294, 135 N.E.2d 340, 342 (Ohio 1956)). Murphy v. Florida, 421 U.S. 794, 798–99 (1975). As of the 2000 census, the city of Houston had a population of 1,953,631, making it the fourth most populous city in the United States. U.S. Census Bureau, Ranking Tables for Incorporated Places of 100,000 Or More: 1990 and 2000 (2001), available at http://www.census.gov/ population/www/cen2000/briefs/phc-t5/tables/tab02.pdf. 21. Skilling served as President and Chief Operating Officer (COO) of Enron from January of 1997 until February of 2001, and served as President and CEO from February of 2001 until August of 2001 when he resigned. His co-defendants were Kenneth Lay and Richard Causey. Lay served as Chief Executive Officer (CEO) and Chairman of the Board of Directors from shortly after Enron’s formation in 1985 until February of 2001, when he stepped down as CEO and continued as chairman. Causey served in various positions with the companies from 1992 until 1998, when he became Enron’s Chief Accounting Officer (CAO). Reynolds Courts & Media Law Journal

Out of Houston? biases that existed in Houston against Skilling and his co-defendants.22 In response, the Government contended that press coverage of the collapse of Enron and of the Skilling case had not been inflammatory and prejudicial; that most of the press coverage was objective, factual, and contained no mention of defendants by name; and that most of the cited coverage was not comprised of widely read frontpage articles, but rather internal stories, Internet postings, letters to the editor and other items of low or, at best, uncertain readership. In addition, the Government noted that the most objectionable and vitriolic coverage occurred primarily in 2002, over three years before the Skilling defendants’ trial. This significant passage of time, the Government argued, had been recognized by the Fifth Circuit as fundamental to the consideration of venue transfer.23 The Government also contended that the mere fact that more people had heard of the case in Houston, as opposed to another major metropolitan area, was not a basis for exclusion because the Constitution does not require a jury comprised of people who do not read the newspaper; it requires a jury of people who have not formed unshakeable opinions and who will base their verdict on the evidence and the law.24 The Government forcefully argued that considerations of venue also extend to the interests of the community directly affected by the crime in trying those charged with

crimes in that community.25 Further, the Government noted that the presumption of community bias asserted by the Skilling defendants generally has been applied “only in cases ‘wherein the press saturated the community with sensationalized accounts of the crime and court proceedings, and was permitted to overrun the courtroom, transforming the trial into an event akin to a three-ring circus.’”26 A presumption of prejudice does not apply where the “news accounts complained of are straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness.”27 More important perhaps was the Government’s trump card: the fact that two prior Enron-related criminal trials had already been conducted with mixed results for the prosecution using juror selection procedures of similar style and duration,28 arguably demonstrating that even during peak periods of Enron pretrial publicity, fair and impartial juries could be impaneled efficiently by conducting a thorough and searching voir dire. In reply, Skilling asserted that at the pretrial stage, where the Court has the ability to look forward, the standard is “anticipatory” and “preventative”: [Rule 21] evokes foresight, always a more precious gift than hindsight, and for this reason the same certainty which warrants the reversal of a conviction will not always accompany the change of venue. Succinctly, then, it is the well-grounded

22. Defendant Jeffrey Skilling’s Memorandum in Support of Joint Motion to Transfer Venue, U.S. v. Causey, et al., , at 1, Case No. 4:04-cr-00025 (S.D. Tex. Nov. 8, 2004). 23. Government’s Memorandum of Law in Response to Defendants’ Joint Motion to Transfer Venue, U.S. v. Causey, et al., at 2–3, Case No. 4:04-cr-00025, (S.D. Tex. Dec. 3, 2004). 24. Id. at 4. 25. Id. at 5 (citing United States v. Means, 409 F. Supp. 115, 117 (D. N.D. 1976) (citing Wright, Federal Practice and Procedure, § 341) (“The interest of a community that those charged with violations of its laws, be tried in that community, is not a matter to be cast aside lightly .... [V]ery rarely, and only in extreme cases, is a Rule 21(a) motion to be granted.”))). 26. United States v. O’Keefe, 722 F.2d 1175, 1180 (5th Cir. 1983) (quoting United States v. Capo, 595 F.2d 1086, 1090–91 (5th Cir. 1979)). 27. Id. at 1180 (quoting Calley v. Callaway, 519 F.2d 184, 206 (5th Cir. 1975)) (internal punctuation omitted). 28. See United States v. Arthur Andersen LLP, No. 4:02-cr-00121-1 (S.D. Tex.); and United States v. Bayly, No. 4:03-cr-00363 (S.D. Tex.).

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Out of Houston? fear that the defendant will not receive a fair and impartial trial which warrants the application of the rule.29

The Skilling defendants argued that a change of venue is appropriate when there is a “reasonable likelihood” that pretrial publicity or other “outside influences” will prevent a fair trial,” citing Supreme Court and Fifth Circuit precedent.30

The Court Denies Skilling’s Motion for Lack of a Showing of Presumptive Prejudice

he district court was not persuaded by Skilling’s arguments, finding that the defendants failed to raise a presumption of prejudice consistent with the principles established by Rideau and its progeny, and that, unlike many of the cases cited by the defendants in favor of a change of venue, the facts of Skilling were neither heinous nor sensational. In denying the motion to change venue, the court placed particular focus on the fact that the news accounts at issue did not constitute the type of inflammatory reporting of inherently prejudicial facts (e.g., prior convictions, escapes, arrests, prior or subsequent indictments, and/ or confessions) needed to support a claim of presumptive prejudice under existing precedent. Further, the Court found that the defendants had “failed to persuade the court that prospective jurors who have formed preliminary opinions about the defendants’ conduct or who are connected to the case in

a way that would render them biased cannot be identified and excused during voir dire.”31 Despite the widespread knowledge of the facts underlying the Skilling case, the district court determined that a thorough voir dire would be sufficient to enable it to empanel an impartial jury.32

Causey’s Guilty Plea and Skilling’s Renewed Motion to Change Venue

ollowing the district court’s order denying the defendants’ motion to change venue and its related rulings on the conduct of voir dire, trial was set to begin on January 30, 2006. Lengthy jury questionnaires were distributed to prospective jurors, asking them about their knowledge, views, and opinions of Causey, Skilling and Lay. But on December 28, 2005, Skilling’s co-defendant, Richard Causey, pled guilty and agreed to cooperate with the prosecution. All of these developments were widely reported in Houston. As a result, Skilling filed a renewed motion for change of venue, and if venue transfer was denied, asking to expand and modify the voir dire process and to delay the trial until the furor of Causey’s plea deal could abate.33 He argued that several items on the juror questionnaire referenced Causey by name, and grouped him with defendants Skilling and Lay, arguably associating Causey to Skilling and Lay in the minds of prospective jurors.34 Indeed,

29. Reply Memorandum of Defendants Skilling and Causey in Support of Joint Motion to Transfer Venue, U.S. v. Causey, et al., Case No. 4:04-cr-00025, (S.D. Tex. Dec. 20, 2004), at 4 (quoting United States v. Marcello, 280 F. Supp. 510, 513–14 (E.D. La. 1968)). 30. Id. (citing Sheppard v. Maxwell, 384 U.S. 333, 363 (1966); Pamplin v. Mason, 364 F.2d 1, 5-6 (5th Cir. 1966); United States v. Capo, 595 F.2d 1086, 1090 (5th Cir. 1979); and United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975). 31. U.S. v. Causey, et al., Case No. 4:04-cr-00025, Memorandum and Order of Court (S.D. Tex. Jan. 19, 2005). 32. The Court also disposed of Skilling’s request for a hearing on the motion, noting that hearings are not granted as a matter of course, but are held only when the defendant alleges sufficient facts which, if proven, would justify relief. Id. at 21 (citing United States v. Smith, 546 F.2d 1275, 1279–80 (5th Cir. 1977); and United States v. Poe, 462 F.2d 195 (5th Cir. 1972), cert. denied, 414 U.S. 84 (1973)). 33. Defendants’ Renewed Motion for Change of Venue and Related Relief, U.S. v. Causey, et al., Case No. 4:04-cr-00025 (S.D. Tex. Jan. 4, 2006). 34. Id. at 5. Reynolds Courts & Media Law Journal

Out of Houston? although the renewed motion focused on all of the publicity and evidence relating to potential juror bias, the Causey guilty plea was a central focus. Skilling’s renewed motion cited extensively to the potential jurors’ questionnaire responses, arguing that they proved that Houstonians had been uniquely affected by Enron’s bankruptcy: almost half of all jurors responded that they, their family, or their friends had some connection to Enron or its bankruptcy.35 The motion also addressed the court’s prior ruling on the conduct of voir dire, in which it ruled that the court, rather than counsel for the parties, would question the jury generally, permitting individual questioning of the jury only if the court determined that such was warranted.36 Skilling contended that the defendants should be allowed to question each juror, one-by-one, in a closed courtroom, and out of the presence of other jurors and the public. In a supplemental filing in support of the renewed motion for change of venue, Skilling filed affidavits from renowned Houston criminal defense attorneys Dick DeGuerin, Richard “Racehorse” Haynes, and Stanley G. Schneider, all opining that for various reasons Skilling could not get a fair trial in Houston.37 In a two-page order, the court denied Skilling’s renewed motion, holding that defendants did not establish that pretrial publicity and/or community prejudice raised a presumption of inherent jury prejudice, and that jury questionnaires sent to the remaining members of the jury panel and

the court’s voir dire examination of the jury panel provided adequate safeguards to the defendants and would result in the selection of a fair and impartial jury.38

Skilling’s Conviction and Appeal to the Fifth Circuit

n May 25, 2006, following a fourmonth trial and nearly five days of deliberation, the jury found Skilling guilty of nineteen counts, including one honestservices fraud conspiracy charge, and not guilty of nine insider-trading counts. The district court sentenced Skilling to 292 months’ imprisonment, three years’ supervised release, and $45 million in restitution. On appeal to the United States Court of Appeals for the Fifth Circuit, Skilling argued that there are two ways to show a right to a fair trial has been violated. First, he argued, reversal is required if actual prejudice “found its way into the jury box.”39 Second, “evidence of pervasive community prejudice is enough for reversal, even without the showing of a clear nexus between community feeling and jury feeling.” In those cases, he said, prejudice is “presumed.”40 Skilling also pointed out that at trial the Government had conceded the magnitude of the tragedy caused by the crash of Enron, arguing at sentencing that the entire community was a “victim” of Skilling’s alleged crimes and that not since the Kennedy assassination had a Texas city been so identified with such a devastating event with such far-ranging consequences.41 Skilling also argued that based solely on the jury questionnaires, the Government

35. Id. at 10–11, 16–17. 36. Id. at 25–31. 37. Supplemental Filing in Support of Defendants’ Renewed Motion for Change of Venue and Related Relief, U.S. v. Causey, et al., Case No. 4:04-cr-00025 (S.D. Tex. Jan. 17, 2006). 38. Order on Defendants’ Renewed Motion for Change of Venue and Related Relief, U.S. v. Causey, et al., Case No. 4:04-cr-00025 (S.D. Tex. Jan. 23, 2006). 39. Brief of Defendant-Appellant Skilling, at 122, U.S. v. Skilling, Appeal No. 06-20885 (5th Cir. Sept. 17, 2007) (citing Calley v. Callaway, 519 F.2d 184, 204 n.32 (5th Cir. 1975)). 40. Id. (citing Rideau v. Louisiana, 373 U.S. 723, 726–27 (1963); and Pamplin v. Mason, 364 F.2d 1, 4–5 (5th Cir. 1966)). 41. Id. at 127.

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Out of Houston? agreed to strike 119 of the 283 jurors—42 percent of the entire pool—by stipulation. Yet, he argued, many plainly biased jurors remained. For instance, one juror who the government refused to strike came to voir dire and called out for vengeance in open court: “I would dearly love to sit on this jury. I would love to claim responsibility, at least one-twelfth of the responsibility, for putting these sons of bitches away for the rest of their lives.”42 Others said: “they stole money;” “they knew exactly what they were doing;” and “if there was no fraud, then how did the company collapse?”43 Skilling argued that no fair trial possibly could occur under these circumstances. Further, Skilling contended that the district court’s orders denying a venue transfer completely ignored the far-reaching impact of Enron’s bankruptcy. There was no discussion of the harm caused to the community or the community’s emotional response. Rather than analyzing the unique facts of Skilling’s case, Skilling asserted, the court rigidly compared the case to Rideau,a case of robbery, kidnapping, and murder involving a televised confession in a town of 150,000. The court simply concluded that a venue transfer was precluded, Skilling argued, because his case was not on all fours with Rideau.44 Skilling argued there were two major errors in the court’s analysis. First, it focused exclusively on “pre-trial publicity,” as if it were the exclusive source of community prejudice. Skilling maintained that prejudice could be presumed when any “outside influences affecting the community’s climate of opinion as to a defendant are inherently suspect.”45 In other words, pretrial publicity is not the end of the inquiry; it is just one form of evidence proffered to 42. 43. 44. 45. 46. 47. 48.

show the prejudice within the community, Skilling argued. He also asserted that “the tragedy itself causes community sentiment; the media coverage reflects, reinforces, and amplifies the sentiment.”46 Thus, by ignoring the impact of Enron’s bankruptcy, he continued, the court ignored the true source of Houston’s community prejudice. Second, Skilling asserted that the court overlooked 40 years of law since Rideau. Courts have found venue transfers necessary in a wide variety of cases, involving both big cities and small towns, and both violent and non-violent crimes. Skilling argued that the size of the community, while relevant, has never been dispositive. Cases have been transferred from large metropolitan areas, and courts have transferred venue for such non-violent crimes as fraud, perjury, tax evasion, and even the “gift of one marijuana cigarette.”47 Additionally, Skilling argued on appeal that the district court made two decisions that precluded a meaningful voir dire. First, despite acknowledging that “it’s going to be a challenging task to pick a fair jury,” the court limited voir dire to just one day, and potential jurors were questioned for slightly over five hours.48 Second, the court decided to prohibit individual attorney voir dire and conduct limited voir dire itself. The court relied heavily on leading self-assessment questions (e.g., “Can you nevertheless be fair and impartial?”), and used them as a bright-line test: if a juror said they could not be fair, they were excused; if a juror said they could be fair, they remained in the pool. Skilling contended that there was no independent assessment of whether these assurances of impartiality were trustworthy: the court simply took jurors at their word. As long

Id. at 136. Id. Id. at 153. Id. at 154 (citing Pamplin, supra, 364 F.2d at 5). Id. (emphasis in original). Id. at 155. Id. at 157.

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Out of Houston? as they ultimately said they could be fair— even if they expressed hesitation—a cause challenge was denied, regardless of bias.49 The Government responded that the 14-page questionnaire asked potential jurors about their jobs, education, political views and party affiliation; relationship to Enron and to anyone affected by the Enron collapse; opinions about Enron and the government’s investigation; sources of information about the case; the periodicals they

Skilling contended that there was no independent assessment of whether these assurances of impartiality were trustworthy. read; and the Internet sites they visited. The questionnaire also asked whether the recipient was angry at Enron, had an opinion about the defendants or the defendants’ guilt, and, if so, whether the juror could put aside that opinion and decide the case based on the evidence at trial.50 After reviewing the completed questionnaires, the parties agreed to excuse 119 potential jurors for “cause, hardship, and/or physical disability.” Shortly before trial, the court noted that its review of the jury questionnaires left it “very impressed by the apparent lack of bias or influence from media exposure.”51 Further, the Government emphasized the fact that the court allotted the defendants two additional peremptory challenges beyond the 10 allowed by Federal Rule of Criminal Procedure 24(b)(2). During jury selection, the court qualified 38 potential

jurors, a sufficient number to allow each party to exercise peremptory challenges and select a jury of 12 with four alternates. After instructing and questioning the entire venire, the court questioned each potential juror at the bench, in the presence of counsel. The court asked each juror about his or her responses to the questionnaire, then allowed all counsel to question the potential jurors. Jurors were questioned for between one and nine minutes, for an average for each of roughly four and a half minutes.52 Thus, the Government contended, there was no evidence of actual prejudice tainting the jury. The Government additionally asserted that Skilling failed to raise a rebuttable presumption of prejudice by “demonstrat[ing] that the populace from which his jury was drawn was widely infected by a prejudice apart from mere familiarity with the case.”53 Because “every case of any consequence will be the subject of some press attention,” the presumption “is only rarely applicable in the most unusual cases,” and is less likely to be triggered by “pretrial publicity, which creates a smaller danger of prejudice than does sensationalism occurring throughout the trial.”54 Pretrial publicity, the Government argued—even pervasive, adverse publicity— does not inevitably lead to an unfair trial, and a change of venue should not be granted on a mere showing of widespread publicity.

The Fifth Circuit Opinion

lthough the Fifth Circuit acknowledged that “[i]t would not have been imprudent for the court to have granted Skilling’s transfer motion[,]” it held that the district court’s refusal to do so was not reversible error.55

49. Id. at 161. 50. Brief for the United States as Appellee, U.S. v. Skilling, Appeal No. 06-20885 (5th Cir. Nov. 14, 2007), at 140. 51. Id. 52. Id. at 141. 53. Id. at 150 (quoting Mayola v. Alabama, 623 F.2d 992, 999 (5th Cir. 1980)). 54. Id. (quoting United States v. Dozier, 672 F.2d 531, 546 (5th Cir. 1982) (internal citations omitted)). 55. United States v. Skilling, 554 F.3d 529, 558 (5th Cir. 2009).

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Out of Houston? As an initial matter, the court determined that Skilling had waived most of his argument by failing to challenge jurors for cause during voir dire. In fact, of the twelve jurors who sat on the jury, Skilling had objected for cause to only one, and he did not challenge any of the alternate jurors for cause. However, the Fifth Circuit held that there was sufficient inflammatory pretrial material to require a finding of presumed prejudice, especially in light of the immense volume of coverage.56 Its review of the record led the court to the conclusion that the community bias in the Houston area was “inflammatory,” which the court defined as “tending to cause strong feelings of anger, indignation, or other type of upset; [or] tending to stir the passions.”57 Local newspapers ran many personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron. In fact, the Houston Chronicle alone ran nearly one hundred such stories. The appeals court determined that the stories were hard to characterize as non-inflammatory, even if the stories were simply reporting the facts. Perhaps more importantly, the Fifth Circuit noted that the district court had not considered the wider context of the case. The trial court had merely assessed the tone of the news reporting; however, the evaluation of the volume and nature of reporting is merely a proxy for the real inquiry: whether there could be a “fair trial by an impartial jury” that was not “influenced by outside, irrelevant sources.”58 The district court overlooked that the prejudice came from more than just pretrial media publicity, but also from the sheer number of victims—not only those directly affected by 56. 57. 58. 59. 60. 61. 62.

Enron’s collapse, but also those in related industries who were similarly affected, such as accounting firms that serviced Enron’s books, the hospitality industry, and even restaurants. The Fifth Circuit found that the collapse of Enron affected countless people in the Houston area, and the district court failed to account for any of this nonmedia prejudice. Although the Fifth Circuit determined that there was sufficient evidence to raise a presumption of prejudice, it noted that the “presumption is rebuttable, … and the government may demonstrate from the voir dire that an impartial jury was actually impaneled in appellant’s case.”59 “An effective voir dire generally is a strong disinfectant of community prejudice, but it is especially important in cases such as this one with a great deal of prejudice.”60 Finding that the district court conducted a proper and thorough voir dire, the Fifth Circuit determined that the question before it was whether the Government met its burden to show that the court did not actually empanel a juror who was unconstitutionally prejudiced. In light of Skilling’s failure to challenge for cause any of the impanelled jurors save one, the court concluded that the Government met its burden.61

Skilling’s Appeal to the Supreme Court

ith respect to his fair-trial claim, Skilling’s petition to the Supreme Court for writ of certiorari focused on the Fifth Circuit’s determination that the presumption of prejudice due to pre-trial publicity was rebuttable by showing “from the voir dire that an impartial jury was actually impaneled.”62 Skilling asserted

Id. at 559. Id. (citing Black’s Law Dictionary 794 (8th ed. 2004)). Id. at 560 (quoting U.S. v. Chagra, 669 F.2d 241, 249). Id. at 561 (citation omitted). Id. Id. at 564–65. Petition for Writ of Certiorari, 2009 WL 1339243, at *1, 29, Skilling v. United States, No. 08-1394 (U.S. May 11, 2009) (citation omitted).

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Out of Houston? that Supreme Court precedent demanded the conclusion that once a presumption of prejudice is found, “the juror’s claims that they can be impartial should not be believed”63, and certiorari should be granted to resolve the split in the federal circuits as to whether a presumption of prejudice was rebuttable.64 Further, Skilling argued that if the presumption were rebuttable, then the government was required to prove “beyond a reasonable doubt” that no seated juror was actually affected by the media and community bias.65 Skilling’s petition for certiorari was supported by the National Association of Criminal Defense Attorneys as amicus curiae, who similarly argued that “once a presumption of prejudice arises from extreme community hostility or pervasive hostile publicity, it cannot be rebutted through voir dire.”66 Not surprisingly, following the grant of certiorari by the Supreme Court, Skilling’s appeal attracted interest from numerous groups, who filed amicus briefs in support of Skilling,67 the Government,68 and neither party.69 Most notably, several media outlets, including ABC, CNN, the Associated Press, the New York Times, the Washington Post, and the Media Law Resource Center filed a brief as amici curiae in support of the Government.70 Concerned that a more liberal standard for a presumption of prejudice due to pre-trial publicity would “impose new 63. 64. 65. 66.

67.

68. 69. 70. 71. 72.

pressures upon trial courts to limit public and press access in high profile cases,” the media amici argued that the Supreme Court “should make plain that a presumption of prejudice must be based upon more than the existence of significant publicity, but rather requires additional prejudicial factors. Particularly in a large metropolitan area such as Houston, substantial publicity alone should never be sufficient to sustain a presumption of prejudice.”71 They additionally asserted that declaring a pre-trial presumption of prejudice to be irrebuttable, as Skilling urged, would incentivize the restriction of press coverage “in the very criminal prosecutions of greatest concern to the public[,]” and that “[s]uch a step would both weaken the integrity of the judicial system and undermine public confidence in the courts.”72 Skilling’s appeal to the Supreme Court raised two questions with respect to his fair-trial claim. First, did the district court err by failing to move the trial to a different venue based on a presumption of prejudice? Second, did actual prejudice contaminate Skilling’s jury? Writing for the majority, Justice Ginsburg answered both questions in the negative. She explained that the Court’s prior decisions “cannot be made to stand for the proposition that juror exposure to … news accounts of the crime … presumptively deprives the defendant of due

Id. (emphasis in original) (citation omitted). Id. at *30–31. Id. at *34–35. Amicus Curiae Brief of National Association of Criminal Defense Lawyers in Support of Petition for a Writ of Certiorari, 2009 WL 1931228, at *12, Skilling v. United States, No. 08-1394 (U.S. June 10, 2009). See, e.g., Amicus Curiae Brief of National Association of Criminal Defense Lawyers in Support of Petitioner and Urging Reversal, 2009 WL 5017531, Skilling v. United States, No. 08-1394 (U.S. Dec. 8, 2009). Brief of ABC, Inc., et al. as Amici Curiae in Support of Respondent, 2010 WL 38361, Skilling v. United States, No. 08-1394 (U.S. Feb. 2, 2010). Brief Amicus Curiae of Pacific Legal Foundation and Cato Institute in Support of Neither Party, 2009 WL 4919360, Skilling v. United States, No. 08-1394 (U.S. Dec. 16, 2009). Brief of ABC, Inc., et al., n.68, supra. Id. at *1, 3. Id. at *1. Volume 1, Issue 1

Out of Houston? process.”7 3 “Prominence,” the Court asserted, “does not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance.”74 The Court found that important differences separated Skilling’s prosecution from those in which juror prejudice had been presumed, such as the size and characteristics of the community in which the crime occurred. Given the large, diverse pool of potential jurors, the Court found Skilling’s suggestion that 12 impartial individuals could not be impaneled “hard to sustain.”75 Moreover, although the news stories about Skilling were not kind, the Court noted they contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight. Finally, Skilling’s jury acquitted him of nine insidertrading counts, and earlier Enron-related prosecutions yielded no overwhelming victory for the Government. In Rideau, Estes, and Sheppard, in marked contrast, the jury’s verdict did not undermine in any way the supposition of juror bias.76 The opinion also took issue with Skilling’s characterization of the voir dire and the jurors selected through it. The Court noted that the district court had not simply taken venire members who proclaimed their impartiality at their word, as Skilling contended. Rather, all of Skilling’s jurors had already affirmed on their questionnaires that they would have no trouble basing a verdict only on the evidence at trial. Thus, the Supreme Court majority held: In sum, Skilling failed to establish that a presumption of prejudice arose or that actual bias infected the jury that tried him. Jurors, the trial court correctly comprehended, need not enter the box with empty heads in order to deter 73. 74. 75. 76. 77. 78. 79.

mine the facts impartially. “It is sufficient if the juror[s] can lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence presented in court.” Taking account of the full record, rather than incomplete exchanges selectively culled from it, we find no cause to upset the lower courts’ judgment that Skilling’s jury met that measure. We therefore affirm the Fifth Circuit’s ruling that Skilling received a fair trial.77

In a lengthy dissent on the venue issue, Justice Sotomayor, joined by justices Stevens and Breyer, argued that the Court’s conclusion that Skilling received a fair trial before an impartial jury was in error, citing court precedent that “the more intense the public’s antipathy toward a defendant, the more careful a court must be to prevent that sentiment from tainting the jury.”78 Sotomayor concluded that the district court’s inquiry lacked the necessary thoroughness, and left serious doubts about whether the jury impaneled to decide Skilling’s case was capable of rendering an impartial decision based solely on the evidence presented in the courtroom. However, Justice Sotomayor found it necessary to determine how the Skilling case compared to the Court’s existing fairtrial precedents, asking, “Were the circumstances so inherently prejudicial that, as in Rideau, even the most scrupulous voir dire would have been ‘but a hollow formality’ incapable of reliably producing an impartial jury? If the circumstances were not of this character, did the District Court conduct a jury selection process sufficiently adapted to the level of pretrial publicity and community animus to ensure the seating of jurors capable of presuming innocence and shutting out extrajudicial influences?”79 Justice Sotomayor suggested that perhaps because it had underestimated

Skilling v. United States, 130 S. Ct. 2896, 2902, 177 L.Ed.2d 619, ___ (2010). Id. (emphasis in original). Id. Id., 130 S. Ct. at 2916. Id. at 2925 (quoting Irvin v. Dowd, 366 U.S. 717, 723 (196). Id. at 2942 (Sotomayor, J., dissenting). Id. at 2952 (quoting Rideau, 373 U.S. at 726).

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Out of Houston? the public’s antipathy toward Skilling, the district court’s five-hour voir dire was manifestly insufficient to identify and remove biased jurors, and that the deficiencies in the form and content of the voir dire questions contributed to a deeper problem:

Justice Sotomayor suggested that the district court’s fivehour voir dire was manifestly insufficient to identify and remove biased jurors. that the district court failed to make a sufficiently critical assessment of prospective jurors’ assurances of impartiality. Adopting the argument urged by Skilling below, Justice Sotomayor said that the district court essentially took jurors at their word when they promised to be fair, and that the court declined to dismiss for cause any prospective juror who ultimately gave a clear assurance of impartiality, no matter how much equivocation preceded it. “As this Court has made plain,” she stated, “jurors’ assurances of impartiality simply are not entitled to this sort of talismanic significance.”80 The manner in which voir dire played out was also a telling factor to Justice Sotomayor’s analysis. When the district court asked the prospective jurors as a group whether they had any reservations about their ability to presume innocence and put the Government to its proof, only two answered in the affirmative, and both were excused for cause. The district court’s individual questioning, though truncated, exposed disqualifying prejudices among numerous additional prospective jurors who had earlier expressed no concerns about their impartiality. She opined that this argument, however, mistook partiality with bad faith or blind

vindictiveness, and that jurors who act in good faith and sincerely believe in their own fairness may nevertheless harbor disqualifying prejudices. And while they may well acquit where evidence is wholly lacking, will subconsciously resolve closer calls against the defendant rather than giving him the benefit of the doubt. In sum, Justice Sotomayor could not accept the majority’s conclusion that voir dire gave the district court “a sturdy foundation to assess fitness for jury service,” and that “taken together, the District Court’s failure to cover certain vital subjects, its superficial coverage of other topics, and its uncritical acceptance of assurances of impartiality leave me doubtful that Skilling’s jury was indeed free from the deep-seated animosity that pervaded the community at large.”81

How Much Coverage Is Too Much?

he Supreme Court’s decision in Skilling is notable for the Court’s refusal to expand its jurisprudence regarding the circumstances in which juror prejudice due to pretrial publicity will be presumed. Although the conduct of the Skilling trial may not have been the “media circus” the Supreme Court found so repugnant in Estes and Sheppard, or involved an ill-gotten televised confession to a heinous crime as in Rideau, the Skilling trial and the events that preceded it were undeniably newsworthy and the subject of extensive coverage. The Court’s analysis of the tone of such coverage to determine whether it was presumptively prejudicial ignored the magnitude of the tragedy caused by the crash of Enron and the particularized feelings of animosity toward the Enron defendants in the Houston community as a result of the collapse. Arguably, extensive, negative pretrial publicity was unnecessary in the Skilling trial to cause community prejudice. As Skilling contended on his appeal to the

80. Id. at 2959. 81. Id. at 2963.

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Out of Houston? Fifth Circuit, it is the tragedy that causes the community sentiment; the media coverage only reflects, reinforces, and amplifies the sentiment. Further, in an age when news is no longer disseminated solely by traditional media, and where minor stories of limited publication quickly can go “viral” on Facebook, Twitter, or YouTube, it will be increasingly difficult for trial courts to accurately gauge the impact of trial publicity. Indeed, at least one criminal defendant recently unsuccessfully sought a new

trial on the basis of, inter alia, multiple reporters “Tweeting” during his trial and describing such things as the jurors’ reactions to various aspects of the proceeding.82 Although such conduct may not warrant a finding of presumptive prejudice, in the age of social media it is necessary that proper safeguards, such as extensive voir dire and strict instructions to jurors not to read, listen, follow, or watch anything concerning the case, be implemented to prevent actual prejudice from entering the jury box.

82. See Motion for New Trial and/or New Penalty Phase Hearing or the Imposition of a Life Sentence Without the Possibility of Release, Connecticut v. Hayes, No. CR07-0241859, (Conn. Super. Ct., New Haven Jud. Dist., Nov. 17, 2010); see also William Glaberson, Cheshire Appeal Will Point to Twitter, N.Y. Times, Dec. 1, 2010, http://www.nytimes.com/2010/12/02/nyregion/02cheshire.html. An appeal is expected. Id.

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Volume 1, Issue 1

Who Was That Masked Man?

Who Was That Masked Man? A Better Approach to “Unmasking” in Public Figure/Public Concern Libel Suits. By Ben Holden*

nder what circumstances should courts order newspapers and similar thirdparty website hosts to disclose the names of persons who anonymously post allegedly libelous statements about public figures or matters of public concern?1 In the mid-1990s, the Internet became part of the business of American media. At the turn of the 21st century, collectively, newspapers, television stations, radio stations, and the companies that operate them, decided not to charge extra for “going online.”2 Simultaneously, the American media seem to have made a second decision * 1.

that would impact the first: they decided not to hold online comments to the same standard as their letters-to-the editor, and similar feedback channels. The one-two punch of these two decisions has created a new reality, resulting in anonymous fora of high-stakes communication on the websites of every newspaper, television station and other substantial media outlet in this country. The media cannot afford to give up the ad revenue associated with this online “traffic”—albeit anonymous—but also cannot adequately police the quality of the discourse spawned by anonymity. Mean-

Mr. Holden thanks Ryan E. Ward, an undergraduate student in English linguistics at the University of Nevada, Reno, for his assistance. This article updates and summarizes the case law analyzing when courts ought to require an Internet service provider (“ISP”) to reveal the Internet protocol addresses (“IP Address”) of the computer that sent anonymous and allegedly libelous public figure/public concern communications to an online comment forum or similar platform. The purpose of this revelation is to unmask the sender of the message, and therefore give a proper public-figure libel plaintiff a real person to haul into court for redress of his defamation claim. This article leaves to others the important questions of (1) the proper unmasking standard to be applied in defamation cases involving neither public figure/public official plaintiffs nor matters of “public concern”; and (2) the proper standard for commercial tort, contract and other causes of action outside the defamation/public figure context. For a robust discussion of these issues, see, e.g., American Bar Association, Intellectual Property Law Section, Legal Strategies for Dealing with Anonymous Infringers, ABA Annual Mtg. 2010, available at, http://new.abanet.org/calendar/section-of-intellectual-property-law-aba-annual-10/Documents/ Legal%20Strategies.pdf. See also Sony Music Entertainment Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004) (copyright infringement in context of peer-to-peer file-sharing networks); Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) (trademark infringement and related business torts); Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005); Immunomedics, Inc. v. Doe, 775 A.2d 773 (N.J. Super Ct., App. Div. 2001). Tentatively, newspapers are attempting to reverse this financially disastrous decision. See, e.g., Richard Perez-Pena, The Times to Charge for Frequent Access to Its Web Site, N.Y. Times Jan. 20, 2010, http://www.nytimes.com/2010/01/21/business/media/21times.html.

