Law banning payments to witnesses and jurors found unconstitutional

Law banning payments to witnesses and jurors found unconstitutional

09/11/95

CALIFORNIA–A federal District Court judge in San Francisco held in early August that a law banning witnesses in criminal cases from accepting payment from journalists “violated the First Amendment on a variety of grounds and in a variety of ways.” The judge issued a permanent injunction against enforcement of the laws.

The laws were enacted in September 1994 after several witnesses in the O.J. Simpson trial received money for telling their stories to media organizations. The California First Amendment Coalition, a group of news media outlets and associations, filed a suit to strike the laws in February 1995.

In overturning the regulations, the court held that the statutes are content-based regulations of speech, much like the New York “Son of Sam” law that was struck down by the U.S. Supreme Court in 1991. That law required money received by criminals from selling their story to be placed in an escrow account for their victims.

The state had argued that the statutes were not content-based because they only restricted compensation for speech, not the speech itself, and that they were intended to “preserve and protect” the criminal justice system. But the court, again citing the “Son of Sam” case, held that a “statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.”

The court also rejected the state’s claim that the regulations were neutral time, place and manner restrictions on speech because they are directed at the secondary effect of speech, not the speech itself. The court found that the statutes were “so overinclusive that they would fail to meet any constitutional standard.”

Because the laws are content-based, the court found they must be subject to “strict scrutiny” to determine if they are necessary and narrowly tailored to serve a compelling state interest. The court ruled that the restrictions were not necessary to uphold the integrity of the judicial process or protect fair trial rights, and less restrictive means of doing so were available.

The law would subject potential witnesses to the restrictions for one year after the alleged crime related to the information or until a final judgment in the court proceeding. For jurors, the prohibition would stand until 90 days after a final judgment.

Violation would be a misdemeanor for both witnesses and jurors, punishable by imprisonment for up to six months and/or a fine up to $1,000. It would require forfeiture of any financial compensation gained from the release of the information to be forfeited to the state’s Victim Restitution Fund.

The California Attorney General’s office had not decided whether to appeal the decision as of late August. (California First Amendment Coalition v. Lungren; Media Counsel: John E. Carne, Oakland)