An Overreaction by the Bench

“No counsel may discuss anything connected with this trial with the media or in public places. This order encompasses all parties, attorneys and witnesses under the control of counsel.” So Los Angeles Superior Court Judge Hiroshi Fujisaki decreed Tuesday in the O.J. Simpson civil case, to be tried beginning next month. The gag rule may be the most sweeping ever in a civil case. It goes way too far.

Interpreted broadly, the rule would ban the lawyers from talking with one another about the case in a restaurant. It prevents relatives of Ronald Goldman, who was murdered with Nicole Brown Simpson, from pursuing a letter-writing campaign they initiated to raise legal fees, and prevents the Goldman and Brown families from speaking to the press. Indeed, the order--imposed during a hearing that was closed to the press--barred lawyers from even telling reporters later that the judge had delayed the trial for eight days.

Fujisaki’s order is no doubt a reaction to the media circus that surrounded Simpson’s criminal trial, which ended last October with his acquittal of double murder charges. But the gag rule--which the judge issued without having requested any briefs or argument on the matter--is an egregious and cavalier overreaction. Its broad scope seems at odds with constitutional guarantees of free speech under the 1st Amendment.

It is also needless. Following Simpson’s criminal trial, the Legislature ordered the state bar to draft what came to be known as Rule 5-120 of the Code of Professional Conduct. That rule, now in effect, applies to all members of the bar in every case. It bars lawyers from making “an extrajudicial statement . . . if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Violators are subject to discipline by the state bar, and the bar has already launched investigations into a handful of complaints involving lawyers alleged to have violated the rule.

Why isn’t this rule, which itself is overly inclusive, good enough for Fujisaki? Why also muzzle witnesses, the defendant, the parties bringing the suit and even their relatives? Fujisaki issued no explanation.

Because lawyers in the Simpson civil trial agreed to the gag order in the judge’s chambers Tuesday, they are unlikely to challenge it. But a coalition of national media, led by The Times, will ask the judge to reconsider this imprudent order on constitutional grounds.