A Gag Gift? : Many People Are Thankful That Judge Ordered Figures in Simpson Case to Keep Quiet, but News Media Will Appeal

News organizations Wednesday vowed to appeal a gag order muzzling all participants in the O.J. Simpson civil trial--even as many of their customers insisted that silence on the Simpson matter would be sweet relief indeed.

No more lawyers spinning the news in front of television cameras, no more witnesses peddling testimony to tabloids, no more tearful relatives proclaiming guilt or innocence--the gag order sounded mighty good to truck operator Norman Cooke. Relaxing on his lunch break from jury duty in front of the Criminal Courts Building, Cooke said he hoped that the judge would make “everybody keep their mouth shut.”

The news media, however, announced plans to file a motion urging Superior Court Judge Hiroshi Fujisaki to reconsider the sweeping gag order issued after a closed-door session with lawyers Tuesday.

“We’re going to rely on a whole body of case law that says, especially in civil cases, gag orders should not be imposed” unless they are vital to protect a fair trial and there are no alternative remedies, said media attorney Kelli Sager.

If Fujisaki turns down her request for an open hearing, Sager said her clients--including The Times, the Associated Press, CNN and NBC--would consider challenging the gag order in the Court of Appeal.

As Sager prepares her motion, analysts said Fujisaki’s order was so broad that it would be vulnerable to a legal challenge.

In a landmark 1986 case, the U.S. 9th Circuit Court of Appeals ruled that gag orders are justified only if the judge can demonstrate that unfettered speech would “pose a serious and imminent threat to the administration of justice.” Even in such dire circumstances, the court ruled, trial judges must specify which topics are forbidden. They cannot, as Fujisaki did, simply order lawyers to stop talking about all aspects of the case, analysts said.

Yet in the same decision, the appeals court ruled that the press cannot legitimately claim that gag orders stifle its constitutional rights.

Because reporters are still free to attend court and write stories--as long as they do not interview the participants--the gag orders “do not infringe freedom of the press under the 1st Amendment,” the court wrote.

Because that decision came from a federal appeals court, however, it is not binding on state courts. So if news organizations challenge Fujisaki’s order in the California Court of Appeal, they might get a more sympathetic hearing, USC law professor Erwin Chemerinsky said.

The media might have an especially persuasive case, he added, because Fujisaki allowed no public discussion of the issue. The judge did not take the bench to announce that he was considering a gag order. Nor did he emerge after his decision to explain his reason for decreeing silence.

“One of the things that’s troubling about this is that it was done as an edict with no explanation, no justification of need, and no opportunity for the media to participate in the discussion,” Chemerinsky said. “Aside from the fact that it’s overbroad, there really is a procedural objection as to how he did it. . . . I think there’s a strong argument that this gag order is unconstitutional.”

Yet sweeping gag orders have been enforced in several cases, including the 1992 criminal trial in Indianapolis of boxer Mike Tyson on rape charges. Tyson was convicted of rape and sentenced to six years in prison.

At the defense’s request, the judge in the Tyson case ordered the lawyers to stay mum on a list of topics, including the credibility of any party, the expected testimony of any witness or the results of any scientific tests.

No one challenged the decree. Everyone obeyed it. So all the news came from the courtroom, instead of from rhetoric-drenched news conferences. Tyson prosecutors could not be reached for comment. But the boxer’s defense lawyer said he believed that the gag rule helped ensure a clean, fair trial.

“Nothing was prejudiced because we shut everything down,” James H. Voyles of Indianapolis said.

Voyles said he did not believe that the gag order violated his 1st Amendment right to free speech. Instead, he said, it protected Tyson’s constitutional right to a fair trial. If lawyers from either side had started leaking tidbits about the case, the trial would swiftly have degenerated into dueling news conferences. So Voyles stayed quiet. And he insisted that walking mutely past an open mike took no willpower at all. “I don’t have the California syndrome,” he said.

What Voyles termed “the California syndrome” reached a crescendo in the Simpson case when lawyers, witnesses and relatives debated every nuance of the trial in front of microphones and cameras. So as word of Fujisaki’s gag order trickled over to the Criminal Courts Building, citizens serving on jury duty Wednesday said they welcomed the cease-spin edict.

“What the judge did is the best thing in the world,” said Jack Mike, 75, a retired union leader enjoying his lunch break in the sun. “How can you try a trial with all this stuff going on out here?”

Even a few lawyers acknowledged that they would secretly be relieved if Fujisaki pulled the plug on out-of-court comments--though they opposed gag orders as a matter of principle.

“Wouldn’t everyone be better off if they had never heard anything about this case?” civil rights attorney Stephen Yagman asked. “Judge Fujisaki is protecting the world from having to hear more nonsense.”

Still, those who helped fan the phenomenon of Simpson-mania noted that all the applause for the gag order might start to fade once things get interesting in the civil trial, due to start Sept. 17 in Santa Monica.

“A lot of people have gotten to the point where they’re saying, ‘I can’t stand to hear another word about it.’ I know I’ve gotten to the point where I can’t stand to tell another story,” said author Dominick Dunne, who is working on a book about the Simpson case. “Nonetheless, I’m wildly curious about every new development. And I think people are going to miss that, really miss it.”

On first reflection, John Goodenow, a 27-year-old juror kicking back in a “Seinfeld” T-shirt, insisted that Dunne was wrong: He could do fine without his daily Simpson soundbite. The gag order, he said approvingly, “will help eliminate the crazed media frenzy we had in the first trial.”

But on second thought, Goodenow admitted that he might suffer a few withdrawal pangs if he could no longer learn the day’s developments through the filter of fast-walking, bold-talking attorneys. “I’ll miss it,” he said. “But it’s the kind of thing I’ll be glad to miss. I can find plenty more things to be wrapped up in other than O.J.”