Posted by Eugene Volokh:
Court Refuses To Order Restrictions on Reader Comments at Media Web Pages
Related to Death Penalty Trial:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248018789
This decision, in [1]State v. Cobbins -- the Christian/Newsom murder
trial -- was handed down in mid-April, but I just saw it because it
just got posted on Westlaw. So I thought I'd note it, especially since
I haven't heard of any earlier cases on the subject:
All defendants, at the hearing, requested that this Court order (1)
media outlets to disable a portion of their websites (their
internet forums) to prohibit web users from posting comments about
any stories related to this case; (2) require media outlet internet
users wishing to utilize the internet forums to use their true
names and addresses; (3) or that this Court establish guidelines
for acceptable comments on the internet forums and employ real-time
monitors to ensure compliance. In [2]Defendant Cobbins' written
motion, he asserts that the intensive media coverage generated by
this case �has fueled hostile threats, accusation, and diatribes by
the public ... directed toward [the defendant], his co-defendants,
and toward the attorneys who have been appointed by this Court to
represent the various defendants.�
The written motions focus on the internet sites of local media and
the public's ability to publish comments anonymously on those
cites. Included in Defendant Cobbins' motion are various samples of
comments posted by the public which discuss this case, the
defendants, and the attorneys involved. Defendant Cobbins argues
further in his motion that �[i]f the media cannot responsibly
report, and/or monitor the public dissemination of its website
content where such failure to monitor affects the effective
representation of counsel for one or more defendants, it should not
be allowed to further publicly disseminate information about this
case.� He also asserts that �[w]hile the public has a right to be
informed about these proceedings, that privilege will always be
subservient to the constitutionally guaranteed right to receive
effective assistance of counsel where one is charged with a capital
crime.� ...
In Nebraska Press Ass'n v. Stuart, the Court established a
three-part test to be used in determining whether a prior restraint
is invalid; a trial court must determine (1) the nature and extent
of pretrial publicity, (2) whether alternative measures would be
likely to mitigate the effects of unrestrained pretrial publicity,
and (3) how effectively a restraining order would operate to
prevent the threatened danger.
In this case, the publicity has been extensive, detailed, and
arguably misleading at times from a legal perspective. The relief
sought currently is not the complete bar of media coverage of the
proceedings, but rather a bar to the sharing of ideas between
citizens who read or listen to the local media reports concerning
this case, who wish to make anonymous public comment on the same in
the media internet forums.
This Court has already granted alternative measures to mitigate the
effects of unrestrained pretrial publicity by granting a change of
venire to those defendants who have made the request; therefore,
the juries who will hear and decide the charges will not be from
the local media coverage area. The relief sought also would not
necessarily effectively operate to prevent the threatened danger.
Counsel asserts that the restraint is necessary to ensure the
effective representation of the defendants. Only two media outlets
intervened in these proceedings. The internet is not restricted to
use by the media alone. Private citizens have access to and utilize
the internet everyday to freely discuss and exchange ideas whether
on the internet forums of the two media outlets or otherwise.
Considering all the factors, this Court cannot find that disabling
the internet forums of the media internet sites would be an
appropriate restraint.
In addition to and in the center of the issue of restraint and
freedom of speech in this case is the issue of whether anonymous
speech on these internet forums is protected and whether it should
be restricted. The Supreme Court has recognized that the First
Amendment protects anonymous speech....
The right to speak anonymously extends to speech via the Internet.
Internet anonymity facilitates the rich, diverse, and far ranging
exchange of ideas. The �ability to speak one's mind� on the
Internet �without the burden of the other party knowing all the
facts about one's identity can foster open communication and robust
debate.� People who have committed no wrongdoing should be free to
participate in online forums without fear that their identity will
be exposed under the authority of the court....
So long as people are not committing any wrongdoing, they should be
free to anonymously participate in the online forums. Accordingly,
this Court does not find that any restraint on the internet forums
would be appropriate in this case.
In addition to the request by all four defendants discussed above,
Defendant Cobbins' motion includes an alternative motion to allow
counsel to withdraw due to the threatening nature of the comments
made anonymously in the media.... In this capital case, this Court
has called upon some of this area's finest defense attorneys to
represent the named defendants. At this court's request, the
attorneys have graciously, and at great personal sacrifice,
accepted these appointments and are zealously representing their
clients as they are required to do by law. As pointed out by
counsel, fees paid in appointed cases do not compare with the fees
received by most attorneys in non-appointed cases. This Court
greatly appreciates the sacrifices made by the members of the bar,
on both sides of the courtroom, who accept this Court's
appointments and who assist in the pursuit of justice. Without the
dedication of these attorneys, our criminal justice system could
not function.
At the hearing, Assistant District Attorney Leland Price announced
that the State stands ready to investigate and/or prosecute anyone
who anonymously or otherwise engages in criminal conduct toward any
person, be it attorney, victim's family member, court personnel or
otherwise. While this court understands counsel's concerns with the
various general comments in the media concerning attorneys in this
case, this court does not find that any of the comments rise to a
level which would require allowing counsel to withdraw at this
time....
This seems to me the right result. I'm generally skeptical of speech
restrictions aimed at preventing jurors from being prejudiced at
trial; and courts are as well. The Supreme Court in Nebraska Press
Ass'n v. Stuart (1976) has held that in principle such restrictions
may be permissible, but it set up a pretty stringent test that must be
passed before they can imposed met (quoted above), and my sense is
that in practice courts very rarely impose them. I recognize that
jurors may hear things about the case that they shouldn't hear --
rumors, allegations, information about excluded evidence, and so on.
But judges should be able to do a pretty good job of persuading jurors
to set that aside, and to focus on what they hear in the courtroom.
All of us are familiar in our daily lives with rumors that prove to be
false, newspaper accounts that omit important details, media accounts
that we mishear because we aren't closely focused on them, and so on.
Jury instructions that remind jurors of that, and remind them to pay
attention only to things that they hear in court, that they can focus
on and remember well, and that are subject to cross-examination
shouldn't be hard to accept or counterintuitive. They won't be
perfect, but I suspect they should be fairly reliable, especially
since they come from a high-authority figure that jurors are likely to
view positively.
But whatever one might say about the risk of incurable juror prejudice
from media accounts, it would apply least to user comments, especially
anonymous ones. Such comments are so low in credibility that it's hard
for me to see jurors being much influenced by them, especially in the
face of instructions from a judge that explain why such out-of-court
sources should be ignored. So the judge's conclusion here strikes me
as entirely correct on this.
Threats to lawyers are a different matter, and certainly something
that jury instructions can't cure. Nonetheless, the risk that a few
speakers might use online comments to threaten lawyers doesn't
justify, I think, imposing special restrictions on all speakers (or
even all anonymous speakers); and people who really want to seriously
threaten lawyers would still be able to threaten them even if comments
are shut down on certain articles at various media sites. Plus
requiring people to use their accurate names and addresses isn't
self-enforcing; certainly the newspaper can't practically enforce
that. So someone who wants to threaten someone would still be able to
do so, just using a false name and address -- the proposed orders
wouldn't really prevent such threats, except insofar as they might
catch a few of the most foolish threateners.
References
1.
http://www.medialaw.org/Content/NavigationMenu/Publications1/MLRC_MediaLawDaily/Attachments2/041509cobbinsorderonmedia.pdf
2. http://www.wbir.com/pdf/02182009_cobbins_motion.pdf
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