Utah Judge Orders Journalist to Write Story or Be Held in Contempt

In Utah, the judge in the Warren Jeff's polygamy trial has ordered a reporter to write a public service article or be held in contempt of court.

The backdrop: Reporter Katie Baker was a reporter covering the Warren Jeffs trial. She was new to covering trials and didn't know the Judge had entered an order prohibiting reporters from interviewing prospective jurors. Baker interviewed a female potential juror outside the courthouse and the tv station she worked for aired it that night. (The tv station did know about the rule but the regular managing editor was not working on the Jeffs case that day.)

So, is the judge's order proper? First Amendment lawyer guru Floyd Abrams has his doubts and calls the order "extraordinary."

"The notion that a judge can either compel a journalist to write a story, or sit in judgment on a story to determine if it sufficiently serves the public interest, is extremely disturbing," Abrams said in an interview from New York.

"It puts the judge in a classic role of censor," he said. "The judge is deciding whether the story is worthy or not - not even if it's true but whether it's worthy."

The tv station says its reviewing its options.

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    two sides (none / 0) (#1)
    by Deconstructionist on Thu Oct 18, 2007 at 08:09:57 AM EST
      I agree there are constitutional concerns (particularly if as is not clear the requirement would be to publish as opposed to merely produce the segment), but personally I like such creative sentencing and think it serves a good purposes (that doesn't make it constitutional necessarily,  though).

      Take another example: A kid vandalizes property and the judge gives the kid the option (and the option is important but not dispositive  in the constitutional calculus) of doing community service repairing properties and  writing a letter of apology  or facing jail.

      The judge's alternative would amount to involuntary servitude and  the 13th Amendment specificaly allows that as punishment for crime but writing the letter,  one could argue infringes the 1st amendment  just as the reporter's  producing the public service story does.  In both cases the act of writing is merely labor and the 1st amendment really becomes implicated when the judge exerts control of the content of the writing. Requiring the kid to write an "apology" is control of content  the same as requiring the reporter to write a story on the importance of obeying court orders (or whatever).

      I guess my point is that sometimes, as lawyers, we can be "hyper-legal" and not look at the benefits of creative sentencing when we perceive some legal issue.


    i was sort of thinking along the same lines. (none / 0) (#2)
    by cpinva on Thu Oct 18, 2007 at 08:16:21 AM EST
    this is almost classic "punishment fitting the crime", though it may well turn out to be unconstitutional.

    what really bothers me about this is the reporter's admission that she had no clue about the judge's order, barring potential juror contact with the media, prior to completion of the trial. she should have, that's part of her job.

    It's compelled speech, and that's not the proper (none / 0) (#3)
    by scribe on Thu Oct 18, 2007 at 09:31:25 AM EST
    subject of a judicial order, particularly where it would appear the reporter was ignorant of a gag order.

    For the court to have any jurisdiction to prevent the press from contacting jurors - injunctive relief, at its heart - the Court has to have provided notice and an opportunity to be heard to the individual it now seeks to punish for allegedly violating the injunction.  It should not (and arguably cannot) rely on private entities to effect its orders.  While the reporter, as an agent of her station, could be disciplined by the station for screwing up, the only people/entity the judge could go after would be the station - assuming the station was a party to the gag/non-contact order in the first place.

    That's pretty much straight-up from the law of agency.  

    While I recognize there's a very strong interest in ensuring the press does not interfere with the progress (and more importantly the fairness) of a particular trial, shortstopping and corner-cutting on the rules of law which apply - like due process - here is sadly symptomatic of something going on everywhere in our society.  People do not understand (or are willing to ignore) the limits of their power (or of the power of those who would wield power against them), possibly in an attempt to get along.  But, once they compromise their power (or right) to ignore some functionary strutting about and wielding their office, they lose it in the future.

    If I were the judge, I'd be careful about crossing the station - the last enemy anyone wants is a media outlet.

    why didnt he just order the journalist (none / 0) (#4)
    by Jen M on Thu Oct 18, 2007 at 09:52:54 AM EST
    to write "I will not talk to jurors" 500 times

    she did get due process, (none / 0) (#5)
    by cpinva on Thu Oct 18, 2007 at 10:07:24 AM EST
    that's kind of how she got the sentence options in the first place. neither her employer, nor any other media outlet apparently chose to challenge the judge's order in the first place. whether or not they are now estopped from doing so, i have no idea, but i should think their failure to immediately do so will make future action more difficult.

    i guess the broader question here is, who's constitutional rights trump who's?: mr. jeff's right to a fair trial, vs the media's first amendment right to free speech? those rights aren't, and never have been, absolute.

    as an agent of the tv station, the reporter had an obligation to be aware of whatever legal constraints the tv station was operating under. granted, her supervisor should have advised her, but ignorance is no legal bar to sanctions.

    i believe the reporter, as an agent of the station, is just as culpable, and therefore subject to punishment, for failing to abide by the judge's ruling.

    the ruling was made public, thereby providing the required notice to all affected parties. i don't believe it had to be specifically delivered to every potentially affected individual in the jurisdiction. as a result, all affected parties were equally able to challenge the order. that they didn't is their problem, not the court's.

    truth be told, i'm not so sure that tv station wants to piss off a judge either. they have ample means, legally, of making someone's life difficult.

    i'm not a lawyer, and i don't play one on tv. however, i deal with the law of agency on a daily basis, so i do have at least a minimal knowledge of it. possibly minimal enough to be dangerous.

    Scribe as usual makes things seem far more (none / 0) (#6)
    by Deconstructionist on Thu Oct 18, 2007 at 11:44:21 AM EST
    convoluted than they are. The "law of agency" has no relevance whatsoever with regard to being a defense FOR THE REPORTER insofar as she violated the order personally. "Agency principles" would only come into lay in determing whether the EMPLOYER  was liable for the acts of its agent acting within the scip of her agency.

      Example: I whack scribe in the head with a wet noodle for silly pontificating. the fact that CPinva is my employer and instructed me to to do it as part of my duties to enforce coherence would not be a defense for me for my own actions.

    From other sources (none / 0) (#7)
    by Deconstructionist on Thu Oct 18, 2007 at 01:06:34 PM EST
     it appears the judge made a finding of contempt but agreed to stay executing the order contingent upon the reporter producing a report on "an important cause" but is not requiring that the report be aired on television or otherwise published. Apparently if the judge is satisfied with the report produced he will not enter an order  regarding the contempt finding.

      That lessens but does entirely eliminate the 1st Amendment issue. As I said above the exertion of control over content remains as it would in odering a letter of apology).

      The reporter is free to refuse to produce a report and then appeal if the judge enters the contempt order. also, if she produced and submits a report but the judge finds it insufficient and enters the contempt order she could appeal that as well.  I'd have a problem if the judge refused to stay judgment pending the appeal but I would not expect him to do so.  Obviously, the woman is no threat to society.

      Even the Salt lake Tribune article is not clear as to what if any evidence the reporter presented in defense against the charge of contempt beyong the general no actual knowledge/ lack of intent to violate the order.

      It's also not clear whether the judge discredited such evidence and found she did have actual knowledge or found that constructive notice was sufficient beause his decorum order was public record. (that's also an important question though not a 1st amendment one, but rather a due process one).