PERSPECTIVE ON THE SIMPSON TRIAL : Media Put Justice in Harm’s Way : The First Amendment was meant as a shield for the oppressed, but the press has now become the oppressor.

On Sept. 21, a Los Angeles television station offered some breaking news on the O.J. Simpson case. The station had learned from “reliable sources” that DNA tests had been performed on a bloody sock found at the Simpson home and the blood had matched that of Nicole Brown Simpson’s. If this evidence were true, it would add substantial weight to the government’s case of circumstantial evidence against Simpson.

It turned out that the report was false.

The press coverage in the Simpson case has been harmful in several respects. A number of matters reported were patently false, such as a shovel as the possible murder weapon and a bloody ski mask supposedly found at Simpson’s house. Even worse is the damage the press is doing to evidence that does exist, such as the testimony that was compromised when the witness was paid for “an exclusive story.”

Judge Lance A. Ito would have a strong factual basis to justify restraining the press from some sort of access without violating the First Amendment.

The legal analysis of the constitutionality of a judicial restraint on public access to information focuses on highly individualized factual elements. The aspects of this case that make it so unique, particularly in terms of press coverage and the influence of the press, thus increase the likelihood that Judge Ito could impose a ban.

A 1976 Supreme Court decision has generally been interpreted as a virtual ban to prior restraints on the reporting of news about a crime. However, if any case could be justified as an exception to the general rule, the Simpson case would be it, especially since so much of the information published is fraught with errors. The problem is exacerbated in that false pretrial publicity is more potentially prejudicial to a defendant than information that is merely incriminating. A prior restraint on publishing material whose veracity has not been adequately confirmed may be a sufficiently specific edict to avoid the concerns of being too vague and too broad.

The danger of pretrial publicity does not necessarily have to create a choice between the defendant’s Sixth Amendment rights and the First Amendment guarantee of freedom of the press. The government is prohibited from trying an accused in a prejudicial atmosphere, and if pretrial publicity prevents the impaneling of an impartial jury, the Sixth Amendment entitles the defendant to a dismissal of the charges against him. Under this view, the interests justifying suppression of prejudicial news are also in the state’s interests of convicting criminals and maintaining the integrity of the system.

However, I worry about the gray area, in which publicity harms a defendant, or otherwise skews the prosecution of the case in general, but in a way that may not rise to the clear impossibility of impaneling an impartial jury.

I am not, however, advocating that Judge Ito use his authority to impose any restraints on the press. The press, despite its flaws, has a valuable mission to fulfill. First, it is only the press that can refute the rumors that will inevitably occur. If there is no press access, or a curtailment of press access, the problems would only be exacerbated. Anonymous witnesses would offer juicy rumors and the press would be curtailed from asking attorneys on either side the validity of the allegations.

Second, when the press shows injustice occurring, people are often motivated to take action. When Los Angeles television stations provided live coverage of the beating of Reginald Denny, and others during the Los Angeles riots, citizens watching the incident on television went out to provide aid and protection for the victims. The police department, having failed to protect citizens during the rebellion, also used the coverage to later identify and prosecute many of the offenders.

Third, the press frenzy has gotten so out of hand that some might plausibly argue that Simpson’s rights are not as threatened as they might be. What I am suggesting is that the average American is probably now confused by all the stories, all the recantations, all the accusations of lies and libel. We have been so inundated that we are unsure of the truth, and that may make us skeptical of placing blame on Simpson. However, Simpson’s ability to receive a fair trial, given the extraordinary array of lawyers and experts working with him, does not mean that we can take comfort in the way our legal system dispenses justice.

I’m no longer worried about O.J.’s ability to receive a fair trial. I now worry about A.J., B.J., C.J. and P.J.--the countless women and men who are pushed through our criminal justice system every day represented by lawyers who cannot hire investigators, expert witnesses or locate witnesses who might aid in their defense. If the press wanted to really serve an important public function, I would suggest spending more time examining the underbelly of the beast and informing the public how ordinary defendants fare in the criminal-justice system.

In my criticism of the press, I do not mean to ignore the invaluable role the press has played in improving our system. One need only examine the positive impact of television on the civil-rights movement, or how Anthony Lewis, in his moving portrayal of Clarence Gideon in the book “Gideon’s Trumpet,” persuaded scores of law students that working for indigent defendants in the criminal justice system was a noble cause. I’m reminded of the phrase often used by the legendary journalist Fred Friendly, who continually reminds us that we must move beyond arguments, that we have the right to do something and focus on doing the right thing.

What I do worry about, however, is that people have a certain trust in what they see and read. Not a blind trust, but a certain belief that the burden of proof to show innocence falls on the exposed “villain” if he is captured live on television doing something wrong. “I saw it on TV; he must be guilty.” This, however, is not the way the law works. The burden of proof is always on the state; and whether we are talking about the Los Angeles policemen or O.J. Simpson or Al Cowlings, that burden never shifts, even if the camera says otherwise.

And what this suggests is that the fears of government oppression expressed in the First Amendment may be somewhat superseded by the power of the press. The First Amendment was written to protect the rights of those whose voices might be suppressed by government censorship. We still live with that fear, no doubt. But what is also clear is that Judge Ito, a government actor, may not be the worst threat facing men like O.J. Simpson. The press is now the oppressor, finding fuel in the First Amendment to persecute and condemn. The press may become the same villain, making justice impossible by drowning out the voice of truth that the First Amendment was designed to protect.