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Who Was That Masked Man? while, judges, well-versed in traditional libel law, are being asked to draw lines at the procedural stage to determine when and under what circumstances anonymous posters, who may have committed libel or other civil torts, should be identified or unmasked.3 There are many implications of this inquiry. Does the law of cyberspace protect or allow anonymous posts online that would be libelous if written in hard copy? What about materials that are potentially violative of copyrights or other business interests? How about positive or “huckster” messages from self-promoting individuals or “Astroturf ” organizations, promulgated by adverting firms under the cloak of anonymity intended to give the false impression of grass-roots support?4 Much has been written recently in the developing law of cyberspace5 on the respective rights of anonymous bloggers, aggrieved plaintiffs (both libel cases and those with commercial 3.

claims) and third-party content providers who create the platform for those blogs.6 The law that has developed to govern these cases has come from a range of contexts, but all the cases—whether they reach an august court of appeal spawning a lengthy judicial opinion, or get settled quietly before a local trial judge, whether they involve libel plaintiffs (the subject of this article), copyright plaintiffs, or defendantthird party providers fighting a subpoena on behalf of another—all have one thing in common: somebody said something that someone else believes is actionable, and the speaker—either for lack of notice or by choice—does not respond. News media companies; independent political, sports or social web sites; and people-connectors such as Facebook and Twitter are often caught in the middle.7 This article attempts to summarize and update those earlier offerings (rendering it “current” only until new, significant caselaw

The Citizen Media Law Project has gathered together a group of cases applying a “heightened standard,” or procedural showing, which tends to require allegedly damaged libel plaintiffs to show substantial evidence or proof supporting their libel claims. See Citizen Media Law Project, Legal Protections for Anonymous Speech, in Citizen Media Law Project’s Legal Guide, http://www. citmedialaw.org/legal-guide/legal-protections-anonymous-speech (collecting cases). Samuel A. Terilly, Don W. Stacks, and Paul D. Driscoll, Getting Even or Getting Skewered: Piercing the Digital Veil of Anonymous Internet Speech as a Corporate Public Relations Tactic (Vengeance is Not Yours, Sayeth the Courts), , 4 Pub. Rel. J. 1 (Winter 2010); Free Press, Free Press Exposes Astroturf Groups, (press release) Aug. 19, 2009, http://www.freepress.net/node/71850; see also Jonathan Saltzman, Blogger Unmasked, Court Case Upended, Boston Globe, May 31, 2007, http://www.boston.com/news/local/articles/2007/05/31/blogger_unmasked_court_case_upended/ (pediatriciandefendant in malpractice case quickly settled after being forced to admit that he was anonymous blogger complaining about the trial) The courts have recognized the challenges posed by the Internet since the earliest cases involving the new medium. See, e.g., Blumenthal v. Drudge, 992 F.Supp. 44, 49 (D.D.C. 1998) (“The near instantaneous possibilities for the dissemination of information by millions of different information providers around the world to those with access to computers and thus the Internet have created ever-increasing opportunities for the exchange of ideas in ‘cyberspace.’ This information revolution has also presented unprecedented challenges relating to rights of privacy and reputational rights of individuals … Needless to say, the legal rules that will govern this new medium are just beginning to take shape.”). This article does not treat issues raised by Section 230 of the Communications Decency Act of 1996, 47 U.S.C. § 230, , which holds providers and users of interactive computer services harmless from liability for third-party content, under certain circumstances. See, e.g., Kim Zetter, Skanks’ Blogger Unmasked by Google Vows to Sue Company, Wired.com (Threat Level Blog), http://www.wired.com/threatlevel/2009/08/blogger-unmasked/ (Aug. 24, 2009); Court Rules Anonymous Blogger Sued for Defamation May Be Unmasked, ABA J., (Oct. 26, 2009); Anonymous blogger unmasked after Twitter injunction, Solicitors J., Oct. 7, 2009; Wendy Davis, School Volume 1, Issue 1

Who Was That Masked Man? is handed down). And further, this article will posit a new proposed solution—the Public Discourse Test8—gleaned from the analysis of various judges and commentators, that might offer a best-practice compromise for the courts and the media.9

Web 1.0: First Amendment Lite?

s the developing law of cyberspace growing up to be the stepchild of the historical First Amendment? Does the Internet, with its inherent penchant for petty insults and anonymous flame wars, require courts to change the standards of speech protection traditionally afforded those who espouse even the most unpopular views in print? Should there be regulation of the Internet by the courts beyond the defamation/privacy and related torts that inform the constitutional law of traditional print media? The courts have answered these questions with a resounding “no.” In Reno v. ACLU,10 the U.S. Supreme Court found

10. 11. 12. 13.

“no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”11 The court flatly rejected arguments that a limited or qualified level of First Amendment protection ought to be afforded cyberspace communications.12 Further, the U.S. Supreme Court weighed in on the question of anonymous speech on the Web relatively early. In McIntyre v. Ohio,13 Justice John Paul Stevens wrote passionately in his majority opinion about the importance of protecting works of anonymous authors or those choosing to use pseudonyms: Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers’ curiosity and the public’s interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic

Tries To Sanction Unmasked Student Blogger, The Daily Online Examiner (MediaPost Blogs), Oct. 29, 2009, http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=116448; and Associated Press, Google Ordered to Reveal Identity of ‘Stalker, FoxNews.com, Oct. 22, 2010. http://www.foxnews.com/scitech/2010/10/22/google-ordered-reveal-identity-stalker/. This concept is independent of and unrelated to the notion of “Public Discourse” discussed by Robert C. Post in The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation and Hustler Magazine v. Falwell, 103 Harv. L. Rev. 601 (1990). Much insightful and thorough work has laid the foundation for this article. See, e.g., Lyrissa Barnett Lidsky & Thomas F. Cotter, Authorship, Audience and Anonymous Speech, 82 Notre Dame L. Rev. 1537 (2007); David Sobel, The Process that ‘John Doe’ is Due: Addressing the Legal Challenge to Internet Anonymity, Symposium 2000, 5 Va. J.L. & Tech 3, (2000); and Ashley I. Kissinger and Katharine Larsen, Shielding Jane and John: Can the Media Protect Anonymous Online Speech?, Comm. Lawyer (July 2009). See also Ashley I. Kissinger and Katharine Larsen, Protections for Anonymous Online Speech, in Communications Law in the Digital Age 2010 (Practising Law Institute, Nov. 2010), 1028 PLI/Pat 459; Nathaniel Gleicher, Note, John Doe Subpoenas: Toward a Consistent Legal Standard, 118 Yale L.J. 320 (2008); Citizen Media Law Project, Legal Protections for Anonymous Speech, in Citizen Media Law Project’s Legal Guide, http://www.citmedialaw.org/legal-guide/ legal-protections-anonymous-speech; Michael S. Vogel, Unmasking ‘John Doe’ Defendants: The Case Against Excessive Hand-Wringing over Legal Standards, 83 Or. L. Rev. 795 (2004); Caroline E. Strickland, Note, Applying McEntyre v. Ohio elections Commission to Anonymous Speech on the Internet and the Discovery of John Doe’s Identity, 58 Wash & Lee L. Rev. 1537 (2001); and Kristina Ringland, Internet User Anonymity, First Amendment Protections and Mobilisa: Changing the Cahill Test, 5 Shidler J.L. Com. & Tech. 16 (2009). 521 U.S. 844 (1997). Id. at 870 (1997). See id., distinguishing Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128 (1989); and Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 399-400 (1969). 514 U.S. 334 (1995).

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Who Was That Masked Man? or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.14

In his opinion, Stevens cited the history of anonymous speech in the United States, dating back to the anonymous authors of The Federalist Papers,15 concluding that, “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.”16 Carrying this principle forward to modern technology, anonymous posts to the Web—both in their substance and the right to remain anonymous—are protected under the First Amendment. But because some early courts looked askance at the wild and unruly nature of the Web—its penchant for rude language, partial truth and indecent images—there have been many governmental attempts to regulate the medium.17 One early Supreme Court case that fought back such sentiment in developing the law of cyberspace was Reno v. ACLU.18 In adjudicating the constitutionality of provisions of the Communications Decency Act that sought to limit transmission of

sexually explicit material to minors via the Internet, the Reno court laid a solid First Amendment bedrock for cyberspace: “[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet].”19 The Supreme Court’s Reno opinion waxed at length on the Web’s implications: “This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates further than it could from any soapbox.”20 This ode to the Web by the U.S. Supreme Court makes clear that the justices have great reverence for the democratic impacts of the medium. Their own words say there is only one First Amendment; their reverence implies they will not change that conclusion any time soon. So how best, as a matter of public policy, ought the interests of First Amendment protections—even encouragement—of criticism of public figure plaintiffs be balanced against this emerging medium which, if unchecked, can allow anonymous speakers to go too far? The U.S. Supreme Court has consistently stated that content on the Internet is not subject to a lesser standard of First Amendment protection. Similarly, when persons are libeled in cyberspace, the same remedies attach as with hardcopy, subjecting libeling defendants to potential monetary damages. While the courts have found a clear,

14. 15. 16. 17.

Id. at 341-342 (emphasis added). Id. at 343, n. 6. Id. at 357. See, generally, St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D. Tex. 1999) (“… While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation … [A]nyone can put anything on the Internet …”). 18. See Reno v. ACLU, 521 U.S. 844 (1997). 19. Id. at 870. 20. Id. Of course the phone line reference seems quaint in 2010 when most lines to homes and businesses are broadband and wireless access proliferates.

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Who Was That Masked Man? historical right to speak anonymously, they have consistently held that certain kinds of speech do not enjoy First Amendment protection. “[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances.”21 For example, “it is … clear that the first Amendment does not protect defamatory speech.”22

To Unmask Or Not To Unmask, That Is The Question A Summary of the Caselaw: CahillDendrite-Brodie et al. he question becomes: When should courts force a newspaper or other third-party provider of chat space or cybercommunication forums to unmask or identify a defendant in a libel case involving a public figure/public official or matter of public concern? For many, the issue turns on the nature of the facts: how badly do we as a society want to know “whodunit”? If the person favors mom, America and apple pie, nobody of course much cares. But if the anonymous posts are about race or anti-Semitism, certain members of the community are outraged and insist on unmasking.23 Or, if cyberbullying is the subject, great community outrage can attach, putting pressure upon third-party providers to unmask an

anonymous contributor.24 The same can be said for impersonators, stalkers and mean girls.25 In this developing area of the law, courts have many options in deciding when to unmask a blogger or web poster who is a would-be civil defendant in a libel case. An aggrieved party, of course, begins a lawsuit against unknown persons by naming them as “John Doe” or “Jane Doe.” The discovery process allows a legitimate plaintiff to ascertain the identity of these Does through court-supervised civil investigation. But because the U.S. Supreme Court has upheld an anonymous author’s First Amendment protection of not just what he writes, but of the right to remain unknown, these First Amendment rights tend to conflict with the rights of a legitimately aggrieved civil litigant-plaintiff.26 There appear to be two emerging lines of analysis which set forth working standards for unmasking anonymous online posters. One of the earliest decisions on the unmasking question enunciated a detailed four-part test. In Dendrite International v. Doe,27 a New Jersey appellate court heard a case of apparent first impression: a corporate defamation plaintiff seeking to obtain the identity of a defendant who posted anonymous comments about the corporation on an Internet message board.

21. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942). “It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id. 22. Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005). 23. See, e.g., Google Asked To Reveal Blogger Identity, WebPro News (March 22, 2007), http://www. webpronews.com/insiderreports/2007/03/22/google-asked-to-reveal-blogger-identity (local school board asks Google to reveal anti-Semitic blogger’s identity, but Google will only do so if a court orders them to do so.) 24. See, e.g., Court: Google Must Reveal Identity of Cyberbully, Opposingviews.com (Oct. 21, 2010), http://www.opposingviews.com/i/court-google-must-reveal-identity-of-cyberbully (student who was subject of derogatory comments on YouTube and a blog gets court to order to unmask anonymous commenter). 25. See n. 7, supra. 26. See, generally, McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-42 (1995); Dendrite Intern. v. Doe, 775 A.2d 756 (N.J. App. Div. 2001); Doe v. Cahill, 884 A.2d 451 (Del. 2005); and Independent Newspapers v. Brodie, 966 A.2d 432 (Md. 2009). 27. 775 A.2d 756 (N.J. Super., App. Div. 2001). Reynolds Courts & Media Law Journal

Who Was That Masked Man? The court found that the plaintiff must (i) post notice to the defendant that he is the subject of a subpoena or application for order of disclosure, and withhold action until defendant has a reasonable opportunity to respond; (ii) set forth the exact, allegedly defamatory statements; and (iii) satisfy the prima facie or “summary judgment” standard. The court would then (iv) balance the defendant’s rights to anonymous free speech against the strength of plaintiff ’s prima facie case.28 Four years later, in Doe v. Cahill,29 the Delaware Supreme Court set out a different standard for unmasking a cyberspace defendant who is accused of libel. The court concluded that the Dendrite test contained redundant or unnecessary parts, and collapsed the inquiry from four parts to two, eliminating the requirement of setting forth the allegedly defamatory statements (the second prong of the Dendrite test) and the balancing test (Dendrite’s fourth prong), on the theory that they are already covered indirectly by the other prongs.30 The Cahill court, in declining to follow Dendrite,31 said the proper test should merely require the plaintiff to (i) make “reasonable efforts to notify the defendant” that the plaintiff is trying to unmask, and give the defendant time to respond. The plaintiff must then (ii) satisfy the summary judgment

standard that there are triable issues of fact.32 The court in Cahill, applying Dendrite in part and rejecting it in part, said: … To satisfy the summary judgment standard a plaintiff will necessarily quote the defamatory statements in his complaint. The fourth Dendrite requirement, that the trial court balance the defendant’s First Amendment rights against the strength of the plaintiff ’s prima facie case is also unnecessary. The summary judgment test is itself the balance.33

Finally, in 2009, the Court of Appeals of Maryland, which of course is not bound by the test of Cahill articulated by the Delaware Supreme Court, reverted back to the test of Dendrite, and even appeared to expand it. In Independent Newspapers v. Brodie,34 the Maryland court said: [W]hen a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the

28. 29. 30. 31.

Id. at 141-42. 884 A.2d 451 (2005). Id. at 460. Some commentators argue that the Cahill court believed it was following Dendrite. See Kissinger and Larsen, Protections for Anonymous Online Speech, supra, at 7: “The Cahill court’s articulation of the test in summary judgment terms has generated both confusion and criticism. Despite the fact that the court in Cahill plainly believed this element of its test was the same as that of Dendrite—the court spoke in the same breath of “the prima facie or ‘summary judgment standard’”—a few courts have viewed Cahill as setting forth a different standard, some of them describing it as less burdensome.” As examples of such cases, Kissinger and Larsen cite Dendrite, supra, at 460, Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231, 242-43 (Cal. App. 2008), and Independent Newspapers v. Brodie, 966 A.2d 432, 456-57 (Md. 2009). Kissinger and Larsen argue that Brodie “inaccurately” characterizes the Cahill summary judgment test as ’requiring plaintiffs to provide enough evidence to affirmatively establish their entitlement to summary judgment …” This article expresses no opinion on this reading of Brodie. 32. Cahill at 461. 33. Id. 34. 966 A.2d 432 (Md. 2009).

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Who Was That Masked Man? complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5) if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity of disclosure of the anonymous defendant’s identity prior to ordering disclosure.35

While courts have differed in their procedural approach to the “when to unmask” question, they all require the plaintiff to post a message online, directed to the defendant, essentially warning him or her that they are the subject of the “unmasking” court motion, and to plead facts that, if true, state a valid claim against the defendant.36 In the wake of Dendrite, an evolving, though not universal, standard seems to be emerging, which requires some balancing of First Amendment interests, particularly where the subject matter is of particular social importance.37 Gleicher’s Proposed Standard In his 2008 Note in the Yale Law Journal, Nathaniel Gleicher covered much of the waterfront of John Doe litigation: its pleading history, the technical processes by which Internet service providers affect the unmasking, and varying subpoena standards for determining whether to unmask.38 He starts with a viable premise: For a standard to balance fairly the interests

of plaintiffs and defendants, it must evaluate whether the substance of the plaintiff ’s claim is strong enough to merit unmasking the defendant.39

But then Gleicher’s analysis veers off into a realm of subjectivity that would be virtually unworkable for judges. His fundamental premise is problematic: He says that John Doe subpoena standards should be structured to afford less anonymity to online speakers who chill more speech than they create. He writes: “… the standard should distinguish between anonymous speech that enhances public discourse and anonymous speech that chills it.”40 If only it were so easy. While Gleicher does a fine job of laying out the dilemma about standards for unmasking anonymous bloggers, any paradigm that has as its premise that there are two classes of anonymous speech—to somewhat oversimplify, “good and bad” —is inherently problematic. He writes that courts should distinguish “harassing” speech from “traditional” speech, and give greater protection to the latter. He also argues that the courts should make an initial determination of whether the speech at issue is the sort that is in the public interest versus that which is not.41 This premise is fundamentally flawed. The problem, as the late great columnist Mike Royko’s fictitious mouthpiece Slatz Grobnik42 might argue, is: “Sez who?”

35. Id. at 457 (citing Dendrite at 760-61). 36. Dendrite at 760; Doe v. Cahill at 460; and Independent Newspapers at 457. 37. For a survey of such cases, see Mathew Mazzotta, Balancing Act: Finding Consensus On Standards for Unmasking Anonymous Internet Speakers, 51 Boston Coll. L. Rev. 833, 855-56 (2010). 38. Nathaniel Gleicher, Note: John Doe Subpoenas: Toward a Consistent Legal Standard, 118 Yale L.J. 320 (2008). 39. Id. at 331. 40. Id. 41. “For a standard to balance fairly the interests of plaintiffs and defendants, it must evaluate whether the substance of the plaintiff’s claim is strong enough to merit unmasking the defendant. Although John Doe subpoenas arise under varied substantive claims, they all affect the right of anonymous speech online. To accomplish this task, the standard should distinguish between anonymous speech that enhances public discourse and anonymous speech that chills it.” Id. at 331. 42. For a “biography” of this character, see F. Richard Ciccone, Introducing Slats Grobnik, Mike Royko’s alter ego, Chicago Tribune, June 13, 2001, available at http://articles.chicagotribune.com/200106-13/features/0106130008_1_mike-royko-slats-grobnik-gun-club. Reynolds Courts & Media Law Journal

Who Was That Masked Man? Gleicher’s analysis makes much of the evils of online bullying, harassment and tyranny, arguing that “[A]nonymous online harassment, however, can frighten its targets into silence and drive them out of public debate entirely. Because it largely targets minority groups, online harassment has repercussions beyond its immediate targets, potentially dissuading entire classes of speakers from public speech.”43 In defense of this position, Gleicher cites articles that advocate distinguishing speech on the basis of a particular social agenda.44 But who decides? Even the imaginary Grobnik knew that one man’s harassment is the music of another man’s whistle blowing. Consider the following cases, where application of the ‘harassment v. traditional’ approach might yield a socially undesirable result. • A public-relations executive turns over the expunged arrest record of his client’s opponent in the governor’s race on the eve of the election. • A spurned ex-spouse posts personal photographs of her executive ex-husband and his mistress enjoying a lavish vacation at company expense. • A congressman uses taxpayer dollars to house his staff and a pet nonprofit in a rent-

controlled New York apartment he controls as a political perk. Would posting this information be harassment, or traditional First Amendment protected activity? Or a little of both? One court, for example, found that while anonymous posters’ harassing statements involved matters of public concern, others involved matters of private concern, and some were “mere hyperbole.”45 The harassment standard, particularly in the age of the Internet, is simply too vague. Judges require more guidance and litigants deserve more certainty. The ‘Public Discourse’ Test: An Alternative Paradigm46 While Cahill and Dendrite are considered the leading cases in the “unmasking” arena, many jurists and commentators have expressly or implicitly criticized these decisions. Matthew Mazzaotta surveyed the cases in 2010 and found that “[m]ost courts in this survey agree that plaintiffs must make an evidentiary showing on the merits of the claim and demonstrate a need for the anonymous defendant’s identifying information. … There is considerably less agreement, however, about other elements in unmasking standards.”47

43. Gleicher, supra, at 331. 44. For example, Gleicher approvingly quotes Danielle Keats Citron, Cyber Civil Rights, 89 Boston U. L. Rev. 61 (2009), which states that “Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. … Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. … With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond. General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. … Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.” Citron at 62 (abstract). 45. In Re Baxter, 2001 WL 34806203 (W.D. La. 2001), at *15. 46. Gleicher,suggests the following test: “If the plaintiff is not a public figure, or the defendant’s speech is not public, the plaintiff must produce prima facie support for all elements of the case within his control. If the plaintiff is a public figure responding to public speech, he must provide prima facie support for each element within his control and state with particularity facts giving rise to a strong inference of each element that is outside his control.” 320 Yale L.J. at 357.

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Who Was That Masked Man? The court in Mobilisa Inc. v. Doe 1 48 may have headed down this road, employing a balancing test that suggests that judges might take into account the public policy implications of unmasking an anonymous online speaker. Under Mobilisa, even if the plaintiff makes an adequate summary judgment showing under the test from Cahill, he may nonetheless still be turned away in his quest to unmask because of overriding public policy interests.49 But even if Mobilisa does not expressly posit that its balancing test raised the bar beyond the summary judgment standard for publicfigure/public concern cases, such a reading is not inconsistent with that case. Adopting this “super-summary judgment” standard in certain cases will allow courts to protect more speech that is in the public interest, while maintaining effective tools to dampen speech that is not. So, to return to Royko’s Slatz Grobnik, “Sez Who?” If one were to presume that judges (or anyone else) should—or could—as a matter of public policy readily distinguish between “harassing” and “traditional” First Amendment speech, what would the standards be? If not the prima facie test, or the summary judgment test, or Gleicher’s suggested ‘harassing speech’ versus ‘traditional’ speech approach, then what ought to be the test?

What test should be applied, in the best interests of judges, journalists and sound public policy? Perhaps the new test can be found in old law. The opinion in In Re Baxter 50 is instructive. Federal Magistrate Kirk, in a case involving anonymous online criticism of University of Louisiana-Monroe Vice President Richard Baxter, suggested an analytical model that takes full account of more than just the procedural niceties of whether a plaintiff can make out a prima facie case or is likely to survive a motion to dismiss or summary judgment. Instead, after reviewing and rejecting various procedural tests (including the Dendrite case prima facie test), Kirk went right to the heart of the matter: … None of these tests seems to be perfectly satisfactory … I believe that the proper standard should be, depending upon whether the statements involve public concern or private concern, a showing of at least a reasonable probability or a reasonable possibility of recovery on the defamation claim.”51

With the addition of some reasonable showing of damages, the Baxter standard, somewhat modified by other case analysis, should be adopted as a best practice. The Baxter analysis essentially applies the existing distinctions in the law to the anonymity online problem. Of course,

47. Matthew Mazzotta, Balancing Act: Finding Consensus On Standards For Unmasking Anonymous Internet Speakers, 51 Boston Coll. L. Rev. 833, 856, n. 156 (2010), Mazzotta’s survey notes that “three standards in the survey contain balancing prongs, while seven do not,” citing Doe I v. Individuals, 561 F.Supp.2d 249, 254-56 (D.Conn.,2008) (involving derogatory statements on the .autoadmit.com web site),; Doe v. 2TheMart.com Inc.. 140 F.Supp.2d 1088, 1095 (W.D.Wash. 2001); Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D.Cal.,1999); Mobilisa, Inc. v. Doe, 170 P.3d 712, 721 (Ariz.App. Div. 2007); Krinsky, supra, 72 Cal. Rptr. 3d at 244-46; Cahill, supra, 884 A.2d at 460-61; Solers, Inc. v. Doe, 977 A.2d 941, 954 (D.C. 2009); Brodie, supra, 966 A.2d at 457; Dendrite, supra, 775 A.2d at 760-61; In re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. 26, 37, 2000 WL 1210372 (Va. Cir. Ct. 2000), rev’d on other grounds, America Online, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350, 542 S.E.2d 377 (Va.,2001); and Cahill, supra, 884 A.2d at 451, 460-61. 48. 170 P. 3d 712 (Ariz. Ct. App. 2007). 49. Mobilisa does not explicitly say this, but this is the net result of the balancing test applied in the case. Ringland, supra n. 10, argues that the balancing prong in Mobilisa is a superior test to ones delineated in Dendrite or Cahill. 50. Supra, 2001 WL 34806203. 51. Id. at 36-38. Reynolds Courts & Media Law Journal

Who Was That Masked Man? newspapers, television stations, and those involved in the free-flowing critique of everything from Baroque music to broke investment banks wants to adhere to traditional First Amendment values that were developed long before the Internet became ubiquitous. Courts analyzing cases involving public figures/public officials and matters of public concern ought to apply the traditional constitutional standards of New York Times v. Sullivan52 and its progeny at the outset. If the plaintiff cannot prove falsity and damages, he or she loses outright, and the courts should take pains—as the court did in Baxter—to weigh First Amendment concerns and construe “truth” liberally.53 The facts of In Re Baxter are not atypical. Baxter, vice-president for university advancement and external affairs of the University of Louisiana at Monroe and executive director of the university-supporting ULM Foundation, was the subject of withering online criticism. Baxter’s primary job responsibilities were “to manage the university’s office of development, alumni relations, conference center, public affairs, and the university’s performing arts series.” But some anonymous commentator—who, based on the anonymous commentator’s stated career concerns was affiliated with the university—said that Baxter: … is one of the “sewer staff ” of the university president and that he has “begun to crack under the strain.” Although the [anonymous] article references delinquent loans and bad debt, none of those allegations seems to be directed to Baxter, but rather they appear to be directed to the university president Swearingen. The article goes on to allege that “Baxter’s job is to make sure that Swearingen’s incompetence and ULM’s state of decline under Swearingen are kept under cover” and suggests that reporters for a 52. 53. 54. 55. 56. 57. 58.

newspaper have “uncovered a few issues and this apparently causes Baxter to lose sleep.” It alleges that Baxter was upset at one of that newspaper’s stories, that Baxter used “colorful expletives …”54

So what should the proper test be? To determine whether to allow the Doe defendant in Baxter to litigate the case procedurally without revealing his identity, the court analyzed the substance of the plaintiff ’s claim, as sort of a preview analysis of the underlying merits of the case. The Doe defendant admitted in a motion to intervene anonymously that he or she was responsible for some of the negative statements made about Baxter.55 Ultimately, the court decided against allowing the defendant to intervene anonymously, but in the process, it articulated standards that might pave the way for judges dealing with these difficult “unmasking” questions in the future.56 And while vice president Baxter may be the classic public figure/public official, with ample resources to bring lawsuits, get quoted in the local newspaper, and defend himself, a high school girl and disgraced member of the “Heroes and Cool Kids” club certainly was not. Nonetheless, the court in the A.Z. v. Doe—which was the same court that decided Dendrite, but not with the same panel—engaged in similar analysis to Baxter, though ironically reaching a different result.57 The plaintiff in A.Z. was alleged in an anonymous e-mail to a guidance counselor to have engaged in under-aged drinking. As proof of this allegation, the e-mail included a photograph—obtained from Facebook—of the plaintiff throwing a ping pong ball at a table topped with cups and alcohol containers.58 In affirming the lower court’s grant of the

376 U.S. 254 (1964). In Re Baxter, supra, 2001 WL 34806203 at 18. Id. at *14. Id. at *1. See id. A.Z. v. Doe, 2010 WL 816647 (N.J. Super., App. Div. 2010). Id. at 5-7. Later, during the litigation, the defense provided photos that appeared to show plaintiff actually drinking alcohol. Volume 1, Issue 1

Who Was That Masked Man? Doe defendant’s motion to quash a subpoena and thereby rejecting the minor plaintiff ’s defamation claim. It found the appeals court inquired into the underlying substance of plaintiff ’s defamation claim and found the apparent truth of Doe defendant’s claim—that the minor child drank alcohol and therefore was in violation of her “Cool Kids” honor society oath—and inquired, like the court did in Baxter, into the underlying substance of the libel claim, and weighed the First Amendment interests of the Doe defendant. The court reasoned that: In Dendrite, we held that where an anonymous person posted defamatory speech on broadlyavailable Internet message boards, a plaintiff would be entitled to an order divulging the identity of the anonymous author only if the plaintiff provides sufficient information to demonstrate that his or her cause of action could withstand a motion to dismiss for failure to state a claim, supported by prima facie evidence to support each element of such cause of action (third prong); and establishes, through a balancing test, that the necessity of the disclosure of the anonymous defendant’s identity outweighs the defendant’s First Amendment right of anonymous free speech (fourth prong).59

Then the A.Z. v. Doe court went further. In its de novo review of the record, the court appeared to pay deference to the First Amendment beyond the mere finding that A.Z. failed to make out a prima facie case. “‘True statements are absolutely protected by the First Amendment,’” the court stated.60 “Significantly, ‘[a] statement can be fairly accurate’ and still be considered the truth as a defense to a defamation claim.”61 While “A.Z.” was not a public figure or public official—she is, in fact, a minor—the fact that the issue of underage drinking is

a matter of great public concern is implied, but not explicitly stated, in the painstaking factual analysis of the court in its de novo review in A.Z. Thus the Dendrite-Mobilisa-Baxter-A.Z. v. Doe line of cases suggests an inquiry directly into likelihood of success on the merits, with due deference to the First Amendment. In a public-figure libel action, asking whether the plaintiff has a “reasonable possibility” of success on the merits— as Magistrate Kirk did in Baxter—would be the initial inquiry. Requiring the plaintiff to show damages would further add to the test and limit the use of unmasking as a tactic to silence critics. Such a “Public Discourse Test”—ab initio proof of falsity plus damages—allows possible redress of plaintiffs’ defamation damages, while keeping the flow of information in the public interest at its highest level. Recent developments in the unmasking area focused on commercial speech are not inconsistent with this suggested approach.62 And, as to the analysis by Kissinger and Larsen in Shielding Jane and John as well as in their 2010 PLI article,63 the “expressive” versus “infringing” speech distinction can also be preserved: that is, the “Public Discourse Test” would apply only to “expressive” speech. In order to avoid the concern raised by Kissinger and Larsen of whether the content-based distinction of In Re Anonymous Online Speakers might lead to a lesser level of protection for “speech about the arts, history, science or religion” the Public Discourse Test would employ criteria similar to the Miller v. California obscenity analysis, and give greater protection to speech which had “any material serious

59. Id. at *1, citing Dendrite, 775 A.2d at 756. 60. Id. at 5 (quoting G.D. v. Kenny, 984 A.2d 921, 928 (N.J. Super., App. Div. 2009)). 61. Id. at 5 (quoting G.D. v. Kenny at 932 (quoting LoBiondo v. Schwartz, 323 N.J.Super. 391, 407, 733 A.2d 516 (N.J. Super., App.Div. 1999), certif. denied, 744 A.2d 1211 (N.J. 1999)). 62. See e.g., In re Anonymous Online Speakers, 611 F.3d 653 (9th Cir. 2010) (commercial speech entitled to less constitutional protection than political speech); and Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010). 63. See n. 10, supra. Reynolds Courts & Media Law Journal

Who Was That Masked Man? literary, artistic, political or scientific value.”64 For simplicity’s sake, the Public Discourse Test might be thought of as something beyond the Cahill summary judgment analysis: a sort of summary judgment-plus. In other words, in order to unmask an anonymous online blogger or poster, a public figure plaintiff, or a plaintiff raising objections over writings on a matter of public concern, would be required to show the “reasonable possibility of proof of actual malice.”65

The Public Discourse Test might be thought of as something beyond the Cahill summary judgement analysis: a sort of summary judgement-plus. The test for unmasking an anonymous blogger or online poster who writes about a public figure, a matter of public concern, or the shenanigans of the chief executive officer of his own company should be expansive rather than restrictive. It should be decidedly higher than the test articulated in Cahill and even in Dendrite, for precisely the same reason that public figure libel plaintiffs and plaintiffs in matters of public concern must meet a higher constitutional burden.66 While Gleicher’s approach is clearly responsive to the practical public policy need to make distinctions between traditional First Amendment protected activity and the dreck that the Internet seems to invite, he comes at it in a manner that implies subject-matter and perhaps even content-based discrimination.

The better answer comes from the existing paradigm of libel and defamation law. When the issue is one of public concern or the subject matter-plaintiff is a public figure, the controlling precedents attendant in the traditional libel context should control. That is, New York Times v. Sullivan actual malice,67 Hustler v. Falwell’s treatment of parody,68 and the rest of the familiar First Amendment jurisprudence. How do we know if an anonymous comment on a website meets the Public Discourse Test? The answer, of course, will have to be somewhat fact-based, but no more so than the existing analysis of what constitutes a “matter of public concern” for constitutional purposes. A “reportorial” communication, such as the one from A.Z. v. Doe concerning the apparent hypocrisy of a young student leader who had taken a no-drinking pledge, would succeed under the test, likely defeating plaintiff ’s unmasking effort. But a statement alleging that the same student had poor grades, or a propensity to change boyfriends, would not. A blog post written by a reporter for the New York Times or the (hypothetical) Local Daily Tribune about yesterday’s council meeting is reportorial. But so is a whistleblower’s claim that the chief financial officer of a corporation has her hand in the till: even if the claim turns out to be false. The standard ought to be whether a reasonable recipient of the communication is likely to gain a benefit from the communication that is reasonably calculated to serve some public good. Helping to avoid electing a bad candidate to the mayor’s chair is clearly “reportorial,” even if reported by an ordinary citizen on his Facebook page, and even if the post turns out to be false. On the other hand, petty gossip about

64. 65. 66. 67.

