Battling the Gag

Judges have been so wary of transgressing the First Amendment that only rarely have they tried to deal with the conflict between a free press and fair trial by ordering reporters not to print information. In recent years, however, a few court decisions suggested that the legal winds were shifting. Then, last November, Supreme Court Justice Harry A. Blackmun refused to void key parts of a Nebraska judge's order that barred the press from reporting the alleged confession of a suspect about to be tried for a grisly multiple murder. Blackmun's ruling prompted a mini-rash of at least a dozen similar orders.

Last week, in two different actions, the press served notice that it would forcefully resist the new gags:

> In Brooklyn, a judge ordered a New York Times reporter not to print that a murder defendant had been convicted in a related crime. Next day the Times reported the order, said that it would not abide by it, and printed the information (which had been published before). Though the paper's lawyer said that "the court was utterly without power to make such an order," some legal experts thought the Times had chosen a hard road. In 1972, after two Louisiana reporters who defied a similar order were fined, an appeals court approved, saying that although the order was unconstitutional, the reporters should have obeyed it until it was overturned.

> On the same day that the Times saw fit to print, 17 newspapers, magazines, TV and radio networks and professional news organizations filed a joint friend-of-the-court brief on the Nebraska gag order, which is now before the full Supreme Court. The press brief concedes that pretrial publicity can compromise a defendant's rights. But it argues that a judge has other ways to protect those rights; such methods have included ordering jurors not to read or view news accounts of the trial, sequestering the jurors, and delaying or moving the trial if the pretrial atmosphere in a community is too prejudicial. Referring to such examples as the Angela Davis and John Connally trials, which were completed successfully despite wide coverage--and somewhat gratuitously reminding the court of the press's role in uncovering the Watergate scandal--the brief pointed out that there is "a special risk" in limiting court reporting because gag orders amount to "entering restraints on the very institution whose function is to expose governmental wrongdoing in all branches of government, including the judiciary."

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