Judge should end personal war on 1st Amendment

The photograph that accompanies this editorial depicts Alberd Tersargyan, who is accused of killing a Los Angeles couple, their 8-year-old daughter and a fourth victim, a prostitute shot dead on Sunset Boulevard. His likeness has been publicly circulated by the Los Angeles Police Department, has been seen by countless television viewers and is widely available to anyone conducting the simplest Internet search. His image is no secret, and it is uncontested that his status as a criminal defendant gives him no right or power to prevent it from being viewed publicly.

The Times has followed his case and asked permission, as court rules require, to take new photographs at a hearing on Aug. 4. Los Angeles County Superior Court Judge Hilleri G. Merritt granted the request, and Times photographer Al Seib took some pictures. Merritt then issued an order, stunning in its ignorance of basic 1st Amendment jurisprudence, barring The Times from publishing them. Although by now she must certainly realize that her foolish order is destined to be overturned according to well-established principles of constitutional law, she has compounded her error and irresponsibly turned a one-day goof into a protracted outrage.

Merritt is making a mockery of herself and her court. She should acknowledge her error and end her personal war against the 1st Amendment.

For now, however, it appears that the judge wants to continue backing into a dark and narrow corner. She claims to be wrestling with a quandary that has faced countless judges: How does the court weigh its responsibility to ensure fair trials for criminal defendants, as guaranteed by the 6th Amendment, against its duty to accord the public its proper access to and oversight of court proceedings, obligations imposed by the 1st Amendment?

But Merritt’s supposed struggle is nothing like theirs. She performed her balancing test, or should have, when she issued her order allowing the defendant to be photographed. She may have later regretted her decision, but once the photos were taken, they were out of her jurisdiction, and trying to block publication is an unconstitutional prior restraint — an attempt at censorship, permissible only when the stakes include national security or the likelihood of imminent violence.

Even when a newspaper was about to print documents that could compromise the nation’s interests during wartime, the Supreme Court famously struck down an attempt at suppressing publication. If prior restraint was improper against the Pentagon Papers, it most clearly and certainly is improper against a photo of a man whose image is already public.

The nation’s longstanding rejection of prior restraint is no mere judicial formality or journalistic fetish. Unlike those in some countries, courtrooms in the United States are open to the public, to underscore the role citizens and taxpayers have in overseeing their institutions and public servants. Courtrooms cannot accommodate entire communities in person, so journalists — in print, online and over the airwaves — become the public’s representatives and watchdogs. Suppressing the information they gather with their eyes and their cameras puts in jeopardy the public’s power to ensure that courts are run properly and that trials are fair.

One of the clearest incongruities in Merritt’s continuing misconduct is that she appears to have forgotten that the courtroom is the public’s, not hers, and that public access is what ensures that defendants’ 6th Amendment rights are respected and that they are not railroaded in some “star chamber” out of public view. Yes, there is evidence that some witnesses can get mixed up, and some jurors can become prejudiced, when they see photographs of a defendant behind bars or handcuffed. But courts have many methods of dealing with that potential that fall short of undermining the public’s access to courtrooms, documents and photographs. That’s why we have mutual disclosure of prosecution and defense evidence and witness lists, cross-examinations and questioning of juror candidates.

Another incongruity is that in purporting to protect the defendant’s 6th Amendment rights, Merritt has raised the profile of his case, leading newspapers, magazines, television stations and blogs to circulate the photos they do have. She may have temporarily suppressed publication of a photo of Tersargyan in jail garb, but in the process she has put his face more securely in the minds of potential witnesses and jurors.

Some readers may imagine that this is a battle between journalism and the judiciary, and that Merritt is bravely attempting to protect a fair trial against invasive media. But the fact is that The Times and other news organizations have little at stake in the photographs themselves — the one on this page is a reminder that we do not lack images to publish. What is up for debate, then, is not a fair trial or the risk of prejudice to witnesses or jurors. It is the right of government officials, judicial or otherwise, to forbid speech. As Merritt well knows, she has no such right, and her behavior thus is entirely unprofessional and unconstitutional. By fighting her order, The Times notifies every other government official tempted to squelch speech — whether by a newspaper or any citizen — that the Constitution forbids it.

An appeals court on Aug. 11 gave Merritt an opportunity to back out of her corner and reverse her order, but she instead chose to have the Superior Court argue her case. She asserts that things aren’t that clear-cut here, because she hadn’t known that a judge in an earlier proceeding had rejected The Times’ photo request — although she acknowledges that the earlier order expired and didn’t apply to her. Tersargyan’s lawyer now asserts that it’s somehow important that there are unchecked or unsigned boxes on the request form, or that it’s important that there’s some kind of disagreement about who is supposed to inform the defendant’s lawyer of the photo request — although Merritt surely must acknowledge that it’s her order that is being challenged, not the form or the mechanics of notification.

Everybody makes mistakes. This page, for example, found Merritt to be a qualified candidate in 2008 when she sought, and obtained, an endorsement. Now we know better. By now, Merritt most certainly recognizes her own error. If only she had the courage to admit it.