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December 10, 1999
Via Federal Express
The Supreme Court of Texas
To the Justices of the Honorable Supreme Court of Texas: Under Rule 11 of the Texas Rules of Appellate Procedure, the Reporters Committee for Freedom of the Press files this amicus curiae letter brief in support of the Motion for Rehearing and Petition for Writ of Mandamus filed by Relator Samsung Telecommunications of America, Inc. The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970. The Reporters Committee has paid all legal fees and costs associated with this brief. The Reporters Committee's offices are located at 1815 N. Fort Myer Drive, Suite 900, Arlington, Virginia, 22209. The Reporters Committee joins in and adopts the Statement of the Case, Statement of Jurisdiction, and Statement of Facts contained in Relator Samsung Telecommunications' Petition for Writ of Mandamus. The Reporters Committee urges this court to reconsider its December 3, 1999 order denying Samsung's petition. It concurs with the arguments advanced by amicus curiae Bloomberg, L.P., and writes separately only to emphasize the broad First Amendment ramifications of the trial court's actions in this case. The trial court's orders have both closed off access to the courtroom for the media and operated as a prior restraint against the media publishing information concerning what it learns about the litigation. Therefore, this Court has an essential role in reviewing the trial court's actions to ensure that the extraordinary step of hindering the media's constitutional rights to attend a public trial and report on what transpires during that public trial is justified. The Reporters Committee recognizes that the Texas Rules of Appellate Procedure do not require this Court to exercise de novo review of a trial court's orders restricting access to the courtroom and restraining the media's ability to report on litigation. But it urges this Court to closely examine cases such as this one, where a trial court's orders abridge the media's First Amendment rights. The Reporters Committee acknowledges that trial courts must on rare occasions restrict public access to a courtroom. But as explained in Bloomberg's amicus curiae brief, the trial court's orders here cannot withstand constitutional scrutiny. The court has justified its orders because "probable" trade secrets may be discussed in court. In essence, the court has allowed the plaintiff in this action to file a public lawsuit in the courts of Texas and then prosecute it as a private action behind closed doors. The public can ensure that courts and litigants abide by established and equitable standards of behavior in courtrooms only through access to the courtroom and media reports from the courtroom. Given this background, courts have consistently found that a trial court can hinder access to courts and impose a prior restraint on the media only in response to a clear and present danger or serious and compelling threat to the judicial process. Even under those rare circumstances, a trial court must ensure that it is taking the least restrictive action possible and that it narrowly tailors any order affecting the media's First Amendment interests. Courts have interpreted the First Amendment to protect not only publication of news but also the media's newsgathering practices. As the founding fathers knew, the unencumbered ability of the media to enhance public discourse about what transpires in our legal system is one of the paramount benefits that we gain from the First Amendment to the U.S. Constitution. Openness inspires confidence in our government officials; secrecy inspires fear of those same men and women. As James Madison said, "Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both." The media serves the public and the judiciary by revealing aspects of the judicial process through the disseminating of information about litigation. The Reporters Committee believes that the trial court's orders in this case have a destructive effect on the media's exercise of its First Amendment rights. The Reporters Committee respectfully requests that this Court exercise its powers and grant Samsung's petition for writ of mandamus. Respectfully, ___________________________
Counsel of Record
OF COUNSEL:
CERTIFICATE OF SERVICE I certify that on this 10th day of December, 1999, a true and correct copy of the above and foregoing Brief of Amicus Curiae was sent by U.S. Mail to counsel as follows:
Lynne Liberato
John J. Kendrick
Michael P. Lynn, P.C.
Terence M. Murphy
Timothy S. Durst
Joseph D. Cheavens
R. Laurence Macon
David J. Healey
James A. Hemphill
Jim L. Flegle
Richard L. Klein
________________________________________ Gregory H. Kahn
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