NEWS ANALYSIS : Experts See Legal Problems in a Media Ban

Barring a television station from covering the hottest trial in America might satisfy Superior Court Judge Lance A. Ito’s desire to control inaccurate media coverage of the O.J. Simpson case. But it most likely would run afoul of the U.S. Constitution, legal experts say.

Ito might be on firmer legal footing if he pulled the plug on courtroom television coverage altogether, they add--but even that would not remedy the problem of leaks and inaccuracies that the judge has so bitterly denounced.

“If he wants to punish the media for leaks . . . he’s not going to do that by barring” live television coverage, said Everette Dennis, executive director of the Freedom Forum for Media Studies at Columbia University. “The leaks are not coming in open court.”

The judge suggested Friday that he might bar television station KNBC-TV from the courthouse, or even remove all the live television cameras, following what he called a fabricated Channel 4 report that DNA tests had linked Nicole Brown Simpson’s blood to socks seized from the former football star’s bedroom.

That report, Ito said, is an example of irresponsible, inaccurate coverage that is prejudicing the rights of both Simpson and the prosecutors attempting to convict him of murdering his ex-wife and her friend Ronald Lyle Goldman.

UC Berkeley constitutional law professor Robert Post said, “To cut off one station because the judge feels it to be inaccurate would be highly suspect.”

Indeed, there are three federal court rulings which specifically prohibited public officials--the mayor of Honolulu, a Louisiana sheriff and a Los Angeles federal prosecutor--from barring out-of-favor reporters from their news conferences.

The argument against a judge banning one station would be even stronger “because while there is not a constitutional right of access to a news conference, there is a constitutional right of access to a court hearing under the 1st and 6th amendments,” Post said.

KNBC issued a terse statement Friday, saying only: “We share Judge Ito’s concern that the facts of this case be reported accurately, and we have reported accurately the information our sources have told us, just as we have reported accurately what happened in court today.”

And the station retained Rex Heinke, one of the city’s most high-powered media lawyers, to represent it.

Whatever the station’s legal rights may be, KNBC should apologize, said Steven Brill, editor in chief of American Lawyer magazine and founder of Court TV.

“They got it wrong,” Brill said. “All of us (in the media) spend our lives trying to catch other people making mistakes, but we’re terrible about admitting our own mistakes.”

Ito said he would hold a hearing next week on whether to ban KNBC-TV or all in-court television.

It is not the first time the judge has grappled with issues of media coverage. He has considered imposing a gag order. And in late August, in a closed meeting with lawyers in the case, Ito directed the attorneys to file all motions under seal to ensure that he sees the documents before they are described in the media.

On the question of TV in the courtroom, Ito appears to have more power to eliminate it than to bar one station. Several Supreme Court decisions have held that there is no absolute right to televise in the courtroom.

“There is no constitutional right to have (live witness) testimony recorded and broadcast” and the “requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed,” the high court said in the 1978 case Nixon vs. Warner Communications.

Still, during the past two decades, there has been a steady loosening of restrictions on live television coverage of trials and pretrial proceedings. There are now cameras in courtrooms in virtually every state, including California, though they are still prohibited in federal court.

California trial judges have broad discretion to decide whether to allow television coverage of courtroom proceedings under California Rule of Court 980, originally adopted in 1966 and last revised in 1984.

There are very few cases interpreting the judge’s authority under the rule. In 1990, a California appellate court held that a San Diego judge who granted television stations permission to film the preliminary hearing of accused murderer Betty Broderick could not restrict their right to televise the testimony of certain witnesses.

“The rule does not authorize a judge to become the editor of a television station’s news broadcasts of a previously recorded judicial proceeding.” The appeals court did not, however, make a broad ruling that the trial judge had violated the station’s constitutional rights. The court said that Rule 980 lets judges bar live television coverage where it would “interfere with the rights of the parties, diminish the dignity of the court, or impede the orderly conduct of the proceedings.”

That decision indicates that Judge Ito “would have a problem, legally, in retracting his Aug. 2 order permitting live coverage,” said Los Angeles lawyer Douglas E. Mirell, who is monitoring the case for the American Civil Liberties Union. “Absolutely nothing” has happened since then to indicate any of the three criteria for halting live coverage has occurred, Mirell said.

“All that Judge Ito has expressed concern about are events that have occurred outside the courthouse. Nothing about the electronic coverage of the proceedings themselves has been the subject of complaint by the parties to the case,” Mirell added.

Dennis of Columbia University agreed. He said what is happening in the Simpson case is reminiscent in some respects of the massive media coverage precipitated by the kidnaping of Charles and Anne Morrow Lindbergh’s baby in 1932.

“Up till that time, still cameras were allowed in the courtroom,” Dennis said. But the obstreperous conduct of photographers who leaped in front of defendant Bruno Hauptman and continually used “blinding flash cameras” led to a ban on cameras that lasted almost 40 years, Dennis said. He emphasized that in contrast to the Simpson case, the offensive media conduct in the Lindbergh case occurred in the courtroom.

But Dennis said he understood Ito’s frustration. “It must be a horrendous thing for a judge who is trying to be fair-minded and to impanel a jury to see this constant drumbeat of publicity, particularly factually inaccurate claims about evidence.”

“I’m not sure there is anything he can do to control this in the long run,” Dennis said. “Ito is like one guy standing against a tidal wave. . . . It could get worse.”

And that is why at least one attorney said he would not be troubled if Ito removed the cameras. “Someone has to take control of this case,” said Los Angeles criminal defense lawyer Barry Tarlow.

“Judge Ito is in an extraordinarily difficult situation and he is acting intelligently if he is attempting to impose a sanction on those members of the media who act irresponsibly. It is not the role of courts to boost television ratings,” added Tarlow, who contended that Simpson has been the victim of a series of inaccurate leaks by police.

Veteran defense lawyer Barry Levin expressed similar concern. “Judge Ito is trying to do everything in his power to make sure the parties get a fair trial.” He said Ito’s threats “may have a chilling effect on reporting, but it may have a positive effect on (reporters) checking sources.”

But Brill expressed doubt that Ito would halt live coverage. “I think he understands the ultimate irony here is that more people have seen him denounce the KNBC report than saw the KNBC report because there was a camera in the courtroom,” Brill said. “If you didn’t have the camera in the courtroom, you’d only have the KNBC report on television and I think the judge understands that.”