'Open' courts - as much a public protection as a media right
''Hooray! The press won one,'' called out a reporter, half in jest, on a snowy Tuesday recently at the press room of the Supreme Court in Washington. Copies of a high-court decision were being handed out. The ruling from the bench affirmed the right of the media and the public to observe the jury-selection process in United States courts.Skip to next paragraph
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In what is viewed as a strong affirmation of rights guaranteed in the First Amendment, the court said that judges may close off their courtrooms only on ''rare'' occasions when ''closure is essential to preserve higher values'' and there are no less drastic alternatives to obscuring the voir dire (jury selection) process from open view. A decision the other way in this case (the Press Enterprise Corporation v. the Superior Court of the State of California for the County of Riverside) would have left the media's court-coverage rights in a muddle.
Some questions still need to be clarified, however:
* Was this a victory for the press or for the public?
* What about the right of privacy? Does this decision mean that a prospective juror will have to answer sensitive personal questions under the media spotlight?
* How can responsible reporting of courtroom proceedings and other legal matters be assured?
First, there shouldn't be any such thing as a press victory. Media access to the courts amounts to public access. The press is a kind of ombudsman to the public - reporting, explaining, interpreting what is going on.
Second, judges - even in the wake of the recent decision - will still need to make wise decisions about whether, in particular instances, a juror's privacy outweighs the benefits of open proceedings.
Third, there is unquestionably a delicate balance between privacy and the public's right to know. And this issue can only be resolved through the cooperative efforts of the judiciary and the media. Both are committed to a common end: that justice be served and the public protected - the courts by providing fair trials, the press, in providing the public scrutiny that helps protect the integrity of the judicial system.
In writing the opinion for a unanimous court in the Press Enterprise case, Chief Justice Warren Burger held that ''openness . . . enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.''
But the chief justice also spoke about protecting ''legitimate privacy.'' He suggested that prospective jurors who believe that public questioning could be personally damaging or embarrassing may request the chance to talk privately to a judge - but with counsel present and on the record. It would then be determined when, or whether, to release the transcript of this confidential proceeding to the press.
Legal reporting often tends to make adversaries of the media and the judiciary. Closing of courtrooms, withholding of transcripts, gag orders, and judges' writs for disclosure of reporters' sources have led to a stream of litigation. Yet the press and the courts need not be enemies. Both subscribe to the same constitutional freedoms. And in many ways, they provide healthy checks on each other. In addressing the question of responsible legal reporting - something some judges and lawyers feel is lacking - more good faith is needed on all sides.
There are instances in which reporters and editors could better inform themselves about the law and the workings of the court system. Too often, reporters are plucked at random to cover trials - sometimes those dealing with highly complex issues. Some large newspapers and networks do have trained lawyers, or at least people with experience in legal issues, covering key stories. But this is still a rarity among the media in general.
On the other hand, the legal and judicial fraternity can do more to provide the media with the background they need to relay accurate information about crucial issues. Judges, of course, are forbidden from talking about cases they are deciding. But they can discuss the process and explain legal and constitutional questions that arise. The press could avoid some of its conflict with the judiciary by using more restraint and good taste in sensitive situations, such as those involving sex crimes, than has been shown in the past. Increasingly, the media will be called on to weigh the right to know against questions of privacy and personal protection. The choice of restraint in some situations should not be viewed as self-censorship - particularly if it is motivated by ethical and compassionate judgment.
It is possible for conflict to be resolved before it comes down to a judicial edict to reveal a source or go to jail - or a media demand to open files or hearings or be taken to court. Both press and bar need to realize that mutual respect for the law, sensitivity to the needs of the public, and common decency can go a long way in preserving a system they both claim to champion.