Legal issues discussed (and argued) at gathering

O.J. Simpson civil case exposes several issues from National Judicial Conference on Media and the Courts

Such a "clear message from a judge in chambers is dangerous," said Kelli Sager, who represented a media coalition in access battles during the Simpson criminal trial. Typically, the judge will tell the lawyers he does not want them or their clients making public comments about the case. There is no public hearing on the gag order and no opportunity for affected third parties to be heard.

Sager was one of several veterans of access battles who participated in the national Conference on Media and the Courts at the National Judicial College in Reno, Nev., in late May. The journalists there were encouraged by the antipathy for gag orders expressed by many of the legal professionals in attendance.

Yet, it was only three months later that Sager was engaged in another struggle for information about the Simpson case - this time in civil court. In mid-August, the presiding judge, in chambers, gagged the lawyers and all participants. There was no notice that such an order was under consideration and there was no hearing in open court. The transcript of the in-chambers proceedings was sealed.

On Sept. 16, an appellate court issued a stay that suspended that portion of the gag order that applied to "witnesses under the control of counsel" and that restricted expression of opinions about "the court, including trial proceedings." The appellate court did not suspend the gag on the lawyers and their agents.

The trial court's gag in the Simpson civil case underscores the value of the conference's key recommendations:

• Continuing education for judges, lawyers and journalists about each's role.
• Establishment of local bench/bar/ media committees to discuss issues such as access, prior restraints and other fair trial/free press conflicts.

Some judges, who have never handled a high-profile case, are not familiar with the First Amendment issues triggered by a gag order or sealing order. The result can be an impromptu secrecy order that the press must either live with or attack after the fact and at considerable expense.

Although the array and notoriety of participants distinguished the recent national conference, the dynamics of all such sessions are predictable: Journalists take a near absolute First Amendment stance. Judges and lawyers, who view fair trial and privacy as interests that compete with a free press, cry out for balance. Judges, in particular, are annoyed by the inability to "settle" what they believe should be resolvable disputes over access, subpoenas, and prior restraints.

Financed by a grant from the Don W. Reynolds Foundation, the conference had judges who have banned cameras, judges who welcome televised proceedings, academics, lawyers who sideline as TV commentators, a judge-turned-reporter, a reporter-turned-lawyer, the requisite reporter who has been jailed, and prosecutors, defense lawyers and judges from many of the trials that have rejuvenated interest in bench/bar/media relations.

While some members of the legal profession were highly critical of the media for lack of knowledge of legal proceedings, the journalists were heartened by the substantial support for access to judicial proceedings and records.

This kind of conference may attract judges and lawyers who are more likely to understand the press' role. Nevertheless, the extent of the opposition toward gag orders and sealings was encouraging.

Perhaps most surprisingly a majority supported camera access to trial courts - both state and federal. However, U.S. District Judge John Coughenour of Seattle, who participated in the pilot project on cameras in the federal courts, sees little chance for camera access to federal trial courts in the near future.

"I think O.J. has killed the issue in federal court for two decades," he said.

The Simpson criminal trial did more than foster disdain for cameras. It generated speculation about public opinion of the judicial system that Frances Kahn Zemans, executive vice president and director of the American Judicature Society, urged conferees to challenge. For example, she cited claims that the public is disgusted, that the public does not understand or is not interested in legal proceedings, that the public is not interested in appellate courts and that there is a growing reluctance to serve on juries. These "sweeping generalities," may not be valid, she suggested.

Ironically, it was not the pronouncements of lawyers, judges, and scholars that drew the most response from media representatives but rather a post-conference news release from the NJC.

The release bore the proffered headline, "Journalists, judges and lawyers recommend practices to improve courtroom media coverage." Several journalists and media lawyers who attended the conference quickly distanced themselves from two of the 10 "recommendations," namely:

• Adopt standards for journalists that are non-binding and encourage industry-administered certification.
• Develop a national model to determine when it may be appropriate to compel reporters to testify or produce notes, tapes, etc., with the understanding that the media cannot and should not serve as an arm of law enforcement.

"You are out of your mind if you think any part of the press will agree to those suggestions, or anything similar," participant John V.R. Bull, assistant to the editor of the Philadelphia Inquirer, wrote in a letter to Judge Robert Payant, president of the National Judicial College. "Both are antithetical to everything the press believes in and contrary to everything those of us in the press talked about during the conference."

Representatives of ASNE, the National Newspaper Association, the Reporters Committee for Freedom of the Press and the National Association of Broadcasters also let Payant know that their representatives at the conference did not endorse the recommendations.

Payant said the NJC will retain the list, but will revise post-conference materials to make clear that some participants oppose some recommendations.

The proposals are a distillation of suggestions that came out of 10 discussion groups in which journalists were outnumbered by members of the legal profession. They are to serve as discussion points for journalists, judges and lawyers nationwide.

The flap over "standards" for journalists underscores the fact that judges and lawyers, governed by canons and codes, are either ignorant or disdainful of the media's underlying reasons for opposing such standards, even "voluntary" ones.

This call for standards is undoubtedly rooted in a palpable frustration, expressed by several lawyers and judges, even those who are friendly to the press. They are annoyed by what they perceive as the media's refusal to restrain itself and by their own limitations in being able to restrain the media. They want journalists to see themselves as members of a profession, with mechanisms for self-regulation that include uniform practices.

It is equally obvious that many lawyers and judges cling to the notion that journalists have a responsibility to give evidence in legal proceedings. The recommendation for a national model outlining when journalists can be forced to produce evidence is flawed from the journalists' standpoint because it is a recognition that they can be forced and, therefore, has the potential for broadening conditions under which such testimony or material can be obtained. But, perhaps to a surprising degree, legal professionals at the conference supported the idea that journalists should not be used as an arm of the law.

Education was the dominant conference theme, with all but one of the 10 discussion groups including some form of education or training recommendation in its report to the conference.

There was almost universal support for bench/bar/media committees particularly on local or regional levels. Unlike their predecessors, which focused on drafting "guidelines" for coverage, the mission of the modern bench/bar/ media committees is now seen as educational - not only about technical aspects of the jobs, but about the pressures and thought processes of the people on opposite sides of fair trial/free press or privacy/access disputes.

Although often critical of media performance, many legal professionals at the conference support the presumption of access to judicial records. At the start of a session on secrecy, 81 percent of all the conferees answered "yes" to the question: "Should there be a presumption of access to all court documents?"

And most of the judges and lawyers shared the press' disdain for gag orders - including those imposed on lawyers to prevent them from talking to the press.

"It is incumbent upon counsel to defend his client in the court of public opinion," said Dominic Gentile, a Nevada criminal lawyer and plaintiff in a significant free-speech case.

As typically happens in gatherings of this type, a judge - this time, Judge Coughenour - reminded journalists that it is in the courts that the rights of journalists have been protected.

Lightfoot, co-chair of The American Editor Committee, is executive editor of the Baton Rouge (La.) Advocate.