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University of Technology, Sydney
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Thompson and Knight Centennial Professor, University of Texas Law School
Courts are governmental agents whose actions are at least as important in our daily lives as those of the legislature or the bureaucracy. They should be subject to media scrutiny no less than the other major actors of government. In the United States, the Supreme Court has accepted this and elevated it to the level of a federal constitutional principle, holding that excluding the press and public from court proceedings presumptively violates the First Amendment.[1] This presumption is so strong that it has been held to prevent closure of courtrooms during testimonies of under-aged rape victims,[2] testimonies of undercover narcotics agents[3] and preliminary examinations of prospective jurors.[4] In Australia, the courts have not gone as far but several judgments of the High Court embrace at least the principle of "open justice".[5]
But what does "open justice" mean? It undoubtedly means that the media is allowed to attend proceedings. Does it also mean the media is allowed take photographs or even televise the proceedings? Does it mean the media is allowed to be present during discussion of matters outside the presence of the jury? Does it mean it has access to documents, tape recordings and other physical evidence? Does it mean it has free rein to interview parties, witnesses, lawyers, jurors and judges? Does it mean the media cannot be prevented from disclosing inadmissible evidence? Does it mean lawyers are free to use the media to influence outcomes?
"Open justice" in the United States has come to mean nearly all of these. American courts long ago foreswore the use of the contempt power to control media coverage,[6] and the Supreme Court has made it all but impossible for judges to enforce orders prohibiting specific media from disclosing specific information.[7] The Supreme Court thought direct restrictions on the media infringed upon the First Amendment unnecessarily because the the Court believed, then if not now, that the integrity of the judicial process could be maintained by a combination of media self regulation, restrictions on the information disclosed by lawyers and other participants, and measures to insulate jurors from prejudicial publicity.
This faith in alternative measures has proved to be misplaced as coverage of the White House sex scandal showed. The impeachment of a president is not a typical case, of course, and I acknowledge that it presents the issues on a scale unmatched in even the most sensational criminal or civil trials. However, the issues raised by the reporting of the grand jury investigation that led to the impeachment proceedings are not fundamentally different from those that arise in any high profile case. I use this example because it illustrates (albeit with magnification) the realities of "open justice" in the United States on facts that will be familiar to Australians.
Perhaps the most obvious of these realities is that courts cannot prevent highly prejudicial evidence from being leaked to the media. Virtually all of the evidence relating to President Clinton's affair with Monica Lewinsky was leaked to the media long before the House Judiciary Committee made it public. This included not only sensational bits of evidence, such as Linda Tripp's tape recordings of Lewinsky's conversations with Tripp, the existence of the stained dress, and the use of a cigar as a sex toy, but also evaluations of the demeanour of the President, Lewinsky and other witnesses who testified before the grand jury. In many instances the information appeared in the media within hours of its discovery by special prosecutor Kenneth Starr and before its presentation to the grand jury, indicating that the source of the leaks was Starr's office.[8] In the case of information leaked after presentation to the grand jury, the source could have been the special prosecutor's office or a member of the grand jury.[9] The grand jury is one of the few proceedings still secret in America. Prosecutors and jurors are forbidden to disclose evidence presented to the grand jury.[10] This prohibition applies no less to the grand jury investigating the sex scandal than to any other grand jury, yet it appears to have been violated many times in the Clinton-Lewinsky investigation.[11]
Why have there been no prosecutions? One reason is the difficulty of establishing the identity of the leaker. The suspected source cannot be compelled to confess because of the constitutional prohibition against self incrimination. The media cannot be compelled to identify the culprit, for reasons that are in part legal and in part pragmatic. In the federal courts in the District of Columbia, as in most other jurisdictions, journalists enjoy a privilege to refuse to identify confidential sources.[12] This privilege is not absolute as it can be overcome by proof that the identity of the source cannot be discovered by any other means and is critical to the success of the prosecution. In this situation it might be possible to establish these requisites and compel a journalist to disclose the identity of the leaker, but not without a major legal battle. The vagueness of the criteria, the vigour with which the media resists disclosure of confidential sources and the availability of an extensive appeals process ensure that many months will pass, and much legal effort expended, before any source is identified.