See, generally, Miller v. California, 413 U.S. 15 (1973). Baxter, supra, 2001 WL 34806203 at *12. See New York Times v. Sullivan, supra. 376 U.S. 254 (1964) (holding that a public-official plaintiff cannot constitutionally recover in a libel action unless he can show actual malice—in other words, that defendant knew the subject statements were false, or recklessly disregarded whether they were true or not.) 68. Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

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Who Was That Masked Man? a neighbor’s love life would clearly not be reportorial, even on the comment board of The Wall Street Journal. To be sure, this result leaves public figures open to scurrilous charges from online miscreants. But what’s new about that? Public figures and public officials (unfortunately) already assume the risk of losing some measure of their right to be left alone, given the easier-to-prove libel standard that is afforded non-public figure/public officials under many state’s defamation laws. Adopting a bifurcated system for unmasking in defamation cases does no more than front-load Cahill’s summary judgment test with the threshold issue of what level of constitutional protection a libel plaintiff should enjoy. If the plaintiff is a public figure, or if the anonymous defendant is writing about a matter of public concern, the plaintiff ’s burden to achieve unmasking should be extremely high, and met only upon a showing prior to summary judgment that the statement was false and that the plaintiff has suffered substantial damages. Procedurally, as the Baxter court discussed,69 it may be difficult to make this showing without knowing the identity of the defendant, so the plaintiff in a public figure/public official/public concern suit must show a “reasonable possibility” of prevailing on the merits. If the plaintiff—even before confronting the defendant—cannot show falsity of the statement, the plaintiff ’s unmasking attempt should instantly fail. Much is made (including in this article) of the societal risks of allowing anonymous bloggers to spew unattributed negative venom at unsuspecting citizens. But what remedy should the courts give, if any, to a political candidate or backer of a particular cause who suspects a purported grass-roots movement is really a well-financed front, cloaked neatly by the anonymity of the In-

ternet? Although beyond the scope of this article, politicians, public relations executives and publicly traded companies alike should well concern themselves with the question of what judges ought to do for the plaintiff who alleges his issue, campaign or cause has been defeated by false support, as discussed supra. Conclusion We need a constitutional standard for the unmasking of anonymous voices online. It is widely acknowledged by judges, journalists, and those engaged at the cutting edge of technology that “… no one is truly anonymous on the Internet, even with the use of a pseudonym.”70 For example, “Yahoo! warns users of its message boards that their identities can be traced, and that it will reveal their identity when legally compelled to do so.”71 A suggested best-practice standard applicable only to Public Discourse communications—those involving public figure plaintiffs or matters of public concern— would allow much more speech than it curtails. It is a very high standard, requiring plaintiffs to prove two key elements of their case in advance of the substantive unmasking inquiry. First, the plaintiff must prove that there is a “reasonable possibility” that he will win the defamation claim. This invites an inquiry in public figure/public concern cases into proof of falsity. If the plaintiff cannot prove falsity, he automatically loses his case to unmask. Next, he must prove damages. The judge should weigh the amount of damages, in light of both state defamation provisions and strictures of the U.S. Constitution limiting damages in certain cases. Some journalistic ethics and privacy experts see the unmasking of an anonymous web poster as the online equivalent of “burning a source,” which should be

69. In Re Baxter, supra, 2001 WL 34806203, at 10. 70. Krinsky v. Doe 6, 159 Cal.App. 4th 1154, 1162 (Cal. Ct. App. 2008) 71. Id. Reynolds Courts & Media Law Journal

Who Was That Masked Man? recognized as actionable by the courts.72 This view goes too far. On the other hand, some who are hostile to the Internet, anonymous speech, or the First Amendment, or who bemoan the apparent decline in civility on the Web, would opt for a broad sword to unmask misbehavior in cyberspace, where a scalpel would do the job better. To be sure, the one-two punch of largescale free web access and little or no content policing has created a Wild, Wild West of bad behavior online. The battleground of the third-party websites of the largest audience aggregators in most cities— newspapers, major television stations, or in some cases, the biggest corporation in town—needs a new sheriff to stand between the webbed gunslingers and the targets of their virtual six-shooters. Sometimes, the targets have it coming’ and sometimes not. A standard that is too low allows a cyber free-for-all of mean-spirited, childlike and potentially criminal behavior, a sifter that lets everything through. A standard that is too high protects unworthy public figures and public officials, or chills discussion of matters of grave public concern. It is balancing these two important—and often conflicting—interests that is at the heart of the question of when to unmask an anonymous blogger, poster or commenter. With the entire media industry now increasingly reliant on even the marginal revenue generated by the new, online audience and facing precarious downside pressure on traditional revenue due to declining audiences, there are no easy solutions. Do newspapers and other third-party websites bite down hard and invoke their traditional print standards on the Internet, scattering millions of unique visitors (and the ad dol-

lars that go with them) to the four winds? Do newspapers do nothing, standing idly by while their comment forums descend further into the fetid swirl of cyber-cynicism? Can the courts help them out of this mess? There are no easy solutions, but as is often the case with new problems, there are old answers. Rather than stretching and contorting the procedural tests of Cahill and its progeny (and assuming no clarification on this issue from the United States Supreme Court) trial courts whose appellate courts have not yet clearly spoken73 should consider the Public Discourse Test discussed here. This article has focused narrowly on the subject of when a judge in a “Public Discourse” libel lawsuit ought to order the third-party provider such as a newspaper or website to unmask the anonymous blogger. It attempts to balance the New York Times actual malice standard with the evolving reality of anonymity on the Internet and the practical cost and complication of identifying, serving and gaining jurisdiction over anonymous speakers, who may be a state or a continent away. We leave it to others to tackle the quagmire of non-public figure libel litigation, with its uncertainty as to the constitutional standard for recovery and for damages.74 The evolving standard must also allow honest mistakes—and even the publication of outright “honest” falsehoods—when those statements are directed toward public figures engaged in the public’s business. It should not allow the courts to become a tool of revenge to settle petty gripes played out in cyberspace. Therefore, a very high and objective standard for unmasking is the only way to adequately guard this public

72. Henry J. Gomez, Plain Dealer sparks ethical debate by unmasking anonymous Cleveland.com poster, The [Cleveland] Plain Dealer, March 26, 2010, http://blog.cleveland.com/metro/2010/03/plain_dealer_sparks_ethical_de.html (discussing the newspaper’s unmasking on the anonymous commentator “lawmiss”); also see generally, Cohen v. Cowles Media, 501 U.S. 663 (1991). 73. For a through round-up of the federal and state jurisdictions that have spoken on the unmasking issue, see Kissinger and Larsen, , n. 10, supra, at 17–36. 74. See Gertz v. Welch, 418 U.S. 323 (1974), for the constitutional limits of suits involving private individuals on matters not of public concern.

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Who Was That Masked Man? policy interest. The standard proposed by Gleicher, and similar approaches which have as their premise distinguishing between online “harassment” and “traditional” speech, are inherently problematic, particularly when directed toward public figures. The standard for unmasking an anonymous poster, blogger or other person engaging in discourse about a public figure or matter of public concern ought to be stratospherically high. A court, under Cahill, ought to first require the libel plaintiff to lay out the allegedly libelous statements in detail. Second, the court should analyze those factual allegations, and establish their falsity, under a New York Times actual malice standard. Again, pure opinion and parody are not generally actionable. And third, the court ought to insert into the Dendrite and/or Cahill tests an additional balancing analysis that asks not just whether this public figure libel plaintiff would likely survive summary judgment against this libel defendant, but instead asks whether there is a “reasonable possibility” that plaintiff will succeed on the merits if allowed to unmask the defendant. If the communication is “of or concerning” a public figure or a matter of public

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concern, it is a Public Discourse communication, and its speaker should only be unmasked in the rarest of circumstances. If the communication is private or not a Public Discourse communication, the Cahill-and-its-progeny tests for summary judgment should apply, and the defendant should be unmasked if the plaintiff can make out a primie facie case or demonstrate the case is likely to survive a motion for summary judgment. As the volume of Internet discourse accelerates and the volume of unmasking lawsuits increases, courts need tools to sift quickly through the morass. They need the ability to distinguish between those communications geared toward reporting information of value to the public—even if harsh, even if wrong—from the purely personal. The strengths of the Internet—its speed and ability to share vast amounts of data nearly instantaneously—should not be restricted such that we are prohibited from making critiques of public persons and public issues more immediate and precise. The downside of anonymity on the Web, of course, is that it contains both the baby and the dirty bathwater. Increasingly it will be up to judges to separate the two, and to preserve the baby.

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Summary Guide to the Courts and Media

Summary Guide to the Courts and Media A Basic Guide for Judges. Condensed by Eric P. Robinson Later this year, the Donald W. Reynolds National Center for Courts and Media will release Bridging the Gap: A Media Law Bench Book for the Third and Fourth Estates, a comprehensive, ready reference to issues such as First Amendment/Sixth Amendment conflicts; gag orders; judges as public figures; planning for high-profile trials; and judicial outreach to the media. The book, produced in cooperation with the National Judicial College and the Conference of Court Public Information Officers, is a collection of explanatory essays by leading First Amendment practitioners and experts meant to be used by judges, journalists and attorneys. While the entire publication will be available soon, this article will provide a short, ready reference guide to these issues.

The News Media: Who Are These People, Anyway? 1

hile the courts and the media have often found themselves in conflict, it is better for them to work together to explain the judiciary’s role in the democratic process, Supreme Court reporter Tony Mauro argues in his kickoff chapter, “The News Media: Who are these people, anyway?” 1. 2. 3. 4.

“Judges and journalists are going through rough times, but we are in it for the long haul,” Mauro writes. “The Constitution guarantees that, by assigning us indispensable duties. We may as well walk that journey together, and talk along the way.”

Press Freedom and Fair Trials 2

he media assume that the First Amendment-protected freedom of the press gives them the right to report comprehensively on court cases. But an article by Professor M.A. “Mike” Kautsch says that judges have a different attitude, and assume that they have a high duty to protect defendants’ Sixth Amendment right to a fair trial, in which jurors are impartial and have not been influenced by prejudicial publicity. In the 1960s, the U.S. Supreme Court handed down two significant rulings regarding trial judges’ responsibility to protect criminal defendants from prejudicial publicity. In the first case, Estes v. Texas,3 Billy Sol Estes had been convicted of swindling.4 After a Texas appellate court affirmed his conviction, Estes appealed to the U.S. Supreme Court, claiming that his right to due process had been denied because of prejudicial, televised news

Condensed from a chapter written by legal and U.S. Supreme Court reporter Tony Mauro. Condensed from a chapter by University of Kansas Professor M.A. “Mike” Kautsch. 381 U.S. 532 (1965). Id. at.534–5, n. 1.

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Summary Guide to the Courts and Media coverage of his case. In a 5-4 decision, the U.S. Supreme Court reversed Estes’ conviction. Writing for the majority, Justice Tom C. Clark took a firm stand against televised trials, writing that if a judge permits television in the courtroom, it becomes an “ever-present distraction.”5 In a concurring opinion, Justice John M. Harlan said that conditions eventually could change, so that television coverage of trials may “be subject to reexamination in accordance with the traditional workings of the Due Process Clause.”6 In a dissent, Justice Potter Stewart strongly cautioned against taking a hard line against television coverage of court proceedings.7 A year after deciding Estes, the U.S. Supreme Court again looked at trial judges’ responsibility for managing newsworthy trials. In Sheppard v. Maxwell,8 the U.S. Supreme Court found that a trial judge had failed to protect the defendant “from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom.”9 The Court, with a lone dissent, held that defendant Sam Sheppard had not received due process, and ordered a new trial. Justice Clark, again writing for the majority, characterized what happens in a courtroom as “‘public property,’”10 but nevertheless stressed that trial judges are responsible for

managing proceedings to protect a defendant’s right to a fair trial. As concern about prejudicial publicity increased, the American Bar Association developed standards for the conduct of trials, first published in 1968, which placed heavy emphasis on “safeguarding the interests of a fair trial.”11 As a result, there was “a dramatic rise in the number of broad gag orders issued to enjoin any extrajudicial comment on a pending case.”12 In 1975, a Nebraska judge issued a gag order prohibiting the media from releasing information from a preliminary hearing in the case of a man charged with fatally shooting six members of a Nebraska family. The media appealed, and the Nebraska Supreme Court modified the order by somewhat limiting its scope, but otherwise denied the media’s appeal. In the subsequent appeal, however, the U.S. Supreme Court found in Nebraska Press Association v. Stuart 13 that the gag order was an unconstitutional prior restraint. Writing for the majority, Chief Justice Warren E. Burger indicated that a gag order against the media is unconstitutional unless prejudicial publicity poses a clear and present danger to the fairness of a trial.14 Before issuing a gag order against the media, a trial judge must make “express findings” to support issuance of a gag order against the media.15

5. 6. 7.

Id. at 548. Id. at 596 (Harlan, J., concurring). Id. at 614 (Stewart, J., dissenting). Justice Stewart said that the record made it “crystal clear” that the trial judge had been in command of the Estes case, id. at 613, and that the trial was a “mundane affair.” Id. at 613–14. He also expressed concern that the majority’s reasoning was “disturbingly alien to the First and Fourteenth Amendments’ guarantees against federal or state interference with the free communication of information and ideas.” Id. at 614. 8. 384 U.S. 333 (1966). 9. Id. at 363. 10. Id. at 350 (quoting Craig v. Harney, 331 U. S. 367, 374 (1947)). 11. Criminal Justice Standards Committee, American Bar Association, Criminal Justice Fair Trial and Free Press Standards (3d ed. 1992), Introduction, p. ix, available at http://www.abanet.org/crimjust/standards/fairtrial.pdf. 12. Id. 13. 427 U.S. 539 (1976). 14. Id. at 562–63. 15. Id. at 563. In an exceptional and controversial 1990 case, a federal judge issued a temporary restraining order without first strictly meeting the requirements of Nebraska Press. The order restrained

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Summary Guide to the Courts and Media The courts also explained that while in general “an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings,”16 there could be an exception to the rule for the media. The U.S. Court of Appeals for the First Circuit, for example, held—both initially and upon rehearing en banc—in 1986 that, under certain conditions, the media could disobey “transparently invalid” restraints.17 Nebraska Press made clear that the judges could rarely, if ever, constitutionally restrain the media from reporting what they learned in open court. Thus, the judges turned to an alternative way to prevent prejudicial publicity, which was simply to close courtrooms to the press and public. Media challenges to this approach resulted in an important series of U.S. Supreme Court decisions. In a 1979 case, Gannett v. DePasquale,18 a judge closed a pre-trial hearing in a highly publicized murder case. The U.S. Supreme Court upheld the trial judge,19 finding that the media and the public “have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials”20 and that the judge’s determination to close

16. 17.

18. 19.

20. 21. 22. 23. 24.

the pre-trial suppression hearing was “consistent with any right of access the [media] may have had under the First and Fourteenth Amendments.”21 But the Court did not treat DePasquale as a controlling precedent a year later in Richmond Newspapers, Inc. v. Virginia,22 when the media objected to closure of another criminal trial. In Richmond Newspapers, Chief Justice Warren E. Burger noted that the issue in DePasquale had been whether a judge constitutionally could close a pre-trial proceeding, as opposed to a trial, and that DePasquale had not addressed whether the First Amendment, as opposed to the Sixth, guaranteed a right of the media and the public to attend trials. Because closure of a trial was directly at issue in Richmond Newspapers, Burger seized the opportunity to declare that “the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted.”23 Burger characterized the courtroom as “a public place where the people generally—and representatives of the media— have a right to be present,”24 and said that the presence of the media and the public

CNN from broadcasting a recording of privileged lawyer-client communications. The judge reasoned that the restraint was necessary so that he could determine whether a broadcast of a privileged communication would be prejudicial. See United States v. Noriega, 752 F.Supp. 1032 (S.D.Fla.1990); aff’d, United States v. Noriega, 917 F.2d 1543 (11th Cir.1990), cert. denied, Cable News Network, Inc. v. Noriega, 498 U.S. 976 (1990); see also United States v. Noriega, 752 F.Supp. 1045 (S.D.Fla.1990). U.S. v. United Mine Workers of America, 330 U.S. 258, 293 (1947) (upholding a contempt conviction for disobedience of a restraining order in a labor dispute). In re Providence Journal Co., 820 F.2d 1342, 1344 (1st Cir. 1986), modified on hearing en banc, 820 F.2d 1354 (1st Cir. 1987), prior grant of cert. dismissed for want of jurisdiction, U.S. v. Providence Journal Co., 485 U.S. 693 (1988). 443 U.S. 368 (1979) Id., passim. Justice Potter Stewart wrote the majority opinion, with concurrences by others. Justice Blackmun also filed a partial dissent, however, in which three justices joined, essentially taking the position that the Sixth Amendment protects the media and the public’s interest in attending criminal trials. Id. at 391. Id. at 392. 448 U.S. 555 (1980). Id. at 579. Id. at 556.

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Summary Guide to the Courts and Media “gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality.”25 Judges may close a trial, according to Burger, only if they establish, through findings articulated in the record, that alternatives would not be effective and that there is an “overriding interest” in closure.26 Concurring in the judgment, Justice William J. Brennan said that the First Amendment “embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of selfgovernment.”27 In four subsequent cases between 1982 and 1986, the U.S. Supreme Court further established that criminal proceedings generally would be open to the media and the public. In Globe Newspaper Co. v. Superior Court for Norfolk County,28 the Court struck down a state statute that mandated closure of trials during testimony by minor rape victims. Writing for the majority, Justice Brennan said that trial judges may consider closing trials only on a case-bycase basis. Then, in Press-Enterprise Co. v. Superior Court of California, Riverside County (Press-Enterprise I),29 the majority opinion by Chief Justice Burger held that the closure of a six-week-long voir dire in the rape and murder of a teenage girl was “incredible,”30 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36.

and said the judge’s order and denial of a transcript were unconstitutional. At the same time, a separate case involving the issue of access to suppression hearings reached the Court. In Waller v. Georgia,31 the Court reversed a judge’s closure of a hearing on a motion to suppress evidence, holding that “under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out” in First Amendment-based precedents, such as Press-Enterprise I.32 The Court also ruled broadly in favor of access to preliminary hearings two years later in Press-Enterprise Co. v. Superior Court of California for Riverside County (Press-Enterprise II).33 A magistrate closed a preliminary hearing in a murder case, “because the case had attracted national publicity and ‘only one side may get reported in the media.’”34 But the Supreme Court held that the closure order was unconstitutional. If the interest asserted is the right of the accused to a fair trial, the preliminary hearing shall be closed only if specific findings are made demonstrating that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.35

Gag Orders against Trial Participants Intense coverage of trials by television and other media appears to have led to an increase in judges’ issuance of gag orders.36 But the First Amendment and the presump-

Id. at 569. Id. at 581. Id. at 587 (Brennan, J., concurring). 457 U.S. 596 (1982). 464 U.S. 501 (1984). Id. at 513. 467 U.S. 39 (1984). Id. at 47. 478 U.S. 1 (1986). Id. at 4 Id. at 14. Krista Gesaman, In the Dark: With Increased 24-hour News Coverage, Judges Lean on Gag Orders to Keep Publicity in Check, QUILL , Sept. 1, 2006.

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Summary Guide to the Courts and Media tion of openness require trial judges to follow procedures with care before issuing gag orders against trial participants. As stated by the Ohio Supreme Court, “a gag order cannot issue unless ‘specific, on the record findings’ are made demonstrating that a gag order is ‘ * * * essential to preserve higher values and is narrowly tailored to serve that interest. * * * ’ If the interest asserted is the right of the accused to a fair trial, the gag order may issue only if “specific findings are made demonstrating that, first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that * * * [the gag order] would prevent and, second, reasonable alternatives * * * cannot adequately protect the defendant’s fair trial rights * * *.”37 Federal courts have imposed gag orders against attorneys and other trial participants under various standards. In a 1969 case, the U.S. Court of Appeals for the Tenth Circuit held that a gag order constitutionally may be “based on a ‘reasonable likelihood’ of prejudicial news which would make difficult the impaneling of an impartial jury and tend to prevent a fair trial.” 38 Some other

circuits are more restrictive, permitting a gag order against trial participants only if there is a “clear and present danger” or a “serious and imminent threat” to fairness of a trial.39 Despite varying standards, the First Amendment can prevent sweeping, judicially imposed restraints on comments by trial participants. For example, a trial judge may try to bar journalists from interviewing jurors after a trial has ended. However, as one court concluded, a trial judge’s “restrictions on post-trial interviews must reflect an impending threat of jury harassment rather than a generalized misgiving about the wisdom of such interviews.”40 The First Amendment may protect speech by pre-trial participants as well. In 1980, the U.S. Supreme Court rejected a Florida law prohibiting a grand jury witness from disclosing his own testimony after the term of the grand jury has ended, as a violation of the First Amendment.41 First Amendment protection may not be available, however, to witnesses who seek to disclose information about grand jury proceedings that they gained in the course of

37. State, ex rel. National Broadcasting Company, Inc., v. Court of Common Pleas of Lake County, 52 Ohio St.3d 104, 108 (quoting Press-Enterprise I, 464 U.S. at 510; Press-Enterprise II, 478 U.S. at 13–14, and Globe Newspaper Co., 457 U.S. at 609, fn. 25 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring))). Part of the opinion in NBC v. Court of Common Pleas of Lake County, on a procedural point unrelated to the gag order against trial participants, was overruled in State v. Schlee, 117 Ohio St.3d 153, 156, 882 N.E.2d 431, 433 (2008). 38. U.S. v. Tijerina, 412 F.2d 661, 666 (10th Cir. 1969) (quoting the original order). This case arose when authorities accused five individuals of assaulting U.S. forest rangers and other crimes. See U.S. v. Tijerina, 407 F.2d 349 (10th Cir. 1969) (appeal of convictions). The judge imposed the gag order against the defendants, as well as attorneys and witnesses for both sides. The defendants were convicted, and two of them challenged the gag order as violative of the First Amendment. U.S. v. Tijerina, 412 F.2d 661 (10th Cir. 1969). 39. U.S. v. Brown, 218 F.3d 415, 426–28 (5th Cir. 2000). The Fifth Circuit Court reviewed the lack of consensus on standards for gag orders against trial participants, noting that the standard embraced in the Fourth Circuit is like that in the Tenth Circuit and that “more stringent tests, requiring either a showing of ‘clear and present danger’ or ‘serious and imminent threat’ of prejudicing a fair trial” are required in the Sixth, Seventh and Ninth circuits. Id. at 427. The Fifth Circuit requires “a lesser showing of potential prejudice,” either a “‘substantial likelihood’” or possibly “merely a ‘reasonable likelihood’” that extrajudicial comments by participants, including lawyers and parties, “will undermine a fair trial …, as long as the order is also narrowly tailored and the least restrictive means available.” Id. at 424–25. 40. U.S. v. Antar, 38 F.3d 1348, 1364 (3d Cir. 1994). 41. Butterworth v. Smith, 494 U.S. 624, 626 (1980).

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Summary Guide to the Courts and Media testifying. In Hoffmann-Pugh v. Keenan,42 the Tenth Circuit court supported enforcement of grand jury secrecy rules against the housekeeper for the parents of JonBenet Ramsey, who planned to write a book about her participation in the grand jury examination of the child’s highly-publicized death. While the housekeeper could disclose information she possessed before her grand jury appearance, the appeals court upheld rules prohibiting her from disclosing matters that she had “learned from her participation in the grand jury process, at least so long as the potential remains for another grand jury to be called to investigate an unsolved murder.”43 Juvenile Court Proceedings States vary in the extent to which they grant the media and the public access to juvenile proceedings.44 Under federal law, meanwhile, decisions are made on a case-by-case basis, by weighing the interests of the juvenile and the public.45 Grand Jury Proceedings The media have not always been successful in their efforts to obtain access to court proceedings. Because of the value historically placed on the secrecy of grand juries, courts have denied access to their deliberations. For example, newspapers were prevented from gaining access to a grand jury investigation of a Florida university athletic program in 1988, with the U.S. Court of Appeals for the Eleventh Circuit saying that opening

the grand jury procedure to public view would frustrate the investigation, in “direct contrast to the advantages public access provides” to criminal trials.46 The U.S. Supreme Court reviewed the reasons for grand jury secrecy in 1979, in the course of considering the conditions under which courts may provide information about grand jury investigations to civil litigants.47 Without secrecy, the court said, witnesses would hesitate to testify when subpoenaed and would flee or, upon becoming known, be subject to undue influence.48 Another reason the Court cited for keeping grand jury deliberations secret was preventing public embarrassment of persons who are accused and investigated, but not indicted.49 Bench Conferences Typically, media can do no more than observe when attorneys for the prosecution and defense confer privately with a judge at the bench or in chambers. Even if such a conference may be newsworthy, reporters likely will be unsuccessful if they seek access. In U.S. v. Moody,50 the judge at a bond hearing called on the attorneys to meet with him in chambers.51 When reporters made a request for access to the conference, the judge denied it, saying that his meeting with counsel in chambers has not been open historically, and opening it would not have a positive effect, particularly when doing so would result in publicity about inadmissible evidence.52 Even so, the media occasionally

42. 338 F.3d 1136 (10th Cir. 2003), cert. denied, 540 U.S. 1107 (2004). 43. Id. at 1140. 44. American Bar Association, The Reporters Key: Access to the Judicial Process (3d ed., 2006), at 11, available at http://www.abanet.org/media/repkey/content.pdf (discussion of ABA Criminal Justice Fair Trial and Free Press Standard 8-1.1(d)). 45. U.S. v. A.D., 28 F.3d 1353, 1360 (3d. Cir. 1994). 46. In re Subpoena to Testify Before Grand Jury, 864 F.2d 1559, 1562 (11th Cir. 1989). 47. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979). 48. Id. at 218–219. 49. Id. 50. 746 F.Supp. 1090 (M.D.Ga. 1990). 51. Id. at 1091.

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Summary Guide to the Courts and Media have pressed with some success for access to bench or sidebar conferences or other proceedings conducted out of the presence of the jury.53 Jury Deliberations The U.S. Supreme Court reviewed why jury deliberations historically have been secret in Clark v. U.S.54 In the absence of fraud by a juror, however, the Court said that deliberations would be privileged and kept secret to protect jurors’ “[f ]reedom of debate” and “independence of thought.” 55 Nevertheless, the media have shown interest in gaining access to jury deliberations. In 2002, the Public Broadcasting Service’s Frontline news program obtained permission from a trial judge to videotape a capital murder trial in Texas, including deliberations by the jury, for broadcast after the trial.56 But a Texas appellate court intervened, ruling that the order permitting the videotaping violated a statute that said “[n]o person shall be permitted to be with a jury while it is deliberating.”57 One of the appellate judges dissented: The majority concludes that “each of the millions of viewers of the videotape is a person” and that

“the playing of the videotape (live or not) permits these persons to be with the jury while it is deliberating.”’ But this is simply not the case. While each viewer is indeed a person, the viewers will not be with the jury while the jury is deliberating. Instead, the viewers will be viewing the jury long after the jury has deliberated.58

Anonymous Juries Even when presiding over a trial that is open, the judge may shield the jurors from public scrutiny by keeping their identities secret. Anonymous juries are often requested in organized crime cases and in trials of terrorists.59 In a 2008 case, U.S. v. Wecht,60 the U.S. Court of Appeals for the Third Circuit reviewed precedents that form a basis for finding that the identities of jurors should be made public. In Wecht, a county coroner had been accused of using his public position for private gain. The trial judge ordered that the jury be anonymous, but the Third Circuit found that the media had a First Amendment right of access to the identities of the jurors under the “experience and logic” test,61 and concluded that the public should know which members of the community hold the power to decide a

52. Id. at 1092. 53. See, e.g., Capital Newspapers Group of Hearst Corp. v. Brown, 429 N.Y.S.2d 749 (N.Y. App. Div., 3d Dept. 1980) (objection to closed hearing following a bench conference); Houston Chronicle Pub. Co. v. Shaver, 630 S.W.2d 927 (Tex.Cr.App. 1982) (media challenge to judge’s consideration, in chambers, of voluntariness of a confession); U.S. v. Smith, 787 F.2d 111 (3d Cir. 1986) (concerning access to transcripts to sidebar and bench conferences); U.S. v. Simone, 14 F.3d 833 (3d Cir. 1994) (regarding in camera examinations of jurors for possible exposure to prejudicial publicity). 54. 289 U.S. 1 (1933) (rejecting argument of juror who had been found in contempt because she falsely had represented her qualifications for jury service, that testimony by other jurors about her conduct during the jury’s deliberations should not have been allowed, because the jury’s deliberations were privileged and should have remained secret). 55. Id. at 13. 56. School of Law, University of Texas at Austin, Court Hearing: UT-Austin to Host Oral Arguments in Cameras in Courtrooms Case, January 10, 2003, available at http://www.utexas.edu/ law/news/2003/011003_arguments.html. 57. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 200 (Tex. Crim. App. 2003), citing Tex. C. Crim. Proc., Art 36.22. 58. Id. at 223. 59. Corinna Zarek, Trying blind: Secret juries continue hearing major cases, The News Media & The Law, Fall 2007, at p. 23, http://www.rcfp.org/newsitems/index.php?i=6459. 60. 537 F.3d 222 (3d Cir. 2008) 61. Id. at 235 (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9 (1986) (Press-Enterprise II)).

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Summary Guide to the Courts and Media defendant’s fate62 and be able to help hold the jurors accountable, reducing the potential for jury bias and corruption.63 Jury Records A 1980 report by the Judicial Conference of the United States took into account the possibility that, if jurors serve anonymously in a trial, court records that contain identifying information about them may be withheld.64 But the U.S. Court of Appeals for the Fourth Circuit, held that some information about jurors, including their names and addresses, is “just as much a part of the public record as any other part of the case”65 [T]he risk of loss of confidence of the public in the judicial process is too great to permit a criminal defendant to be tried by a jury whose members may maintain anonymity. If the district court thinks that the attendant dangers of a highly publicized trial are too great, it may always sequester the jury; and change of venue is always possible as a method of obviating pressure or prejudice.66

In 2002, the Supreme Court of Ohio held that voir dire was presumptively open, and that “the First Amendment qualified right to open proceedings in criminal trials extends to prospective juror questionnaires.”67

Access to Civil Proceedings In Richmond Newspapers, the U.S. Supreme Court observed “that historically both civil and criminal trials have been presumptively open.”68 Since then, lower courts have held that civil trials should be no less accessible to the press and public than criminal proceedings.69 In a civil case, the media may seek access to pre-trial discovery proceedings. In Scollo v. Good Samaritan Hosp.,70 a New York appellate court recognized that the presumption of openness in Press Enterprise II applied to civil proceedings, but nevertheless ruled that Newsday was not entitled to attend depositions in a wrongful death action against a hospital.71 The decision in Scollo was based on the U.S. Supreme Court decision in Seattle Times Co. v. Rhinehart,72 in which the newspaper was barred from reporting on discovery materials from a case in which the newspaper was a party. In upholding the restriction, the Supreme Court observed that the judge’s order did not prohibit the paper from publishing information that it gained by means other than discovery, and that the judge had issued the order “to avoid the ‘chilling effect’ that dissemination would have on ‘a party’s willingness to bring his case to court.’”73

62. Id. at 238. 63. Id. at 239. 64. Revised Rep. of the Jud. Conf. Comm. on the Operation of the Jury System on teh “Free Press—Fair Trial” Issue, 87 F. R.D. 519 (1980). 65. Revised Rep. of the jud. Conf. Comm. on the Operation of the Jury System on the “Free Press—Fair Trial” Issue, 87 F.R.D. 519 (1980). 66. In re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir.1988). 67. Beacon Journal Publishing v. Bond, 781 N.E.2d 180, 188 (2002). 68. Richmond Newspapers v. Virginia, 448 U.S. 555, 580 (1980). 69. See, e.g., Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1068 (3d Cir. 1984) (reversing a trial judge’s denial of media access to civil proceedings in a stockholder dispute): “Public access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs.” 70. 572 N.Y.S.2d 730 (N.Y. App. Div., 2d Dept. 1991). 71. Id. at 732 (citing Press Enterprise II, 478 U.S. 1, 8 and finding that discovery was not the kind of proceeding that had “‘historically been open to the press and general public’” and in which “‘public access plays a significant positive role in the functioning” of the process.) 72. 467 U.S. 20 (1984). 73. Id. at 27.

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Summary Guide to the Courts and Media The Court’s decision in Rhinehart added that [P]retrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law … , and, in general, they are conducted in private as a matter of modern practice … . Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.74

Bankruptcy A debtor in a 1987 bankruptcy proceeding tried to keep a Baltimore Sun reporter from attending a creditors’ meeting, arguing that the meeting was like discovery and should be kept private. While the U.S. District Court judge recognized the creditors’ concerns, he nevertheless held that the meeting should be accessible to the media and the public.75 The court also said that, in light of the history and law of bankruptcy, a creditors’ meeting is presumptively open “unless, in a given case, there is a showing that a restriction of access ‘is essential to preserve higher values and is narrowly tailored to serve that interest.’”76 Access to Court Records Generally In Cox Broadcasting Corp. v. Cohn, the Supreme Court held that court records are a vital source of information about the

judicial system, and that journalists who truthfully report news on the basis of court records generally are protected from prosecution or judicial sanction.77 Three years later, in Nixon v. Warner Communications, Inc.,78 the court recognized a common law right of access to court records, which it said could be “recognized or expanded by statute.”79 But the Court added that under the common law right, a judge has discretion to deny access to court records if they could become “a vehicle for improper purposes.”80 A First Amendment right of access to court records has been claimed with varying degrees of success in lower courts.81 For example, the Tenth Circuit recognized a limited First Amendment access right to records in the criminal proceedings stemming from the 1995 bombing of the Murrah Federal Building in Oklahoma City, holding that access in the specific case was “governed by the analysis articulated in Press-Enterprise II.” 82 But after applying this analysis, the court upheld the district judge’s sealing of the records.83 Civil Court Records Although access to court records usually is considered in the context of criminal proceedings, the media also may assert that a presumption of openness applies to records in civil cases. The Seventh Circuit has ruled in favor of media access to records in shareholder actions against corporations, saying

74. 75. 76. 77. 78. 79. 80. 81.

Id. at 33. In re Astri Inv., Management & Securities Corp., 88 B.R. 730, 741 (D.Md.,1988) Id. 420 U.S. 469 (1975) 435 U.S. 589 (1978). Id. at 598. Id. See, e.g., Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 90–91 (2d Cir. 2004) (regarding docket sheets); Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 659 (3d Cir.1991) (records of civil proceedings); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983) (court documents), cert. denied, 465 U.S. 1100 (1984). These and other cases are listed in Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 n. 4 (2d Cir. 2004). 82. U.S. v. McVeigh, 119 F.3d 806, 812 (1997). 83. Id.

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Summary Guide to the Courts and Media that “the policy reasons for granting public access to criminal proceedings apply to civil cases as well.”84 Search Warrant Affidavits Disputes have erupted in many jurisdictions over media access to affidavits that law enforcement authorities file in support of arrest and search warrant applications. Under statutes, common law or the First Amendment, courts may deny media requests for affidavits altogether or grant access only with redaction of sensitive information.85 Federal courts have not uniformly granted access to search warrant affidavits. In the late 1980s, for example, the Baltimore Sun unsuccessfully sought access to an affidavit that an FBI agent had prepared to support the issuance of search warrants during an investigation of the health insurance industry. The U.S. Court of Appeals for the Fourth Circuit held that the news media do not have a First Amendment right of access to search warrant affidavits, because the affidavits historically have not been open to the public.86 In addition, warrant papers are not open because “the subject of the search cannot be tipped off to the application for a warrant lest he destroy or remove the evidence.”87 But the Eighth Circuit Court has recognized a qualified First Amendment right of public access to search warrants and supporting documents.88

Criminal History The extent to which a criminal’s history may be publicly disclosed has been controversial, and an effort to restrict access to criminal history information has emerged. An American Bar Association Commission on Effective Criminal Sanctions, concerned about persons who have been convicted of a crime and who have trouble qualifying for housing and employment because their criminal history information is so readily available, proposed to move the burden from the criminal defendant having to prove that a file should be sealed, to the public having to prove that it should be unsealed.89 Charles D. “Chuck” Tobin, a media lawyer in Washington, D.C., explained that the proposed rule “completely reverses the presumption that has been built in four decades of media law.”90 Evidentiary Exhibits Attorneys or judges may oppose making evidence available to journalists on the grounds that public disclosure could unfairly prejudice jurors or invade the privacy of a trial participant. But some courts have ruled otherwise. In 2007, a U.S. district judge in New Orleans refused to seal some trial exhibits in a case that focused on whether the Allstate Insurance Company had wrongfully failed to pay for damage caused by Hurricane Katrina, reasoning that the materials should be disclosed, because “‘[p]ublic access serves to enhance the transparency and trust-

84. Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984). 85. For a list of cases with various outcomes in response to media requests for affidavits, see Richard J. Ovelmen, Jason P. Kairalla and David A. Schulz, Access, in Communications Law in the Digital Age 2010 (Practising Law Institute, Nov. 2010), 1028 PLI/Pat 459. In a section titled “Probable Cause” Affidavits/Search Warrant Materials, the co-authors summarize the outcomes of state and federal court decisions from around the United States. 86. Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989) 87. Id. at 64. 88. In Re Search Warrant for Secretarial Area-Gunn, 855 F.2d 569 (8th Cir. 1988). A Missouri court cited this decision in ruling partly in favor of a newspaper’s request for access to warrants and supporting documents. See State v. Irvin, 1991 WL 150843 (Mo.Cir. 1991). 89. Loren Cochran, Blacking Out the Blotter, The New Media & the Law (Summer 2007), http://www.rcfp.org/news/mag/31-3/prr-blacking.html 90. Id.

