Any Which Way But Public
NBC affiliate fights for press access to civil proceedings
May 6, 1999
Media types sure know how to pick their battles.
Like this one: Lawyers for a Los Angeles TV station and other media organizations will tell the California Supreme Court today that the First Amendment requires civil trials to be open to the public and press.
And the civil trial that spawned this lofty constitutional clash? A messy contract dispute between Clint Eastwood and his former live-in lover, Sondra Locke.
Almost two decades ago, the U.S. Supreme Court ruled that the First Amendment gave the press the right to attend criminal trials.
Lawyers for NBC say the same should go for civil disputes, including celebrity spats, because an open civil trial "promotes the same positive values as an open criminal trial," including "free discussion of, and participation in, public affairs."
An open trial also "improves the fact-finding process" and "fosters public respect for the judicial process," according to Anne Egerton, a lawyer for KNBC-TV, the NBC affiliate in Los Angeles.
Not surprisingly, Egerton's opponent doesn't think gavel-to-gavel coverage of Dirty Harry's business relationship with a former girlfriend is quite what the Founding Fathers had in mind.
"I think there are other cases that would present a stronger argument" for unrestrained courtroom access, says Frederick Bennett. Bennett, assistant county counsel for Los Angeles, is defending a partial closure order issued on the eve of the trial by L.A. Superior Court Judge David Schacter.
But Bennett says Schacter wasn't trying to take a post-O.J. poke at the news media's celebrity obsession. Instead, he says the judge was only worried that jurors would end up hearing or reading about excluded evidence in news accounts, making a fair trial impossible.
So the judge ordered the media barred from the courtroom for all proceedings occurring outside the presence of the jury. Schacter said he would make transcripts available at the end of the trial -- which concluded with a settlement a few weeks later. He characterized the order as a "very, very small intrusion on the First Amendment, and in essence it's not an intrusion on the First Amendment. It's a delay."
The Second District Court of Appeal didn't see it that way. A week after Schacter issued his order, the appeal court reversed him on an extraordinary writ, concluding that the First Amendment guarantees press access to both civil and criminal trials.
Bennett defends Schacter's order on practical grounds, saying the other obvious method of shielding the jury from excluded evidence -- sequestering jurors throughout the trial -- is expensive and inconvenient.
As methods go, "this was a pretty good one," Bennett says. It's simple to implement and avoids the expense of putting jurors up in a hotel -- an expense, he notes, that the media lawyers say should be borne by courts, and not civil litigants.
Like the Second District, Egerton and her amici curiae -- which include scores of major media organizations and associations, including one that counts The Recorder as a member -- say trial judges have no business in deciding what disputes are worthy of public attention in light of the First Amendment.
Kelli Sager, who represents the Los Angeles Times, notes in her brief that Bennett concedes the public might have an interest in "some cases," though not Eastwood's. But, she argues, Bennett "makes no attempt to define how a line is to be drawn."
Egerton and Sager, of the Los Angeles office of Seattle's Davis Wright Tremaine, also dispute the county's assertion that civil trials are private matters, saying civil courts are public institutions, funded by taxpayers and staffed by government employees.
The U.S. Supreme Court looked at common law principles derived from England when it decided 1980's Richmond Newspapers v. Virginia, 448 U.S. 555, the case establishing the public's right to attend criminal trials. Bennett is sharing argument time with Leah Saffia, a British barrister also licensed to practice in California. In her amicus brief, Saffia argues that the perception that English courts embraced open legal proceedings early on is misleading. That's because while the press and public have had the right to attend trials there since the 1600s, even in Revolutionary times, judges would frequently jail reporters and publishers whose printed reports were seen as likely to create prejudice among jurors.
But the justices may not need an English history lesson to decide NBC v. Superior Court, S056924. Last year, the court issued an order requesting the parties to brief the significance of Code of Civil Procedure 124, originally enacted in 1872. The law requires that with certain exceptions "the sittings of every court shall be public."
Bennett counters that the hoary statute -- which wasn't briefed at trial or in the court of appeal -- can't take away a trial judge's inherent authority to take steps, like a partial closure, needed to ensure a fair trial.
Bennett also hopes to convince the justices that the analysis in Richmond -- which dealt only with criminal trials -- doesn't necessarily follow in civil actions.
In criminal cases, he says, the state is acting in the name of the people, who have a right to see what is done in their name.
Likewise, he says that if a public entity or a public official were at the center of a civil trial, then the public's interest might outweigh the parties' interest in keeping their dispute off the front page.
Bennett says the same logic would apply to cases involving publicly traded corporations, whose stockholders have an interest in knowing what is going on at trial. A line could be drawn, Bennett suggests, between private matters where disclosure could imperil a fair trial and "things that affect the public broadly."
But when it comes to disputes like that between Locke and Eastwood, where the public has no more than a "curious interest," Bennett thinks judges should retain the power to shut the courthouse doors.
"I think if this were tobacco litigation or the like, [Schacter] would have viewed it differently," Bennett says.