COMMENTARIES : 2 Views on ‘Boys Club’? : Rights Not Necessarily Infringed by Screening

The notion that the broadcast of a television program--any television program--will necessarily infringe on a criminal defendant’s ability to receive a fair trial is unfounded.

And yet, as witnessed by the attempt of the attorney for convicted murderer Joe Hunt to prevent NBC’s broadcast of a TV miniseries based on the criminal activities of his client, lawyers continue to make this constitutionally flawed argument.

Fortunately, with few exceptions, judges don’t buy it. Both the Constitution and the U.S. Supreme Court would not have it otherwise.

At play here are two amendments to the U.S. Constitution, the First and the Sixth. The former provides, among other things, for freedom of speech and of the press. The latter grants to those accused of crimes the right to be tried “by an impartial jury.” Such a jury is one able to render a verdict based solely on the evidence put before it in a court of law.

If a conflict exists between these two amendments, it arises when judges make orders designed to preserve the accused’s right to a fair trial and, in so doing, inhibit the ability of the media to comment on the defendant, the crime or the circumstances surrounding it.

But is there really a conflict?

An order such as that unsuccessfully sought last week by Hunt’s attorney, if granted, would have had the effect of actually restricting NBC’s First Amendment rights. The broadcast of the docudrama “Billionaire Boys Club” would have been prohibited. NBC would have been gagged, and its First Amendment rights of free speech restricted. As additional fallout, millions of viewers would have been denied their rights to see and listen to the program as well.

In legal terms, such a prohibition is called a “prior restraint.” Writing in the “Pentagon Papers” case in 1971, former Chief Justice Warren E. Burger said that prior restraints are presumed to be unconstitutional. Five years later, in the case of Nebraska Press Assn. v. Stuart, Burger expanded upon what he had said. “Prior restraints on speech and publication,” Burger wrote, “are the most serious and least tolerable infringement on First Amendment rights.”

But this does not mean that prior restraints are never justified. In cases where national security is at stake or non-protected speech, such as obscenity, is involved, the issuance of prior restraints long has been judicially sanctioned.

However, the “Billionaire Boys Club” case was not one in which there were issues either of national security or obscenity. Rather, it was one in which Joe Hunt’s attorney claimed that unless NBC was gagged, his client couldn’t receive a fair shake in San Mateo County, where he is scheduled to be tried for the murder of Hedayat Eslanania, the father of one of the members of the group.

This, of course, is nonsense.

For one thing, while NBC no doubt hoped that its miniseries would receive high ratings, it would have been impossible for it to have achieved the ratings necessary to ensure that every potential juror would have seen it. If 50% of the jury pool watched “Billionaire Boys Club” and was prejudiced thereby, the jury could have been selected from the remaining 50%.

The fact that the airing of this program might have made it more difficult to select an unbiased jury hardly constitutes sufficient legal justification for the actual trampling of NBC’s constitutional rights in the process. Furthermore, there is no reason to believe that just because potential jurors had seen “Billionaire Boys Club,” that they thereafter would be prejudiced against Joe Hunt.

Jurors traditionally have shown an uncanny ability to separate what they have read in the papers or seen on television from that which transpires before them in a court of law. They take oaths to base their decisions solely on the evidence put before them, and they take their oaths seriously, the belief of many lawyers to the contrary notwithstanding.

Indeed, the record is replete with instances of massive amounts of prejudicial pretrial and trial publicity failing to result in verdicts of guilty. The Los Angeles cocaine-trafficking trial of John DeLorean readily comes to mind.

In that case, prior to the beginning of jury selection, most if not every television station in the area had broadcast surreptitiously made videotapes showing the former auto maker apparently engaged in the purchase of a substantial quantity of drugs. Prior to the broadcast of the videotape, DeLorean’s attorneys had unsuccessfully tried to get a court order killing the broadcast of the tape. In the process of so doing, however, they managed to call attention to the very thing they were trying to suppress.

All of this made no difference.

DeLorean’s jury ignored the pretrial publicity, paid attention to what it saw in court and returned a verdict of “not guilty.” Other examples of such jury behavior in the face of seemingly prejudicial publicity abound. The recent grand larceny and fraud case of former Labor Secretary Raymond Donovan in New York and the murder-conspiracy trial of Angela Davis in Marin County are two among many where, if only what was in the media was to be believed, acquittals would have been impossible.

But both Donovan and Davis were acquitted. Their juries disregarded the out-of-court material they were told to disregard.

The conclusion, however, from all of this is clear: Insofar as the effect of prejudicial publicity is concerned, there is no conflict between the First Amendment and the Sixth Amendment. At worst, there is the possibility that such publicity may creep into the consciousness of a prospective or actual juror. Still, there are ways for the courts to ensure that such a situation does not affect the outcome of a case. Expanding the number in a jury pool and the questioning of jurors as to possible bias are two such devices which can be used to protect the right to a fair trial.

But for the media, there are no options. Once a court issues a prior restraint, the media’s constitutional rights will have been abridged, and precious rights--such as freedom of speech--must never be sacrificed against the possibility that the failure to do so may abridge the rights of others.