DALLAS -- The recent order prohibiting participants in O.J. Simpson's civil trial from discussing the case with the media is but the latest example in an increasing tendency by judges to clamp down on pretrial publicity, say constitutional scholars, free-speech advocates and some judges.
On Friday, California Superior Court Judge Hiroshi Fujisaki upheld the order in the Simpson case, even though the father of Simpson's slain ex-wife complained that the order, if not modified, would prevent him from speaking publicly about such general issues as domestic violence and the criminal-justice system.
Similar orders affecting everyone involved in a case, not just lawyers, have been entered in the recent drug trial of Michael Irvin, the Dallas Cowboys star, and in the murder trial of Darlie Routier, a Rowlett, Texas, mother accused of stabbing her children. The state moved to hold Ms. Routier's husband and mother in contempt after they publicly proclaimed her innocence.
"There is an increasing tendency among lower courts to enter gag orders in situations that fall short of the momentous harm the Supreme Court has said such orders must be reserved for," said Laurence H. Tribe, a professor of constitutional law at Harvard Law School.
Some judges have even acknowledged that the orders they imposed on defendants, plaintiffs and witnesses impinged on their free-speech rights and are constitutionally suspect. But "they see them as necessary to control the publicity and ensure a fair trial," said Judge David Horowitz of Los Angeles County Superior Court.
Horowitz, co-chairman of the American Bar Association's National Conference of Lawyers and Representatives of the Media, has issued such orders himself.
But the result, critics say, is that trials, which the Constitution says must be speedy, public and decided by local jurors, will receive less scrutiny and that there will be fewer checks on abuses of power. "Citizens don't understand it's an access-to-information issue," said Nancy Monson, the director of the Freedom of Information Foundation. "They think it's a media issue."
Judges say they embrace broadly restrictive orders as a means of shielding potential jurors from inadmissible evidence. In the orders, judges invariably cite a second concern, as well: a need to protect the "dignity" of the judicial process.
"Trial judges believe the press has upset the delicate balance of civility necessary for trials," said Jeffrey Abramson, a professor of politics and law at Brandeis University. "They feel the press has become uncivil, that the Scott Turow-John Grisham, trial-as-entertainment syndrome has caused a decline in the quality of coverage."
Although the Supreme Court has struck down such orders as unconstitutional abridgments of speech, many in the press say that for various reasons, including financial pressures, news organizations are declining to challenge them. "We're becoming inadvertent co-conspirators," said Jane Kirtley, the executive director of Reporters Committee for the Freedom of the Press.
The Supreme Court has made clear that while orders restraining the press are almost always illegal, lawyers, as officers of the court, may be uniquely subject to speech restrictions. The court has not specifically addressed the issue of when witnesses, plaintiffs or defendants may be silenced, but most legal scholars say these parties should be no more readily muzzled than the press.
Yet constitutional scholars say, and judges agree, that trial courts are routinely restricting the speech of all parties to a case. "This is an area where there is a growing gulf between law on the books and law in practice," said Samuel Issacharoff, a professor of civil procedure at the University of Texas law school.
Some defense lawyers who once championed such orders are now changing their minds. "At first, I just didn't have time to return all the phone calls from the press," said Kevin Clancy, one of the lawyers who handled the Irvin case. Clancy fought the attempt of media organizations to set aside a restrictive order.
But Clancy was required to submit his motions to the trial court judge for screening. And when a Dallas police officer was arrested on charges of trying to have Irvin killed, the judge publicly warned the entire Dallas Police Department to keep silent.
"I should have fought it," Clancy said, because with an order of silence, "you can't defend yourself in the court of public opinion."
Pub Date: 8/26/96