When judges keep press at bay, the public is thereal loser
Ombudsman
By Paul McMasters
First Amendment Ombudsman
First Amendment Center
06.14.99
Last week, a federal court of appeals in California issued an opinion that might be characterized fairly as a footnote in the infamous Unabomber case. Even so, it represents yet another step in the incremental distancing of the judiciary from the citizenry.
This slow but certain withdrawal from the public arena invariably is linked to some judges' penchant for punishing the press for the public's own good.
The case at hand concerned a news media challenge to court secrecy imposed by U.S. District Judge Garland Burrell in the criminal proceedings against Theodore Kaczynski, who waged a campaign of terror over a 17-year period; in 16 bombings, three people were killed and 29 were injured.
More than a year after Kaczynski's decision to plead guilty to avoid a trial, the Ninth U.S. Circuit Court of Appeals last Monday dismissed the Unabomb Trial Media Coalition's petition, ruling that there was no need to determine whether Judge Burrell's secrecy orders were legal since the circumstances were so unique that the press was unlikely to encounter them again in the future.
Interestingly, this was a 'per curiam' opinion, meaning it was not signed by a particular judge. Noting how long it took the three-judge court — consisting of Donald P. Lay, Alex Kozinski and Thomas G. Nelson — to decide to declare the case moot, Terry Francke, general counsel for the California First Amendment Coalition, commented: 'The per curiam form of the opinion suggests that the judges would have preferred to have the whole matter go away rather than decide the tough issues implicated in Judge Burrell's approach.'
The media coalition — representing The Associated Press, four newspapers and a number of radio and television stations covering the sensational trial — tried to put the best face on the Ninth Circuit ruling, expressing relief that the court didn't seize the opportunity to endorse or even broaden judges' ability to restrict public and press access to such proceedings.
Here's what Judge Burrell had done that the media coalition wanted the appeals court to declare illegal:
Those are not minor matters. There was intense public interest in the proceedings. The press serves as the eyes and ears for the public in such cases. Slamming the courtroom door on the press is the same as shutting out the public. Moreover, it rejects the notion that the more public the trial the more trust in the outcome.
Clearly, the judges were not impressed by the fact that Kaczynski is seeking a new trial, or the fact that since the O.J. Simpson trials judges in high-profile as well as not-so-high-profile cases have been more inclined to ban cameras in their courtrooms and to restrict other aspects of press coverage. In fact, in the Ninth Circuit opinion reveals an anti-press tone.
That tone troubled First Amendment attorney Francke. He wrote in the past weekend's CFAC newsletter: 'If substantial media interest in a trial per se constitutes a menacing circumstance warranting secret promises of anonymity to the jury, for example, it is precisely in the most closely watched cases that even the most impeccable reporting will be stymied by secret assurances, sealed motions and other pre-emptive subtractions from the public record.'
Subtractions from the public record are an inconvenience to the press, of course, but of larger import they are a denial of the public's vital role in the delivery of justice.
Generally, courts shut off full access to criminal proceedings only when three conditions are met: to do so serves a compelling interest, it is probable the compelling interest would be harmed, and there are no alternatives to closure.
In order to reach this conclusion, the Ninth Circuit Court asserted, 'we are struck by the acutely case-specific nature of the court's orders.' The judges doubted that the press would 'suffer these same injuries in the future.' That betrays an ignorance of what is happening again and again in courtrooms across the nation as the public and the press are regarded as pests or worse with no real part to play in the dispensation of justice.
Thus, judges across the nation are growing bolder in denying the public full access to the courtroom. Indeed, there are many constituencies pushing for a more closed court system, including prosecutors and defense attorneys, defendants, and lawmakers.
Further, there are judges who equate more secrecy in the court with more order in the court. There are jurors who want to perform their civic responsibility in total anonymity and not have to comment upon or explain their decisions. There are citizens who blindly and blithely accept the notion that it is the press, not them, being penalized; thus, they become complicit in the degradation of their own democratic role.
Yet the public and press roles in the judicial system remain essential. The courts as an institution are no more immune to arrogance, incompetence, corruption, and error than the press. The difference is that the press cannot summon the awesome power of law enforcement, cannot compel citizens to appear before it or sentence people to prison or death.
That is why the framers of our Constitution imposed on the courts the discipline of full public scrutiny and the accountability it demands. Without it, our judicial system could be set dangerously adrift.
Too often, the rationale for restricting access to some parts of the judicial process is that it will prevent a high-profile trial from becoming a 'media circus.' Too much secrecy in the judiciary is the greater threat. There is something worse than a circus, and that is a Star Chamber.
A judicial system that closes in on itself, that doesn't trust the public or the press, invites the prospect of high-profile trials that indeed are circuses, where judges serve as ringmasters and the press, at its worst, is no more than a sideshow barker.
At its best, of course, the press instills in the public the respect and confidence our independent judiciary deserves. But the press can only perform at its best when the courts grant maximum access to records and proceedings.
Paul McMasters may be contacted at pmcmasters@freedomforum.org.