More importantly, who is going to initiate the effort? President Clinton's lawyers complained bitterly about the leaks but they had no power to initiate a prosecution. Another federal prosecutor could act but that is unlikely as most prosecutors are not eager either to do battle with the media or launch investigations of colleagues who may one day have the opportunity to reciprocate.
This brings us to the question of media influence on judges. Judges have the power to order an investigation of grand jury leaks but they rarely do so. The judge supervising the grand jury in the Clinton-Lewinsky matter did not. So far as is known, no judge made even any informal effort to stem the flow of leaks. Does media influence explain this? Not necessarily, but it is not easy to identify a more satisfactory explanation.
The courts in both Australia and the United States seem to assume that judges are immune to media influence.[13] The maxim in Australia is that "no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge."[14] The corresponding dictum in the United States is that "[j]udges are supposed to be men of fortitude, able to thrive in a hardy climate", not "sensitive to the winds of public opinion."[15] If these brave claims were ever plausible, I submit that they are no longer. We live in a media culture to which no one is immune. Monarchs and popes react to media pressures. That judges should not is a noble ideal and one we should cultivate. However, it is not a fact upon which law can safely be based. It is not lack of ambition that makes men and women become judges and elevation to the bench does not eradicate ambition. Lower judges aspire to be higher judges, justices aspire to be chief justices and they all aspire to be remembered kindly by history.
In those American states where judges are elected, the relationship between these ambitions and the influence of the media is obvious. It is less obvious, but no less real, where judges are appointed. The professional and political cultures that put forward judicial nominees are undeniably influenced by the media. Advancement through the judicial ranks is based largely on reputation, which within the profession may be acquired largely on the basis of personal knowledge, but which in the wider world is dependent on the media. And media influence on judicial advancement may be more direct. One United States federal judge openly accused colleagues of pandering to the media in pursuit of promotion.[16] Lawyers who regularly represent the media publicly evaluate Supreme Court nominees on the basis of their record on issues of importance to the media.[17] A judge who angers or disappoints the media acts against self interest. That many, or even most, are willing to do so is a tribute to the integrity of the judiciary but it does not solve the problem of those who are not.[18]
Much of the information that appears in the media is there for the very purpose of influencing the outcome. Occasionally, the media itself seeks a particular result[19] but usually the slant comes from those who supply the information. Those sources, whether anonymous or on the record, are rarely disinterested. They want the public to accept their version of events, their assessment of credibility, their theory of the case, their views as to culpability. In the culture that "open justice" has produced, lawyers and parties feel pressure to enter the media contest, whether they want to or not. American lawyers now have official permission to yield to this pressure. The standards of conduct that regulate lawyers' conduct now permit a lawyer to make statements to the media that will have a substantial likelihood of prejudicing a proceeding if the lawyer reasonably believes it is necessary to do so to counter prejudicial comment from the other side.[20]
The legitimacy, or at least the inevitability, of this extra-judicial contest for public opinion is now rarely questioned and it was accepted by both sides in the White House sex scandal. The White House, Hillary Clinton and the President's lawyers used the media for months in an attempt to discredit the special prosecutor, his investigation and his witnesses. Starr justified the leaks from his office on the ground that "what we are doing is countering misinformation that's being spread about our investigation in order to discredit our office and our dedicated career prosecutors."[21] The House Judiciary Committee justified its decision to make public the videotape of the President's grand jury testimony on the grounds that it needed to know how the public felt about the accusations in order to decide whether to proceed further.[22] The Committee organized release of the Starr report to maximize its impact and minimize the White House's ability to discredit it.[23] Several days later it became clear that the report was a selective summary of evidence that made no pretense of objectivity. But by that time the opinion polls were in and the Committee was convinced that it had enough public support to proceed with impeachment proceedings. The argument that this is inevitable in a political investigation is belied by the example of the Watergate investigation 25 years earlier. In that case, the special prosecutor delivered his report on President Nixon to the Judiciary Committee with no public comment; the Committee discussed it in private and did not release it to the public and its contents were not leaked.[24]
