Reporters Guilty of Reporting?


June 21, 2002


BOB GARFIELD: From WNYC in New York this is NPR's On the Media. I'm Bob Garfield.

MIKE PESCA: Brooke Gladstone is on vacation. I'm Mike Pesca. Four reporters from the Philadelphia Inquirer were found in contempt of court last week for violating an order from Superior Court Judge Linda G. Baxter not to talk to or identify jurors in the sensational murder trial of Rabbi Fred J. Neulander. Judge Baxter presided over the case in which the rabbi was accused of arranging his wife's killing. The case ended in a mistrial in November after the jury deadlocked. The four reporters were investigating whether the jury forewoman actually lived in Pennsylvania rather than New Jersey's Camden County and whether that would have meant a mistrial had the jury agreed on a verdict.

BOB GARFIELD:In April the New Jersey Supreme Court ruled that Baxter had the authority to bar reporters from contacting jurors before the verdict but not afterward, but by the time the ruling was passed, the article had already been published, so were the reporters still in the wrong? According to the State of New Jersey the order was in effect at the time it was violated by the reporters, so the answer is still a resounding yes. And the four were fined a thousand dollars each and three of them were sentenced to community service. Bruce Rosen specializes in media law for the New Jersey firm McCusker, Anselmi, Rosen, Carvelli, Walsh. Bruce, welcome to the show.

BRUCE ROSEN: Thanks so much.

BOB GARFIELD: If a judge were handling a case and picked up the phone back and randomly called somebody out of the white pages and said this is judge so and so. In the State of New Jersey against fill-in-the-blank, you are not permitted to speak to the jurors in this case -- is that enforceable -- just to a private citizen?

BRUCE ROSEN: Not once-- a lawyer who was worth his salt gets a hold of it, no, not at all.

BOB GARFIELD: So by extension, if it's unenforceable to a private citizen, how in the world could it be enforceable to a reporter who in addition to being a private citizen has explicit First Amendment rights?

BRUCE ROSEN: Because the judge needs to balance the rights of the First Amendment against the right to a fair trial, and what the judge is doing is trying to protect the jury pool against a contamination if you will of information from what this jury thought about in their first deliberations.

BOB GARFIELD:In a case particularly like the Neulander case, which has had such extraordinary amounts of publicity from the very beginning, is the pool of potential jurors for the retrial really going to be compromised any further if statements by the first trial's jury find their way into the press?

BRUCE ROSEN: I, I would most assuredly think that that's what the court is thinking, and-- that's ridiculous, because at worst if they could somehow prove that that was the case, they could move the trial to a different county. You can't say that this is really even meant to protect the jury pool. This is meant to prevent the reporters from speaking to these -this jury. It doesn't stop someone who has a web site, doesn't consider themselves a media person, someone who is writing a book -- this order seems to me to be directed against reporters, and I think that it's unconstitutional.

BOB GARFIELD:Historically speaking, when the First Amendment has brushed up against other constitutionally protected rights such as the right to a fair and speedy trial, how has the First Amendment fared?

BRUCE ROSEN: The right of privacy versus the right - First Amendment is, is something that really has not been litigated all that much and-- there are a whole series of cases going back to the '70s that talk about the rights of the press to talk to the jury, and unfortunately the Supreme Court has never chimed in on this. But the press would say that hey, this is important for education - it's important for understanding the system - it exposes misunderstandings with the jury. And the, the other side would say if we start doing this jurors will be reluctant to serve; it encourages checkbook journalism; it affects the rights of criminals. But I still think the bottom line is that there is a consensus that the First Amendment gives the press a right of access to jurors afterwards and that if a judge is going to do something about it, he ought to really articulate s-- very, very specific, defensible reasons, and that's not what happened in the Baxter case.

BOB GARFIELD:Last September a Texas judge barred reporters from interviewing the jurors who found Andrea Yates, who had been charged with killing her 5 children, who found her competent to stand trial. And there have been other cases of judges trying to muzzle the media before, during and after a trial. From your standpoint do you think this is getting out of control or just happens to be a coincidence of circumstance?

BRUCE ROSEN: I think there's a general backlash that's been going on involving the press, and if you get a judge that feels that some of the-- what he would or she would consider harassment of jurors or the aggressiveness of the press has gone too far, he might find their personal predilection is to-- is to cut 'em off and to encourage the jury - as I've seen many times -where a judge at the end of a, a criminal case will say you don't have to talk to them. Let me see a show of hands -- how many of you don't want to speak to the press? And good, I'll order no press coverage. I've seen many judges assume that or, you know, there's a lot of different factors that should enter into a judge's decision to order this, and it's a tough burden as weighed against the First Amendment, and I'm a media advocate, and I am a former reporter, and I even have to acknowledge that the First Amendment is not absolute. There are some limitations. But this shouldn't be one of them, and just think about over the years the jurors were interviewed in Rodney King, the Menendez brothers, Hinckley, of course O.J. - they were writing books and-- this is a, a time-honored tradition.

BOB GARFIELD: Bruce Rosen, thank you very much.

BRUCE ROSEN: Thank you.

BOB GARFIELD:Bruce Rosen is a former member of the media, a media lawyer and a partner in the firm McCusker, Anselmi, Rosen, Carvelli, Walsh in Chatham, New Jersey. [MUSIC]