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The Court vs. the Press: A Case in Point

By Douglas Lee, Esq.

All’s well that ends well. No harm, no foul. Hakuna matata.

However phrased, the notion that we needn’t worry about the little things is a dangerous one in the daily struggle to preserve individual liberties. Consider, for example, the trial of Andrea Yates, the Texas mother who has admitted to drowning her five children. While the psychiatrists dueling about her sanity are quite properly the story, we would be remiss to ignore the affronts against the First Amendment that have marked this case since its beginning.

To be fair, I should admit my bias. I was the attorney who, with the financial and moral support of the Center for Individual Freedom, represented author Suzy Spencer in her unsuccessful attempt to obtain credentials to cover the Yates trial. I’m not bitter about the defeat, or at least I don’t think I am. As someone who cares about free speech and free press rights, though, I’m troubled by the increasing ease with which trial court judges can restrict media coverage of high-profile cases.

The first impulse is to blame O.J. Every trial judge in the country, it seems, watched the sensational, over-the-top coverage of that case and vowed he or she would not become the next Judge Ito. I, however, also blame the coverage of the Monica Lewinksy scandal, which routinely featured frenzied packs of media people engulfing witnesses with cameras and microphones. Many judges, I believe, concluded that no person should be subject to that kind of attack.

Whoever or whatever is to blame, people who follow these issues were not surprised when many of Judge Belinda Hill’s first rulings in the Yates case were designed to control media coverage of the proceedings and the persons involved in it. Just six days after the Yates children were drowned, Judge Hill prohibited all lawyers, investigators and witnesses from discussing the case with reporters. She kept the court file in her office, unavailable for public review. Then, in December, Judge Hill announced her rules for credentialing journalists who wished to cover the trial.

The rules undeniably were designed and disseminated to preclude freelancers from covering the trial. A request for credentials, Judge Hill said, must be submitted on "agency" letterhead. The rules then were distributed only through an advisory to Associated Press subscribers and a court website known only to those who regularly cover the Harris County courts.

Spencer, unaware of the "agency" requirement, requested credentials on her letterhead. Had she been aware of the requirement, Spencer could have obtained a credential request from her publisher, St. Martin’s Press. As I investigated the matter, however, I asked Janet Warner, the court’s special projects coordinator, why a request from a best-selling author of two true crime books was insufficient. No freelancer could obtain credentials, Warner said, because Judge Hill wanted a media company to be "accountable" for each reporter’s conduct.

Although the law regarding credentialing systems is not well developed, I do not believe it permits a court to discriminate against freelance journalists. Judge Hill’s system, I believe, also falls short of the law’s requirements that credentialing rules be narrow and specific, provide for an explanation of a denial and allow for impartial review. These requirements are necessary, courts have said, to ensure that credentialing decisions are not unconstitutionally based on the content of an applicant’s speech.

In Spencer’s case, evidence beyond the procedural infirmities of the credentialing system suggests that Judge Hill refused to credential Spencer because of the content of her work. As an author under contract with St. Martin’s to write a book about the case, Spencer received credentials to cover Yates’ competency hearing. When space limitations prevented Spencer from receiving credentials to cover jury selection, Warner told her — after Spencer had submitted her request for credentials on her letterhead — that she would receive credentials to cover the trial.

To the surprise of Judge Hill and Warner, however, the first edition of Spencer’s book, Breaking Point, was published before the trial began. Rumors immediately swirled that Judge Hill was upset about the timing and content of the book and, given her determination to control pre-trial publicity about the case, those rumors are more than credible. Warner then telephoned Spencer and left a message that, in light of the book’s publication, she saw no need for Spencer to cover the trial and would not be giving her credentials.

After several unsuccessful attempts to convince Judge Hill and Warner that Spencer needed to cover the trial for a second edition of Breaking Point, we filed suit against Judge Hill and Warner in the U.S. District Court for the Southern District of Texas. In the suit, we alleged that Judge Hill and Warner had violated Spencer’s First Amendment rights when they refused her request for credentials. On Feb. 15, we appeared before Judge Nancy Atlas and asked her to enter a temporary restraining order compelling Judge Hill to grant Spencer credentials to cover the trial, which was to begin Feb. 18.

Because the request was filed and heard on an emergency basis, Judge Atlas was unable to resolve disputed issues of fact. One of those issues was whether Judge Hill and Warner engaged in content-based discrimination, so that question was not resolved during the hearing. Instead, Judge Atlas focused on the credentialing system, which she ultimately found to be constitutionally sufficient, at least for the purposes of the requested temporary restraining order. Critical to Judge Atlas’ ruling was her belief that Spencer, even though denied credentials, would be able to attend the trial as a member of the public.

As it has turned out, Spencer was able to attend the trial. We therefore did not pursue the case, recognizing that, from a practical standpoint, Spencer obtained what she wanted and, from a legal one, the trial would be over and the issues moot before we could make any meaningful effort to prove the content-based discrimination.

While many might put this issue in the no-harm, no-foul category, I’m unwilling to do so. As offensive as Judge Hill’s credentialing system is to freelancers and as dubious as her claim of content neutrality might be, the most dangerous aspect of the Yates case is the judiciary’s, the public’s and, yes, even the media’s growing acceptance of gag orders, closed court files and coverage restrictions. Judge Hill, for example, has ordered that no one after the trial may ask a juror about the vote of another juror or about the jury’s deliberations. Her order is supported by applicable — but poorly reasoned — appellate court precedent. I wonder whether anyone will challenge it.

If not, I think all of us have reason to worry.

Douglas Lee is a partner in the Dixon, IL, law firm of Ehrmann Gehlbach Badger & Lee.  Mr. Lee writes frequently about First Amendment issues and has handled several free press/free speech cases as a part of his general litigation practice.

[Posted March 31, 2002]

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