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Summary Guide to the Courts and Media worthiness of the judicial process, to curb judicial abuses, and to allow the public to understand the judicial system better.’” 91 In the trial of Zacarias Moussaoui in Alexandria, Va., a U.S. district court posted 1,202 exhibits online, including photographs and videos related to the 9/11 terrorist attacks on the World Trade Center and recordings of last phone calls made by victims.92 Depositions A court may act to protect a record of a deposition against public disclosure. In a 1999 federal case,93 the defendants wanted to videotape a deposition, and the court found that their motive was “at least in part to generate notoriety for themselves and their business ventures by making non-litigation use of the videotape.”94 The court allowed the videotaping but ordered that it be used solely for purposes of the litigation. Confidential Settlement Agreements Concern about confidential settlement agreements in products liability cases has mounted in recent years. Such agreements, which effectively prevent future litigants from discovering facts and results from prior cases, have been approved by courts in cases against tire manufacturers,95 and in

cases against churches claiming molestation by priests.96 Sandra Baron, executive director of the Media Law Resource Center in New York, a critic of confidential settlements, has said that they result “in a great deal of information about matters that are in the public interest being buried.”97 While noting that “they usually aren’t buried forever,” Baron noted that “They’re buried just long enough for a lot of other people to get hurt.”98 Standing to Intervene News reporters have learned to be alert if they are present when a judge considers a closure order. They have been advised to be prepared to stand, respectfully request to be heard, and voice an objection. In Koch v. Koch Industries,99 a U.S. District Court judge analyzed the conditions under which the media may intervene in federal court on an open courts issue. The media sought to object to the gag order that the judge had issued against trial participants, and the judge acknowledged that the media had a right to intervene under certain conditions.100 In the end, however, the judge ruled that the media did not have standing to intervene, although he made his decision only after balancing “the

91. Weiss v. Allstate Ins. Co., 2007 WL 2377119, at *4 (E.D. La. Aug. 16, 2007). See also Kevin McVeigh, Andrews Publications, Allstate Hit With $2.8 Million Verdict on Katrina Claim, FindLaw, http://news.findlaw.com/andrews/m/drc/20070419/20070419_weiss.html. 92. Associated Press, 9/11 Trial Exhibits Posted on Website, USA Today, July 31, 2006, at http://www.usatoday.com/news/nation/2006-07-31-moussaoui-exhibits_x.html. 93. Paisley Park Enterprises, Inc. v. Uptown Productions, 54 F.Supp.2d 347 (S.D.N.Y. 1999). 94. Id. at 348. For a similar outcome in a Kansas dispute, see Drake v. Benedek Broadcasting Corp., 28 Med. L. Rptr. 1542 (D. Kan. 2000). 95. Robert Schwaneberg, The Dilemma of the Secret Settlements, The [Newark, N.J.] Star-Ledger, Oct. 19, 2003, http://www.nj.com/specialprojects/index.ssf?/specialprojects/court/court1.html. 96. Id. 97. Id. 98. Id. 99. Koch v. Koch Industries, Inc., 6 F.Supp.2d 1185 (D.Kan. 1998) 100. Id. at 1190. Citing Fed. R. Civil Pro. 24(a)(2), Judge Crow noted that the media may intervene “as of right if: (1) the application is ‘timely’; (2) ‘the applicant claims an interest relating to the property or transaction which is the subject of the action;’ (3) the applicant’s interest ‘may as a practical matter’ be ‘impair [ed] or impede[d]’; and (4) ‘the applicant’s interest is [not] adequately represented by existing parties.’” Id. at 1189, quoting Coalition of Arizona/New Mexico Counties v. DOI, 100 F.3d 837, 840 (10th Cir.1996) (quoting Fed.R.Civ.P. 24(a)(2)). Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media parties’ and public’s interest in a fair trial against the competing interest in freedom of speech.” 101 The media have successfully claimed standing to object to restrictive judicial orders in other federal courts. For example, the U.S. Court of Appeals for the Second Circuit recognized that the media had standing to challenge a gag order issued against the prosecutors, defendants, and defense counsel in a trial on racketeering and other charges.102 In another case, the Third Circuit decided that newspapers had standing to challenge a judicial order that had imposed confidentiality on a settlement agreement between a town and its former police chief.103 Secret Dockets The Reporters Committee for Freedom of the Press has reported that “federal courts and many state courts allow for ‘super-secret’ cases, which never appear on the public docket or are hidden using pseudonyms, such as ‘Sealed v. Sealed’ or ‘John Doe v. Jane Doe.’”104 While the Supreme Court

declined to review a decision upholding such practices,105 the Second,106 Third,107 Fifth108 and Eleventh109 circuits, and the Florida Supreme Court110 have barred or limited such closed dockets. Informants and Undercover Agents Although access to court records is widely recognized as being in the public interest, certain data from court records can invade privacy or create security risks. In 2008, for example, the Judicial Conference of the United States studied the dissemination of information gleaned from electronically available federal criminal case files on web sites “whose purpose is to identify undercover officers, informants, and defendants who provide information to law enforcement.”111 One of the Web sites that features such information is called “Who’s a Rat?” and bills itself as the “largest online database of informants and agents!”112 Judicial Conference committees that studied the problem suggested that each federal court develop local rules to minimize the exposure of sensitive information, including plea agreements.113

101. Id. at 1189. 102. Application of Dow Jones & Co., Inc., 842 F.2d 603 (2d Cir.1988). 103. Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) 104. Reporters Committee for Freedom of the Press, Secret Justice: Secret Dockets, Summer 2003, http://www.rcfp.org/secretjustice/secretdockets/index.html (“Courts that maintain these secret dockets will neither confirm nor deny the existence of such cases. As a result, these cases proceed through the court system undetected.”). 105. New York Law Pub. Co. v. Doe, 129 S.Ct. 576, 172 L.Ed.2d 432 (U.S. Nov 10, 2008) (No. 08-330) (denying certiorari in Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358 (3d Cir. May 30, 2008)). 106. The Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004). 107. Notice to the Bar (3d Cir. Nov. 4, 2008), available at http://www.ca3.uscourts.gov/Public%20Notices/seal_dockets_webNov08.pdf. 108. U.S. v. Holy Land Foundation, 624 F.3d 685 (5th Cir. 2010). 109. U.S. v. Valenti, 987 F.2d 708 (11th Cir. 1993), reh’g en banc denied, 999 F.2d 1425 (11th Cir. 1993), cert. denied sub. nom. Times Pub. Co. v. U.S. Dist. Court for Middle Dist. of Florida, 510 U.S. 907 (1993). 110. See In re Amendments to Florida Rule of Judicial Administration 2.420—Sealing of Court Records & Dockets, 954 So. 2d 16 (Fla. 2007); and In Re: Amendments to Florida Rule of Judicial Administration 2.420 and the Florida Rules Of Appellate Procedure, 31 So.3d 756 (Fla. 2010). 111. Memorandum, March 20, 2008, from James C. Duff, Director of the Administrative Office of the U.S. Courts, to Chief Judges, U.S. Courts of Appeals; Judges, U.S. District Courts, and U.S. Magistrate Judges, available at http://www.federaldefender.net/Documents/CJA%20Resources/Plea%20 Agreements%20memo%203-20-08.pdf. 112. http://www.whosarat.com 113. Memorandum from the Judicial Conference Committee on Court Administration and Case Management to Judges, United States District Courts, supra, at 2–3 (Nov. 9, 2006).

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Summary Guide to the Courts and Media Sketch Artists An argument in support of sketch artists is that they should be permitted in the courtroom as long as they are not disruptive.114 But in a 2005 federal trial where the defendants were accused of sexual misconduct against mentally ill persons, the court found that federal law115 proscribed “all forms of identification of the victims” in the case, including “sketching for purposes of television.”116 The court also prohibited sketching of jurors.117 Bloggers For judges, courtroom management now includes responding to requests for access from bloggers.118 In 2007, a federal court took an unprecedented step by allowing bloggers to be present at the trial of Vice President Cheney’s former chief of staff on charges of perjury and obstruction of justice, reserving two of the 100 seats set aside for the media specifically for bloggers.119 Court Premises Rules in many states restrict interviews and use of cameras around courtrooms, and judges who enforce such rules can find themselves locked in First Amendment battles with the media. Journalists are devoted to timely reporting on events of the day, including court cases. They may well focus on the interesting or sensational features of cases and, as

a result, report information that damages trial participants. Ideally, the media would report at least as much about the procedural fairness that judges strive to ensure for defendants and private litigants. Nevertheless, under the First Amendment, appellate courts have recognized that the benefits of press freedom to report on the judicial system are presumed to outweigh the costs and that access to courts and records is strongly in the public interest. The trend of judicial decisions clearly has favored media and public access to court proceedings and records. The U.S. Supreme Court has recognized that courts historically have been open and that the benefits of openness are significant. Before imposing a restriction, a trial judge must give interested parties an opportunity to be heard, and may impose a restriction only after making specific findings on the record.

The Judge, the Media, and the Prior Restraints120

he United States Supreme Court repeatedly has recognized that government censorship in the form of prior restraints against the media constitute “the most serious and the least tolerable infringement on First Amendment rights.”121 Although the Court has not unequivocally ruled out the possibility that a prior restraint may be justified in an extraordinary case, to date, the U.S. Supreme Court

114. See Carrie Debra Stopek, Gag Orders: Enhancing Fair Trials or Impeding a Free Press?, 26 Ariz. L. Rev. 933, 943 (1984). 115. See 18 U.S.C. §3771.(providing crime victim rights) 116. U.S. v. Kaufman, 2005 WL 2648070, at *5 (D.Kan. 2005). 117. Id. 118. Alan Sipress, Too Casual To Sit on Press Row? Bloggers’ Credentials Boosted With Seats at the Libby Trial, Washington Post, Jan. 11, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/01/10/AR2007011002424.html. 119. See Robert Sox, Judge’s Order Lays Out Groundrules for Blogger Coverage of Libbby Trial, Media Bloggers Assn. Blog, Jan. 17, 2007, http://www.mediabloggers. org/robert-cox/judges-order-laysout-groundrules-for-blogger-coverage-of-libbby-trial 120. Condensed from an article by Kelli L. Sager, partner and chair of the media practice at Davis Wright Tremaine LLP. 121. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

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Summary Guide to the Courts and Media has never found a competing interest advanced by plaintiffs and the government— including national security interests and a criminal defendant’s Sixth Amendment right to a fair trial—sufficiently compelling to support the imposition of a prior restraint.122 The Court has hypothesized that prior restraints may be justified, if at all, only in the most exceptional circumstances, such as to prevent the dissemination of information about troop movements during wartime,123 or to “suppress[] information that would set in motion a nuclear holocaust.”124 The Court’s historical distrust of prior restraints is rooted in the view that censorship by any branch of the government, including the judiciary, undermines the “main purpose” of the First Amendment, which is “to prevent all such previous restraints upon publications as [have] been practiced by other governments.”125 Because it is widely agreed that “[t]here is, indeed, something peculiarly totalitarian about governmental systems of prior restraint,”126 the U.S. Supreme Court consistently has vacated injunctions and orders barring future speech by the public and the press. Because prior restraints threaten ongoing and irreparable harm to the fundamental constitutional rights of free speech and a free press, the U.S. Supreme Court has held that prior restraints against speech must be held to a stricter standard than even postpublication criminal penalties. Simply put,

in order to protect the free speech and free press rights accorded by the First Amendment, “the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”127 As a result, the U.S. Supreme Court has acted quickly to grant immediate stays to dissolve prior restraints against the media.128 The first modern prior restraint case, Near v. Minnesota, involved the U.S. Supreme Court’s rejection of a prior restraint against a virulently anti-Semitic publication that was alleged to have disturbed the “public peace” and provoked “assaults and the commission of crime.”129 Chief Justice Hughes, writing for the majority, declared that an order enjoining the publication “raise[d] questions of grave importance transcending the local interests involved in this particular action,” and presented an “inquiry … as to the historic conception of the liberty of the press and whether the statute under review violates the essential attributes of liberty.”130 Justice Hughes instructed that “public officers, whose character and conduct remain open to debate and free discussion in the press, [must] find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals.”131 This country’s historical aversion to prior

122. The court has, however, declined to review some cases involving prior restraints imposed by lower courts. See, e.g., Cable News Network, Inc. v. Noriega, 498 U.S. 976 (1990) (denying certiorari). 123. Near v. Minnesota, 283 U.S. 697, 716 (1931). 124. New York Times Co. v. United States, 403 U.S. 713, 726 (1971) (Brennan, J., concurring). 125. Nebraska Press, 427 U.S. at 557 (quoting Patterson v. Colorado, 205 U.S. 454, 462 (1907)). 126. Rodney A. Smolla, Smolla & Nimmer on Freedom of Speech § 15:10 (2004) (“Freedom of Speech”); see also New York Times v. U.S., 403 U.S. at 717 (Black, J., concurring) (“the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints”). 127. New York Times, 403 U.S. at 717 (Black, J., concurring). 128. See, e.g., CBS, Inc. v. Davis, 510 U.S. 1315, 1316-18; Capital Cities Media v. Toole, 463 U.S. 1303, 1304 (1983) (Brennan, J., in chambers); and Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (Blackmun, J. in chambers). 129. 283 U.S. 697, 709 (1931). 130. Id. at 708. 131. Id. at 719.

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Summary Guide to the Courts and Media restraints prompted the Court to require the government to meet an exceptionally onerous burden to support any prior restraint. Such a restraint “comes to th[e] Court with a ‘heavy presumption’ against its constitutional validity,”132 and may be considered only where its proponent demonstrates that the restriction is necessary “to further a state interest of the highest order.”133 Prior restraints must be supported by evidence of a “clear and present danger” of harm to a paramount state interest, and that “speculati[on]” or “factors unknown and unknowable” never are sufficient to justify such an abridgement of the First Amendment. The Court also has held that a prior restraint, if it is allowed at all, must be “narrowly tailored to achieve the pin-pointed objective of the needs of the case.”134 The U.S. Supreme Court never has approved a specific prior restraint against the media,135 and the lower federal and state courts have done so only on the rarest of occasions. Regardless of the interest asserted—whether it is a claim about national security, a criminal defendant’s Sixth Amendment right to a fair trial, privacy of rape victims and minors, or defamatory speech—courts repeatedly have cast a skeptical eye on prior restraints, and have required that the proponents demonstrate that the publication sought to be enjoined would “threaten an interest more fundamental than the First Amendment itself.”136 National Security In Near, Chief Justice Hughes hypothesized

that prior restraints might be granted, if at all, in “exceptional” national security circumstances, such as to block the threatened publication of the sailing dates of troop transports, or information about the movement of soldiers during wartime.137 Forty years later, in New York Times Co. v. United States, the U.S. Supreme Court reaffirmed the high constitutional bar against prior restraints even in cases where the government claims that national security is threatened,138 rejecting the government’s request for an order barring two newspapers from publishing information from the “Pentagon Papers,” classified government reports about the United States’ conduct of the Vietnam War. In a concurring opinion, Justice Hugo Black rejected the government’s assertion that “the courts should take it upon themselves to ‘make’ a law abridging freedom of the press in the name of equity, presidential power and national security.”139 Justice Potter Stewart further noted that a prior restraint upon publication always will be unconstitutional, unless it can be shown that publication “will surely result in and irreparable damage to our Nation or its people.”140 In 1979, one federal district court in Wisconsin claimed that such direct, immediate and irreparable damage would result if The Progressive magazine was permitted to run an article titled “The H-Bomb Secret: How We Got It, Why We’re Telling It.”141 In issuing a preliminary injunction stopping publication of the article, the court asserted that publication of this information “could

132. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (quoting Carroll v. Princess Anne, 393 U.S. 175, 181 (1968)). 133. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979). 134. Tory v. Cochran, 544 U.S. 734, 738 (2005). 135. The court has, however, declined to review some cases involving prior restraints imposed by lower courts. See, e.g., Cable News Network, Inc. v. Noriega, 498 U.S. 976 (1990) (denying certiorari). 136. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). 137. Near, 283 U.S. at 716. 138. 403 U.S. at 714. 139. Id. at 718–19 (Black, J. concurring). 140. Id. at 730 (Stewart, J., concurring). 141. United States v. Progressive, Inc., 467 F. Supp. 990, 991–92 (W.D. Wis. 1979). Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media pave the way for thermonuclear annihilation for us all.”142 But before the court could hold hearings on a permanent injunction, other publications ran articles on how the H-Bomb was made, which convinced President Jimmy Carter’s Department of Energy to drop the suit. Even in the post-9/11 world, amid the dangers of terrorism, courts have been reluctant to uphold prior restraints on national security grounds. For example, in one recent decision, the Second Circuit held that a provision of the PATRIOT Act that allowed the Federal Bureau of Investigation to issue National Security Letters forbidding recipients from ever revealing what information had been sought from them, amounted to an unconstitutional restriction of First Amendment rights.143 Although the Second Circuit panel could not agree on which level of scrutiny to apply to this atypical prior restraint, the court concluded that regardless of which standard was applied, the measure was constitutionally infirm because it allowed the government to restrain individual speech indefinitely, without demonstrating any specific justification or providing for any meaningful judicial review.144 Sixth Amendment Fair Trial Rights Concerns that prejudicial pretrial publicity could impair a defendant’s right to a fair trial have caused some courts to consider prior restraints restricting the speech of trial participants and the media. But wellestablished law severely limits any such orders, particularly against the media. In 1966, the U.S. Supreme Court reversed the conviction of Dr. Sam Sheppard for the murder of his pregnant wife,145 stat-

ing that the “massive” and “pervasive” prejudicial publicity that accompanied the trial, combined with a “carnival atmosphere” during the court proceedings, had deprived Sheppard of his Sixth Amendment right to a fair trial. Mindful of the U.S. Supreme Court’s admonitions about the duty to protect defendants’ rights, some courts reacted by imposing prior restraints directly on the media, rather than counteracting potentially prejudicial publicity in other ways. This practice was resoundingly rejected by the U.S. Supreme Court in Nebraska Press Association v. Stuart.146 In a ruling that cleared up any confusion caused by the Sheppard holding, the U.S. Supreme Court in Nebraska Press rejected the use of prior restraints against the media, explaining that “it is … clear that the barriers to prior restraint [must] remain high unless we are to abandon what the Court has said for nearly a quarter of our national existence and implied throughout all of it.” 147 The Court noted that the drafters of the Constitution declined to establish any priority between rights under the First Amendment and the Sixth Amendment, and consequently, it would be inappropriate for courts to do so.148 Although the Nebraska Press decision did not absolutely bar prior restraints under all circumstances, the U.S. Supreme Court made clear that such extraordinary orders would be allowed, if at all, only by “showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint.”149 Before a trial court can issue an extraordinary order restraining the press, the Supreme Court held that the court must make specific

142. Id. at 996. 143. Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008). 144. Id. 145. Sheppard v. Maxwell, 384 U.S. 333 (1966). 146. 427 U.S. at 563. 147. Id. at 561. 148. Id. 149. Id. at 569–70 (emphasis added).

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Summary Guide to the Courts and Media findings as to: (1) the nature and extent of actual pretrial news coverage; (2) whether other measures, including a thorough voir dire of potential jurors or a change of venue, would be likely to mitigate the effects of unrestrained pretrial publicity; and (3) whether a restraining order against publication would in fact prevent the threatened danger of prejudicing the jury pool against the defendant.150 Following Nebraska Press, lower courts around the country have refused in virtually every case to impose prior restraints on the media based on claims of the possible impairment of a criminal defendant’s Sixth Amendment rights. Courts have upheld prior restraints on the basis of fair trial rights only in extremely rare and unusual circumstances. In one such case, United States v. Noriega, the Eleventh Circuit upheld a temporary restraining order against the press playing audio tapes surreptitiously made by the government of conversations between Panamanian dictator Manuel Noriega and his counsel in his high-profile criminal trial.151 The trial court emphasized that in addition to the threat to the defendant’s ability to empanel a jury, disclosure of the communications “could—against all strictures of due process and fairness—reveal to the prosecution the defendant’s trial strategy and protected confidences.”152 The Elev-

enth Circuit affirmed the trial court’s order granting the temporary restraining order, but made clear its decision was limited to the highly unusual facts presented.153 The U.S. Supreme Court then declined to review the case.154 These unique facts, warranting a temporary restraint until the trial court could take steps to protect the defendant’s rights, have not been viewed as a retreat from the onerous standards needed to justify a prior restraint set forth by the Supreme Court in Nebraska Press.155 Privacy The U.S. Supreme Court’s opposition to prior restraints is especially pronounced when the government seeks to prohibit the press from publishing lawfully obtained information about court proceedings, even when that information relates to the sensitive privacy interests of rape victims and juveniles. For example, in Cox Broadcasting v. Cohn, the U.S. Supreme Court invalidated a Georgia law that prohibited the press from publishing a rape victim’s name.156 Two years later, in Oklahoma Publishing Co. v. District Court, the Court struck down another prior restraint that barred the press from reporting the name of an elevenyear-old charged with murder,157 which it held “abridge[d] the freedom of the press in violation of the First and Fourteenth

150. Id. at 562. 151. Noriega, 917 F.2d 1543 (affirming 752 F. Supp. 1032 (S.D. Fla. 1990)). 152. 752 F. Supp. 1032 (S.D. Fla. 1990)). Indeed, defense counsel advised the trial court that the tapes “involved discussion of witnesses, defense investigation, and trial strategy at the core of Noriega’s defense.” Id. at 1034. 153. 917 F.2d at 1552. 154. Cable News Network, Inc. v. Noriega, 498 U.S. 976 (U.S. 1990) (denying certiorari). 155. For example, after the Scott Peterson murder trial, Peterson’s lawyer attempted to enjoin another defense lawyer who had worked on the case, Matthew Dalton, and his publisher from releasing a book about Peterson’s defense, invoking Noriega. The trial court held that the speculative possibility that Dalton’s book might contain information protected by attorney-client privilege was insufficient to justify an order restraining publication of the book, and the Court of Appeal and California Supreme Court denied review. See Geragos & Geragos, APC v. Dalton, Case No. BC343466 (Cal. Super., Los Angeles County 2006), pet. denied, No. B187462 (Cal. App., 2d Dist. Dec. 6, 2005), pet. denied, No. S139433 (Cal. Dec. 9, 2005). 156. 420 U.S. 469, 496 (1975). 157. 430 U.S. 308, 309–12 (1977) Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media Amendments.”158 Similarly, in Smith v. Daily Mail Publishing Co., the Court overturned a West Virginia statute that prohibited the media from publishing the identity of a juvenile defendant without first obtaining a court order.159 Ten years later, the U.S. Supreme Court extended this principle to the postpublication punishment of the media. In Florida Star v. B.J.F., the U.S. Supreme Court held that the State of Florida’s interest in preserving rape victims’ privacy and encouraging rape victims to report crimes, codified in a state statute barring the media from publishing a victim’s identity, did not permit the state to punish a newspaper that published a rape victim’s name that its reporter obtained from a sheriff ’s report that was inadvertently made available to the public.160 In a rare case that departed from these accepted constitutional principles, the Colorado Supreme Court affirmed an order preventing further dissemination of the contents of inadvertently disclosed transcripts of a closed two-day hearing in the rape prosecution of basketball player Kobe Bryant.161 The Court stated that protecting the victim’s privacy in rape cases was a compelling state interest, and that the lower court had narrowly tailored the order by limiting it to the inadvertently released materials, and by striking the portion of the order that required the media to destroy

the transcripts.162 The media petitioned the U.S. Supreme Court for a stay of the order, but the circuit justice for Colorado, Justice Breyer, denied the petition, stating that the media could file its request again in two days, giving the state courts time “to clarify, perhaps avoid, the controversy at issue here.”163 Bowing to the First Amendment concerns, the trial court then withdrew its order and released all but a few lines of the transcripts, rendering the issue moot.164 In light of this history, the Colorado Supreme Court opinion upholding a limited prior restraint is, at best, of dubious value. It also contradicts several state cases in which courts have held that privacy interests are insufficient to warrant the imposition of prior restraints upon speech.165 Thus, as with other justifications offered for prior restraints, it appears clear that such restrictions will be allowed, if at all, only in rare circumstances. Defamation Courts are unlikely to issue prior restraints banning publication of information likely to injure a person’s reputation. The traditional common law rule is that “equity will not enjoin a libel.”166 “This rule rests in large part on the principle that injunctions are limited to rights that are without an adequate remedy at law, and because ordinarily libels may be remedied by damages, equity will

158. Id. at 312. 159. 443 U.S. at 104. 160. 491 U.S. 524, 526, 537, 539 (1989) 161. In re People v. Bryant, 94 P.3d 624 (Colo. 2004). 162. Id. 163. Associated Press v. District Court for Fifth Judicial Dist. of Colo., 542 U.S. 1301, 1304 (Mem) (Breyer, Circuit Justice 2004); see also Kimberly Keyes, Kobe’s Legal Legacy, The News Media & the Law, Fall 2004, at 17, available at http://www.rcfp.org/newsitems/index.php?i=6182. 164. Keyes, supra. 165. See, e.g., Hurvitz v. Hoefflin, 84 Cal. App. 4th 1232, 1244 (2000) (plaintiff’s asserted “right to privacy” as inadequate to justify a prior restraint); and Gilbert v. National Enquirer, Inc., 43 Cal. App. 4th 1135 (1996) (reversing an injunction barring actress Melissa Gilbert’s ex-husband from revealing intimate details about her alleged use of drugs and alcohol and about her sexual relationships, notwithstanding claims that her privacy would be invaded). 166. Metropolitan Opera Ass’n, Inc. v. Local 100, Hotel Employees & Rest. Employees Internat. Union, 239 F.3d 172, 177 (2d Cir. 2001).

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Summary Guide to the Courts and Media not enjoin a libel absent extraordinary circumstances.”167 Also, “It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.”168 In Tory v. Cochran, the U.S. Supreme Court stated that a permanent injunction issued by a California court against two protestors who had been permanently enjoined from picketing, displaying signs and making oral statements about celebrity lawyer Johnnie Cochran or his law firm constituted “an overly broad prior restraint upon speech, lacking plausible justification.”169 In 2007 the California Supreme Court held that such an order was possible after a jury and trial court determined that specific statements made by a defendant are defamatory, and the defendant made clear her intent to continue to make the same false statements and did not have resources to pay a monetary award.170 But the Court stressed that such an order may not be issued before the court has gone through the lengthy process of a trial and determined conclusively that the past utterances were defamatory.171 The U.S. Supreme Court repeatedly has struck down prior restraints against the press, and has made clear that a prior restraint may be contemplated only in the rarest circumstances, involving interests as

fundamental as the First Amendment itself. Not surprisingly, such instances have not presented themselves often, which is why so few federal or state courts have upheld prior restraints in the modern era.

Restrictive Orders in Notorious Trials172

n 1966, the U.S. Supreme Court reversed the murder conviction of a prominent surgeon because the trial was conducted under such a media frenzy that prejudicial publicity had prevented the defendant from receiving a fair trial.173 In reversing the murder conviction in Sheppard v. Maxwell,174 the Court addressed the need for judges to consider the effect of trial publicity: “Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.”175 Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered … The courts must take such steps by rule and regulation that will protect

167. Id. 168. Vance v. Universal Amusement Co., 445 U.S. 308, 315 n.13 (1980). 169. 544 U.S. at 737–38. The U.S. Supreme Court stressed that injunctions restraining speech must be reviewed carefully so as not to “sweep” any “more broadly than necessary.” The Court added that even if the injunction could have been justified, because Cochran died during the pendency of the case, any justification that might have existed was no longer present. 170. Balboa Island Village Inn, Inc. v. Lemen, 40 Cal.4th 1141 (2007). 171. Id. at 1156–57. 172. Condensed from an article by Theodore J. Boutrous Jr. (partner in the Los Angeles and Washington, D.C. offices of Gibson, Dunn & Crutcher, and co-chair of the firm’s Appellate and Constitutional Law Group, its Media and Entertainment Group, and its Crisis Management Group); Michael H. Doore (associate, Gibson Dunn & Crutcher); and Theane Evangelis Kapur (associate in the Los Angeles office of Gibson, Dunn & Crutcher). 173. Sheppard v. Maxwell, 384 U.S. 333 (1966). 174. Id. 175. Id. at 362. Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.176

The Court explained that, “the judge should have further sought to alleviate this problem by imposing control over the statements made to the news media by counsel, witnesses, and especially the coroner and police officers.”177 In the years since, courts attempting to ensure publicity does not overtake a trial have inferred that the Sheppard decision condones various remedies to pretrial and trial publicity under certain circumstances. The guide examines four of the more controversial measures judges sometimes use to diminish pretrial and trial publicity: (1) restrictive orders directed at the participants in the trial, including attorneys; (2) restrictive orders directed at the media; (3) closing judicial proceedings to the public and the press; and (4) sealing records. Restrictive Orders on Trial Participants Restrictive orders, also known as “gag orders,” are issued by judges in the most extreme cases to prevent those involved in a case from making public comments about it. Gentile v. State Bar of Nevada, in which

the U.S. Supreme Court held that lawyers’ speech made while representing clients in pending cases may be regulated under a less demanding standard than the standard established for regulation of the press,178 has resulted in varying standards among the circuit courts for evaluating restrictive orders on trial participants other than lawyers.179 The Second, Fourth, Fifth, and Tenth Circuits have held that a restrictive order may be valid only if the court determines that comments present a “reasonable likelihood“ or “substantial likelihood“ of prejudicing a fair trial.180 The Third, Sixth, Seventh, and Ninth Circuits have imposed an even stricter standard, rejecting restrictive orders on trial participants unless there is a “clear and present danger” or “serious and imminent threat” of prejudicing a fair trial.181 The First Circuit has struck down a restrictive order on union organizing efforts issued during an administrative proceeding as improper under the First Amendment,182 while the Eleventh Circuit dismissed for lack of jurisdiction a collateral federal court challenge of a restrictive order issued by a state court.183 The Eighth, District of Columbia and Federal circuits have no cases which directly address the merits of restrictive orders on trial participants. Trial participants subjected to restrictive orders have included attorneys, employees of the court, parties, and witnesses. Courts express concern about lawyers’ extrajudicial statements because lawyers are key participants in the justice system

176. Id. at 363. 177. Id. at 360. 178. 501 U.S. 1030 (1991). 179. See, e.g., United States v. Brown, 218 F.3d 415, 427 (5th Cir. 2000). 180. See, e.g., In re Dow Jones & Co., 842 F.2d 603 (2d Cir. 1988); In re Russell, 726 F.2d 1007 (4th Cir. 1984); United States v. Brown, 218 F.3d 415 (5th Cir. 2000); United States v. Tijerina, 412 F.2d 661 (10th Cir. 1969). 181. See, e.g., Bailey v. Systems Innovation, Inc., 852 F.2d 93 (3d Cir. 1988); United States v. Ford, 830 F.2d 596 (6th Cir. 1987); Levine v. U.S. D. for the Cent. Dist., 764 F.2d 590, 595 (9th Cir. 1985); Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975). 182. In re Perry, 859 F.2d 1043 (1st Cir. 1988). 183. The News-Journal Corp. v. Foxman, 939 F.2d 1499 (11th Cir. 1991).

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Summary Guide to the Courts and Media and “they have special access to information through discovery and client communication, and … their statements are likely to be received as especially authoritative.”184 In Gentile v. State Bar of Nev., the Nevada State Bar, acting under a rule regulating pretrial publicity, disciplined a lawyer for statements he made at a press conference the day after his client was indicted on criminal charges.185 The U.S. Supreme Court invalidated the rule for vagueness, but noted that a restrictive order against a lawyer is valid if the statements have a substantial likelihood of materially prejudicing an adjudicative proceeding.186 Restrictive Orders on the Media In Nebraska Press Assn. v. Stuart, the U.S. Supreme Court invalidated a restrictive order imposed on members of the press because alternative measures may have protected the defendant‘s right to a fair trial.187 The Court stated that the mere existence of pre-trial publicity, even if it is adverse and pervasive, does not inevitably result in an unfair trial, and that a trial court should instead adopt less restrictive measures.188 Underlying this conclusion was the Court’s clear pronouncement that a prior restraint on speech is subject to “a ‘heavy presumption’ against its constitutional validity,“ because “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,”189 and “one of the most

extraordinary remedies known to our jurisprudence.”190 The Supreme Court has made clear that only the most sensitive information imaginable—the movement of ships during wartime, for example—might warrant a prior restraint.191 In the exceedingly rare instance in which a prior restraint on the press could be considered proper, the Court required an examination of the evidence by the lower court entering such an order to “determine (a) the nature and extent of pre-trial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pre-trial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.”192 A restrictive order on the media can be upheld only if there is a “clear and present danger” of actual prejudice or imminent threat to defendant‘s right to a fair trial.193 In practice, the Nebraska Press standard for upholding restrictive orders against the media has been almost impossible to meet. In Columbia Broad. Sys., Inc. v. U.S. Dist. Court, the Ninth Circuit invalidated a temporary restraining order that prevented CBS from disseminating or broadcasting tapes showing a defendant making a drug deal, reasoning that because the trial was taking place in a large metropolitan area, prejudicial publicity was less likely to endanger the defendant‘s right to a

184. Gentile v. State Bar of Nev., 501 U.S. 1030, 1074 (1991). 185. Id. at 1033. 186. Id. at 1071 187. 427 U.S. at 566–67. 188. Id. at 555. 189. Id. at 559. 190. Id. at 562; see New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) (rejecting prior restraint suppressing classified information in the Pentagon Papers); see generally Nebraska Press, 427 U.S. at 559 (“A prior restraint … by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”). 191. See Near v. Minnesota, 283 U.S. 697, 716 (1931). 192. Nebraska Press, 427 U.S. at 562. 193. Id. at 563.

