Court vs. the Press: A Case in Point
Douglas Lee, Esq.
well that ends well. No harm, no foul. Hakuna matata.
phrased, the notion that we neednt 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.
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. Im not bitter
about the defeat, or at least I dont think I am. As someone
who cares about free speech and free press rights, though, Im
troubled by the increasing ease with which trial court judges can
restrict media coverage of high-profile cases.
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.
or whatever is to blame, people who follow these issues were not
surprised when many of Judge Belinda Hills 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.
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.
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.
Martins Press. As I investigated the matter, however, I asked
Janet Warner, the courts 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 reporters conduct.
the law regarding credentialing systems is not well developed, I
do not believe it permits a court to discriminate against freelance
journalists. Judge Hills system, I believe, also falls short
of the laws 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 applicants speech.
Spencers 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. Martins 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.
the surprise of Judge Hill and Warner, however, the first edition
of Spencers 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 books publication, she saw no need for
Spencer to cover the trial and would not be giving her credentials.
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 Spencers
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.
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
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.
many might put this issue in the no-harm, no-foul category, Im
unwilling to do so. As offensive as Judge Hills 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 judiciarys, the publics and, yes, even the
medias 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 jurys deliberations. Her order is supported
by applicable but poorly reasoned appellate court
precedent. I wonder whether anyone will challenge it.
not, I think all of us have reason to worry.
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.
March 31, 2002]
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