High Cost of Media Circuses

When Martha Stewart leaves prison this weekend, she will walk into the arms of a media circus and a commercial juggernaut that promises to turn what would be a shameful moment for anyone else into a triumph of marketing. There’s something terribly wrong with this picture, and what it says about our culture’s ethics and sense of fair play is deeply disturbing.

In the good old days of the 1980s, when I was a Wall Street Journal columnist convicted and sent to prison for insider trading, celebrity justice meant scuttling in and out of courthouses through side doors with your head down and your mouth shut. A few of us who thought we had some insight to share about our bad behavior wrote books and appeared on talk shows, but always after the fact and with remorse. We did not hire armies of advisors to spin the case before trial, nor did we send our relatives out to appear on “Larry King Live” to testify to our loving natures.

Today, there are no rules. We are treated to the spectacle of Scott Peterson achieving rock star status before his conviction for murder, Michael Jackson dancing atop an SUV on his way to arraignment on charges of child molestation and, during her trial, Stewart posting reassuring notes to adoring fans.

These manipulations by the defendants directly undermine our judicial system: Innocent people are identified as suspects; witnesses’ lives are ruined; it becomes impossible to pick an untainted jury; jurors are distracted by their fear of or desire for fame; judges are distracted; ambitious prosecutors and defense attorneys try cases on talk shows before the first witness is called; costly mistrials are triggered.

Our fascination with celebrity justice sends a perverted message about the difference between right and wrong (there isn’t much) and about equal justice for all (there isn’t any). It all started in the 1980s, after my case became public, when then-U.S. Atty. Rudolph Giuliani became notorious for grandstanding for the media by having Wall Street suspects shackled in their offices and perp-walked to the booking room and for discussing evidence on the courthouse steps. Giuliani helped legitimize trial by media, and defendants have been fighting back ever since.

You can blame the media, and certainly the suspects and defendants. But the real culprit is the U.S. judicial system itself. And the fix is so obvious and simple. What we need is an American version of Britain’s 1981 Contempt of Court Act, which prohibits media coverage of trials until they are over. In criminal cases, the blackout begins the moment a person has been arrested, or charged, or summoned to appear in court, or a warrant is issued for his arrest. Only when the verdict is in, or no charge is filed, can the first reports be published. In civil cases, the blackout period begins when a case is set for trial. During the blackout, the trial is still open to the public. The right of the press to report on it is not abridged, just delayed to allow for an unpolluted atmosphere in which justice can truly be blind.

Whether a British media outlet has produced a story that is in contempt of court is determined by whether it creates a substantial risk that “the course of justice will be seriously impeded or prejudiced.” The decision whether the media can cover a pending case is left up to the presiding judge.

Though the British press has sometimes tested the limits, the government has imposed hefty fines and in recent years further tightened the restrictions. What do the British know that we seem to have forgotten? That justice, whether criminal or civil, is not a form of entertainment. Nothing is more basic to human liberty than a fair trial. This right has been substantially eroded in the last decade by our willingness to let those who are not judges or jurors call the tune.

The 1st Amendment lobby would howl in protest if any version of the British system were considered here. But I would argue that the 1st Amendment right to free speech should never trump the 6th Amendment right to “a speedy and public trial, by an impartial jury.”