The argument usually advanced for "open justice" is that it enables the public to understand the operation of the judicial system and scrutinize its performance. But in the White House sex scandal, as in most other cases that attract extensive media attention, the coverage has little to do with this. In the case of a grand jury investigation, the proceeding is intended to be invisible; that is why the media is excluded and the participants are sworn to secrecy. There is little the media can tell us about its operation or performance by reporting leaks about the evidence it has heard. Even when the proceeding is open, the media often makes little pretense that it is there to report on the operation of the system or scrutize its performance. The federal courts, which are the last bastions of resistence in the United States to media demands for access by television cameras, authorized a three year experiment during which cameras were admitted to trials in selected federal courts. What they found was that, although the cameras produced few adverse effects, neither did they produce much enlightenment. Most of the broadcast images were used merely to provide a backdrop for a reporter's talking head and rarely did the coverage allow viewers to see any significant portion of the proceedings. The judges decided to retain the ban on cameras in federal courts.[25]
The media, including television, sometimes actually covers judicial proceedings but more often it has little interest in the proceedings itself; they are merely the mine from which it extracts gems of information that otherwise would remain hidden. Judicial proceedings are immensely important to the media as a cheap and safe source of information about people's secrets. It is cheap because the information is uncovered by others and made available to the media at little cost. It is safe because it can be reported without risk of liability for the untruths it contains.[26] Without this convenient source of information we would know a great deal less about the sins, habits, finances and activities of our fellows. This may be reason enough to insist on "open justice." But it is not the same thing as facilitating scrutiny of the judicial branch of government and it should not be allowed to hide in the skirts of that argument.
Inevitably, much of the extra-judicial information that appears in the media turns out to be inadmissible in the courtroom. In part this is because inadmissible evidence is what best serves the interests of those who supply it. The admissible evidence will come out eventually in court and can do its work there; if the inadmissible material is to have any effect, it must come out extra-judicially. But it is also because litigation in the United States produces a great deal of inadmissible evidence. Grand juries have power to investigate virtually anything they please, call any witness, ask any question, with little regard for the ultimate relevance of the material. In civil litigation the lawyers are entitled to ask any question or demand any document that might lead to the discovery of admissible evidence. As a consequence, the amount of admissible evidence adduced in either a grand jury investigation or a civil case is often miniscule compared to the mountain of inadmissible evidence they amass.
Indeed, the answer to the question that undid President Clinton--did he have sexual relations with Monica Lewinsky--was probably inadmissible. He was asked the question by a lawyer for Paula Jones in her civil suit alleging that he made unwelcome sexual advances to her in 1991. The lawyer's theory was that similar advances toward Lewinsky five years later might show a pattern of behavior. Such evidence might or might not be admissible, depending on the judge's evaluation of its probative value balanced against its prejudicial effect. If, as we later learned, it was Lewinsky who made the advances, the episode would have little probative value as to whether the President made unwanted advances toward Jones. But that was not known at the time the question was asked and Jones's lawyers were therefore entitled to ask it on the theory that knowing that he had sexual relations with Lewinsky might lead them to evidence that he had treated Lewinsky as he was alleged to have treated Jones.
Also inevitably, some of the information in the media turns out to be wrong. Aficionados of the sex scandal may recall that one of the early leaks concerned a claim that Jones could identify a distinctive mark or abnormality on the President's private parts. Jones eventually disavowed this claim but not until it had given rise to innumerable jokes on late night television and radio talk shows and lent at least a temporary aura of irrefutability to her claims.
The media, of course, understands all of this and the conscientious among the media detest the errors, resent the manipulation and aspire to cover legal proceedings fairly. Until recently, risk of serious prejudice was reduced by the sophistication, good judgment and responsibility of the mainstream media. In many states, the media and representatives of the bench and bar worked out formal voluntary guidelines that the media generally observed.[27] Judges were often able to obtain media assent to informal restrictions in specific cases. The media exercised a good deal of self restraint, particularly with respect to use of prejudicial material from anonymous sources. But those were the old days, before the mainstream news departments came to view themselves as competitors of supermarket tabloids, Oprah Winfrey and Jerry Springer, radio talk shows and internet gossips.[28] Today the voluntary guidelines are long forgotten. A judge is unlikely to be able to even identify all of the media interested in reporting about a case, let alone obtain the co-operation of all. And self restraint has little chance against the pressures of cross-media competition.
