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September 22, 1999

The Honorable Roger V. Bradford
Porter Superior Court
16 E. Lincolnway, Room 209
Valparaiso, IN 46383

re: Indiana v. Malinski, Porter Superior Court Sitting at Valparaiso, Indiana, Continuous Term, 1999; Cause No. 64D01-9907-CF-395

Dear Judge Bradford:

We are an association of journalists dedicating to protecting the First Amendment interests of the news media. By sending this letter, we do not wish to intervene in this action but instead comment on one of the Court's orders. We write to protest the broad extent and harsh effects of the Amended Restraining Order entered on September 9, 1999.

The order broadly restrains all communication between trial participants and the media, threatening the exclusion of testimony or evidence as a penalty for noncompliance. We leave for others to discuss the trial participants' First Amendment rights. We write, however, to discuss the effect that your order has on the media's First Amendment rights.

The media serves the public and the judiciary by revealing aspects of the judicial process through the disseminating of information about litigation. Courts have interpreted the First Amendment to protect not only publication of news but also the media's news gathering practices.

Here, the Court has not explained what clear and present danger or serious and compelling threat to the judicial process justifies such an extraordinary order. Further, the Court has not demonstrated whether it has considered the availability of a less restrictive measure to combat the unnamed danger or threat, such as broadening the jury pool or the voir dire process. Finally, even if the Court determines that remarkable circumstances justify the use of an order affecting the media's First Amendment rights, it has not narrowly tailored its order to address those singular circumstances but instead announced a vast prohibition against all communication.

The order interferes with the media's rights in two ways. First, the order threatens to impose an evidentiary penalty against either the State of Indiana or the defendant for any violation. The publication of a story could now lead to the exclusion of inculpatory or exculpatory testimony or evidence. Therefore, the order presents a reporter with a Catch-22: she can either report on a case but potentially threaten a party's rights in your court room or risk her credibility by not reporting on litigation of great public interest.

Second, the order eliminates the ability of the media to discuss any aspect of the case with all trial participants, even nonparties and nonattorneys. In essence, the Court has decided to sequester not a jury but instead all lawyers, parties and witnesses from the public.

We believe that the Court's order has a destructive effect on the media's exercise of its First Amendment rights. We therefore urge the Court to reconsider its entry of the Amended Restraining Order.

Respectfully,

 

Gregg P. Leslie, Esq.
Acting Executive Director
Gregory H. Kahn, Esq.
Legal Fellow

cc:Mr. James Douglas, Esq.
16 E. Lincolnway, Suite 546
Valparaiso, IN 46383

Mr. John Martin, Esq.
5 E. Lincolnway
Valparaiso, IN 46383