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Summary Guide to the Courts and Media fair trial.194 In Procter & Gamble Co. v. Bankers Trust Co., the Sixth Circuit overturned an order that prohibited Business Week magazine from disclosing the contents of confidential documents.195 Closed Hearings In Sheppard v. Maxwell, the U.S. Supreme Court noted that nothing prohibited the media from reporting on what transpired in the courtroom.196 Some courts, however, concerned about potentially prejudicial publicity and recognizing the presumptive invalidity of a restraint on the media, seized on dicta in Sheppard that “[t]he number of reporters in the courtroom itself could have been limited at the first sign that their presence would disrupt the trial.”197 As a result, those courts began to close their proceedings to the public, diverging from the historic openness of both civil and criminal trials. In Richmond Newspapers Inc. v. Virginia, the U.S. Supreme Court squarely rejected that approach, invalidating an order that closed a criminal trial.198 Although the Justices issued six different opinions based on differing rationales, there was a clear consensus that criminal trials are presumptively open to the public.199 The Court affirmed the presumption of openness for criminal trials in Globe Newspaper Co. v. Superior Court for Norfolk

County,200 and later extended the presumption of openness to other criminal judicial proceedings besides trials, including jury selection201 and preliminary proceedings in criminal cases.202 The First Amendment provides considerable protection against closure: “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”203 A court must consider whether the place and proceeding has historically been open to the public and the press, and whether public access has played a significant role in the functioning of that proceeding.204 Fewer cases have addressed the public’s right of access to civil judicial proceedings, though courts generally have extended the presumption of openness to the civil context. For example, the Third Circuit held that the First Amendment secures a right of access to civil proceedings.205 Similarly, the California Supreme Court became the first state supreme court to find a First Amendment right of access to civil trials and proceedings.206 Access to court proceedings of any type must be contemporaneous,207 and the

194. 729 F.2d 1174, 1179 (9th Cir. 1984). 195. 78 F.3d 219 (6th Cir. 1996). 196. 384 U.S. 333, 362–63 (1966). 197. Id. at 358. 198. 448 U.S. 555 (U.S. 1980) (plurality). 199. Id. 200. 457 U.S. 596 (1982). 201. 464 U.S. 501, 505 (1984) (Press-Enterprise I). 202. Press-Enterprise Co. v. Superior Court of California for Riverside County.478 U.S. 1 (1986) (PressEnterprise II). 203. Press-Enterprise I, 464 U.S. at 510. See also Globe Newspaper, 457 U.S. at 608; Gannett Co. v. DePasquale 443 U.S. 368 (1979). 204. Press-Enterprise II, 478 U.S. at 8–9. 205. Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1068 (3d Cir. 1984). 206. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337 (Cal. 1999). 207. Washington Post v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991).

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Summary Guide to the Courts and Media release of transcripts of the proceedings is not adequate.208 Closing a judicial proceeding for even a short amount of time raises First Amendment concerns.209 As a result, even a minimal period of time must be justified by an overriding interest.210 Sealed Records Court records are subject to rights of public access under both the First Amendment and the common law. The U.S. Supreme Court recognized a common law right of access to court records in Nixon v. Warner Communications, Inc.211 But the right to inspect and copy judicial records is qualified, and access can be properly denied, “where court files might have become a vehicle for improper purposes.”212 The common law presumption in favor of access attaches to all “judicial records and documents,”213 and courts generally have held that documents not filed with the court fall outside the scope of judicial records. In Seattle Times v. Rhinehart, the Supreme Court held that the First Amendment does not preclude the district court from entering a protective order limiting disclosure of the products of pretrial discovery.214

Such discovery, however, which is ordinarily conducted in private, stands on a wholly different footing than does a motion filed by a party seeking action by the court. Less broad than the common law right of access, “the First Amendment guarantee of access has been extended only to particular judicial records and documents.”215 The First Amendment right of public access, along with the common law right, can apply to documents from civil proceedings as well as criminal proceedings.216 But where the First Amendment applies, it provides even more substantive protection to the interests of the press and public than the common law right of access does.217 Presumptive sealing likely fails either test. In addition to the constitutional and common law rights of access, Federal Rule of Civil Procedure 26(c) provides additional protection by permitting the sealing of court papers only “for good cause shown,” that the particular documents justify courtimposed secrecy.218 Reporter’s Privilege Courts have long recognized the right of

208. ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d Cir. 2004) (“one cannot transcribe an anguished look or a nervous tic. The ability to see and to hear a proceeding as is unfolds is a vital component of the First Amendment right of access.”) 209. Associated Press v. United States Dist. Court, 705 F.2d 1143, 1147 (9th Cir. 1983) (even a 48-hour delay “is a total restraint on the public’s first amendment right of access even though the restraint is limited in time.”). 210. Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 973 (9th Cir. 2002). 211. 435 U.S. 589, 598 (1978). 212. Id. See also U.S. v. McVeigh, 119 F.3d 806 (1997); and United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). 213. Nixon, 435 U.S. at 597. 214. 467 U.S. 20, 37 (1984). 215. Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988); see, e.g., In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986) (documents filed in connection with plea hearings and sentencing hearings in criminal case). 216. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (applying First Amendment right of access to documents filed with summary judgment motion in civil case). 217. Under the common law, a trial court‘s denial of access to documents is reviewed only for abuse of discretion. Nixon v. Warner Communications, Inc., 435 U.S. at 597–99. By contrast, under the First Amendment, such a denial must be “‘necessitated by a compelling government interest, and . . . narrowly tailored to serve that interest.’” Press-Enterprise I, 464 U.S. at 510, quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982). 218. Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media certain individuals to refuse to testify in court proceedings. The strongest privilege is found in the Fifth Amendment‘s guarantee that, “no person … shall be compelled in any criminal case to be a witness against himself.”219 Additional privileges protect confidential relationships, such as lawyerclient, physician-patient, and husband-wife. In 1972, the U.S. Supreme Court in Branzburg v. Hayes220 addressed whether the First Amendment grants journalists a privilege to refuse to reveal confidential sources when called to testify before a grand jury. The Court declined to create a testimonial privilege, and held that requiring reporters to appear and testify before state or federal grand juries does not abridge the freedom of speech and press guaranteed by the First Amendment.221 The Court held that the grand jury‘s important role in promoting fair and effective law enforcement outweighed the “consequential, but uncertain, burden on news gathering,”222 and noted that the majority of states had not provided journalists with a statutory privilege, and that no federal statute had done so.223 The Court emphasized, however, that journalists retained significant First Amendment protection.

[G]rand jury investigations, if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter‘s relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.224

The concurrence by Justice Powell, who provided the necessary fifth vote for the judgment, emphasized the limited nature of the Court‘s holding, and made clear that the authorities were not free to use journalists as an investigative arm of the government.225 Since Branzburg, lower federal courts generally have followed Justice Powell‘s case-by-case analysis, finding that Branzburg does not preclude the recognition of a qualified reporter‘s privilege when the need for the information is less compelling than a grand jury subpoena.226 This approach has found recent validation in a document discovered among Justice Powell’s papers.227 The First, Second, Third, Fourth, Fifth, Ninth, Tenth, and Eleventh Circuits all recognize a qualified reporter‘s privilege. Most of these courts employ a balancing

219. U.S. Const., Amend. 5. 220. 408 U.S. 665 (1972). 221. Id. at 682–3. 222. Id. at 690. 223. Id. at 689. 224. Id. at 707–708. 225. Id. at 709–24 (Powell, J., concurring). 226. See, e.g., LaRouche v. NBC, 780 F.2d 1134 (4th Cir.), cert. denied, 479 U.S. 818 (1986); United States v. Burke, 700 F.2d 70 (2d Cir.), cert denied, 464 U.S. 816 (1983); Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980); United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980), cert. denied, 449 U.S. 1126 (1981); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir.), opinion supplemented, reh’g denied, 628 F.2d 932 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); Farr v. Pritchess, 522 F.2d 464, 468–69 (9th Cir. 1975); and Cervantes v. Time, Inc., 464 F.3d 986 (8th Cir. 1972). 227. Justice Powell’s handwritten notes from the Court‘s private Branzburg case conference indicate that while he felt the Court should not establish a constitutional privilege, he clearly believed there is a privilege, analogous to an evidentiary privileges covering communications with spouses, lawyers, and physicians, that courts should apply on a case-by-case basis to protect journalists from being forced to disclose confidential information. Adam Liptak, A Justice’s Scribbles on Journalistic Rights,

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Summary Guide to the Courts and Media test that weighs the significance of the information sought, the availability of the information from other sources, and the potential harm to the free flow of information.228 Many circuits draw distinctions based on whether the information sought is confidential, whether the source of the information is confidential, and whether the information sought was published. As a result, the reporter’s privilege appears to be most recognized in civil cases where the reporter is being asked to disclose confidential sources, and is somewhat weaker in criminal cases, particularly in grand jury proceedings.229 In addition, three developments in the law have created alternative sources for a reporter’s privilege beyond Branzburg. The first is that three years after Branzburg was decided, Congress enacted Rule 501 of the Federal Rules of Evidence, which authorizes federal courts to define new privileges by interpreting “common law principles … in the light of reason and

experience.”230 Under the authority of Rule 501, the U.S. Supreme Court recognized a psychotherapist privilege in 1996.231 In Riley v. City of Chester, the Third Circuit held that journalists have a federal common-law qualified privilege arising under Rule 501 to refuse to divulge their confidential sources.232 Riley was a civil case, but the Third Circuit also has held that journalists possess a qualified privilege in criminal cases.233 The second development has been the expansion of legislative and judicial protection of journalists’ sources. When the Supreme Court decided Branzburg in 1972, only a few states recognized a reporters privilege.234 Since then, the legal landscape has dramatically shifted, with 49 states and the District of Columbia recognizing either a statutory or common law qualified reporter’s privilege. Thirty-two of these states and the District of Columbia have done so by enacting “shield laws,” 235 while the remainder have done so by judicial deci-

N.Y. Times, Oct. 7, 2007, at WK1, http://www.nytimes.com/2007/10/07/weekinreview/07liptak. html. 228. See e.g., Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st Cir. 1980); United States v. Burke, 700 F.2d 70 (2d Cir.), cert denied, 464 U.S. 816 (1983). 229. See In re Grand Jury Subpoenas (Leggett), 29 Media L. Rep. 2301 (5th Cir. 2001) (unpublished). 230. Jaffee v. Redmond, 518 U.S. 1, 8 (1996), quoting Fed. R. Evid. 501. 231. Id. at 10. 232. 612 F.2d 708 (3d Cir. 1979). 233. See United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980). See also New York Times Co. v. Gonzales, 459 F.3d 160, 181 (2d Cir. 2006) (Sack, J., dissenting) (“I have no doubt that there has been developed in [the last] thirty-four years federal common-law protection for journalists’ sources under [Rule 501] as interpreted by Jaffee.”); In re Grand Jury Subpoena to Judith Miller, 438 F.3d 1141 (D.C. Cir. 2005), cert. denied sub nom. Miller v. U.S., 545 U.S. 1150 (2005); id., 438 F.3d at 1170–72 (Tatel, J., concurring) (applying Jaffee to find the existence of a common-law reporters’ privilege). 234. Branzburg at 689, n. 27 (citing statutes in 17 states). 235. See Ala. Code § 12-21-142; Alaska Stat. §§ 09.25.300 et seq.; Ariz. Rev. Stat. Ann. §§ 12-2214, 122237; Ark. Code Ann. § 16-85-510; Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070; Colo. Rev. Stat. §§ 13-90-119, 24-72.5-101 et seq.; Conn. Gen. Stat. § 52-146t; Del. Code. Ann. tit. 10, §§ 4320, et seq.; D.C. Code Ann. §§ 16-4701 et seq.; Fla. Stat. Ann. § 90.5015; Ga. Code Ann. § 24-9-30; 735 Ill. Comp. Stat. 5/8-901 et seq.; Ind. Code § 34-46-4-1, 34-46-4-2; Ky. Rev. Stat. Ann. § 421.100; La. Rev. Stat. Ann. §§ 45:1451-55; Md. Code Ann. Cts. & Jud. Proc. § 9-112; Mich. Comp. Laws § 767.5a; Minn. Stat. §§ 595.021 et seq.; Mont. Code Ann. §§ 26-1-901 et seq.; Neb. Rev. Stat. §§ 20-144 et seq.; Nev. Rev. Stat. Ann. § 49.275; N.C. Gen. Stat. § 8-53.11; N.J. Stat. Ann. §§ 2A:84A-21 et seq.; N.M. Stat. Ann. § 38-6-7; N.M. R. Evid. 11-514; N.Y. Civ. Rights Law § 79-h; N.D. Cent. Code § 31-01-06.2; Ohio Rev. Code. Ann. §§ 2739.04, 2739.12; Okla. Stat. Ann. tit. 12, § 2506; Or. Rev. Stat. §§ 44.510 et seq.; 42 Pa. Cons. Stat. Ann. § 5942; R.I. Gen. Laws §§ 9-19.1-1 et seq.; S.C. Code Ann. § 19-11-100; Tenn. Code Ann. § 24-1-208. Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media sion.236 Several federal circuit courts of appeal have also recognized such a privilege.237 Courts recognizing the privilege universally grant it to journalists who are fully employed by a print or broadcast news outlet, regardless of that outlet‘s popularity or viewpoint.238 Freelance writers, book authors, bloggers and others may be able to claim the privilege, although the exact application varies.239 Freedom of Information Whether in the context of a reporter seeking to protect his or her confidential source information, or to gain access to court proceedings or judicial records, numerous judicial precedents safeguard the public’s right to know the business of its courts and the press’s ability to function independently. A separate access issue, which relates to public access to non-judicial materials, arises under the Freedom of Information Act (FOIA) and its state analogues. FOIA provides for public access to re-

cords maintained by all federal agencies in the executive branch.240 It does not apply to Congress, federal courts, private corporations or federally funded state agencies. State or local governments are not covered under FOIA, but all states have their own open records laws which permit access to state and local records.

Cameras in the Courtroom241

ver the past 25 years, electronic journalists have provided expanded coverage of trial and appellate proceedings in most state courts. And while the legal profession wrings its collective hands over a few instances of timid (or overly dramatic) judges, flamboyant attorneys, and media-savvy witnesses, experience with camera access generally has been favorable, and dozens of cases have been extensively televised. While some blame the camera for what they do not like to see outside the courtroom, whether aggressive reporters trying to interview attorneys or speculation and opinion about how a trial is going, the

236. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1170 (D.C. Cir. 2006) (Tatel, J., concurring) (citing ”undisputed evidence that forty-nine states plus the District of Columbia offer at least qualified protection to reporters’ sources”). 237. The First, Second, Third, Fourth, Fifth, Ninth, Tenth, Eleventh, and District of Columbia circuits have recognized such a privilege. See Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998); Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958) and United States v. Burke, 700 F.2d 70 (2d Cir), cert. denied, 464 U.S. 816 (1983); Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539 (4th Cir. 1977) and LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986); Miller v. Transamerican Press, Inc., 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980), In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983), and U.S. v. Smith, 135 F.3d 963, 969 (5th Cir. 1998); In re Grand Jury Proceedings (Scarce v. United States), 5 F.3d 397, 400 (9th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986); and Zerilli v. Smith, 656 F.2d 705, 710–11 (D.C. Cir. 1981). 238. See Apicella v. McNeil Labs, Inc. 66 F.R.D. 78, 84–85 (E.D.N.Y. 1975); In re Photo Mktg., 120 Mich. App. 527, 327 N.W.2d 515 (Mich. App. 1982); Summit Tech. v. Healthcare Capital Group, 141 F.R.D. 381 (D.Mass. 1992); and In re Pan Am Corp., 161 B.R. 577 (S.D.N.Y. 1993). 239. Compare, e.g, Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993) (Shoen II) (offering broad protection), with In re Madden, 151 F.3d 125, 130 (3d Cir. 1998) (“[T]he privilege is available only to those persons whose purposes are those traditionally inherent to the press; persons gathering news for publication.”) 240. 5 U.S.C. § 552. 241. Condensed from an article by Barbara Cochran, president emeritus of the Radio Television Digital News Association. 242. “Proceedings in court should be conducted with fitting dignity and decorum. The taking of photo-

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Summary Guide to the Courts and Media fact is, the camera inside the courtroom has been the unemotional carrier of truth about what is actually happening at trial. The History of Cameras (and Radio) in the Courtroom While the photographic process has been in existence since the early 19th century, and although radio is an early 20th-century invention, expanded coverage is a relatively recent phenomenon. In 1937, following the frenetic media coverage of the trial of Bruno Hauptman, the accused kidnapper of the Lindbergh baby, the American Bar Association (“ABA”) adopted Canon 35 of

its Canons of Judicial Ethics242 to prohibit photographic or radio coverage of court proceedings. For several decades following the adoption of the Canon 35243 and the U.S. Supreme Court’s decision in Estes v. Texas,244 journalists were unable to provide photographic coverage from most of the nation’s courtrooms. The 1972 decision to replace Canon 35 with Canon 3A(7) of the ABA Code of Judicial Conduct,245 which allowed limited electronic recording of court proceedings for “instructional purposes in educational institutions,” led several states to experiment with expanded coverage. Florida

graphs in the court room, during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the mind of the public and should not be permitted.” A.B.A. Canons of Jud. Ethics, Canon 35, 62 A.B.A. Rep. 1134–35 (1937). 243. Canon 35 was amended in 1952 by inserting a prohibition against the “televising” of court proceedings; adding the phrase “distract the witness in giving his testimony” before the phrase “degrade the court”; and by adding a second paragraph to permit the televising and broadcasting of certain ceremonial proceedings. 77 A.B.A. Rep. 607, 610–11 (1952). In 1963, Canon 35 was amended a final time to read as follows: The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings detract from the essential dignity of the proceedings, distract participants and witnesses in giving testimony, and create misconceptions with respect thereto in the mind of the public and should not be permitted. Provided that this restriction shall not apply to the broadcasting or televising under supervision of the court, of such portions of naturalization proceedings (other than the interrogation of applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly demonstrating in an impressive manner the essential dignity and the serious nature of naturalization. 244. 381 U.S. 532 (1965). 245. Canon 3A(7) reads as follows: A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize: (a) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration; (b) the broadcasting, televising, recording, or photographing of investiture, ceremonial, or naturalization proceedings; (c) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions: (i) the means of recording will not distract participants or impair the dignity of the proceedings; (ii) the parties have consented, and to consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction; (iii) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and (iv) reproduction will be exhibited only for instructional purposes in educational institutions.” Commentary: Temperate conduct of judicial proceedings is essential to the fair administration of justice. The recording and reproduction of a proceeding should not distort or dramatize the proceeding.

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Summary Guide to the Courts and Media produced the first test case to reach the U.S. Supreme Court, and in 1981 the Court upheld the constitutionality of Florida’s rules for camera coverage of court proceedings,246 thereby removing one of the obstacles to the adoption of rules facilitating expanded coverage of judicial proceedings by the electronic media. Within a year of the Supreme Court’s ruling, the ABA House of Delegates repealed the 1972 version of Canon 3A(7) and implemented a new Canon 3A(7) which allowed expanded coverage under the supervision and approval of an appellate court.247 As a result, from the 1970s forward, the states have taken a panoply of approaches to regulating expanded coverage. Some states undertook experiments of limited duration, while others made permanent changes to their rules. Some states focused their efforts on both trial and the appellate proceedings, but others limited expanded media coverage to appellate proceedings. Several states decided to make expanded coverage contingent on the consent of various participants. All 50 states now allow media to record trial and/or appellate court proceedings to some extent.248 The states’ approaches toward expanded coverage are as diverse as their constituencies. No court currently provides unfettered access to electronic

journalists, and many have explicitly retained authority to limit or terminate expanded coverage if the presence of electronic devices proves distracting, disruptive, or threatening to the fairness of the judicial process. The states’ regulation of expanded coverage can be seen as falling somewhere on a spectrum with the most restrictive jurisdiction—Washington, D.C.—at one end, and the most permissive—Florida—at the other. States’ rules fall into three categories: those that broadly allow coverage; those with restrictions prohibiting coverage of important types of cases or sweeping categories of witnesses who may object to coverage; and states that allow only appellate coverage or have such restrictive rules for trial courts that expanded media coverage is effectively prevented. Those states that are grouped closer to Washington, D.C. tend to have rules based on either to 1972 or 1982 versions of Canon 3A(7). Some states toward the middle of the spectrum have kept Canon 3A(7) but have modified it through an order from their highest appellate court.249 The states grouped closer to Florida have generally eschewed Canon 3A(7) and have established, by rule or statute, expanded coverage as something approaching a

246. Chandler v. Florida, 449 U.S. 560 (1981). 247. The text of the 1982 version of Canon 3A(7) is as follows: A judge should prohibit broadcasting, televising, recording or photographing in courtrooms and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that under rules prescribed by a supervising appellate court or other appropriate authority, a judge may authorize broadcasting, televising, recording and photographing of judicial proceedings in court rooms and areas immediately adjacent thereto consistent with the right of the parties to a fair trial and subject to express conditions, limitations, and guidelines which allow such coverage in a manner that will be unobtrusive, will not distract the trial participants, and will not otherwise interfere with the administration of justice. The 1982 version of this provision of the Code of Judicial Conduct was eliminated at the 1990 annual meeting, although an identical standard continues to exist in the ABA Standards for Criminal Justice: Fair Trial and Free Press, Standard 8-3.8. 248. House Committee Considers Camera Access to Federal Courts, News Media Update, Sept. 28, 2007, http://www.rcfp.org/news/2007/0928-bct-housec.html. 249. See, e.g., Canon 3A(9), New Jersey Code of Judicial Conduct (“A judge should permit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions only in accordance with the guidelines promulgated by the Supreme Court and subject to the restrictions contained therein.”)

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Summary Guide to the Courts and Media presumptive right of the media or the public.250 In the federal judicial system, however, only the Second and Ninth circuits allow cameras in their appellate and trial courts.251 The federal courts are now planning a second “experiment” of cameras in selected courts,252 following up on a limited experiment which ran from July 1991 through December 1994. In general, however, Rule 53 of the Federal Rules of Criminal Procedure prohibits the taking of photographs or radio broadcast during criminal trial proceedings.253 This rule has been held not to violate the First or Sixth Amendments,254 and has applied even where, for example, a criminal defendant explicitly requested expanded coverage.255 In November 1993, the Federal Judicial Conference issued a generally favorable evaluation of the first cameras experiment.

Two years later, however, the Conference approved a resolution that allows electronic media coverage in federal [appellate] court proceedings subject to the discretion of each Circuit Court of Appeals.

Juries and the Media256

nglo-American court proceedings— including those related to juries—have been open to the public since before the Norman Conquest. For centuries, “everybody knew everybody on the jury” and “everyone [could] see and know everyone who [was] stricken from a venire list or otherwise does not serve.”257 Like juror identities, the process of selecting the jury has historically been public. “[S]ince the development of trial by jury, the process of selection of jurors has presumptively been a public process with exceptions only for good cause shown.” 258

250. The rules of at least one state—Nebraska—even go so far as to speak in terms of “The rights of photographic and electronic coverage.” See, e.g., Rules for Expanded Media Coverage in Nebraska Trial Courts: First Jud. Dist. (Neb. Dist. Ct., 1st Dist.), available at http://www.supremecourt.ne.gov/ rules/trial-court/district-1-exp-media-coverage.pdf. 251. Id. The U.S. Court of Appeals for the Second Circuit has established a permissive rule allowing extended media coverage in all proceedings conducted in open court with the exception of criminal matters and all pro se matters. News organizations wishing to video to record audio or video of proceedings for the Second Circuit must file notification two days in advance of the preceding and must satisfy a series of technical restrictions on equipment that they bring to the court. 2d Cir. R. Part F. The U.S. Court of Appeals for the Ninth Circuit has a moderately more permissive set of guidelines for extended media coverage of proceedings before it. Specifically, “coverage of all proceedings in open court is permitted and prohibited by rule or statute.” United States Court of Appeals for the Ninth Circuit, Guidelines for Photographing, Recording, and Broadcasting in the Courtroom, at http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000110. Individuals wishing to cover proceedings in the Ninth Circuit must file a notice three days three business days prior to the proceeding and must adhere to the court’s technical guidelines. 252. See U.S. Jud. Conf., Judiciary Approves Pilot Project for Cameras in District Courts (press release) (Sept. 14, 2010), http://www.uscourts.gov/News/NewsView/10-09-14/Judiciary_Approves_Pilot_ Project_for_Cameras_in_District_Courts.aspx. 253. The rule provides, “the taking of photographs in the courtroom during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the courtroom shall not be permitted by the court.” By its terms, Rule 53 does not explicitly pushed prescribed television broadcasting, courts have interpreted it as banning television coverage. See, e.g., U.S. v. Hastings, 695 F.2d 1278 (11th Cir. 1983). 254. U.S. v. Hastings, 695 F.2d 1278, 1284–85 (11th Cir. 1983). 255. Id. 256. Condensed from a chapter by Lucy A. Dalglish and John Rory Eastburg of the Reporters Committee for Freedom of the Press. 257. In re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1988). 258. Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 505 (1984).

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Summary Guide to the Courts and Media Beginning nearly 30 years ago, the Supreme Court and lower courts recognized that this history of openness gives rise to a constitutional access right.259 Ironically, during this same period, lower courts have increasingly limited public access to information about jurors, especially where there is an unusually high risk to juror safety.260 A few courts have even cited media interest in a case, alone, as sufficient reason to withhold information about juries.261 The risks of openness—to juror safety, the integrity of the proceedings, or simple privacy interests—are clear. But equally important are the risks that attend secrecy in the jury process. The prosecution of reputed mobster John Gotti illustrates the risk of keeping juries behind closed doors. Unbeknownst to the court, prosecutors, or the press, one of the jurors in the Gotti case was George Pape, a man with ties to an Irish-American organized crime group. According to legal scholars who have examined the trial, Pape contacted Gotti’s attorneys, accepted a bribe, and arranged for Gotti’s acquittal.262 If the government, the press, or the public had known Pape was on the jury, the scholars argue, “his potential for corruption might have been unearthed prior

to trial.”263 Similarly, the names of jurors were kept secret in the 2001 federal court trial of men accused of working with Osama bin Laden to bomb two American embassies in East Africa. Despite the secrecy, The New York Times managed to contact nine of the jurors and conduct post-verdict interviews. These interviews uncovered the fact that two jurors, “concerned about the religious implications of voting for execution, violated the judge’s directive by consulting their local pastors during deliberations,” that a third juror engaged in prohibited Internet research, and a fourth who confessed that he had “confused the court during jury selection about his willingness to impose a death sentence, and from the early stages of the trial had ruled it out.”264 Likewise, a New Jersey court issued an order that prohibited all interviews of former jurors in case where the high-profile murder defendant would soon be retried after the first trial ended in a hung jury.265 Four reporters violated this order, which was later ruled unconstitutional, and uncovered the fact that the foreperson of the jury was apparently not even a New Jersey resident.266 Secrecy in the jury process also risks the rights of the defendant because it may

259. See, e.g., id. at 510. 260. See, e.g., U.S. v. Gotti, 784 F. Supp. 1013, 1013 (E.D.N.Y. 1992) (trial of mobster John Gotti); U.S. v. Barnes, 604 F.2d 121, 141 (2d Cir. 1979) (trial of New York drug kingpin Leroy Barnes); and U.S. v. Brown, 250 F.3d 907, 911, 921 (5th Cir. 2001) (trial of Louisiana Governor Edwin Edwards). 261. Gannett Co. v. Delaware, 571 A.2d 735, 737 (Del. 1990) (upholding the use of an anonymous jury simply to curtail media coverage of the jurors, citing concerns about “the overwhelming pretrial publicity in this case, and the similarly extraordinary and unprecedented trial publicity Gannett gave unsequestered jurors” in another trial). 262. Abramovsky & Edelstein, Anonymous Juries: In Exigent Circumstances Only, 13 St. John’s J. Legal Comment 457, 480–81 (1999). 263. Id. 264. Benjamin Weiser, A Jury Torn and Fearful In 2001 Terrorism Trial, N.Y. Times, Jan. 5, 2003, §1 at 1. See also Steven D. Zansberg, The Public’s Right of Access To Juror Information Loses More Ground, 17 WTR Comm. Law. 11, at 3 (2000) (discussing, among others, a case where “[a]ccess to juror information helped reveal that an African-American juror in Washington, D.C., refused to convict an African-American criminal defendant, regardless of the evidence” and another where “it was revealed that a law student juror in a civil libel case had erroneously instructed his fellow jurors on the meaning of the ‘actual malice’ standard”). 265. State v. Neulander, 801 A.2d 255, 257 (2002). 266. Id. at 279.

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Summary Guide to the Courts and Media imply that the defendant is unusually dangerous, which in turn impairs the presumption of innocence.267 Defense lawyers also argue that withholding juror information of any type impairs their ability to perform a thorough voir dire.268 Courts have also recognized a First Amendment presumption of access to proceedings and records related to petit juries, as well as a common-law right of access applicable to jury information. In many cases, statutory and rule-based access rights apply as well. Sources of Access Rights The U.S. Supreme Court consistently has recognized that the public and press have a presumptive First Amendment right of access to judicial proceedings in criminal cases.269 Indeed, the Supreme Court explicitly extended this constitutional presumption of openness to voir dire proceedings in Press-Enterprise Co. v. Superior Court (Press-Enterprise I).270

The Supreme Court has not directly addressed whether the public and the press also have a constitutional right of access to civil proceedings, though a plurality found that “historically both civil and criminal trials have been presumptively open,”271 and many federal and state courts subsequently have recognized a public right of access to proceedings and documents in civil cases, though they have differed on the origin and scope of the right.272 For example, a unanimous California Supreme Court found both a logical basis and universal support for a constitutional right of access to civil proceedings, saying that “[a]lthough the high court’s opinions in Richmond Newspapers, Globe, Press-Enterprise I, and Press-Enterprise II all arose in the criminal context, the reasoning of these decisions suggests that the First Amendment right of access extends beyond the context of criminal proceedings and encompasses civil proceedings as well.”273 Other courts have reached the same conclusion.274

267. See Ohio v. Hill, 749 N.E.2d 274, 283 (Ohio 2001). 268. See, e.g., U.S. v. Barnes, 604 F.2d 121, 133 (2d Cir. 1979) (defendants claimed that “[t]he district court’s refusal to disclose petit jurors’ identities, residence locales or ethnic backgrounds … denied defendants due process”). 269. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980) (plurality opinion) (“a presumption of openness inheres in the very nature of a criminal trial under our system of justice”). See also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 602 03 (1982) (recognizing First Amendment access right and striking down statute that required “the exclusion of the press and general public during the testimony of a minor victim in a sex-offense trial”); Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13 (1986) (recognizing right of access to preliminary hearings); El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993) (same); Waller v. Georgia, 467 U.S. 39, 47 (1984) (“any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors”). 270. 464 U.S. 501, 505 (1984). 271. Richmond Newspapers, 448 U.S. at 580 n.17. 272. See, e.g., Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984) (“the First Amendment does secure a right of access to civil proceedings”); Westmoreland v. CBS, 752 F.2d 16, 23 (2d Cir. 1984) (“we agree with the Third Circuit in Publicker Industries … that the First Amendment does secure to the public and to the press a right of access to civil proceedings in accordance with the dicta of the Justices in Richmond Newspapers”); In re Iowa Freedom of Information Council, 724 F.2d 658, 661 (8th Cir. 1984) (First Amendment access rights extend to contempt proceedings); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983) (First Amendment and common law limit judicial discretion to seal documents in civil litigation); Newman v. Graddick, 696 F.2d 796, 801–03 (11th Cir. 1983) (constitutional right of access to proceedings and common-law right of access to documents in civil case involving prison conditions). 273. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). 274. See Mokhiber v. Davis, 537 A.2d 1100, 1107 n.4 (D.C. 1988) (“[n]o court has expressly concluded that Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media The federal circuits generally have recognized a constitutional right to many court records as well.275 When considering whether a constitutional presumption of access applies to particular proceedings or records, courts apply the “logic and experience test,” from PressEnterprise I. The test considers “whether the place and process have historically been open to the press and general public,” and “whether public access plays a significant positive role in the functioning of the particular process in question.”276 Where a constitutional presumption of access applies, the court may close proceedings only after making specific, on-the-record findings: (1) that closure is necessary to further a compelling governmental interest; (2) the closure order is narrowly tailored to serve that interest; and (3) that no less restrictive means are available to adequately protect that interest.277 In addition to the constitutional right, and even where it does not apply, “the courts of this country recognize a general right to inspect and copy public records and

documents, including judicial records and documents.”278 Indeed, the Third Circuit found that in both civil and criminal cases “the existence of a common law right of access to … inspect judicial records is beyond dispute.”279 While courts have recognized that the right applies to a variety of jury-related documents, such as voir dire transcripts280 and jury lists,281 the common-law right of access is far less absolute than the constitutional right, bowing, for example, to the less-than-compelling interest in ensuring that court records “are not ‘used to gratify private spite or promote public scandal’ through the publication of ‘the painful and sometimes disgusting details of a divorce case.’”282 Public access to jury proceedings and records often will also be governed by statute or court rule. For example, the Jury Selection and Service Act of 1968 provides for the disclosure of juror names once the jurors have been summoned and either appeared or failed to appear, unless secrecy is in the “interest of justice.”283 The practi-

the first amendment does not guarantee some right of access to civil trials”), and Barber v. Shop-Rite of Englewood & Associates, Inc., 923 A.2d 286, 293 (N.J.Super.A.D. 2007) (“there is a presumptive right of access to a civil post-verdict jury voir dire”). 275. The Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 86, 93 (2d Cir. 2004) (“the ability of the public and press to attend civil and criminal cases would be merely theoretical if the information provided by docket sheets were inaccessible.”). See also Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 164 (3d Cir. 1993) (finding “a presumptive right of public access to pretrial motions of a nondiscovery nature, whether preliminary or dispositive, and the material filed in connection therewith”); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177, 1179 (6th Cir. 1983) (presumption of access to civil court records and proceedings); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (constitutional right of access to “documents filed in connection with a summary judgment motion in a civil case”); Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1309 (7th Cir. 1984) (constitutional presumption of access to evidence supporting dispositive motion in civil case); Associated Press v. District Court, 705 F.2d 1143, 1145 (9th Cir. 1983) (“the public and press have a first amendment right of access to pretrial documents in general”). 276. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 8 (1986) (citations omitted). 277. Id. at 13–14. See also Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510–11 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982) (access restrictions must be “necessitated by a compelling governmental interest, and … narrowly tailored to serve that interest”). 278. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnote omitted). 279. Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984). 280. U.S. v. Antar, 38 F.3d 1348, 1360–61 (3d Cir. 1994), 281. In re Baltimore Sun Co., 841 F.2d 74, 75 (4th Cir. 1988). 282. Nixon, 435 U.S. at 598 (internal citation omitted).

