Just between us

Journalists can face tough choices when judges make informal requests, but courts have said unofficial measures can constitute a prior restraint.

From the Winter 2007 issue of The News Media & The Law, page 44.

By Rani Gupta

During a pretrial hearing for the man accused of killing four people as he escaped from an Atlanta courthouse, defense attorneys complained that their client had not been allowed to shave and cut his hair, which they feared could place him in a bad light in the minds of potential jurors.

Judge Hilton Fuller asked photographers and videographers covering the hearing not to shoot Brian Nichols above the shoulders, so an image of his unshaven face would not make it into the press.

Then he made an unusual request.

Fuller asked the journalists not to report that he had asked them to refrain from shooting Nichols above the shoulders.

“This is not an order,” he said. “This is a test.”

Fuller is not the first judge to make a request of journalists not to report an incident or print an image from court — a situation that can prove to be a dilemma for reporters in covering trials and court hearings.

When a judge hands down a formal order, news organizations have the option to challenge it in court. But when a judge asks for a favor, journalists may find they have a difficult decision.

For Rhonda Cook, the Atlanta Journal-Constitution reporter covering the courthouse shooting trial, it was an easy call not to comply with the judge’s request.

“There was a room full of people there, and it sounded like he was asking us to keep a secret,” she said. “I don’t know if he was serious or joking — he has a dry sense of humor. If he was kidding, it was just not a very funny joke. But it didn’t sound like a joke.”

Cook slipped out of the courtroom and called an editor. The editors decided they wanted a story for the newspaper’s Web site.

Before she dictated the story, Cook called the judge’s chambers “as a courtesy” and told a staffer she would be writing the story for the Web site and including the judge’s request.

“I have a philosophy — and it’s the newspaper’s — that people shouldn’t be surprised about what they read in the paper,” Cook said. “I didn’t see any reason to sneak around it.”

Cook’s story read in part: “The state of Nichols’ grooming came under discussion in open court when Hilton Fuller, the DeKalb County senior judge presiding in the case, asked media photographers to restrict their images of Nichols above the shoulders. Fuller also asked the media not to report on his request.

“‘I want to ask a favor,’ Fuller said. ‘This is not an order. This is a test. . . . My request is that there be no mention of this. If this incident is mentioned I will jot this down in my notes. . . . I will take into account the level of response.'”

The same day, an attorney for the newspaper, Tom Clyde, wrote a letter to the judge.

“Coverage of a court proceeding is not a bargain struck between news organizations and the participants in the judicial proceeding,” Clyde wrote. “The request that the media not report on an event in open court crosses a line that is firmly established by constitutional law.”

Cook said writing about Fuller’s request was not a difficult decision because of its newsworthiness.

“It’s a public forum, it’s a public record, and according to our lawyer . . . it was unconstitutional,” she said.

Nor was she worried that Fuller, who she said is generally a First Amendment-friendly judge, would retaliate against her.

“Even though he said he would be watching and acting accordingly, the thought never occurred to me that he would punish me because he’s not that kind of guy,” Cook said. “And aside from his own sense of fair play, he has to follow the law.”

In fact, the next day, Fuller decided that television and still cameras would be allowed in Nichols’ trial. And Cook said she has not seen any fallout from her story, except for one of the judge’s staff members possibly being a little cold to her.

Blaming journalists

Lori Yount, a courts reporter for The Beaufort (S.C.) Gazette, was put in a similar position in May.

Yount was covering a pretrial hearing in which the defense attorneys were trying to exclude recordings of suspect Richard Simmons Jr. describing a murder he committed to an undercover investigator. (The attorneys claimed the tapes should be thrown out because the investigator bought Simmons beer to keep him intoxicated.)

In open court, the judge asked Yount not to report on the hearing because a jury had been picked earlier in the day and he had forgotten to instruct them not to read the newspaper.

“He didn’t really ask for an answer,” Yount said. “It was just a declared request, I think because they knew they couldn’t ask me to leave the courtroom.”

Yount did not respond, but her editor later told her to go ahead and write about the hearing.

“It was in open court, an open hearing,” she said. “Anyone in the public could have been there.”

