The January 2005 issue of the ABA Journal, an American Bar Association publication, includes an article by John Gibeaut called "Celebrity Justice." (The article should eventually be available at http://www.abanet.org/journal/redesign/home.html). Mr. Gibeaut describes how judges in celebrity trials are sealing records in civil and criminal cases without adequately justifying why they’re doing it. The stated reason is the need to balance the First Amendment (freedom of the press) rights of the public and the press against the Sixth Amendment right of a defendant to have a fair trial by an impartial jury that’s not swayed by pretrial publicity. The author quotes Kobe Bryant’s lawyer as saying that his criminal case (the rape indictment in Colorado) has 800 pleadings, of which 35% are still sealed from public view even though the prosecution dismissed the case when the complainant refused to testify.
The snippet in the article that most caught my eye was this:
But plain old-fashioned ignorance [of judges] may be the chief culprit. University of Minnesota jurnalism professor Jane E. Kirtley recalls telling a group of Virginia judges about Richmond Newspapers Inc. v. Virginia, the landmark 1980 U.S. Supreme Court decision where the justices for the first time held that the public and press have a First Amendment right to attend criminal trials. "I got a room full of blank stares," says Kirtley. * * * "It was from their own state. I was dumbfounded that they didn’t know what I was talking about."
The article then quotes Lucy Dalgliesh, an attorney who teaches at the National Judicial College and other training seminars for judges, as saying that some of the judges she trains "are honest-to-God surprised to find out that the First Amendment applies in this situation."
There are a lot of amendments, but I always thought that the First Amendment was first for a reason. It’s good to have an organization to remind our judges of that happy fact.
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That is kind of how I feel about the Secretary of State’s preoccupation with the conduct of folks engaged in politics . . . as contrasted to the free hand for the free press. Apart from the different tax status’s there is no real difference between a political action committee and The Oregonian.
The solution is to simply not accept tax breaks associated with non-profit this and that and then the state loses any and all basis for restricting speech or to demand knowledge of contributors. If the US Supreme Court will protect the right to distribute anonymous handbills they would surely protect the anonymity of the source of funds to print and distribute the same.
The same would apply to all civil and criminal penalties associated with signature gathering, notwithstanding the Oregon Constitutional prohibition on paying people per signature. Give up the tax breaks and the sole recourse the state has is to reject a signature . . not to threaten jail time or to supply the criminal penalty prerequisite to an ORICO action by the OEA against anyone.
It is all so silly because of a general misunderstanding of the true scope of the First Amendment.