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Summary Guide to the Courts and Media cal effect of this statute is limited, however, because in 2004 the Judicial Conference of the United States adopted a policy providing that documents containing identifying information about jurors or potential jurors should no longer be included in the public case file.289 This rule, which was intended as a rule to limit electronic access to juror information, has been interpreted by many court employees as mandating extensive secrecy regarding juror names. The Right to Challenge Closure The public and the press have a right to be heard on the issue of access to court proceedings and records, including those related to juries.285 Jurisdictions, however, vary regarding the best method for asserting the right to access. The Supreme Court has declined to specify the proper method for requesting access, though “courts have widely recognized that the correct procedure for a non-party to challenge a protective order is through intervention for that purpose.”286 Indeed, some courts say that the press or public must move to intervene in order to challenge closure.287 A minority of courts prefers mandamus, and some have questioned whether the media may properly intervene

to request access, especially in criminal trials.288 Many courts allow a less formal challenge, in the form of an oral request for access or a letter to the judge overseeing the proceedings at issue. Voir Dire Proceedings The Supreme Court has recognized a First Amendment presumption of access to voir dire proceedings,289 but this presumption may be overcome only with specific, on the record findings that closure is essential to preserve an overriding interest and is narrowly tailored to serve that interest. The test for closure of voir dire proceedings set forth in Press-Enterprise I is similar to other proceedings to which a First Amendment right of access applies—the presumption of openness “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest,” and “[t]he interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”290 The presumption of openness could be overcome where “interrogation touches on deeply personal matters that person has legitimate reasons

283. 28 U.S.C. Section 1863(b)(7). 284. Judicial Conference of the United States, Judicial Privacy Policy, available at http://www.privacy. uscourts.gov/crimimpl.htm. 285. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 n. 25 (“representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion’”) (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 401 (1979) (Powell, J., concurring)). See also U.S. v. Brooklier, 685 F.2d 1162, 1168 (9th Cir. 1982); In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2d Cir. 1988) (“news agencies have standing as recipients of speech”); U.S. v. Criden, 675 F.2d 550, 552 n.2 (3d Cir. 1982). 286. United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990), citing Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 783 (1st Cir. 1988). See also In re Associated Press, 162 F.3d 503, 507 (7th Cir. 1998) (intervention is the “most appropriate procedural mechanism” for challenging closure orders). 287. See Hertz v. Times-World Corp., 528 S.E.2d 458, 463 (Va. 2000) (mandamus was erroneously granted because intervention provided adequate remedy at law). 288. See, e.g., In re Globe Newspaper Co., 920 F.2d 88, 90 (1st Cir. 1990) (reviewing under the All Writs Act “because the right of a non-party to intervene in a criminal proceeding is doubtful”) (citation omitted). 289. Press-Enterprise Co. v. Superior Court (“Press-Enterprise I”), 464 U.S. 501 (1984), 290. Id. at 510. Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media for keeping out of the public domain.291 Press-Enterprise I also offered practical advice for trial judges concerned about particularly embarrassing voir dire questions. The Court said a trial judge “should inform the array of prospective jurors … that those individuals believing public questioning will prove damaging because of embarrassment, may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record.”292 One court found closure was proper under Press-Enterprise I where the trial judge “allowed the courtroom to be closed in response only to specific requests made by potential jurors to protect their privacy, and only during the discussion of private matters; [and] she immediately reopened the courtroom for any additional questioning of each of the potential jurors once questioning on the private matters was completed.”293 In general, however, appellate courts have made clear that a generalized interest in juror privacy is insufficient.294 Nor may a court simply take a venireperson’s assertion of a privacy interest at face value.295 The defendant’s interest in receiving a fair trial can also overcome the presumption

of openness under certain conditions.296 Examples include a racially-charged civil rights prosecution involving allegations that the defendants—connected to the Ku Klux Klan and National Socialist Party of America—had murdered civil rights marchers.297 The Second Circuit reached a similar result in a case involving promoter Don King, based on King’s fame and the racial bias issues involved in the case.298 Similarly, the court hearing the first post-September 11 case involving allegations of terrorism to go to trial relied on King in closing voir dire,299 although the court ruled that a transcript of the proceeding would be released after the jury was seated.300 But the Second Circuit made clear that press coverage alone was not enough to justify closure, overturning an order closing voir dire in Martha Stewart’s criminal prosecution.301 While nearly all reported cases deal with access to voir dire in criminal cases, a New Jersey appellate court applied the same standards for closure for civil voir dire, reversing an order closing the proceeding because “in the instant case, there is no compelling, overriding interest which would rebut the presumption of access and that the well-

291. Id. at 511. 292. Id. at 512. 293. Commonwealth v. Jaynes, 770 N.E.2d 483, 492 (Mass. App. 2002). 294. See In re Dallas Morning News Co., 916 F.2d 205, 206 (5th Cir. 1990) (“[w]e are constrained by our reading of Press-Enterprise to conclude that the better practice is for the district court, rather than closing a portion of the voir dire proceeding in anticipation of privacy concerns, to inform the prospective jurors carefully, in advance, that any of them may request to be questioned privately, in the presence only of court personnel, the parties, and the attorneys.”). See also Providence Journal Co. v. Superior Court, 593 A.2d 446, 449 (R.I. 1991) (vaguely-asserted “concern[s] for the privacy rights of prospective jurors and the defendant’s right to a fair trial” were “speculative and were an insufficient basis on which to conclude that a limited closure was necessary”). 295. See Cable News Network, Inc. v. U.S., 824 F.2d 1046, 1048–49 (D.C. Cir. 1987). 296. Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510 (1984). 297. In re Greensboro News Co., 727 F.2d 1320, 1324 (4th Cir. 1984). 298. U.S. v. King, 140 F.3d 76 (2d Cir. 1998). 299. U.S. v. Koubriti, 252 F. Supp. 2d 424, 433 (E.D. Mich. 2003) (“[T]he Court has found that a sizeable number of prospective jurors have strong views about the Middle East, persons of Middle Eastern descent, the Government and terrorism …. The jurors’ complete candor is absolutely essential to flesh out their views and biases”). 300. Id. at 434–35. 301. ABC, Inc. v. Stewart, 360 F.3d 90, 101 (2d Cir. 2004).

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Summary Guide to the Courts and Media founded concerns of the trial judge could be adequately addressed through less restrictive alternatives than requiring closure.”302 Voir Dire Transcripts Press-Enterprise I recognized a constitutional right of access to voir dire transcripts as well as proceedings.303 The Third Circuit expanded on this in U.S. v. Antar, noting “[i]t would be an odd result indeed were we to declare that our courtrooms must be open, but that transcripts of the proceedings occurring there may be closed, for what exists of the right of access if it extends only to those who can squeeze through the door?”304 Antar described the presumptive right of access under Press-Enterprise I, finding that “a court ordering closure must first establish that the competing interest asserted is not only ‘compelling,’ but also that it outweighs the First Amendment right of access” and “it must determine that the limitations imposed are both necessary to and effective in protecting that interest. One part of establishing the necessity of a limitation is a consideration of alternative measures and a showing that the limitation adopted is the least restrictive means of accomplishing the goal.”305 It added that “these determinations must be covered by specific, individualized findings articulated

on the record before closure.”306 The order sealing the voir dire transcripts was thus unconstitutional, since it “violated procedural and substantive aspects of the press’s right of access to the voir dire transcript.”307 In addition to the First Amendment access right, the court found that “the transcript at issue is a public judicial document, covered by a presumptive right of access” under the common law.308 Jury Questionnaires The Supreme Court has not addressed whether jury questionnaires are subject to the same presumption of openness as voir dire, but lower courts have concluded that “the public access mandate of Press-Enterprise applies to voir dire questionnaires as well as to oral questioning,” because “[t]he fact that a lawyer does not orally question a juror about a certain answer does not mean that the answer was not considered in accepting or rejecting the juror.”309 The Ohio Supreme Court agreed, holding that “virtually every court having occasion to address this issue has concluded that such questionnaires are part of voir dire and thus subject to a presumption of openness.”310 Courts may—and sometimes must under local or state rules—redact highly personal information, such as Social Security

302. Barber v. Shop-Rite of Englewood & Associates, Inc., 923 A.2d 286, 293 (N.J.Super.A.D. 2007). 303. Press-Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 512 (1984). See also U.S. v. Koubriti, 252 F. Supp. 2d 424, 434–35 (E.D. Mich. 2003) (closing portion of voir dire but providing transcripts after jury was seated). 304. 38 F.3d 1348, 1360 (3d Cir. 1994), See also U.S. v. Criden, 648 F.2d 814, 822 (3d Cir. 1981) (“the public forum values emphasized in [Richmond Newspapers] can be fully vindicated only if the opportunity for personal observation is extended to persons other than those few who can manage to attend the trial in person”). 305. U.S. v. Antar, 38 F.3d 1348, 1359 (3d Cir. 1994) (internal citation omitted). 306. Id. 307. Id. at 1351. 308. Id. at 1360 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)). 309. Lesher Communications, Inc. v. Superior Court, 224 Cal. App. 3d 774, 778 (1990). See also Copley Press, Inc. v. Superior Court, 228 Cal. App. 3d 77, 81, 87 (1991) (agreeing that “the press is constitutionally entitled to have access to [jury] questionnaires,” but finding no constitutional right of access to questionnaires completed by venirepersons who were not called to the jury box for voir dire). 310. State ex rel. Beacon Journal Publishing v. Bond, 781 N.E.2d 180, 190 & n.3 (citing U.S. v. McDade, 929 F. Supp. 815, 817, fn. 4 (E.D. Pa. 1996); U.S. v. Antar, 38 F.3d 1348, 1359–60 (3d Cir. 1994); In re Washington Post, 1992 WL 233354 (D.D.C. July 23, 1992); Copley Press, Inc. v. Superior Court, 228 Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media numbers, telephone numbers, and driver’s license numbers, which does “nothing to further the objectives underlying the presumption of openness.”311 Media intervenors seeking access to questionnaires generally have no objection to such redactions, and in fact often suggest such redactions as less restrictive alternatives to sealing. Restrictions on Interviewing Jurors Another question courts struggle with is the extent to which they can control contact between jurors and the press, both during and after the trial. Such restrictions pit the First Amendment rights of jurors against the interest of the court in the fair and efficient administration of justice, and also implicate the right of the press to gather news, which is independently protected by the First Amendment.312 During trial, the court’s interest in the administration of justice generally trumps any speech interests, and courts clearly have the authority to prevent the press from interviewing jurors about the proceedings. Thus a Colorado appellate court affirmed a contempt citation against reporters who attempted to interview jurors who had been preliminarily qualified, requiring the court to dismiss the jury and repeat the juror selection process.313 But since “the threat to justice caused by news media contact with jurors is much lower after trial than it is during trial,” 314 post-verdict limitations on interviewing jurors are presumptively

invalid prior restraints on speech. Any party seeking a no-contact order “must show that the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest; the restraint must be narrowly drawn and no reasonable alternatives, having a lesser impact on First Amendment freedoms, must be available.” 315 Still, courts have occasionally approved narrowly tailored orders in unusual cases, especially limitations on repeated requests for interviews or discussions of jury deliberations or other juror’s votes. For example, in Journal Pub. Co. v. Mechem,316 the court opined that a trial court could permissibly instruct “jurors that they may refuse interviews and seek the aid of the court if interviewers persist after they express a reluctance to speak” or tell “jurors not to discuss the specific votes and opinions of non-interviewed jurors in order to encourage free deliberation in the jury room.” 317 Similarly, in a high-profile case involving the murder of a federal judge, the Fifth Circuit upheld an order that prohibited repeated requests for interviews or inquiries “into the specific vote of any juror other than the juror being interviewed.” 318 The same circuit later upheld a similar restriction providing that “no juror may be interviewed by anyone concerning the deliberations of the jury,” including “the discussions about the case occurring among jurors within the sanctity of the jury room” but excluding an

Cal. App. 3d 77, 89 (1991); In re S. Carolina Press Assn., 946 F.2d 1037, 1041 (4th Cir. 1991); Lesher Communications, Inc. v. Superior Court, 224 Cal. App. 3d 774, 778 (1990); and In the Matter of Newsday, Inc., 159 A.D.2d 667, 669–70 (N.Y. Sup. Ct. 1990)). 311. Id. at 190. 312. See In re Express News Corp., 695 F.2d 807, 808 (5th Cir. 1982) (invalidating court rule prohibiting post-verdict juror interviews because “news-gathering is entitled to first amendment protection”); see also Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (“without some protection for seeking out the news, freedom of the press could be eviscerated”); Food Lion Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 520 (4th Cir. 1999) (same); CBS Inc. v. Young, 522 F.2d 234, 239 (6th Cir. 1975). 313. In re Stone, 703 P.2d 1319, 1320–21 (Colo. App. 1985). 314. Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986). 315. U.S. v. Sherman, 581 F.2d 1358, 1361–62 (9th Cir. 1978) (internal citations omitted). 316. 801 F.2d 1233, (10th Cir. 1986). 317. Id. at 1236–37. 318. U.S. v. Harrelson, 713 F.2d 1114, 1118 (5th Cir. 1983).

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Summary Guide to the Courts and Media interviewee’s own “general reactions” to the proceedings.319 Of course, jurors are always free to decline interviews with the press, and the court is free to instruct them that “[a] juror may speak or remain silent as he desires.” 320 Finally, in an unusual case, the New Jersey Supreme Court upheld restrictions on press contact with jurors following a hung jury in a capital murder trial that was certain to result in the defendant’s imminent retrial.321 That court allowed restrictions on media contact with jurors, on the ground that “jurors submitting to media interviews might reveal some insight into the jury’s deliberative process that would afford the prosecution a significant advantage at the retrial and thereby provide defendant with a colorable Sixth Amendment issue for appeal in the event of a conviction.” 322 Anonymous Juries The first fully anonymous jury impanelled in the United States was the 1977 trial of drug kingpin Leroy Barnes in New York City.323 By the mid-1990s, some courts were using anonymous juries regularly. A county court in Ohio, for example, impanelled anonymous juries in all cases, civil and criminal.324 At the other end of the spectrum, the Massachusetts high court concluded that an anonymous jury is constitutionally valid only if “the trial judge has first determined on adequate evidence

that anonymity is truly necessary and has made written findings on the question.”325 Despite the recently popularity of anonymous juries, “[m]ost federal and state courts which have addressed this issue have articulated a limited or qualified right” to juror names and addresses.326 One court noted that this presumption of openness could be overcome only where there is a “credible threat of jury tampering … a risk of personal harm to individual jurors,” or “other evils affecting the administration of justice,” and that the “personal preferences of the jurors and the judge’s distaste for exposing them to press interviews” is not enough to outweigh the presumption in favor of openness.327 Courts are not in complete agreement in recognizing a First Amendment right to juror identities. In In re Baltimore Sun Co., the Fourth Circuit cited Press-Enterprise I but recognized a common-law presumption of access to the names of venirepersons,328 and expressly declined to decide whether to also recognize a First Amendment right of access. A minority of courts have refused to recognize any right of access to juror identifying information. The Fifth Circuit329 and the Delaware Supreme Court330 have so ruled. Statutes also play a role. For example, the Fourth Circuit found that information on a venire list compiled by clerk from completed questionnaires, beyond names and addresses of potential jurors, could be kept

319. U.S. v. Cleveland, 128 F.3d 267, 269–70 (5th Cir. 1997). 320. U.S. v. Sherman, 581 F.2d 1358, 1361, 1362 (9th Cir. 1978). 321. New Jersey v. Neulander, 801 A.2d 255, 257 (N.J. 2002). 322. Id. at 272. 323. U.S. v. Barnes, 604 F.2d 121 (2d Cir. 1979). 324. See Ohio v. Hill, 749 N.E.2d 274, 278–79 (Ohio 2001). 325. Massachusetts v. Angiulo, 615 N.E.2d 155, 171 (Mass. 1993). 326. In re Disclosure of Juror Names and Addresses, 592 N.W.2d 798, 799 (Mich. App. 1999). 327. In re Globe Newspaper Co., 920 F.2d 88, 91, 97 (1st Cir. 1990). 328. In re Baltimore Sun Co., 841 F.2d 74, 76 (4th Cir. 1988). 329. See U.S. v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977). 330. Gannett Co. v. Delaware, 571 A.2d 735, 745 (Del. 1989). A later court criticized the ruling and added that it was “substantially influenced by” what it called “Gannett’s egregious conduct in a previous trial.” In re Disclosure of Juror Names and Addresses, 592 N.W.2d 798, 808 (Mich. App. 1999).

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Summary Guide to the Courts and Media secret pursuant to 28 U.S.C. section 1867(f ) until the jury is seated.331 The use of anonymous juries is “a drastic measure, one which should be undertaken only in limited and carefully delineated circumstances.”332 Still, most courts allow anonymous juries in exceptional cases, where a strong argument exists to protect the safety of the jurors or the integrity of the proceedings. Most federal appellate courts have based the decision for an anonymous jury on some combination of the following five factors: (1) the defendant’s involvement in organized crime; (2) the defendant’s participation in a group with the capacity to harm jurors; (3) the defendant’s past attempts to interfere with the judicial process; (4) the potential that the defendant will get a long jail sentence or substantial fines if convicted; and (5) extensive publicity that could expose jurors to intimidation or harassment.333 A few courts have formulated the factors differently, saying anonymous juries should be used in cases where: (1) there are persons who participated in large-scale organized crime and who participated in mob-style killings and had previously attempted to interfere with the judicial process; (2) defendants had a history of jury tampering and serious criminal records; or (3) there

are allegations of dangerous and unscrupulous conduct by the defendant, coupled with extensive pretrial publicity.334 Still, courts occasionally issue orders or local rules that require all juror names be kept secret. For example, the court in Ohio v. Hill,335 due to waiver of the anonymity issue, “decline[d] to consider the propriety of the anonymous-jury local rule, even though we recognize that the rule implicates important concerns that would clearly be worthy of review by this court if the issue had been properly presented.” 336 Likewise, in 2008 the Eastern District of Kentucky enacted a blanket rule refusing to release juror names, in response to a newspaper request for access in a high-profile case.337 The Los Angeles Superior Court has experimented with various methods of keeping the names of jurors from the public, initially adopting an unwritten policy of “keep[ing] the identities of the prospective jurors confidential, even from trial counsel.”338 After the California Court of Appeal found the policy was adopted in error,339 the Superior Court then adopted a new rule whereby criminal jurors were referred to in court by the last four digits of their juror identification number.340 The Court of Appeal criticized this procedure but did not find it unconstitutional, because there was no evidence that “the public or the news

331. In re Baltimore Sun, supra, at 76. 332. U.S. v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994). 333. See, e.g., U.S. v. Sanchez, 74 F.3d 562, 564 (5th Cir. 1996) (quoting U.S. v. Krout, 66 F.3d 1420, 1427 (5th Cir. 1995)); U.S. v. Mansoori, 304 F.3d 635, 649 (7th Cir. 2002); U.S. v. Branch, 91 F.3d 699, 724 (5th Cir. 1996); U.S. v. Darden, 70 F.3d 1507, 1532 (8th Cir. 1995); U.S. v. Edmond, 52 F.3d 1080, 1091 (D.C. Cir. 1995); U.S. v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994). 334. U.S. v. Talley, 164 F.3d 989, 1001 (6th Cir. 1999) (quoting U.S. v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991)). 335. 749 N.E.2d 274, 278–79 (Ohio 2001). 336. Id. at 281. 337. General Order Number 08-13 (E.D. Ky. 2008); see also Kathleen Cullinan, Shrouded in the jury box, 32 News Media & The Law, No. 3, at 6 (2008). 338. People v. Phillips, 56 Cal. App. 4th 1307, 1309 (1997). 339. Id. See also Erickson v. Superior Court, 55 Cal. App. 4th 755, 757 (1997) (striking down another court’s local rule that “purport[ed] to extend sealing of juror identifying information throughout all civil and criminal proceedings, in effect adopting a procedure ensuring anonymity of jurors absent granting of a petition for access to personal juror identifying information”). 340. People v. Goodwin, 59 Cal. App. 4th 1084, 1089 (1997).

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Summary Guide to the Courts and Media media were precluded from ascertaining jurors’ names during the trial.”341 The most important example of practice deviating from the constitutional presumption of access to juror identities is a policy adopted by the Judicial Conference of the United States in 2004 as part of its guidelines permitting electronic access to criminal case records in federal courts. The policy provides that “documents containing identifying information about jurors or potential jurors” shall “not be included in the public case file and should not be made available to the public at the courthouse or via remote electronic access.”342 According to the Administrative Office of U.S. Courts, the policy was intended to prevent electronic access to juror identities during trial and does not prevent post-trial access to jurors’ identities, which are available in the jury management database maintained by each federal district court.343 But court employees appear confused about what the policy requires, often denying all requests for juror information.344 Access to Grand Juries “Since the 17th century, grand jury proceed-

ings have been closed to the public, and records of such proceedings have been kept from the public eye.”345 The secrecy rule, adopted from England, has become an integral—some say essential—part of the American criminal justice system. For this reason, courts applying the Press-Enterprise test have made clear that there is no First Amendment right of public access to grand jury proceedings.346 Participants, except witnesses, generally are forbidden from disclosing matters related to the grand jury, even after the grand jury’s activities have concluded.347 The limits on access to grand juries also applied to records of federal grand jury proceedings, which remain confidential “to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury.”348 It is left to the court to determine when to release such records.349 Access to state grand jury transcripts varies. In California, transcripts of grand jury testimony become public record after an indictment is returned, unless a defendant can show a reasonable likelihood that release of part or all of the transcripts would

341. Id. at 1093, n.6. The court rules evaluated in Phillips, Erickson, and Goodwin all purported to implement a California statute which requires that, after criminal trial concludes, “the court’s record of personal juror identifying information of trial jurors … consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section.” Cal. Code Civ. P. § 237(a)(2); see also Tex. Crim. P. Code Ann. § 35.29 (requiring a showing of good cause to release “[i] nformation collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror’s home address, home telephone number, social security number, driver’s license number, and other personal information”). 342. Judicial Conference of the United States, Judicial Privacy Policy, available at http://www.privacy. uscourts.gov/crimimpl.htm. 343. See Reporters Committee for Freedom of the Press, Secret Courts: Secret Juries, available at http:// www.rcfp.org/secretjustice/secretjuries. 344. See id. (reporting incidents where staff in eight federal districts denied a reporter’s request for juror information from the jury management database). 345. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n.9 (1979). 346. See U.S. v. Smith, 123 F.3d 140, 148 (3d Cir. 1997) (“grand jury proceedings are not subject to a First Amendment right of access under the [Press-Enterprise] test of ‘experience and logic’”). 347. Exceptions to this secrecy exist in some states. See, e.g., Cal. Penal Code § 939.1 (where the court “finds that the subject matter of the investigation affects the general public welfare” it “may make an order directing the grand jury to conduct its investigation in a session or sessions open to the public”). 348. Fed. R. Civ. Proc. 6(e)(6). 349. See, e.g., In re Sealed Case No. 99-3091, 192 F.3d 995, 1004–05 (D.C. Cir. 1999) (while it would ordinarily violate court rules to reveal that a grand jury was investigating a target, disclosure by Office Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media prejudice his right to a fair trial.350 Other states have no such law. A Massachusetts trial judge, for example, unsealed all court documents except the grand jury transcripts in Commonwealth v. Pitsas, a 2004 case involving a retired dentist charged with accidentally poisoning an infant.351 Moreover, in U.S. v. Smith,352 the Third Circuit Court of Appeals held that there is no presumptive First Amendment or common law right of access to court documents involving materials presented before a criminal grand jury. The same presumption of secrecy generally applies in the case of civil, or watchdog, grand juries. In 1988, for example, the Supreme Court of California concluded that a grand jury could not disclose as part of its report “raw evidentiary materials,” including hearing transcripts and interviews conducted by the prosecutor, gathered during a watchdog investigation that failed to yield any indictments.353 Proceedings Ancillary to a Grand Jury Investigation Under federal rules, not only are grand jury proceedings themselves closed to the public, but so are proceedings on matters affecting a grand jury proceeding, “to the extent necessary to prevent disclosure of a matter occurring before a grand jury.”354 Such ancillary proceedings often involve matters such

as motions to quash grand jury subpoenas, motions requesting immunity from prosecution and motions to compel testimony. For example, federal courts have held that the media had no right of access to papers or proceedings involving: a claim by an anonymous grand jury witness that he was the victim of illegal electronic surveillance by the government;355 allegations of government misconduct in releasing a sentencing memorandum that allegedly violated the grand jury secrecy rule;356 and objections to a grand jury subpoena and other ancillary matters during the investigation of President Clinton.357 At the state level, a California appeals court extended the rule of grand jury secrecy to motions to quash grand jury subpoenas served on an archdiocese in a priest sex abuse case.358 That is not to say the court should release no information at all about grand jury ancillary proceedings, since federal or local rules sometimes allow (or even compel) release. The D. C. Circuit, for example, noted that if a judge “can allow some public access without risking disclosure of grand jury matters … Rule 6(e)(5) contemplates that this shall be done.”359 One exception to the rule of grand jury secrecy concerns witnesses, who are free to speak publicly regarding their testimony before a grand jury.360 Some courts, however,

of Independent Counsel’s public confirmation that President Bill Clinton was the subject of a grand jury investigation was not a basis for a contempt finding, since in this case it was no secret the grand jury was investigating Clinton, as “the President himself went on national television the day of his testimony to reveal this fact.”) 350. Cal. Pen. Code § 938.1 (grand jury “transcript shall not be open to the public until 10 days after its delivery to the defendant or the defendant’s attorney,” but “[t]hereafter the transcript shall be open to the public unless the court orders otherwise ...”) 351. Kimberley Keyes, Judge releases defendant’s statements in fatal poisoning case, http://www.rcfp.org/ newsitems/index.php?i=4022. 352. 123 F.3d 140, 143 (3d Cir. 1997). 353. McClatchy Newspapers v. Superior Court, 751 P.2d 1329, 1337–38 (Cal. 1988). 354. Fed. R. Crim P. 6(e)(5). 355. In re Grand Jury Subpoena, 103 F.3d 234, 236 (2d Cir. 1996). 356. U.S. v. Smith, 123 F.3d 140, 156 (3d Cir. 1997). 357. In re Dow Jones & Company, Inc., 142 F.3d 496, 506 (D.C. Cir. 1998). 358. Los Angeles Times v. Superior Court, 114 Cal. App. 4th 247, 251–52 (2003). 359. In re Dow Jones & Company, Inc., 142 F.3d at 502 (citation omitted). 360. Butterworth v. Smith, 494 U.S. 624, 626 (1990),

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Summary Guide to the Courts and Media have narrowly interpreted this rule, permitting grand jury witnesses to divulge only what they knew before they testified, drawing a line “between information the witness possessed prior to becoming a witness and information the witness gained through her actual participation in the grand jury process.” 361 Moreover, the Seventh Circuit held that witnesses could be ordered to remain entirely silent regarding their testimony if the government could produce a “compelling necessity … shown with particularity.” 362

Judicial Ethics and Public Comment 363

s public officials, judges often handle cases of interest to the public, and are often called upon to give speeches and preside at public events. In many jurisdictions, judges must present themselves to the public as candidates for election to judicial office. Unlike other public officials, however, judges are required, by the nature of the judicial office, to behave in a manner that is free of even the appearance of impropriety. Ethical Considerations Judicial Impartiality, Integrity and Inde-

pendence. Canon 1 of the 2007 version of the American Bar Association’s Model Code of Judicial Conduct (hereafter the ABA Code) calls upon the judge to “uphold and promote the independence, integrity, and impartiality of the judiciary…”364 These three alliterative imperatives (often referred to as the three “i”s) provide a framework for discussing and analyzing judicial ethics.365 As a public person held to the highest standards of ethical behavior, a judge demonstrates his or her commitment to maintaining public confidence in the integrity, impartiality, and independence of the judiciary not only by avoiding improper conduct, but also by avoiding the appearance of impropriety.366 Judges who run afoul of the appearance of impropriety standard generally do so through indirect attempts to abuse, or take improper advantage of, the prestige of their judicial office. Thus while a judge may assist an organization in planning a fundraising event, a judge may not personally solicit contributions.367 Judges may also create an appearance of impropriety by using the prestige of their office to further their personal inter-

361. Hoffmann-Pugh v. Keenan, 338 F.3d 1136, 1140 (10th Cir. 2003); see also San Jose Mercury News v. Criminal Grand Jury, 122 Cal. App. 4th 410, 413, 415 (2004). 362. In re Grand Jury Subpoena Duces Tecum, 797 F.2d 676, 681 (8th Cir. 1986) quoting U.S. v. Procter & Gamble, 356 U.S. 677, 682 (1958). 363. Condensed from an article by James J. Alfini (Professor of Law and Dean Emeritus, South Texas School of Law); Michael P. Vargo; and Allison Jeffcoat. 364. 2007 American Bar Association Model Code of Judicial Conduct, Canon 1 (hereafter 2007 ABA Code). 365. Comment [3] to Canon 1 states: “Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary.” 2007 ABA Code, Canon 1, Comment [2]. The 2007 version of the ABA Code defines each of these values in the Terminology section. 366. Canon 1 of the 2007 version of the ABA Code also calls upon the judge to “avoid impropriety and the appearance of impropriety.” 2007 ABA Code, Canon 1. Comment [5] to Canon 1 sets forth the following test for appearance of impropriety: “… whether the conduct would create in reasonable minds a perception that the judge violated the Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.” 2007 ABA Code, Canon 1, Comment [5]. For an excellent discussion of the appearance of impropriety standard, see Cynthia Gray, Avoiding the Appearance of Impropriety: With Great Power Comes Great Responsibility, 89 Judicature 35 (2005). 367. See, generally, 2007 ABA Code, Rule 3.7: Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities. Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media ests or those of others.368 Similarly, judges may create an appearance of abusing the prestige of their office by using their judicial letterhead when sending personal letters.369 Although the appearance of impropriety standard has been criticized for being unconstitutionally vague and overbroad, the American Bar Association House of Delegates voted in 2007 to retain the language.370 After the Conference of Chief Justices objected,371 the ABA House of Delegates adopted a version that included a test for the appearance of impropriety in the commentary to the Rule.372 Campaigning for Office 373 Restrictions on Campaign Advocacy. Canon 7B(1)(c) of the 1972 Model Code of Judicial Conduct cautions that a candidate for a judicial office, “should not make pledges or promises of conduct in office other

than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact.” 374 The dictates of Canons 5A(3)(d) of the 1990 Code are similar, except that there is no prohibition against judges announcing their views on disputed legal or political issues.375 These provisions were revised following the decision of the U.S. Supreme Court ruling in Minnesota Republican Party v. White,376 in which a provision of the Minnesota Code of Judicial Conduct restricting judicial campaign speech was ruled unconstitutional on First Amendment grounds. The language that the Supreme Court declared unconstitutional in White was the “announce clause,” a key provision in the 1972 version of the ABA Model Code

368. Rule 1.3 of the 2007 ABA Code states, “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.” See., e.g., In the Matter of Collester, 599 A.2d 1275 (1992) (sanctioning a judge who, stopped on suspicion of driving while intoxicated and asked for his driving credentials, told the officer he was a judge, and repeated the statement during field sobriety tests). See also, In re Heiple, No. 97-CC-1, Order (Illinois Courts Commission, April 30, 1997) (censuring Chief Justice of the Illinois Supreme Court for displaying his Illinois Supreme Court Justice credentials instead of producing his driver’s license as requested when stopped by police for speeding on a number of occasions.) 369. In re Mosley, 102 P.3d 555 (Nev. 2004) (censuring a judge who used his judicial letterhead to inform school officials that his ex-girlfriend had lost custody of their child, finding irrelevant the fact that the school already knew he was a judge). 370. 2007 ABA Code, Scope [2]. 371. Conference of Chief Justices, Resolution 3, (Feb. 7, 2007)(“the Conference of Chief Justices opposes any revised version of the Model Code of Judicial Conduct that does not include a provision requiring avoidance of impropriety and the appearance of impropriety both as an aspirational goal for judges and as a basis for disciplinary enforcement.”) 372. See Canon 1, Rule 1.2, Comment [5]. 373. This section is largely adapted from James J. Alfini, Steven Lubet, Jeffrey M. Shaman, and Charles Gardner Geyh, Judicial Conduct and Ethics 11-13 - 11-66 (4th ed. 2007). 374. Canon 7B(1)(c), 1972 ABA Model Code of Judicial Conduct. 375. Canon 5A(3)(d) of the 1990 Model Code states that a judicial candidate, “shall not: (i) with respect to cases controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office; or (ii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.” Canon 5A(3)(e) permits a judicial candidate to respond to personal attacks or attacks on the candidate’s record as long as the response does not violate Canon 5A(3)(d). 376. 536 U.S. 765 (2002). 377. “[A] candidate for a judicial office, including an incumbent judge,’’ shall not “`announce his or her views on disputed legal or political issues.” Minn. Code of Judicial Conduct, Canon 5A(3)(d)(i) (2000).

