‘Open court’ means just that
It is a settled principle of 1st Amendment law that judges can’t bar journalists (or anyone else) from reporting what they see and hear in open court. So it’s astounding that a Los Angeles Superior Court judge on Wednesday ordered The Times not to publish information as basic as the physical description of a criminal defendant in his courtroom.
A few weeks earlier, the same judge granted permission to photograph another defendant — but then tried to block The Times from publishing the photos. Both gag orders were impermissible and deeply disturbing prior restraints on speech.
Judge Gustavo N. Sztraicher reversed himself in both cases after The Times objected, so one might be tempted to conclude, “No harm, no foul.” But there is indeed serious harm every time a judge disregards or misunderstands the 1st Amendment and the strict limitation it places on the government’s power to prevent a person or news outlet from repeating or reporting what goes on in open court.
The Times was following the two cases in Sztraicher’s courtroom, so it knew about the improper orders and was able to challenge them. But in other courtrooms where judges unconstitutionally restrain citizen journalists who might lack the resources or legal knowledge to object, freedom of speech and of the press are in jeopardy. Each bad ruling chips away at the bedrock of fundamental American liberties, as well as the press’ crucial role as the public’s witness.
Perhaps the Superior Court should take a few days off to present its judges a 1st Amendment refresher. It could at least send around a copy of the 1976 U.S. Supreme Court opinion in Nebraska Press Assn. vs. Stuart, which confirmed that prior restraints on news coverage of criminal proceedings are unconstitutional.
In the first case, back in September, Sztraicher approved requests from news organizations to photograph and film a hearing for Ramon Escobar, the suspect in the killings of several men who appeared to be homeless. In the midst of proceedings, however, the judge ordered the journalists to stop filming and photographing (and a sketch artist to stop sketching) and not to publish what they’d recorded. He later reversed himself.
Judges don’t have to allow cameras in their courtrooms in California, but once they grant permission, it is practically unheard of — and almost certainly unconstitutional — to try to block publication.
In the second instance, Sztraicher on Wednesday granted an attorney’s request to disallow photos in the courtroom and to block publication of the “descriptors” of murder suspect Dejone Wright on the argument that the images and words could influence potential witnesses. Pretty much everything about Wright’s appearance — as with all county jail inmates — is already publicly available on the sheriff ’s online site.
The judge reversed the order Friday after the attorney made clear what he meant by “descriptors”: physical attributes of the defendant, such as gender, race and hair color, visible to anyone in the courtroom.
As a former criminal defense lawyer, Sztraicher may be receptive to a defendant’s desire to avoid release of information. But Sztraicher is now a judge. He must defend the Constitution and not just one party.
Sztraicher is hardly the only judge with a 1st Amendment blind spot. Let’s not forget U.S. District Judge John Walter, who in July ordered The Times to alter an already published news story. That action, like Sztraicher’s, was an unwarranted attack on journalists’ 1st Amendment rights as well as the rights of every American to prompt reporting on their justice system, and on the judges who are supposed to protect it.