Citing the public's "important constitutional interest in the free flow of information," 10 news organizations urged a judge Friday to cancel his order forbidding all participants in the O.J. Simpson civil trial to talk to the media.
"The court's blanket gag order will serve only to undermine the public's understanding of the judicial proceedings in this case, by eliminating reliable sources of information about the trial," media attorney Kelli Sager wrote in her motion on behalf of The Times, CNN, Associated Press and other agencies.
Superior Court Judge Hiroshi Fujisaki--who earlier this week banned all lawyers, witnesses and litigants from speaking to the press--scheduled a hearing on the gag order for 9 a.m. Friday.
Also at that hearing, Fujisaki will decide whether to let television cameras and news photographers record the trial, which is set to begin Sept. 17 in Santa Monica.
Simpson's criminal trial was televised live--from the most tearful testimony to the dullest sidebar, from the most puffed-up rhetoric to the harshest exchanges between bickering attorneys. By the end, most analysts (and many of the participants) conceded that the cameras had changed the pace and style of the trial, but disagreed on whether they had affected the outcome.
Although he agreed to televising the criminal trial, Simpson apparently has had enough of cameras.
His lead defense lawyer in the civil case, Robert C. Baker, filed a motion this week opposing all TV, audio and photographic coverage of the trial on the grounds that cameras "will result in unfair prejudice to [the] defendant's rights."
The plaintiffs have not yet indicated their position. Baker, however, stated his opposition in forceful language. "The place where this case should be tried is in the courtroom, not on the 5 o'clock news and by every legal pundit or talk show host," he wrote. Keeping jurors pure, untainted by media reports, will require "no or very limited media coverage," Baker added.
"I'm frankly amazed they could make that argument with a straight face," said Sager, who represents most of the stations advocating cameras in the courtroom. "After all, the criminal trial was televised and Simpson was acquitted." And since the trial, Sager said, Simpson and his attorneys have used the media extensively to publicize their views.
Lawyers familiar with Judge Fujisaki's brusque style have long predicted that he will ban TV cameras to keep the trial moving briskly.
But the judge cannot limit media access simply because he would prefer to decrease the hype or keep the case low-profile, said Southwestern University law professor Marin Scordato. "To try to reduce coverage or reduce the public interest in a case would really be frowned on," he said. Instead, Scordato said, the judge must balance Simpson's right to a fair trial against the media's right to disseminate information and the public's right to find out what goes on in the judicial system.
Fujisaki does have the power to severely crimp media coverage of the trial--by limiting the number of seats allocated to reporters, by banning television cameras and news photographers, or by declining to set up a closed-circuit feed beaming the proceedings to a press room. He could even prohibit sketch artists.
But Scordato predicted an outcry--and a possible reversal by a higher court--if Fujisaki took such a hard line. "That kind of semi-closed courtroom would receive a lot of opposition," Scordato said, "and might not survive appellate review."