Since the judge and attorneys had seen her in court and she had not agreed to the judge’s request, Yount said she did not feel obligated to call the judge beforehand. But in retrospect, she said, the judge’s request probably affected her decision to lead with the fact that a jury had been selected instead of the fact that there was a taped confession, which the newspaper had not previously reported.

The next day, the public defender asked for a mistrial, saying some jurors had read Yount’s story, and the judge obliged. That caused some police officers and staff members in the prosecutor’s office to give Yount the cold shoulder, and the victim’s advocate yelled at her.

“I guess they thought I intentionally jeopardized the case,” Yount said. “They placed the blame on me, at least for a little bit.”

Yount said their ire did not interfere with her newsgathering. “It was more expressing their anger and frustration with me, not necessarily withholding information,” she said.

After a few weeks, she said, everyone cooled off and the prosecutor apologized to Yount for some of the staffers’ treatment of her. After Simmons was convicted, Yount said she spoke to the victim’s family with no problem, despite the victim’s advocate’s earlier outburst toward her.

Yount said her only regret about the incident is placing the fact that a confession existed too far down in her story.

“If we did it over again, we probably would lead with the hearing,” she said.

Ted Gest, the co-founder and president of Criminal Justice Journalists, said a judge once asked him not to report a defendant’s criminal record before the trial when he was covering a case in St. Louis about two decades ago.

By that time, Gest had moved from the St. Louis Post-Dispatch to the weekly U.S. News & World Report, which meant he could not write a preview of the trial even if he wanted to.

But he said, “I’m fairly sure that kind of thing happens informally all around the country, and with different results.”

Warnings from a court

Because these requests are informal, their constitutionality is rarely addressed in the courts. However, in 2005, U.S. Supreme Court Justice Anthony Kennedy issued an opinion stating that judges’ informal actions can constitute a prior restraint.

In that case, a Florida judge, having learned that grand jury transcripts had been provided to the media through the discovery process, issued an order stating that those who “have obtained a copy of the transcript are placed on notice that any broadcast, publication, disclosure or communication of the contents of this transcript is a violation of [Florida law], punishable as a misdemeanor in addition to constituting grounds for Criminal Contempt of Court.”

When First Coast News — a Gannett duopoly of television stations — petitioned to have the order thrown out, the judge declined to hold a hearing, writing that “the Court’s order does not enjoin the [TV stations] from publishing or broadcasting materials that it wishes to publish or broadcast, but rather solely points out that to do so might constitute further violations of criminal law.”

Kennedy denied a stay in the case, stating that the justices were unlikely to grant review because there was evidence the stations did not face a real threat of prosecution. But he wrote in the opinion that “informal procedures undertaken by officials and designed to chill expression can constitute a prior restraint.”

“Warnings from a court have added weight, and this too has a bearing on whether there is a prior restraint,” Kennedy wrote.

George Gabel, a Jacksonville, Fla., attorney who represented First Coast News, said judges may resort to these informal actions because they know they cannot meet the high standard to obtain a formal prior restraint.

“I think most judges — hopefully, anyway — would know that a prior restraint is probably frowned on more than any kind of First Amendment issue, and I think universally are reversed,” Gabel said. “I would think a judge would be careful about issuing a prior restraint but might feel he or she could accomplish the same result through a suggestion.”

Looking ahead

Journalists who encounter these informal prior restrains sometimes are forced to make quick decisions, especially when they are asked in the middle of a court proceeding not to report something.

Clyde, the attorney who represents the Atlanta Journal-Constitution, recommended court reporters try to anticipate the issues that may come up in a major trial.

“Trials happen quickly and the events in them unfold very quickly,” Clyde said. “It is very difficult after the fact to correct or get the judge’s attention for an issue that has already been decided.”

Maurice Possley, a veteran criminal justice reporter for the Chicago Tribune, suggested never agreeing to a judge’s restriction on the spot.

“I’d have to say, ‘I can’t agree to this without consultation with an editor,'” Possley said.

In trials, Clyde also suggests coming to a consensus with other journalists covering the same event about how to react to a judge’s proposed regulations.

When some media organizations say they will go along with a request and others refuse, Clyde said, it can send a confusing message to court officials and can raise fears among the journalists who refuse that their competitors will be favored.

“You worry that somehow there will be repercussions for not going along,” Clyde said.