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Summary Guide to the Courts and Media of Judicial Conduct.377 Only nine states, including Minnesota, still had the announce clause in their judicial ethics canons at the time of the decision in White.378 Following the White decision, states have struggled to close the gap between the conflicting interests that are present in electing an impartial judiciary. While some federal courts have read White broadly and struck down other ethics restrictions on campaign conduct,379 generally state high courts have read White more narrowly and upheld those provisions.380 The need to secure and maintain an impartial judiciary plays a central role in the current debate over restrictions on judicial campaign speech.381 Proponents of campaign speech restrictions agree with the four dissenting justices in White, who wrote that “By obscuring the fundamental distinction between campaigns for the judiciary and the political branches … the Court defies any sensible notion of the judicial office and the importance of impartiality in that context.” 382 The White decision has prompted changes in the wording of various state judicial ethics provisions. The Supreme Court of North

Carolina has taken what is perhaps the most extreme reaction to White by effectively eliminating virtually all restrictions on judicial campaign activities from its code of judicial conduct.383 In August 2003, the House of Delegates of the American Bar Association responded to the White decision by adopting the revised Canon 5A(3)(d) of the Model Code of Judicial Conduct. Candidate Questionnaires. The White decision has also prompted the more frequent use of judicial candidate questionnaires by the media and special interest groups for use in news stories, or to formulate an endorsement. Prior to the White decision, most advisory opinions strongly disapproved of the practice, with judicial candidates advised to refuse to respond to questionnaires from organizations soliciting their views on subjects such as gun control, abortion, the Equal Rights Amendment, regulation of condominiums, and the right to work.384 A county bar association was cautioned not to survey the views of candidates for judicial office as to whether they agreed or disagreed with specific decisions of an

378. ABA Standing Committee on Judicial Independence, The Supreme Court Speaks—Can Judicial Candidates? Life After Republican Party of Minnesota v. White , Aug. 9, 2002 Annual Meeting of the ABA, Washington, D. C. 379. See Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002) (holding that the Georgia version of the “misrepresent’’ clause is overbroad and violates the First Amendment) 380. See In re Watson, 794 N.E. 2d 1 (N.Y. 2003) (upholding Section 100.5(A)(4)(d)(i) of the New York Rules Governing Judicial Conduct, which prohibits a judicial candidate from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”); and Inquiry Concerning Kinsey, 842 So.2d 77 (Fla. 2003) (reprimanding and fining a judge $50,000 for a pro-prosecution campaign speech.) 381. See Paul McGreal and James J. Alfini, “Debate, First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government’s Interest”, 157 U. PA. L. Rev. PENNumbra 76 (2008), available at http://www.pennumbra.com/debates/pdfs/JudicialCampaignSpeech.pdf. 382. 536 U.S. at 797 (Stevens, J., dissenting). Rejecting this notion, the Eleventh Circuit panel that that struck down other judicial campaign restrictions in Weaver v. Bonner read White in the extreme: “… we believe that [the majority opinion in White] suggests that the standard for judicial elections should be the same for legislative and executive elections … we do not believe the distinction, if there truly is one. justifies greater restrictions on speech during judicial campaigns than during other campaigns.” Weaver v. Bonner, 309 F.3d 1312, (11th Cir. 2002). 383. Order Adopting Amendments to the North Carolina Code of Judicial Conduct, April 2, 2003. For a discussion of the reaction of North Carolina judges to these changes, see Matthew Eisley, Judges Balk at Too Much Freedom, NAT’L L.J., Oct. 17, 2003. 384. See e.g.,Fla. Sup. Ct. Comm. on Standards of Conduct Governing Judges, Op. 80-13 (1980). Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media appellate court.385 However, the same bar ethics committee later ruled that a bar association would be permitted to circulate a questionnaire designed to elicit candidates’ criticisms of prior court decisions in a fair and reasonable manner that would not create the impression that a candidate would later act with bias or partiality.386 The State of Oregon had forbidden comments on political issues, but permitted comments on legal issues.387 In attempting to differentiate between the two, Oregon indicated that the death penalty, pretrial release of criminal defendants, the purposes to be accomplished by sentencing, and the selection method used to choose judges are all legal issues.388 In Pittman v. Cole, a federal district court enjoined the Alabama Judicial Inquiry Commission and the Alabama State Bar Office of General Counsel from enforcing their opinions advising candidates for judicial office not to answer a questionnaire from the Christian Coalition of Alabama.389 On appeal, the U. S. Court of Appeals vacated the district court’s order, with instructions to certify any state law questions that would affect the outcome of the case to the Supreme Court of Alabama.390 However, before the trial court could certify any questions to the Alabama Supreme Court, the commission withdrew its advisory opinion in light of Republican Party of Minnesota v. White.391 Although the Christian Coalition

sought a definitive ruling on the constitutionality of its questionnaire, the Eleventh Circuit ruled that the case was moot.392 Comment [15] to the 2007 Code Rule 4.1 offers advice to a candidate seeking to avoid violating the pledges, promises, and commitments clause of Rule 4.1(A)(13). The comment states, in part: “… candidates who respond to media and other inquiries should … give assurances that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected.”393 The comment also offers advice to candidates who choose not to respond, stating that they “may state their reasons for not responding, such as the danger that answering might be perceived by a reasonable person as undermining a successful candidate’s independence or impartiality, or that it might lead to frequent disqualification.”394 Campaign Advertisements and Endorsements. Canons 5C(1)(b)(ii) and (iii) of the 1990 Code and Rule 4.2(B) (2) of the 2007 Code provide that judicial candidates may promote their campaigns through a wide range of print and broadcast media. Generally, advisory opinions merely specify that advertisements for a judicial candidate must contain statements that are true, must maintain the dignity appropriate to judicial office, and may not make false statements designed to promote the election or defeat of a candidate.395 Some restrictions exist on direct mail

385. State Bar of Mich. Comm. on Prof. and Judicial Ethics, Formal Op. C-222 (1982); State Bar of Mich. Comm. on Prof. and Judicial Ethics, Informal Op. CI-696 (1982). 386. State Bar of Mich. Comm. on Prof. and Judicial Ethics, Informal Op. CI-921 (1983). 387. See Or. Judicial Conf., Judicial Conduct Comm., Ethics Op. 78-5 (1980). 388. Id. 389. Pittman v. Cole, 117 F. Supp. 2d 1285 (S.D. Ala. 2000). 390. Pittman v. Cole, 267 F.3d 1269 (11th Cir. 2001) (vacating and remanding with instructions) 391. Christian Coalition of Alabama v. Cole, 355 F. 3d 1288, 1290 (2004). 392. Christian Coalition of Alabama v. Cole, 355 F.3d 1288 (11th Cir. 2004) (affirming that the Alabama Judicial Inquiry Commission’s withdrawal of advisory opinion rendered claim moot). 393. Comment [15], 2007 Code Rule 4.1. 394. Id. 395. See e.g. Ohio State Bar Ass’n Comm. on Legal and Prof. Conduct, Informal Op. 84-4 (1984). See also Order of Private Reprimand (Ky. Judicial Retirement and Removal Comm’n, Aug. 20, 1992) (nonjudge candidate reprimanded for distributing campaign materials susceptible to the misimpression that he was representing himself as the incumbent judge); In re Harper, 673 N.E.2d 1253 (Ohio 1996)

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Summary Guide to the Courts and Media contact with voters. A lawyer may use law office stationery to advertise a candidacy,396 but other opinions hold that it is improper for a judge to use his or her court stationery for the same purpose.397 Campaign advertisements are subject to the 1990 Code Canon 5A(3)(a) requirement that a campaign be conducted with dignity. All jurisdictions that have addressed the question agree that an incumbent judge may be pictured in his or her robe in campaign materials, so long as the picture is not misleading.398 A candidate who was not presently a judge, but who had previously served on the bench, was allowed by the Florida ethics advisory committee to use a picture taken during his previous tenure in campaign materials, which clearly explained the source of the picture and the dates when he previously served.399 Other jurisdictions, however, disagree with this position.400 A few jurisdictions have ruled on the propriety of photographs of a candidate in a courtroom. In Saefke v. VandeWalle,401 the court found that there was no impropriety in an incumbent justice’s use of campaign materials showing him in his robe in a

courtroom. A New York ethics advisory committee takes a narrower view.402 The 1990 Code establishes identical standards for the procurement of endorsements and the procurement of campaign funds. Canon 5C(2) forbids a candidate to personally solicit publicly stated support, and requires him or her to establish a campaign committee to perform that task.403 This prohibition was not carried over to the 2007 Code, but the new code does have new requirements that judicial candidates personally approve the contents of campaign literature and other election materials404 and not use “court staff, facilities, or other court resources in a campaign for judicial office.”405 In In re Starcher,406 the West Virginia Supreme Court of Appeals admonished a supreme court justice who had personally authored, signed, and sent a letter to key individuals in a labor organization seeking the organization’s endorsement. A few restrictions apply to judges’ endorsements of other candidates. Canon 5A(1) (b) of the 1990 Code and Rule 4.1(A)(3) of the 2007 code prohibit a judge from publicly endorsing or opposing a candidate for any public office. Thus it is improper for a judge

(judge reprimanded for a television advertisement for supreme court justice that included a statement which, although an expression of opinion, implied a false assertion of fact); In re Polito, Determination (N.Y. Comm’n Dec. 23, 1998) (judge admonished for graphic and sensational campaign advertisements). 396. N.Y. Office of Ct. Admin., Judicial Ethics Op. 40 (1975) (part-time lawyer/judge may use law office stationery to advertise campaign); Pa. Bar Ass’n Prof. Guidance Comm., Op. 81-27 (attorney may seek contributions to campaign on law office stationery). 397. N.Y. Office of Ct. Admin., Judicial Ethics Op. 129 (1978). 398. See e.g. ABA Comm. on Ethics and Prof. Responsibility, Informal Op. 1450 (1980). 399. Fla. Sup. Ct. Comm. on Standards of Conduct Governing Judges, Op. 80-10 (1980). 400. State Bar of Mich. Comm. on Prof. and Judicial Ethics, Informal Op. CI-1007 (1984); In re McGlothen, Unreported Letter of Admonishment (Wash. Judicial Qualifications Comm’n 1983). 401. 279 N.W.2d 415 (N.D. 1978). 402. N.Y. State Bar Ass’n Comm. on Prof. Ethics, Op. 558 (1984). 403. “A candidate shall not personally solicit or accept campaign contributions or solicit publicly stated support. A candidate may, however, establish committees of responsible persons to solicit and accept reasonable campaign contributions, to manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy … .” 1990 Model Code, Canon 5C(2). 404. 2007 Model Code Rule 4.2(A)(3). 405. 2007 Model Code Rule 4.1(A)(10). 406. 501 S.E.2d 772 (W. Va. 1998).

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Summary Guide to the Courts and Media to endorse a judicial candidate (unless the candidate is running for the same judicial office as the judge), or for a judicial candidate to accept such an endorsement.407 An exception may be made in jurisdictions using merit selection, with one advisory opinion holding that a judge may properly submit names and evaluations of potential candidates to a merit selection panel.408 Acceptance of the endorsement or nomination of a special interest group may be construed as a pledge of conduct in office, and therefore place a candidate in violation of Canon 5A(3)(d)(i) of the 1990 Code or Rule 4.1(A)(13) of the 2007 Code.409 Public statements of support may be freely sought from lawyers, so long as the candidate is not personally involved in the solicitation.410 Because lawyers have a special opportunity to observe and assess the qualifications of judicial candidates, they are encouraged to come forward with their views.411 Disqualification Implications of Campaign Support, Opposition, or Speech. A question may arise concerning

whether the relationship between a contributor or endorser and an incumbent candidate or successful aspirant for office should lead to the disqualification of the judge when the contributor or endorser appears in court. Ethics advisory panels that have addressed this question generally agree that per se disqualification is unnecessary.412 Some opinions, however, caution that a judge should look at each case to determine if factors beyond the mere public support of the judge’s candidacy militate in favor of disqualification.413 In 1999, the American Bar Association adopted a new Canon 3E(1)(e) to the 1990 Model Code to provide for an additional grounds for recusal based on a lawyer’s contributions to a judicial campaign. This provision has been carried over to the 2007 Model Code as Rule 2.11(A)(4), which adds the law firm of the party’s lawyer to the contributors that may require recusal. What about cases in which an opposing candidate appears in court? The Florida ethics advisory committee takes the view that an incumbent judge is required, by

407. See N.Y. State Bar Ass’n Comm. on Prof. Ethics, Op. 289 (1973); Or. Judicial Conf., Judicial Conduct Comm., Ethics Op. 82-3 (1982); ABA Comm. on Ethics and Prof. Responsibility, Informal Op. 719 (1964); In re Ovard, Determination (Texas Comm’n, Dec. 17, 1994) (judge reprimanded for publicly endorsing in a primary campaign a candidate to succeed him as justice of the peace). 408. U.S. Judicial Conf. Advisory Comm. on Judicial Activities, Op. 59 (1979). 409. A New York State Bar Association opinion states that a judicial candidate may accept the endorsement or nomination of the Right to Life Party provided he or she refrains from expressing a view on abortion and further provided that the endorsement or nomination is not conditioned on the candidate’s view on that topic. N.Y. State Bar Ass’n Comm. on Judicial Election Monitoring, Op. 1 (1983). See also Texas Judicial Ethics Committee, Advisory Opinion 184 (1995) (listing the endorsement of groups makes “no statement indicating an opinion on an area subject to judicial interpretation,” approving endorsements from groups including Pro-Life Texans, Texans Against Drunk Driving, Texans for Tort Reform, and Texas Prosecutors Association). But see Arizona Judicial Ethics Committee Advisory Committee, Advisory Opinion 96-12 (soliciting or publicizing the endorsement of a county sheriff is prohibited because it suggests a pro-law enforcement rather than independent decision-maker posture). 410. A Washington judge was publicly admonished for personally soliciting support from attorneys and law enforcement officers through telephone calls and personal contacts. In re Murtland, Unreported Order #86-503 (Wash. Comm’n, 1987). 411. Ky. Bar Ass’n Ethics Comm., Op. E-277 (1984); State Bar of Mich. Comm. on Prof. and Judicial Ethics, Informal Op. CI-565 (1981). 412. See Ala. Judicial Inquiry Comm’n, Advisory Op. 84-213 (1984); Fla. Sup. Ct. Comm. on Standards of Conduct Governing Judges, Op. 78-7 (1978); Ill. State Bar Ass’n Comm. on Prof. Ethics, Op. 866 (1984). 413. Ala. Judicial Inquiry Comm’n, Advisory Op. 84-213 (1984).

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Summary Guide to the Courts and Media Canon 3C, to disqualify himself or herself in all cases where an announced future opponent appears.414 The same committee also believes that a successful candidate should disqualify himself or herself in all cases where the defeated opponent appears; at least until the judge believes that his or her impartiality can no longer reasonably be questioned—perhaps for as long as two years.415 The ethics advisory committee in Alabama disagrees with the Florida opinion, and would only require a judge to disqualify himself or herself if the judge harbors a personal bias or prejudice against the defeated opponent, or if other facts would cause the judge’s impartiality to be reasonably questioned.416 Following the U. S. Supreme Court decision in Republican Party of Minnesota v. White, proponents of restrictions on judicial campaign speech have viewed disqualification as an alternative or supplement to explicit prohibitions of categories of campaign speech.417 One year after the White decision was handed down, the American Bar Association adopted a new Canon 3E(1)(f ) of the 1990 Code, as an additional grounds

for disqualification: “the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to (i) an issue in the proceeding; or (ii) the controversy in the proceeding.”418 This provision has been carried over to the 2007 Code as Rule 2.11(A)(5). A number of federal trial court decisions that have struck down state “pledges or promises” clauses— to the extent they would prohibit judicial candidates from responding to candidate questionnaires—have upheld on First Amendment grounds provisions of the state codes of judicial conduct that might require disqualification under the same circumstances.419 Campaign Financing. The financing of a campaign for judicial office is governed by Canon 5C(2) of the 1990 Code and Rules 4.1(A)(8) and 4.4 of the 2007 Code, which attempt to insulate candidates from personal contact with contributors which may lead to allegations of bias. Thus, candidates are prohibited from personally soliciting or accepting campaign funds.420 Instead, both the 1990 Code and the 2007 Code call for candidates to establish committees of

414. Fla. Sup. Ct. Comm. on Standards of Conduct Governing Judges, Op. 84-12 (1984). 415. Fla. Sup. Ct. Comm. on Standards of Conduct Governing Judges, Op. 84-23 (1984). 416. Ala. Judicial Inquiry Comm’n, Op. 84-219. 417. For competing views on this issue see, Thomas R. Phillips and Karleen Dunn Poll, Free Speech for Judges and Fair Appeals for Litigants: Judicial Recusal in A Post-White World, 55 Drake L. Rev. 691 (2007); and James R. Bopp, Jr. and Anita Y. Woudenberg, An Announce Clause by any Other Name: the Unconstitutionality of Disciplining Judges Who Fail to Disqualify Themselves for Exercising their Freedom to Speak, 55 Drake L. Rev. 723 (2007). 418. Canon 3E(1)(f), 1990 Code 419. See, e.g., Kansas Judicial Watch v. Stout, 440 F. Supp. 2d 1209 (2006); Indiana Right to Life v. Shepherd, 463 F. Supp. 2d 879 (2006); Alaska Right to Life Political Action Committee v. Feldman, 380 F. Supp.2d 1080 (2005); and Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp.2d 672 (2004). 420. See e.g. Public Admonition of Densen (Texas Comm’n on Judicial Conduct June 2, 1999) (judge admonished for distributing invitations for a fund-raiser for his judicial campaign from the bench and court offices); In re Suder, 398 S.E.2d 162 (W.Va. 1990) (magistrate admonished for personally receiving campaign contributions without having formed a campaign committee); In re Karr & McCarty, 387 S.E.2d 126 (W.Va. 1989) (incumbent judge and judicial candidate admonished for personally accepting unsolicited campaign funds from family members and friends); In re Hopewell, 507 N.W.2d 911 (S.D. 1993) (lawyer disciplined for accepting campaign contributions as a judicial candidate, publicly announcing the names of contributors, and challenging the incumbent judge to do the same); and In re Carr, 656 N.E.2d 690 (Ohio Comm’n of Judges, 1995) (judicial candidate fined $1,000 for personally soliciting campaign funds by stating in a letter which was seeking financial support for Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media responsible persons to secure and manage the expenditure of funds, and to file any necessary disclosure statements. Varying constraints are imposed upon the activities of these campaign committees, depending upon whether the candidate is seeking an office filled by a public election between competing candidates, or is an incumbent seeking retention in or reelection to office without a competing candidate. However, the relevant 2007 Model Code provision (Rule 4.4) does not draw distinctions between the types or circumstances of elections, and leaves solicitation time limitations up to each jurisdiction.421 A new comment to the 2007 Model Code requires the candidate, at the start of the campaign, to instruct his or her campaign committee “to solicit or accept only such contributions as are reasonable in amount, appropriate under the circumstances, and in conformity with applicable law” and “to be especially cautious” in soliciting contributions from lawyers and others who might appear before the candidate if elected, to avoid creating grounds for disqualification.422 On the other side of the solicitation coin lies the issue of donations. Who may donate to a candidate’s campaign; how much may be donated; and what effect does the creation of a candidate-donor relationship have on pending or future cases involving both parties? In the absence of more restrictive provisions contained in a state’s version of the Code of Judicial Conduct or

election law, the general rule is that any person or group may donate a reasonable amount of money or time to the campaign of a candidate for judicial office, so long as the contributor does not expect to receive any direct benefit from the candidate’s election. Making Speeches Fundraising. As respected members of their communities, judges are often called upon to make speeches. Canon 3 (Rule 3.7) of the 2007 ABA Model Code of Judicial Conduct permits judicial participation in activities sponsored by legal organizations, as well as events supported by “educational, religious, charitable, fraternal, or civil organizations.” 423 However, if the program is related to fundraising activities, judges may participate only if the event is related to “the law, the legal system, or the administration of justice.”424 While mere attendance at an event will not violate this Rule, the Code cautions judges to consider whether association with such an organization would create the appearance of bias, and may compromise the judge’s image as an impartial jurist.425 Similarly, Section 4C(3)(b) of the 1990 Code allows attendance at fundraising events, but prevents judges from speaking or serving as a guest of honor.426 However, the 2007 Model Code was amended to allow for greater judicial participation in these affairs.427 As community leaders, judges may expect to speak or receive

the candidate’s judicial campaign, on “Friends of Cathleen Carr” stationery, at the bottom in different color ink, a handwritten statement, “We need your help, now! [signed] Cathleen”). 421. “A judicial candidate subject to public election shall direct his or her campaign committee … not to solicit or accept contributions for a candidate’s current campaign more than [insert amount of time] before the applicable primary election, caucus, or general or retention election, nor more than [insert number] days after the last election in which the candidate participated” 2007 Model Code Rule 4.4(B)(2). 422. Rule 4.4, Comment [3], 2007 ABA Code. 423. Rule 3.7(A), 2007 ABA Code. 424. Rule 3.7(A)(4), 2007 ABA Code. 425. Rule 3.7(A), Comment [2], 2007 ABA Code. 426. Canon (4)(C)(3)(b), Commentary, 1990 ABA Code. 427. Alfini et al., Judicial Conduct and Ethics, §9.04D Fund-Raising Events (LexisNexis 4th ed. 2007).

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Summary Guide to the Courts and Media awards at honorary functions.428 Likewise, the legal profession benefits from such positive recognition.429 Under these provisions, judges may also allow themselves to be featured at fundraisers, unless doing so would raise questions as to their impartiality.430 Abuse of Prestige of Office. Public appearances or speech-making activities by judges may also run the risk of violating the ethics prohibition against abusing the prestige of the judicial office.431 Judicial officers may not misuse their status or titles to benefit personal or economic interests, nor may they do so to benefit friends or family members. While such activity may not result in actual bias, society has a strong interest in preventing the collateral misuse of judicial office.432 Aside from averting any notion of unfairness, dignified judges are necessary because the legal system relies on public respect.433 The commentary to Rule 1.3 of the 2007 ABA Model Code cautions judges to retain sufficient control over their contributions to profit-making ventures involving activities such as writing or speaking, and to remain alert to prevent exploitation of their positions.434 Judges are also cautioned to protect the prestige of judicial office from those who wish to exploit it for commercial gain.435 Judges possess special legal experience and skill, which they are encouraged to share with the public.436 However, judges must be careful to avoid the appearance of using their titles to influence

decision makers.437 Texas State Judge Robert Jenevein was charged with abusing the prestige of judicial office when he sported judicial attire and used his courtroom in a televised news conference to defend himself and his wife against allegations of misconduct and corruption. Days after the speech, Jenevein sent an e-mail to approximately 75 people from his courthouse computer, further detailing the allegations and his desire to combat the charges.438 The United States Court of Appeals for the Fifth Circuit allowed the Texas Commission on Judicial Conduct to punish Jenevein, reasoning that “the state has a compelling interest in preserving the integrity of the courtroom, and judicial use of the robe, which symbolically sets aside the judge’s individuality and passions.” 439 However, the Fifth Circuit did not allow the Commission to censure Jenevein for the content of his speech.440 In 1998, Justice Richard Sanders of the Washington Supreme Court was charged with violating ethical standards when he addressed a crowd at a pro-life rally shortly after his swearing-in ceremony.441 Among other violations, the state Judicial Conduct Commission found Sanders guilty of improperly lending the prestige of his office to advance a political cause. However, the Supreme Court of Washington reversed the Commission, finding that the Code of Judicial Conduct did not pertain to

428. Id. 429. Id. 430. Id. 431. Canon 1, Rule 1.3, 2007 Code; Alfini, et al., Judicial Conduct and Ethics, §10.03A. 432. Alfini, et al., Judicial Conduct and Ethics, §10.03A Avoiding Appearance Problems and Collateral Misuse of Office (LexisNexis 4th ed. 2007). 433. Id. 434. Canon 1, Rule 1.3, Comment [4] 2007 ABA Code. 435. Id. 436. Rule 3.2, Comment [1], 2007 ABA Code. 437. Rule 3.2, Comment [1]-[3], 2007 ABA Code. 438. Jenevein v. Willing, 493 F.3d 551 (5th Cir. 2007). 439. Id. at 560. 440. Id. at 561. 441. In the Matter of the Disciplinary Proceeding Against Richard B. Sanders, 955 P.2d 369 (Wash. 1998). Reynolds Courts & Media Law Journal

Summary Guide to the Courts and Media such activity.442 Discriminatory Organization. Rule 3.6(A) of the 2007 ABA Model Code of Judicial Conduct forbids judges from holding membership in any organization that practices invidious discrimination on the basis of race, sex, religion, ethnicity, sexual orientation, or national origin.443 This rule also prohibits judges from using the benefits or facilities of an organization if the judge knows or should know that the group advocates such discrimination.444 A judge does not violate of this Rule if his or her attendance is isolated, or cannot be perceived as an endorsement of discriminatory activity.445 Compensation. Rule 3.12 of the 2007 ABA Model Code of Judicial Conduct allows judges to accept compensation for extrajudicial activities, including speaking and writing, unless doing so would suggest bias or dishonesty.446 But such compensation must be reasonable and may be subject to public reporting requirements. Canon 3 also recognizes judicial participation in educational and charitable events, and encourages contribution to such programs through attendance and teaching.447 Rule 3.14 allows judges to recover reasonable costs, such as travel and registration, incurred for these events.448 However, judges must be mindful to follow public reporting rules,449 while also evaluating each situation to determine whether reimbursement would appear to undermine the judge’s impartiality.450

Teaching and Writing Some commentators believe that judges should be proactive in educating the public about the judiciary’s societal role.451 Judges may teach and write as long as these activities do not interfere with judicial duties. Canon 3 (Rule 3.1) of the 2007 version of the American Bar Association’s Model Code of Judicial Conduct authorizes judges to engage in beneficial extrajudicial activities. Commentary to the rule encourages judges to participate in legal education through “speaking, writing, teaching, or participating in scholarly research projects.”452 Similarly, Canon 4(B) of the 1990 version of the American Bar Association’s Model Code of Judicial Conduct allows judicial involvement in “avocational activities.” 453 As long as official duties are not compromised, the Code encourages judges to “speak, write, lecture, teach, and participate in other extra-judicial activities.” 454 An Ethics Advisory Committee in Washington recently issued an advisory opinion concerning various factors judges should consider when given the opportunity to teach classes. The opinion stated that judges could participate in teaching non-judicial courses, such as sports classes, so long as the activity does not impair the dignity of the judicial office or interfere with official duties. Further, the Committee cautions judges to review local guidelines before pursuing any teaching position, as some states only allow judges to receive compensation

442. Id. 443. Rule 3.6(A), 2007 ABA Code. 444. Rule 3.6(B), 2007 ABA Code. 445. Id. 446. Rule 3.12, 2007 ABA Code. 447. Rule 3.14, Comment [1], 2007 ABA Code. 448. Rule 3.14(A), 2007 ABA Code. 449. Rule 3.14(C), 2007 ABA Code. 450. Rule 3.14, Comment [3], 2007 ABA Code. 451. See Zemans, Frances Kahn, From chambers to community, 80 Judicature 62 (1996). 452. Rule 3.1, Comment [1], 2007 ABA Code. 453. Canon 4(B), 1990 ABA Code. 454. Id.

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Summary Guide to the Courts and Media from non-public law schools. The opinion also discussed the common scenario of a judge teaching a law school class scheduled during normal court hours. Because this conflict could suggest that judicial duties do not take precedence over other obligations, judges must be careful to avoid an appearance of impropriety. The opinion suggests working with the law school to organize class times before or after court hours. If this cannot be done, the judge must proactively ensure that her teaching does not encumber judicial duties or inconvenience court staff. After attempting such corrections, if the judge still has concerns about conflicting judicial duties, the judge should refrain from teaching the class.455 However, some judges have been reprimanded for overzealous academic promotions. California Judge James Ross wrote a book entitled I, Jesse James, which he offered for sale to jurors and attorneys. Judge Ross discussed the book in open court, offering autographs in his chambers. The book was available for purchase through the bailiff, who completed order forms from his desk. While most sales occurred after trials were completed, a state commission found that Ross had inappropriately used his office and court resources for personal financial gain.456 Responding to Criticism There has been increasing concern over unjust criticism faced by the judiciary, which leaves many judges wondering what recourse they have. Neither the ABA Model Code of Judicial Conduct nor scholarly commentary offers

much guidance in addressing the practicalities of maintaining the required impartial public persona in light of an overly critical media presence, except the existence of a few speech restrictions. In fact, the 1990 ABA Model Code of Judicial Conduct is completely silent on affirmative guidance in speaking to the media, and the new, and much less ratified, 2007 ABA Model Code only states that, subject to the general prohibition about making statements on pending or impending cases, “a judge may respond directly or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter.” 457 In response to this lack of guidance or assistance, the ABA Standing Committee on Judicial Independence released in 2008 a comprehensive plan entitled Rapid Response to Unfair and Unjust Criticism of Judges, which details a recommended response procedure for judges dealing with criticism in the media.458 When unjust criticism surfaces in the media, three preliminary recommendations should be considered before a response is made. First, a judge must decide whether the criticism warrants a response, and the ABA Plan sets out guidelines delineating circumstances where a response is appropriate or inappropriate. Once it is determined that a response is needed, the ABA Plan recommends that the response must be made in a prompt manner, almost always within the same news cycle as the criticism. Also, an effort must be made so that the response does not repeat the negative criticism, but still thoughtfully addresses the issue at hand. While timing is important, substance should never be

455. Washington Courts, Ethics Advisory Opinion 08-05 (Aug.8, 2008), available at http://www.courts. wa.gov/programs_orgs/pos_ethics/?fa=pos_ethics.dispopin&mode=0805. 456. Steven Lubet, Stupid Judge Tricks, 41 S. Tex. L. Rev. 1301, 1307 (2000); see also Decision and Order, No. 141, at 11 (California Comm’n on Jud. Performance, Apr. 30, 1998), available at http://cjp.ca.gov/ index.php?id=10#r. 457. Rule 2.10(E), 2007 ABA Code. 458. The pamphlet is available at http://www.abanet.org/judind/toolkit/impartialcourts/ Rapid_Response_Pamphlet.pdf.

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Summary Guide to the Courts and Media sacrificed for speed. Finally, the ABA Plan recommends that the form of the response must be clear, concise, and persuasive. It should not sound defensive or be written in lay-terminology. The form of the response should also appear in the manner in which it will receive the most prompt and appropriate exposure corresponding with the criticism. Limitations When Speaking to the Media. The most prevalent issue a judge will face in responding to criticism, or in generally speaking to the media, is the Code’s mandate not to discuss a pending or impending case. Rule 2.10 of the 2007 ABA Model Code of Judicial Conduct prohibits judges from making “any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.” 459 A judge also may not “make pledges, promises, or commitments” about issues likely to come before his or her court.460 The Code also urges judges to retain control over courtroom personnel, such as staff and court officials, to prevent similar speech concerning such issues.461 If such comments call a judge’s independence into question, he or she may be disqualified from a related proceeding under Rule 2.11.462 But judges are not discouraged from explaining court procedures, making statements in conformity with their official duties, or responding to any allegations made by a media source.463 It is this discretionary quality of the code that constitutes both

the advantages and perils a judge can face when addressing the media. Although the Code disapproves of a judge speaking to the media about a pending or impending case, it does not create automatic liability for the judge if they in fact chose to make a statement. Thus, a judge is given necessary flexibility to handle public exposure of cases in a manner that can be individualized to suit the exact circumstances arising from each case. A judge should take note that matters pending before the court are not simply matters before that judge in particular, but extend to cases “in any court.”464 As long as the purpose of the judge’s statements pertains to an objective explanation of court procedures, or an informative discussion of the legal system, law, and court administration, the Model Code authorizes, and even encourages, statements of this nature to the media.465 However, there are limitations on a judge’s media commentary, even in an explanatory setting. A judge cannot attempt to bootstrap unsolicited criticism to otherwise innocuous information if it would undermine the judge’s appearance of impartiality.466

Preparing a Media Plan 467

oday’s news industry showing up on the courthouse steps has changed significantly with the insurgence of 24hour reporting on television, radio and the Internet; independent and syndicated cable networks; primetime news-magazine and news-entertainment formats; investigative

459. Rule 2.10(A) 2007 ABA Code. 460. Rule 2.10(B) 2007 ABA Code. 461. Rule 2.10(C) 2007 ABA Code. 462. Rule 2.11(A)(5) 2007 ABA Code. 463. Rule 2.10(D)-(E) 2007 ABA Code. 464. In re Broadbelt, 683 A.2d 543, 545 (N.J. 1996) (affirming Advisory Committee on Extrajudicial Activities opinion disapproving of judge’s television commentary). 465. Rule 4B, 1990 ABA Code. 466. In re Schenck, 870 P.2d 185, 200 (Or. 1994). 467. Condensed from a chapter by Karen L. Salaz, District Administrator of the Nineteenth Judicial District Court in Greeley, Colo., in collaboration with Judge Terry Ruckriegle, Chief Judge of the Fifth Judicial District in Breckenridge, Colo.

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Summary Guide to the Courts and Media and undercover news reporting; Internet reporting solely dedicated to news formats; the expansion of local and network channels available in nearly all geographical markets; an influx of competitive freelance journalists; a new array of Web-only news outlets; ethnic and alternative news media; citizen journalists with blogs and websites; web-based news aggregators; and local newspapers competing with their national counterparts in this age of technologybased news dissemination. The transformation of the news industry has significantly impacted the day-to-day business of the courts in four significant areas that dictate that the courts must be prepared and proactive in dealing with the media. The emergence of e-mail and websites has been one of the greatest equalizers available to court public information officers (PIO). Both allow one person to communicate with an infinite number of journalists and interested persons instantaneously. These types of technological tools also reduce the amount of time and the expense in communicating through traditional means such as mailing printed copies, faxing or dedicating court clerks to respond to individual requests. The evolution of the news industry capitalizing on technology has also created a fiercely competitive environment, with every journalist covering a highly publicized case wanting to have their unique piece of the story, sometimes with total disregard for integrity and honesty. The frequency and volume of requests for information places intense pressure on all of a court’s resources. As the media descends upon a court, cases are instantaneously redefined by the additional constitutional dimensions as courts are required to address the media’s assertion of their First Amendment rights. In a matter of hours, a criminal case is transformed from a dispute involving the prosecution and the defendant to one involving the prosecution, the defendant and Reynolds Courts & Media Law Journal

the media. Balancing Article I and Article VI of the U.S. Constitution, and victim’s rights, begins in earnest. Courts are no strangers to the occasional public figure finding himself or herself in front of the bench. Judges in such cases may be asked to consider whether to permit cameras in the courtroom, but the issues now being raised include whether cell phones and laptops, with their abilities to transmit words, sound, and pictures will be allowed in the courtroom. But the definition of a “high profile” case has changed. A high profile case in one court may involve local personalities; in another court, it might be the “case of the year,” decade or even century. But the degree of

The transformation of the news industry has significantly impacted the day-today business of the courts. impact is significant in each case and appropriate preparations need to be considered to provide court personnel with the resources and encouragement they will need. Cases involving high profile personalities hit the radar screens of court personnel and judges immediately. On occasion, however, a seemingly local case receives an inordinate amount of media interest and is mysteriously transformed into a truly high profile case. The coverage of high profile cases has developed a subculture of journalists, crew, producers and freelancers, many of whom crisscross the state and/or country from courtroom to courtroom. They know each other, there is an established hierarchy, they work cooperatively and competitively while simultaneously independent, and many are seasoned professionals. If a court does not take the initiative to proactively manage the potential chaos a high profile case can create, the media will take control. Many

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Summary Guide to the Courts and Media of the steps prescribed in a basic plan not only develop potentially good relations with the media, they also solidify good everyday business and communications procedures. Establishing or reinforcing solid lines of communication both internally and with local governmental agencies very early in the process is the most important step you will take. A course of action must be determined initially, early in the process, by the judge on the issue of access to court documents and proceedings. The U.S. Supreme Court has consistently held that access to the courts is one of the core components of the American judicial system. But access also comes with risk. The presence of the media and the public puts every aspect of the court under a microscope. Every detail will be reported, every action by judges and court personnel scrutinized, every move analyzed and any misstep or perceived misstep reported in unforgiving headlines. Legal analysts and commentators will spin, twist, distort and scrutinize every aspect of the case. Strategies A pretrial publicity order (“gag order”) may be drafted to limit the mesmerizing and intrusive effect journalists can have on everyone involved in the case,468 while a decorum order can outline expectations while on the premises of the courthouse. A decorum order can explicitly outline the court’s expectations on issues such as access, behavior, parking, security, electronic device restrictions, interviews, who and what can be photographed, etc. Also, by putting expectations in writing, it allows

the media to identify specific concerns they might have and initiate a dialogue with the courts on possible aspects that can potentially be negotiated.469 It is essential that both of these orders be entered only after consideration of each of the constitutional interests. Court officials including the judge, clerk of the court, district administrator and public information officer (PIO) should also develop a basic plan for handling the media.470 Preparing a thoughtful basic plan avoids many of the pitfalls inherent in knee-jerk responses. It is essential that co-workers are either apprised of job duties beforehand or that expectations can quickly be communicated: indecision can have brutal consequences especially for those folks on the front line when there are 50 journalists standing at the front counter. Diverting distractions created by the immense pressures from the sheer volume and demands of the media can quickly become a priority. Defining a procedure to relieve or diffuse pressure on the clerk’s office, administrators and the public information officer may be an option worth exploring. In the (subsequently dropped) prosecution of basketball star Kobe Bryant,471 the presiding judge handled all of the matters in the courtroom and a second judge was appointed to deal with logistical and media issues outside of the courtroom. Case-Specific Websites Posting documents and orders on websites is emerging as a viable alternative for reducing the clerk’s office traffic, e-mails and phone inquiries generated by highprofile cases.