Network news departments explained that they reported the salacious details of the special prosecutor's report against their better judgment because they knew their own network's magazine shows would do so. Leaks and rumours that the mainstream media initially deemed too dubious to use without further corroboration appeared on internet sites without corroboration and soon began appearing in the mainstream media, first as reports about uncorroborated internet gossip, then without that veneer.[29] The capacity of the media for institutional self restraint is a casualty of the evolution of "the press", which (even after it came to include broadcast news operations) had some common identity and shared values, into "the media", whose operations have very little in common.
In the United States there are no effective restraints on media disclosures about pending judicial proceedings. Many believe that is a good thing. I disagree, but my objective here is not to resolve that debate. It is only to show that prejudicial disclosures cannot be prevented without direct restraints on the media. Those are historically suspect, galling to the media, and frightfully difficult to administer. But the American attempt to control disclosures without them has failed utterly. Other legal systems, with different media traditions and different legal cultures, might do better, but they should understand that we in America have not found a way to protect the integrity of trials without direct restraints on media. Rather, we have decided that trial by media is acceptable.
The author is grateful to Michael Chesterman, Annette Marfording, Martin Krygier and Richard Bauman for comments on earlier drafts of this paper.
[1]See Richmond Newspapers Inc v Virginia 448 US 555 (1980); Press-Enterprise Co v Superior Court [No II] 478 US 1 (1986). The presumption applies not only to criminal trials, but also to pre-trial proceedings and to at least some civil proceedings. See Publicker Industries Inc v Cohen 733 F 2d 1059 (3d Cir 1984).
[2]See Globe Newspaper Co v Superior Court 457 US 596 (1982).
[3]See People v Martinez 82 NY 2d 436; 604 NYS 2d 932 (Ct. App. 1993); 624 NE 2d 1027 (NY 1993).
[4]See Press-Enterprise Co v Superior Court [No I] 464 US 501 (1984).
[5]See Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J; Grollo v Palmer (1995) 184 CLR 348 at 379 per McHugh J; Re Nolan; Ex Parte Young (1991) 172 CLR 460 at 496 per Gaudron J.
[6]See Bridges v California 314 US 252 (1941); Wood v Georgia 370 US 375 (1962). Professor Chesterman has shown that none of the Supreme Court decisions actually dealt with prejudicial publicity that might influence a jury and he argues that a tightly drawn criminal statute imposing penalties on the media for publishing such material might be constitutional even if use of the contempt power for this purpose is not. See Chesterman "OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America" (1997) 45 American Journal of Comparative Law 109 at 127-128.
[7]Nebraska Press Association v Stuart, 427 US 539 (1976) held that a judge may restrain publication only if he or she can show that there is no other means of assuring a fair trial, that the restraint will be effective to prevent prejudice and that the order prohibits no more than necessary. The Court acknowledged that these requirements would be difficult to meet in any case and, since then, few judges have attempted to impose restrictions on publication and even fewer have been upheld. Cf. [Noriega] 917 F 2d 1543 (11th Cir. 1990).
[8]See Brill, Pressgate, Content (July/August 1998) at 122, 131-133.
[9]The leaks also could have come from witnesses and some probably did. But grand jury witnesses in the federal system are not forbidden to disclose so they would have no apparent reason to insist on anonymity.
[10]See Fed. Rule Crim. P 6(e). The secrecy provisions also bind witnesses in some jurisdictions, but not in the federal system. See Butterworth v Smith 494 US 624 (1990).
Violations are punishable as contempt in the federal system and as a specific crime in some other jurisdictions. See, e.g., Fla. Stat. s. 905.27.
[11] Starr claimed the leaks by his office did not violate Rule 6(e) because they occurred before the information was presented to the grand jury but the relevant precedents appear to reject such a distinction. See Brill, supra note 9, at 132.
[12]See, e.g., Zerilli v. Smith 656 F 2d 705 (1981).
