Muzzling trial participants raises difficult issues when journalists are witnesses
From the Winter 2005 issue of The News Media & The Law, page 29.
By Kimberley Keyes
A New York federal judge recently shot down reputed mobster John A. “Junior” Gotti’s request to muzzle a talk-show host who regularly attacks him on his popular morning radio show.
Gotti, in prison awaiting trial on racketeering charges in connection with the alleged 1992 attempted murder of Guardian Angels founder and radio personality Curtis Sliwa, sought a court order last fall to stop Sliwa from slamming him over the airwaves in his daily “Mob Talk” segment.
Gotti’s lawyers said a gag order forbidding Sliwa from making out-of-court statements about the case was the only way to ensure Gotti receives a fair trial by an impartial jury. Gotti, who faces up to 30 years in prison on racketeering charges, is scheduled to go on trial in August.
Judge Shira A. Scheindlin agreed that the on-air diatribes by Sliwa — who has called Gotti family members “criminals” and “knuckle-draggers,” and accuses Gotti of trying to “whack” him — were “quintessentially prejudicial.” But she ruled that a thorough jury-selection process coupled with strongly worded instructions to jurors would remedy any potential unfairness to Gotti.
Issuing a gag order would probably draw even more public attention to Sliwa’s commentary, she said.
“It is likely that every media outlet in New York City would repeat examples of Sliwa’s attacks in the context of reporting on the gag order,” Scheindlin wrote in her Dec. 3, 2004, opinion denying Gotti’s motion.
Attorney David A. Schulz of Levine Sullivan Koch & Schulz, who represented Sliwa and his radio station, WABC, agreed with Scheindlin’s concern for the scope of the proposed order.
“I think she’s quite right that it was an extraordinary request and would have been extraordinary if it had been granted, particularly in the New York market,” Schulz told The Associated Press.
Gotti’s request cited a court rule governing gag orders on out-of-court statements by witnesses and parties likely to affect a defendant’s fair trial rights. Local Criminal Rule 23.1(h) requires a judge to consider whether a gag order is “necessary” to secure an impartial jury, and to find that less extreme measures would fail to mitigate pretrial publicity.
Scheindlin, who noted Sliwa will almost certainly testify for the prosecution at the upcoming trial, wrote that Gotti’s request “raises a novel issue.” The U.S. Court of Appeals in New York (2d Cir.) has never considered the circumstances under which a court may gag a witness, she wrote, adding that no court has ever faced the situation where the witness to be gagged is also a member of the media.
The judge recognized that “forbidding an individual — whether a member of the media or not — from making certain kinds of statements is a content-based prior restraint, a form of censorship that must withstand heightened scrutiny in order to pass First Amendment muster.” She also acknowledged the defendant’s countervailing Sixth Amendment rights to a fair trial.
But Scheindlin found no need to balance Gotti’s rights against First Amendment interests. Instead, she ruled that the proposed gag order simply failed to satisfy Rule 23.1(h)’s necessity requirement that no other remedies could ensure a fair trial.
A gag order, she said, would be less effective than a probing questioning of potential jurors, paired with emphatic instructions to the jury to disregard statements made outside the courtroom. Such instructions would cure any “residual taint” that remained with the jurors who are selected, according to the judge.
Distinguishing “between in-court testimony and extrajudicial statements is a straightforward task,” Scheindlin wrote. “Both the Supreme Court and the Second Circuit have stated on numerous occasions that jurors are presumed to follow judges’ instructions. There is no reason to assume that jurors cannot or will not do the same in this instance.”
A grand jury indicted Gotti, the son of late mob boss John Gotti, in July on a racketeering charge that encompasses numerous criminal acts, including the attempted murder of Sliwa. Prosecutors allege Junior Gotti arranged the attack on Sliwa, who was shot several times on June 19, 1992, as he was sitting in a cab in Manhattan. The attempted “hit” allegedly was in retaliation for derogatory comments Sliwa had made about the elder Gotti and his family.
For more than 12 years, Sliwa has publicly blamed Gotti for the shooting, as well as for a second alleged attack on him by four men wielding baseball bats. But Gotti’s indictment last year prompted Sliwa to “become even more outspoken, using his popular radio program, ‘Curtis and Kuby in the Morning,’ as a soapbox from which to proclaim Gotti’s guilt to his listeners,” the judge wrote.
The court found that Sliwa unabashedly tries to sway potential jurors with statements such as, “I will not rest until he goes straight to hell without an asbestos suit and if my words speed up the process, so be it.”
Gotti’s lawyer, Jeffrey Lichtman, accused Sliwa in court papers of having “attacked Gotti’s character, credibility and reputation, relentlessly distorted and misrepresented the case’s merits and the expected trial evidence, and shrilly proclaimed Gotti’s guilt- boasting ‘inside’ access to inadmissible information,” according to The New York Sun.
Lichtman told the court that if Sliwa was not gagged, “millions of New Yorkers — potential jurors all — will be exposed to his venom,” making it impossible to find an impartial jury, the paper reported.
But the court found that Sliwa’s show, broadcast weekdays from 5 a.m. to 10 a.m., has an average of 143,000 weekly listeners in the Southern District of New York, a geographic area covered by the court and home to nearly 5 million people.
“Even assuming that several times the average number of listeners per week are exposed to Sliwa’s comments at some point between now and the beginning of jury selection, there remain several million citizens in this district whose ears and minds will still be untainted,” Scheindlin wrote.
The judge, however, expressed some sympathy for Gotti.
“That I decline to take the extraordinary measure proposed by Gotti does not mean I am unsympathetic to his position,” she wrote. “Like any other accused, Gotti is entitled to a fair trial by an impartial jury.”
Scheindlin prevailed upon Sliwa’s status as a radio personality in urging him to honor Gotti’s constitutional rights.
“Whatever feelings Sliwa may have about Gotti, as a member of the media, Sliwa should respect Gotti’s right to a fair trial,” Scheindlin wrote.
She went on to quote the U.S. Supreme Court in the famous 1976 prior restraint case Nebraska Press Assoc. v. Stuart: “‘It is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors.'”
Such understanding from Sliwa, who last year was named Best Local Talk Host in America by Radio & Records magazine, seems unlikely.
Asked by “Gang Land” columnist Jerry Capeci of The New York Sun if he would abide by a gag order, Sliwa reportedly said, “Not a chance.”
“These people tried to kill me twice. I’ve been saying that for 12 years. Now the government says Curtis was right, and I can’t talk about it? No way. This is America. Land of the First Amendment.”