468. Opinions reading such gag orders include Sheppard v. Maxwell, 384 U.S. 333 (1966); Oklahoma Publishing Co. v. District Court of Oklahoma County, 430 U.S. 308 (1977); Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); and Cox Broadcasting Corp. v. Cohen, 420 U.S. 469 (1975). 469. Law enforcement entities should have already been consulted during the order’s development process so these concerns should already be addressed presenting a unified voice. 470. The members and titles of the development team will vary from one court system to the next and from case to case. 471. People v. Bryant, No. 03-CR-204 (Colo. Dist. Ct. 2003).

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Summary Guide to the Courts and Media Access to a case-specific website can be limited to the media, as in the Scott Peterson prosecution,472 or be available to both the public and the media on a open-access website, as in the Kobe Bryant case.473 The Bryant document page averaged more than 15,000 hits per month for the duration of the proceedings. Courts considering developing a website must ensure that a multi-level safety net is in place to guarantee that no documents or information are mistakenly posted,474 including reviewing every document for appropriate redactions. Media Consortium It is very difficult for the court to deal with the media on a one-to-one basis when there are three dozen satellite trucks sitting in the parking lot and hundreds of reporters and crew members each trying to out-distance their competitors. As early as the Timothy McVeigh Oklahoma City bombing trial, held in Denver, Colo., courts have required the media to organize into a consortium so the court would only have one person to negotiate with on all matters related to coverage. Consortiums have been successfully used several times since then. Consortium members have use of the pool camera photos and footage, and are eligible to participate in the media’s courtroom seat selection process.475 Another variation of a media consortium that has been utilized is to have a committee formed with typically about seven representatives: television (one local, one national); print (one local, one national); wire services; and radio (one local, one national). The court’s PIO may serve as an advisory member.

“SWAT” team concept Lessons are learned every time a case works its way through the court system. One of the lessons in People v. Bryant was that cases generating intense media pressure can spring up anywhere at anytime. As a result of the lessons learned in Colorado, the state court administrator’s office developed a “SWAT” team to be mobilized when a high profile case emerges. This team is activated when notified by the district’s chief judge and sent to the court where the case is being filed to remain on location for five to ten business days to do training and help get all of the organizational pieces in place. The team members will then be available on-call or on a permanent basis as needed. Jury Issues and Change of Venue There are two extremely important areas that are glaringly missing in this analysis of how to handle a high profile case. These are jury-related issues and the potential for a change of venue particularly related to intense local media coverage. Every aspect of jury selection must be carefully thought through, and the same is true of a potential request for change of venue. The courts are constantly seeking to educate the pubic and the media about how the courts operate. Being prepared for when a potential opportunity arises is an important step that can make or break how the court is perceived and portrayed. Taking steps to proactively initiate communications and business practices to promote integrity and professionalism speaks volumes to all who come in contact with the courts either directly or through media coverage.

472. California v. Peterson, No. 1056770 (Cal. Super., Stanislas County 2003). 473. The material in People v. Bryant, supra, was posted online at http://www.courts.state.co.us/Courts/ District/Cases_of_Interest.cfm/District_ID/5 474. Order responding to prosecution’s request to discontinue web posting of documents: http://www. courts.state.co.us/userfiles/File/Court_Probation/5th_Judicial_District/Cases_of_Interest/ People_v_Bryant/08-04/consolidatedorder.pdf 475. There always needs to be a minimum of one rotational seat available to members of the media who are not consortium members. Reynolds Courts & Media Law Journal

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The Judge and the Court Public Information Officer476

here are a number of resources available to judges, including court staff who handle media inquiries to the judiciary, as well as many other tasks. They are called court public information officers (PIOs). Not all courts have full-time PIOs. Sometimes the judge who has administrative responsibility (e.g., chief judge) handles relations with the media for the court and, in some cases, court personnel, such as the clerk of court or court administrator, are assigned those responsibilities as the need arises. Typically, PIOs—or court personnel designated to fulfill that function—focus primarily on media relations to improve the accuracy of news coverage and to promote the education of the public on important legal issues and concepts. Many of these public relations professionals are responsible for activities involving public education, community outreach, legislative/government relations, internal communications, publications, etc., in addition to media relations, with the actual areas of responsibility vary from court to court. Media and Public Interest A recent survey from the Pew Research Center has tracked the trends in news interest over the years, specifically, the type of news followed most closely. Interest in crime (28 percent) was topped only by weather (48 percent); interest in community (22 percent) and local government (20 percent) ranked fourth and seventh, respectively.477 The Pew Resource Center’s recent survey found for the first time since 2002 that a majority of Americans (51 percent) now report that they check in on the news from time to time during the day as

opposed to getting news at regular times.478 These trends present challenges for journalists covering court news as well as court officials who work to improve the public’s understanding of court processes. Journalists are not as likely to be informed about court operations and proceedings, placing the burden on court personnel to provide more than basic information in response to media inquiries. Responding to inquiries from journalists who do not cover the courts routinely is a challenge. From the vocabulary used by court personnel to the court rules governing practice and procedure, court observers may have difficulty understanding court operations, including the outcome of their own court cases. The person functioning as a PIO is most effective if identified as the contact on the court’s behalf for all media inquiries. To be successful, the PIO must have access to those who make decisions on the court’s behalf and be kept informed as new developments occur. If the person functioning as the PIO has the support of the court and is perceived by court personnel to have the court’s trust, it is more likely that court personnel will assist the PIO in responding to media inquiries. Another critical aspect of the PIO role is the mastery of what information can be released to the public as well as the basis for any exemption from disclosure. What information is considered in the public domain varies from state to state and between state courts and the federal court system. The PIO must know the legal authority for permitting or denying access to court records, both in paper and electronic form. In this age of technology, journalists expect to have greater access to court records and data than in the past. Journal-

476. Condensed from an article by Sally Rankin (Court Administrator, 1st Judicial Circuit Court for Somerset County, Maryland). 477. Pew Research Center for the People and the Press, Key News Audiences Now Blend Online and Traditional Sources (Aug. 17, 2008), http://people-press.org/report/?pageid=1356. 478. Id.

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Summary Guide to the Courts and Media ists familiar with the federal court system’s Public Access to Court Electronic Records (PACER) service expect state courts to provide similar access. While providing access to data does not raise as many concerns about individual privacy, there are many courts that deny requests for data because of the court resources involved. The PIO can be a valuable resource in fielding requests from the media and determining what data they seek. It may be possible to provide data that has already been compiled that would assist a journalist in his or her pursuit once the PIO understands what angle the journalist is following. Court records in electronic form are a different matter. Courts across the country are struggling with how much information from court records should be available using Internet technology. Court records may include such personal identifiers as home address, social security number and age. Journalists and those representing commercial interests find the personal information invaluable in ensuring the identities of parties of interest. At the same time, the parties of interest may be concerned about their personal safety and their exposure to identity theft. Court personnel must also know what records may be inspected and, if access is denied, the basis for the exemption from disclosure. It may be helpful to prepare a chart of the different categories of records available in the courthouse with the applicable legal citations. Some PIOs provide training to court personnel on access to records. Whether having access to court files or electronic court records, journalists are likely to have questions about terminology or proceedings. PIOs often respond to requests about process in general, as opposed to the substance of specific cases. A particularly useful resource is a guide for journalists. Besides journalist guides, some PIOs develop and deliver the equivalent of a “law school for journalists.” A meeting of the bench and the local media can also be a Reynolds Courts & Media Law Journal

productive means to better understand each other’s priorities and to take steps to resolve areas of contention. Another way to encourage an ongoing dialogue is to form a working group with representatives from the bench, bar and media. Every media inquiry is an educational opportunity. How well the court responds can make a difference for the present and the future. If court personnel are knowledgeable about the extent to which court records are subject to inspection, journalists will most likely get their information from court files in the courthouse. Some journalists may contact your office, instead, hoping to get a quote from you. PIOs routinely return media calls so that news reports will not state that the court refused to return the call. PIOs assess the nature of the call and determine who might be the court’s best spokesperson. Often, the PIO is the court’s spokesperson and will answer factual questions about a case or an administrative issue to the extent the information is public. Note that practices vary from state to state and between the state and federal courts. Those serving as PIOs in the federal courts are most likely to answer questions about logistics only while state court PIOs may deal with facts of the case. Celebrity and Controversial Proceedings Certainly, the arrest of a celebrity in your jurisdiction will attract the attention of the media and the public. You will need to be prepared for all types of media inquiries and requests throughout the resulting court proceedings. The person serving as the PIO can serve as the primary media contact and resource. The high-profile trial is not the only opportunity for media scrutiny and controversy. When you anticipate a highprofile trial, a PIO can help you prepare for the extra demands. Sometimes, the controversy arises from a case involving average citizens. The fact pattern may not be particularly unusual, but an element of the case

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Summary Guide to the Courts and Media strikes a chord with the public. When the controversy arises after a court proceeding that was open to the public, the court files and recording of the proceeding are available resources. The PIO can help the judge retrieve and review the files and any recordings made for the court’s use.

A one-on-one interview is the most common, most powerful and potentially the most dangerous vehicle for connecting with the media. While a judge may not be able to comment on pending or impending cases, the judge’s own words on the record in a case open to the public can be effective. Recognizing that media deadlines dictate immediate responses to most questions, particularly when a controversy arises, a PIO can be valuable in recommending what information to provide. Asking a journalist to wait a couple of days for a copy of the court’s recording will not serve the court’s best interest. The story will break without the court’s perspective and it may be difficult to overcome the public perceptions created. Ideally, the PIO can a copy of the court’s recording or a transcript, with the pertinent section noted. A PIO can provide help, too, when you or your court are the subject of criticism for decisions about case management or when the public perceives the justice system is not functioning well. When you are the target of unjust criticism, you have to consider whether it is likely to be a story today that is likely to be forgotten by the public tomorrow in our 24-hour news cycle. If you do want a response to the criticism, the question is what type of response would be most

effective. PIOs often draft opinion columns and letters to the editor for publication and statements and talking points in response to media inquiries. The attribution of the commentary depends on the type of criticism. Sometimes a bar leader can be recruited to defend the criticism. Most likely the PIO would respond on behalf of the court. Another factor to consider is whether the criticism is truly unjust or a fair commentary from an opposing view. The judge who is the subject of criticism may feel a defense is appropriate, while other members of the same bench may have a different perspective. As court officials have experienced when dealing with crises, it is imperative to have a court spokesperson. Whether there is a courthouse shooting or damage to the courthouse caused by flooding or fire, the media will want regular updates on the event. PIOs are designated for that purpose and can produce a plan for crisis communication.

The Media Interview: Tips and Techniques479

estifying before a congressional committee in favor of the Sunshine in the Courtroom Act of 2007, U.S. District Judge Nancy Gertner spoke of the need for judges to be their own spokespeople: “… Judges in one sense have to prove their legitimacy,” she said. “... It’s no longer assumed by the public. And I would rather prove that legitimacy in my own voice with my own face and my own words than have my words described by a late night TV anchor.” 480 A one-on-one interview is the most common, most powerful and at the same time potentially the most dangerous vehicle for connecting with the news media to tell your story. When confronted with the news media, the closest that a judge can come to speaking in his or her “own voice”— as Judge Gertner put it—is through a

479. Condensed from an article by Chris Davey (Director of Public Information, Supreme Court of Ohio). 480. Michael D. Schoepf, Removing the Judicial Gag Rule: A Proposal for Changing Judicial Speech Regulations to Encourage Public Discussion of Active Case, 93 Minn. L. Rev. 341 (2008).

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Summary Guide to the Courts and Media successful interview. Since so many citizens form their opinions of the courts based on media coverage, it is critical that judges understand the workings of the media, work to maintain positive relationships with the news media and conduct business in such a way as to increase media access to and understanding of proceedings. The threshold question in any situation when a media interview presents itself is whether or not you should grant the interview. Judges often err on the side of not speaking because of a variety of cultural, legal and historical considerations.481 In fact, the approach should be just the opposite for two reasons: 1) It is better for the judicial branch in general if judges talk more, and 2) As a fundamental strategic principle it is almost always better to have your voice heard in a story rather than not. Every state has a different code of judicial conduct and unique statutory and case law that control when it is permissible for a judge to speak, and what he or she is permitted to say regarding pending or even decided matters. Judges should become familiar with the regulations in their jurisdiction(s) and when in doubt consult legal counsel. The American Bar Association adopted its revised Model Code of Judicial Conduct in 2007, a recommended set of comprehensive rules governing the speech and conduct of judges designed around the premise that judges “must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.” 482 Michael D. Schoepf 483 summarizes the

code’s speech restrictions this way: Rule 2.10 restricts judicial speech concerning active cases, stating as a general rule that judges should make no public or private statements that might “affect the outcome or impair the fairness” of a case. Before 2007, the rule prohibited all speech about an active case regardless of whether it was likely to impair fairness. Some states, including Illinois and Massachusetts, continue to follow this model. The modern Model Code extends the restriction to “court staff, court officials, and others subject to the judge’s direction and control.” The Model Code has always contained several exceptions to Rule 2.10’s general speech restrictions. For example, “a judge may make public statements in the course of official duties [and] may explain court procedures.” But history has shown that many judges fail to read beyond “[a] judge shall not” speak. Uncertain about what they can or cannot say, judges choose to say nothing at all.484

The article argues that this approach has resulted in frustrated judges, unhappy media and an unenlightened public. “Whether judges have a constitutional right to speak publicly about their ideas is an open question, but whether they should do so is not,” Schoepf writes. “The American public will no longer accept the traditional secrecy of the judiciary. It is time for judges at all levels to open their mouths, take out their pens, and speak to the public. Not just through formal opinions, but through opinion pieces in local newspapers, interviews on the radio and television, and roundtable discussions with other judges, scholars, and the public.”485 So, within the regulatory framework of a particular jurisdiction, there is a strong argument to be made that if there is any way to grant the interview, a judge should do so in the general interests of supporting

481. See Tom Goldstein, The Distance Between Judges and Journalists, in Bench Press: The Collision of Courts, Politics, and the Media (Keith J. Bybee, ed. 2007), chap. 9. 482. Preamble, ABA Model Code of Judicial Conduct (2007). 483. Michael D. Schoepf, Removing the Judicial Gag Rule: A Proposal for Changing Judicial Speech Regulations to Encourage Public Discussion of Active Case, 93 Minn. L. Rev. 341 (2008).When the article was written, Schoepf was a 2009 J.D. candidate at the University of Minnesota Law School. 484. Id. at 349–50. 485. Id. at 370.

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Summary Guide to the Courts and Media public understanding of and confidence in the judicial branch. The second reason judges should err on the side of speaking is that as a matter of fundamental communications strategy, it is almost always better to have your voice in a story than not. What you say and how you conduct yourself in a media interview means the difference between winning and losing in a battle for public perception. And of course there are instances when it is best to not speak, at least for the time being. But as a general rule, saying something—anything—is better than silence. Now, even with the two arguments above for a liberal philosophy when deciding on a media interview request, there still are other factors to consider. First, of course, are any judicial canons or other legal restrictions, which must be considered in the context of the particular topic or case that forms the basis of the requested interview. A judge has to exercise his or her best discretion when deciding whether to grant an interview and consider all relevant factors. All other things being equal, it is better to speak than not. Many concerns that judges have about speaking in a particular case can be addressed not by denying an interview request but by how the judge prepares for and executes the interview itself. These factors will be considered in the remainder of this chapter. Five Best Practices There are certain best practices for approaching different media interviews that depend on the type of interview it is and the type of media outlet that is requesting the interview. The five best practices for approaching a news media interview that apply in all circumstances: reduce your message into

simple, concise themes that you repeat throughout the interview; approach the interview with an open, compassionate attitude toward the interviewer, toward the characters involved in the story (the lawyers and litigants in the case at hand) and toward the audience; be honest; convey openness by being helpful and patient with reporters; and be prepared, including familiarity with the basic facts of the interview topic. If you follow these general principles of simplicity, authenticity, honesty, openness and preparation, you will go a long way toward having a successful interview. The rest of your success will depend on understanding the different types of interviews and following the best practices for the specific type of interview you are facing. We turn our attention to these now. In a 2001 article for the Harvard International Journal of Press/Politics, New York Times Supreme Court reporter Linda Greenhouse wrote that the judiciary—specifically, the Supreme Court of the United States—has an obligation to explain itself, and that it is the failure to adequately fulfill this obligation that has resulted in negative public perceptions and misunderstandings of the courts.486 Judges face unique constraints when attempting to take Greenhouse’s advice. But if you follow the principles explained in this chapter, more often than not, you will have the ability to successfully engage the media through interviews, telling your story and in the process serving the greater good of fostering greater understanding of the judicial branch.

Judiciary Access to the Media487

hile most courts abide by the maxim “the opinion speaks for itself ” when discussing an active case, there are some

486. Linda Greenhouse, The Courts Must Tell their Story, 6 Harvard Internat’l J. of Press/Politics 117–127 (2001), available at http://hij.sagepub.com/content/6/1/117.full.pdf+html. 487. Condensed from an article by David A. Sellers (Assistant Director for Public Affairs, Administrative Office of the United States Courts, Washington, D.C.).

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Summary Guide to the Courts and Media courts, most commonly appellate courts, that issue pre-argument case summaries for the media, and/or media summaries of court decisions. Many courts are traditional and conservative in their approach to business and operations. As such, for the time being they may be most comfortable working with their local newspaper and/or broadcast outlet. Judges and court staff possess a vast array of options for communicating with the media. Working with the media requires substantial planning and strategizing and is not risk-free. Once the decision has been made to jump into the fray, this chapter is intended to arm you with the tools and techniques to communicate effectively and efficiently. Press Releases/Media Advisories The most basic tool for communicating with the media is the press release. But it is vastly over-used, and as a result, a very large percentage of all press releases land in trash cans or computer trash folders without ever being read. Press releases should not be issued simply to appease a chief judge or other court managers. Judgment needs to be exercised in determining whether or not the subject of the release is likely to interest the media. Other invalid reasons for issuing a press release are “because I haven’t done it in awhile, everybody else does it, or I want to stay in contact with the reporter.” If you issue press releases on topics that aren’t newsworthy, reporters will ignore your releases, so that when you have legitimate news to announce, it will not receive the coverage it deserves. A variation on a press release is a media advisory or media alert. These tools are used to announce (or advise) the press that something will occur. A media advisory might be used to invite reporters to

the opening of a new courthouse, a press conference, or to notify them of the release of a significant study or report.488 They can be a valuable tool, and the press typically appreciates such advance notification. Press Conferences/Press Briefings After press releases, perhaps the most common tool available to public affairs professionals is press conferences. Be sure you have significant news to announce before embarking on a press conference. Editorials and Op-eds When your goal is to affect opinion or to stimulate action, part of your strategy should involve editorial pages and op-eds. Timing is essential to the successful placement of an op-ed. Ideally op-eds relate to an issue or event that currently is in the news, and are written by authors who can speak with some authority and expertise. Letters to the editor are yet another option for voicing your views through a newspaper. Letters typically are brief, only two or three very short paragraphs, and are intended to clarify, rebut, or comment on information that already was published in the paper. Be advised that some public affairs professionals think it inadvisable to send letters-to-the-editor to rebut negative articles. But by doing this, you risk keeping a bad story alive for yet another day and drawing readers’ attention to the topic through your letter. Building Relationships An increasing number of courts participate in bench-media, or bench-bar-media programs. These are an effective way to build relationships with some of the court’s most important constituencies. Under the leadership of the bar, many of these entities have developed processes for responding to unjust criticism of judges.

488. For example, this advisory from the Kentucky courts announces an upcoming meeting of the Court Records Retention Committee, Oct. 31, 2008: http://courts.ky.gov/pressreleases/PR10312008A.htm. Reynolds Courts & Media Law Journal

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Summary Guide to the Courts and Media The American Bar Association has long been a leader in this area, in the mid-1980s drafting a model plan for local bars to respond to unjust criticism of judges and courts from the media or special interest groups. Because of the ethical constraints judges face, bar associations are uniquely situated to, in the words of the ABA “… provide the public with information to help them better understand the legal issues related to a specific situation, including the role of judges, the application of the law, and the restrictions and responsibilities placed on judges in the canons and rules.”489 Another outgrowth of bench-bar-media programs is the development of handbooks or guides, typically for reporters who are assigned to cover your particular court or court system. Tracking the News Whether you are issuing press releases, convening new conferences, or simply taking to reporters by phone, it is important to track the stories that result. This is the only way of knowing how successful you were in communicating. While some reporters will provide courtesy copies of stories, it is not a regular practice, and most reporters are too busy to do this. After reviewing news coverage, you may decide to change your approach to the media, or develop a new strategy for your next media campaign. Without media monitoring and analysis, any court outreach effort that involves the media is incomplete. It is important to keep in mind that there is no single public. Different media relations strategies will be more effective for reaching certain constituencies. Careful thought and planning are essential before embarking down this road. Furthermore,

media relations is an art that should be conducted carefully with a scalpel and not with a sledge hammer.

Judicial Outreach 490

s should be clear to anyone examining the lack of public understanding of the law, judges and the court family must take the initiative through public outreach programs and materials if we are to address this seemingly ever-increasing lack of understanding about the law. As with any monumental task, the job must be broken into manageable tasks and constituencies. In an effort to reach the masses comprising the “general public,” courts must first educate and inform those whose job it is to educate and inform the public: the news media and our school educators. Further, to assist the courts in that process we must deliver our message to the executive and legislative branches of state, local, and federal government. Reaching Out to the Media As described in previous chapters, like it or not the news media represent an important constituency for public understanding of the law. Several states now have programs for the media in place that, although known by different names, can be placed under the umbrella of “law school for journalists.” These can be statewide, regional or even court-specific seminars designed to teach journalists the ways of their local courts while providing law-related information that is important to them and their career. Beyond basic information about these and similar issues, the law school for journalists programs provide an opportunity for judges and journalists to meet together and see first-hand whether the conflict between

489. ABA Standing Comm. on Judicial Independent, Rapid Response to Unfair and Unjust Criticism of Judge (2008), available at http://www.abanet.org/judind/toolkit/impartialcourts/Rapid_ Response_Pamphlet.pdf. 490. Condensed from an article by Ron Keefover (Education-Information Officer, Kansas Office of Judicial Administration).

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Summary Guide to the Courts and Media the First and the Sixth Amendments is really necessary. Co-existent with the on-going need to educate and inform the media about the work of the court is a very real need to educate and inform judges about journalists and their craft. Just as journalists need to know who we are and what we do, judges must learn who the journalists are and what it is that they do. This education can follow some of the same lines as described in staging media law seminars for journalists, except the information will be presented at regularly scheduled meetings of the bench and bar. Reaching Out to the Executive and Legislative Branches Equally important constituencies—and arguably more important—for the judiciary are those holding the purse strings, whether they be a state legislature, Congress, or a local county or municipal governing board. Most jurisdictions strive to improve relationships with the executive and legislative branches through traditional lobbying outreach, such as testimony before legislative committees and personal contact with individual city and county commissioners, state legislators, and members of Congress. However, several states have taken the campaign a step further and launched programs to bring the funders to the courtroom. Although referred to by a variety of names, most call the program “judicial ridealong” in which city, county, or state funders are invited to spend a morning or day in court with a local judge. During the visit, the legislators are given a “chef ’s tour” of court operations and participate in meetings of judicial and non-judicial personnel regarding all aspects of court business. Before or after the court proceedings, the judges discuss administrative issues and problems they face, as well as successes they have achieved in handling them. These discussions usually provide the

opportunity to discuss the common thread running through the administration of justice—lack of adequate funding. As with the so-called “law school for journalists” programs, some states have launched similar efforts for legislators. Typically, they are designed for newly elected legislators and are designed to provide basic information about court operations and structure. But these sessions also can include information about specific matters that will concern them as they craft laws. Reaching Out to Students Meanwhile, many states have reached beyond the legislative halls and newsrooms to educate and inform our youngest citizens about the rule of law and its daily impact on them. Usually called law-related education or sometimes citizenship education, programs to bring the law to the classroom are underway in many states, typically under the auspices of the state bar association or in some cases the state administrative office of the courts or state department of education. Numerous efforts are also underway at the national level that are designed to introduce law-related education into the nation’s school curricula. While the ultimate goal may be to improve students’ knowledge, it also is helpful to reach out to teachers. Some courts also offer teacher institutes in which they provide teachers with overviews of cases and the accompanying materials that they can take back and use in the class room. On the national level, the Federal Judicial Center develops educational and outreach materials, which are for judges and court employees, but may be of interest to others. For example, a 17-minute long video on an introduction to the patent system, which is intended for jurors, can be watched from the Center’s web site.491 Court Publications and Websites A solid judicial outreach program would

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Summary Guide to the Courts and Media not be complete without publications and websites to support the mission. Beyond the media, legislators, and school groups, these publications, videos, and websites can be used to great advantage for reaching the general public, including those who come to the courthouse as court users or observers. Clearly, the most economic and efficient tool of the judiciary for reaching the masses since the mid-1990s has been the Internet. There, with little staff time and equipment cost once a website has been established, judges can quickly and effectively post their message. The website can be used for a wide range of court news and topics that the news media may choose not to cover, but which the courts need the public to have. Beyond basic biographical information and judicial opinions, websites can include electronic copies of the all the court’s publications, including such matters as caseload statistical reports, local court rules, calendars, courthouse locations and operating hours, visitor’s guides to the court, how to obtain court records, courthouse maps, juror information, parking, small claims procedures and forms, and any number of other topics of interest to citizens and the courts. Many of these topics can also be printed in hard copy for distribution at the court facility entrance, the clerk’s office, or in the judges’ chambers, wherever one can seize upon the opportunity to lift the veil and shed light on who we are and what we do. Commemorations It is not uncommon for courts to conduct outreach programs to mark certain occasions such as Law Day, Constitution Day,

Juror Appreciation Month, and even Take Your Child to Work Day. Since 2005, when Congress passed a law saying that schools that receive federal funding are required to observe Constitution Day, September 17 has been a popular day for federal court programs. In recognition of Constitution Day, annually Justices of the U.S. Supreme Court have discussed core judicial issues, such as judicial independence and the origin of the Supreme Court, and a DVD highlighting the discussion has been produced and made available for free from the Annenberg Foundation Trust at Sunnylands.492 The DVDs have been very popular in the classroom. Because state and local courts and bar associations often celebrate many of these events, the federal judiciary attempts to focus on occasions and issues that are unique to the federal courts. For example, bankruptcies are filed only in federal courts, and an immensely popular outreach program is an unfortunate reflection of the nation’s economic environment. Calling itself a financial literacy program, Credit Abuse Resistance Education (CARE), is a financial literacy program for parents, teachers, and students developed by New York Bankruptcy Judge John Ninfo II.493 One of the more innovative civic education web sites was the vision of Justice Sandra Day O’Connor and has been launched as a joint project of Arizona State University and Georgetown University. Called “Our Courts: 21st Century Civics,” the site offers some game-playing learning opportunities with more to come, and also invites teachers to “Build a curriculum or supplement your existing curriculum with interactive lesson plans and classroom activities.” 494

492. The DVDs are available on the foundation’s web site, http://www.sunnylandstrust.org/programs/ programs_list.htm?cat_id=1486. 493. Information is available at http://careprogram.squarespace.com/home/. 494. http://www.ourcourts.org.

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For Further Reading Power Failure Bethany McLean and Peter Elkind, The Smartest Guys in the Room: The Amazing Rise and Scandalous Rall of Enron (2003). Nancy B. Rapoport, Enron, Titanic, and The Perfect Storm, 71 Fordham Law Rev. 1373 (2003). Rebecca Smith and John R. Emshwiller, 24 Days: How Two Wall Street Journal Reporters Uncovered the Lies that Destroyed Faith in Corporate America (2004).

Out of Houston? Kathleen F. Brickey, From Boardroom to Courtroom to Newsroom: The Media and the Corporate Governance Scandals, 33 J. Corp. Law 625 (2008). William H. Farmer, Presumed Prejudiced, but Fair?, 63 Vand. L. Rev. 5 (2010). Tom Fowler, Sotomayor dissent on trial venue surprises experts, Houston Chron., June 24, 2010.

Who Was That Masked Man? Citizen Media Law Project, Legal Protections for Anonymous Speech, in Citizen Media Law Project’s Legal Guide, http://www.citmedialaw.org/legal-guide/ legal-protections-anonymous-speech. Nathaniel Gleicher, Note: John Doe Subpoenas: Toward a Consistent legal Standard, 118 Yale L.J. 320 (2008). Ashley I. Kissinger and Katharine Larsen, Protections for Anonymous Online Speech, in Communications Law in the Digital Age 2010 (Practising Law Institute, Nov. 2010), 1028 PLI/Pat 459. Doe #1 v. Reed, 130 S.Ct. 2811, 2832-33, 177 L.Ed.2d 493 (June 24, 2010) (Scalia, J., concurring), arguing against extending the “mistake” of McIntyre while noting that our traditions for legislating and voting in public “refute the claim that the First Amendment accords a right to anonymity in the performance of an act with governmental effect.”

Summary Guide to the Courts and Media Donald W. Reynolds National Center for Courts and Media, FYI, LOL or OMG?: Technology’s Impact on the Courts and Media (conference, Nov. 17-18, 2008), conference videos at http://courtsandmedia.org/reports/ conference-2008/

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Authors Walter H. Bush, (“Out of Houston: The Venue Argument in the Skilling Prosecution”) is a shareholder in the Atlanta firm of Carlton Fields, and has experience representing and counseling clients in complex litigation and other civil controversies of major significance across a broad range of industries for over 35 years. This includes extensive experience representing media companies regarding libel and First Amendment matters. He is a member of the American Bar Association’s Forum on Communications Law and its First Amendment and Media Law Committee, as well as an associate member of the Georgia Press Association.

John R. Emshwiller (“Power Failure: The Rise and Fall of Enron”) is a senior national correspondent for The Wall Street Journal, covering whitecollar crime and related issues. He shared the 2002 Gerald Loeb Award for Distinguished Business and Financial Journalism with his Wall Street Journal colleague Rebecca Smith for their unraveling of Enron’s questionable accounting methods. In 2003, Emshwiller and Smith published their book on the scandal, 24 Days: How Two Wall Street Journal Reporters Uncovered The Lies That Destroyed Faith in Corporate America. His previous book, Scam Dogs and Mo-Mo Mamas: Inside the Wild and Woolly World of Internet Stock Trading, was published in 2000.

Christopher B. Freeman (“Out of Houston: The Venue Argument in the Skilling Prosecution”), an associate in the Atlanta office of Carlton Fields, concentrates his practice on general business litigation and the representation of media companies in matters involving libel, open records, and other First Amendment matters. Mr. Freeman is experienced in counseling clients on litigation strategies in state and federal court. He also represents clients in mediation, arbitration, trial and appellate proceedings.

Ben Holden (“Who Was That Masked Man?: A Better Approach to ‘Unmasking’ in Public Figure/Public Concern Libel Suits”) is director of the Donald W. Reynolds National Center for Courts and Media. He a former reporter for The Wall Street Journal who was nominated for the Pulitzer Prize for an article on jury nullification in the 1995 O.J. Simpson double-murder trial. More recently Holden was executive editor of the Columbus (Ga.) LedgerEnquirer, after serving as deputy managing editor of the (Palm Springs) Desert Sun and senior editor for business and sports at the Reno Gazette-Journal. Holden also practiced law with Cooper, White & Cooper, one of the Bay Area’s top media law firms.

Eric P. Robinson (“Summary Guide to the Courts and Media: A Basic Guide for Judges”) is Deputy Director of the Donald W. Reynolds Center for the Courts and Media. He was previously a Staff Attorney at the Media Law Resource Center, and previously worked at the Reporters Committee for Freedom of the Press and in staff positions for federal, state and local elected officials. He has written articles for various professional and academic publications and at www.bloglawonline.com.

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Board of Editors Hon. William F. Dressel has been the president of The National Judicial College since 2000. He was a lawyer in private practice in both Denver, and Fort Collins, Colorado until he was appointed a judge in Colorado’s 8th Judicial District, a postion he held for 22 years. In 1998 Dressel recieved the Justice Management Institute’s Ernest C. Friesen Award of Excellence in recognition of his vision, leadership, and sustained commitment to the achievement of excellence in the administration of justice.

Stewart Cheifet, an assistant professor at the journalism school of the University of Nevada, Reno, pioneered the field of technology journalism with the award-winning public television series “Computer Chronicles.” He also anchored “Net Café,” and has been a commentator on technology for a variety of programs and events. He previously worked for ABC News and CBS News, and as president of PCTV, a company focused on media and technology, and CEO of WITF, a diversified broadcasting and media company. Cheifet has won numerous awards for his work, including twelve awards from the Computer Press Association.

Charles Davis is an Associate professor at the Missouri School of Journalism, where his scholarly research focuses on access to governmental information and media law. He has earned a Sunshine Award from the Society of Professional Journalists for his work in furthering freedom of information and in 2008 was named the Scripps Howard Foundation National Journalism Teacher of the Year. He previously worked for newspapers and as a national correspondent for Lafferty Publications, a Dublin-based news wire service for financial publications.

Toni Locy is the Reynolds Professor of Legal Reporting at Washington and Lee University. She spent 25 years as a journalist reporting and writing for some of the nation’s biggest and best news organizations, specializing in the coverage of federal, state and local law enforcement, the federal trial and appellate courts, and the U.S. Supreme Court. She is currently writing a textbook on covering courts based on her experience as a reporter in Pittsburgh, Philadelphia, Boston and Washington.

Nancy B. Rapoport is the Gordon Silver Professor at the William S. Boyd School of Law, University of Nevada, Las Vegas. She clerked for the Honorable Joseph T. Sneed on the United States Court of Appeals for the Ninth Circuit and then practiced law (primarily bankruptcy law) with Morrison & Foerster in San Francisco. She started her academic career at the Ohio State University College of Law, then became Dean and Professor of Law at the University of Nebraska College of Law. She then served as Dean and Professor of Law at the University of Houston Law Center. Among her published works are Enron and Other Corporate Fiascos: The Corporate Scandal Reader 2d, and the Law School Survival Manual: From LSAT to Bar Exam.

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Rick Rodriguez, the former executive editor and senior vice president of The Sacramento Bee, joined the Walter Cronkite School at Arizona State University as the Carnegie professor, Southwest Borderlands Initiative, in March 2008. He was previously managing editor of the Bee, where he also worked as an assistant managing editor, recruiter, columnist, projects editor, editorial writer, deputy Capitol bureau chief and reporter during a 25-year career at the newspaper. He also was a reporter at the Fresno Bee and the Salinas Californian, and was the first Latino to serve as president of the American Society of Newspaper Editors.

Christina Wells is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law, and has been a visiting professor at the University of Illinois College of Law and at Masaryk University and Palacky University in the Czech Republic. She joined the faculty in 1993 after having been an associate with Skadden, Arps, Slate, Meagher and Flom in Chicago and Heller, Ehrman, White and McAuliffe in Los Angeles, primarily in the area of business litigation. She received the Shook, Hardy & Bacon Research Award in 2009 for her article on the constitutionality of statutes regulating funeral protests, and also received that award in 2005.

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