[13]For some notable non-judicial skepticism about this, see Chesterman, supra note 7, at 147; Landsman and Rakos "A Preliminary Inquiry into the Effect of Potentially Biasing Information on Judges and Jurors in Civil Litigation", (1994) 12 Behavioral Science and Law 113.
[14]BLF Case (1982) 41 ALR 71 at 90 per Gibbs CJ and at 123 per Mason J, both quoting Lord Salmon.
[15]Craig v Harney 331 US 367 (1947).
[16]See Judge Laurence Silberman "Judicial Activism: The Press Pulls the Strings, Address Before the Federalist Society" (13 June 1994), in Tex. Law., 29 June 1992 at 15-17.
[17]See, e.g., "Souter spurs cautious optimism; 1st Amendment advocates heartened by nominee", San Diego Union-Tribune, (4 September 1990) at A8 (quoting several media lawyers on Supreme Court nominee David Souter's voting record in media cases while sitting on a lower court).
[18]Judges who are immune to the demands of ambition may be vulnerable to the temptations of the proverbial 15 minutes of fame. Before the start of the OJ Simpson trial, the presiding judge gave a five-part interview to the CBS television station in Los Angeles. The ground rules were that the interview was to focus on Judge Ito's life and personality rather than the case. See Achenbach, "Ito Blinks in Spotlight: Judge's Blunder Brings Long Week of Intense Publicity and Criticism", Washington Post, 19 November 1994, at A1.
[19]See, e.g., Sheppard v Maxwell 384 US 333 (1966), in which newspapers angrily demanded (and obtained) the conviction of a murder defendant who was eventually cleared after spending twelve years in prison. Currently many American media are stating their belief that one or both of Jon Benét Ramsey's parents are guilty of murdering the six-year-old beauty contestant even though no one has been charged. See Riley, "Beauty and the Beast", Sydney Morning Herald, 24 November 1998, at 41.
[20]See Rule 3.6, American Bar Association Model Rules of Professional Conduct. This model is the basis for the official rules of conduct for attorneys in most states.
[21]See Brill, supra note 9, at 132.
[22]See Eilperin and Morgan, "Clinton Videotape Set for Release; House Panel Votes to Make Testimony Available at 9 AM Monday", Washington Post, 19 September 1998, at A1 (". . . Republicans countered that they were putting the information out so the public could make the most informed judgment possible as to whether Congress should proceed with an impeachment inquiry.") The committee voted for impeachment despite polls showing that a substantial majority of Americans opposed it.
[23]The report was released to the media on a Saturday morning, allowing plenty of time for preparation of extensive coverage in the Sunday newspapers, which, in the U.S., are the week's largest and most widely circulated editions. It also assured that the report would be the subject of the Sunday morning panel shows on all major television networks. Neither the White House nor the President's lawyers were given a copy until it was released to the media so they were unable to respond in detail until after the first wave of coverage. Withholding release of the videotape of the President's grand jury testimony until the next Monday provided fresh material for another round of coverage.
[24]See Lewis, "A degrading hysterial mockery", Sydney Morning Herald, 23 September 1998, at 21.
[25]See Greenhouse, L., "US Judges Vote Down TV in Courts", New York Times, 21 September 1994, at A11.
[26]In both Australia and the United States, the media enjoy a privilege to report defamatory falsehoods that are uttered in judicial proceedings. See, e.g., Defamation Act 1974 (NSW), ss 24, 25, 26, Sch 2; NY Civ Rts, s 74.
[27]See, e.g., Nebraska Bar-Press Guidelines, quoted in Nebraska Press Assn. v Stuart 427 US 539 (1976).
[28] See Sachs, "Mud and the Mainstream: When the Respectable Press Chases the National Enquirer, What's Going On?" (1995) 34 Colum. Journalism Rev at 33.
[29]The difficulty media have in resisting these perceived competitive pressures is illustrated by The New York Times's explanation of its decision to name a rape victim in contravention of its long established policy. The Times said its editors felt that the decision had been taken "out of their hands" because a television network had used the name in a report about an American supermarket tabloid's report that the name had been reported by a London tabloid. See "On Names in Rape Cases", New York Times, 17 April 1991, at A17.