PRESS:Stop the Presses
Powers, Thomos
STOP THE PRESSES Fact: One of the inmates of the Sacramento County jail is a 27-year-old woman with red hair and some strange friends, named Lynette Fromme. Everyone knows who she is. Fact:...
...The same goes for judges...
...But since he doesn't know who the jurors are going to be he decided not to let anyone see it...
...Fact: Sometime within the next year Miss Fromme will go on trial in federal court for allegedly pointing a .45 caliber pistol at President Ford last September 5. Her legal guilt or innocence will be determined by a jury of 12 men or women...
...Finally, society's interest in a free press is at least as great as it is in fair trials, and it does not make sense to sacrifice the rights of many to safeguard the rights of the few, even if the injury in the latter case could be demonstrated more forcefully than it has been...
...At the moment compromise does not seem likely...
...The Reporters Committee for Freedom of the Press says that nearly a hundred such "gag" orders have been issued during the last few years and the problem has become so acute that the American Bar Association has created a special Legal Advisory Committee on Fair Trial and Free Press to write guidelines which the ABA hopes will soften the collision...
...Without it, fairness is impossible...
...That comes from the heart...
...It is the principle itself, which grants judges a vast power to safeguard a limited right...
...The Sixth Amendment, and the legal principles which have grown up around it, are necessary because governments have a tendency to skew the law for their own convenience...
...I do not see any reason why we should be less cynical than they...
...Once a charge has been brought, the English press is barred from reporting just about anything concerning the case except what takes place in open court...
...If a movie maker can be denied the right to show his film in 26 counties, then the Washington Post would have been restrained from printing stories which touched on the guilt or innocence of the Watergate burglars...
...Period...
...Can anyone doubt how Watergate would have been affected by such a system...
...Question: Is this a good idea...
...The rest of us are, or by rights ought to be, free to make up our minds as we see fit...
...In short, there is no net gain...
...In the case of gag orders it seems to me there are at least five such arguments: - There is more than one way to skin a cat...
...Truth and Fickleness But this, of course, is precisely why there is a First Amendment as well...
...Committed to justice and equity in the abstract, they are committed to putting people in jail in the particular, and they are not overnice about how they do it...
...As always in situations of this sort, the potential injury to society implicit in Judge MacBride's gag order is not the missed opportunity to see a movie about a mass murderer...
...In one rape-murder case in Louisiana last year a judge not only barred reporters from writing about what went on during a pretrial hearing, but ordered local newspapers not to print news in a long list of other categories as well-interviews with witnesses, for example, or the criminal records of the two defendants unless those records were presented to the jury...
...THOMAS POWERS...
...This way Great Britain lies...
...Fact: On October 16, Federal Judge Thomas J. Mac-Bride issued a court order barring the showing of a film called Manson in 26 of California's 58 counties...
...In the latter case the rights of thousands or millions of people are abridged, in the former the rights of only the jury...
...Perhaps the jury was softhearted...
...I am thinking not only of man's sacred right to be wrong-headed and perverse, but of the larger questions of truth and justice...
...They cannot be coerced, tricked, cajoled or frightened into fairness...
...To sacrifice a trial's public nature in order to control the evidence which a jury may consider does as much damage to fairness as it protects...
...The result of such an energetic guarantee of their right to a fair trial is not hard to imagine: Woodward and Bernstein would have remained on the police beat, Judge John Sirica would have had no reason to question Earl Silbert's conduct of the prosecution, the burglars would have been given one-year suspended sentences, Nixon would be President, and you and I would not know what we know...
...Perhaps the critical evidence was inadmissible for some reason...
...Haldeman, Ehrlichman, Mitchell, et al., would have been charged with making personal phone calls on government time, pretrial hearings would have been scheduled for 1981, and that would have been that...
...The barring of Manson is only a recent and particularly egregious example of a growing tendency on the part of judges to limit the rights of reporters in the name of the Sixth Amendment...
...English political scandals can be dampened in a moment by bringing a charge, any charge...
...We are, in short, once again at the top of a slippery slope...
...The presumption in such an order is so breathtaking it is hard to know where to attack it first...
...You have to know every part of it so that you could pick it up any second and shoot...
...The best argument against gag orders is the First Amendment...
...Everyone, I take it, is in favor of granting defendants a fair trial, free of hearsay, innuendo, popular passion or appeals to prejudice, but a trial is a narrow proceeding, properly concerned with the question of legal guilt or innocence...
...The best defense against judicial tyranny is the judge's knowledge that the world is watching, and even that does not always work...
...No one yet knows who they are...
...This amounts to a blanket confirmation of what many judges have already done, and what they have done is very extensive indeed...
...But of course it is not the present instance which is alarming, but the precedent it sets...
...For some reason that defense never seems to be sufficient, however, and other arguments are necessary to defend our freedom as not only constitutionally protected, but wise and desirable in the present instance...
...The fact that a defendant is freed does not mean he did not commit the crime with which he was charged...
...Governments profess wholehearted love of the truth but governments are fickle: when the truth-or someone's version of it-is awkward, governments redefine it as heresy, libel, obscenity, invasion of privacy, trafficking with the enemy, advocacy of violence, conspiracy to cross state lines with intent to incite a riot, or whatever else they think they can get away with at the moment...
...At first glance Judge MacBride's order would seem to be absurd: the First Amendment (i.e., free press) rights of perhaps millions of people have been abridged in order to protect the right to a fair trial of one woman...
...The right to a fair trial includes the right to a public trial...
...If jurors must be shielded from inadmissible evidence printed in newspapers, it is far easier to sequester the jury than it is to sequester the whole society...
...Admittedly the one woman has a lot more at stake than the millions of potential Manson-goers, most of whom would probably stay at home and watch television anyway...
...far from it...
...Perhaps the prosecutor bungled the case...
...You and I might survive in a world where such things happened, but the First Amendment would not...
...No one can say for sure what's at the bottom but from here it looks like Free Press wrapped around a tree...
...One scene in the film shows Miss Fromme holding a rifle and saying: "You have to make love with it...
...Today New Orleans, or California: tomorrow the world...
...The Official Secrets Act is rightly notorious but their rules limiting the reporting of trials are equally bad...
...The First Amendment, like the Sixth, was written by cynical men...
...With it, we are as close to a fair trial as we can get...
...They assumed that if a government could fix trials or restrain the press for its own reasons, it would...
...There are many admirable things about England-Bass ale, Blackwell's bookstore, the Spear & Jackson tenon saw-but the English are about as committed to freedom of the press as they are to social equality...
...Once trials are effectively shielded from public scrutiny abuses will inevitably follow...
...The jury system does not really depend on the controlled ignorance of the jurors, but on their honor...
...We are obliged to accept the verdict only as being legally proper, not as representing the truth, and we ought not to be starved of information for the convenience of the court...
...Hence, constitutional safeguards and the independence of the judiciary...
...The press-which includes you and me, if we can get hold of a mimeograph machine-have a right to print what we please...
...In effect, the judge took the rules of evidence, normally limited to the courtroom, and extended them to all of New Orleans...
...They have a moral obligation to judge fairly...
...One proposal by the committee would justify a court in limiting the rights of reporters)-and now, presumably, of filmmakers as well-if what they write (or screen) poses a "reasonable likelihood of prejudicing" some defendant's right to a fair trial...
...Judge MacBride apparently felt that the movie might prejudice a potential juror against Miss Fromme and thus violate her Sixth Amendment right to a fair trial...
Vol. 102 • November 1975 • No. 18
