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PEN USA’s First Amendment Action Committee is concerned with the series of trials throughout the United States in which the First Amendment has become a secondary consideration overpowered by other interests. 

Barbara Cochran, president of the Radio and Television News Directors Association and Foundation, cited a number of instances where this is true; usually high profile celebrity cases.  “The way to achieve a fair trial is not to shut out the media and the public, but to select as jurors intelligent, aware citizens who may have heard about the defendant before them, but who can separate that information from the evidence presented in court,” she said. 

PEN USA is concerned with the continuing trend, illustrated by many public events both in and outside of the courtroom.

* A judge in Biloxi, Mississippi declared a mistrial in a manslaughter case due to coverage of the case by the media; he blamed the media by saying, “Hopefully, some day somebody is going to explain to me the benefit of publishing an article before a jury is picked.” PEN USA, like many other First Amendment groups, believes that reporters were simply carrying out their duties and that this judge’s approach is entirely inconsistent with the goals and purposes of the First Amendment. (http://www.gulflive.com/opinion/mississippipress/index.ssf?/base/opinion/1088072142206050.xml)

* Media companies were ordered to return information they received accidentally in the Kobe Bryant case, under threat of being held in contempt of court.  PEN USA believes the judge has no authority over the media’s right to publish material legally obtained, accident or not.  It is the decision of the media organizations what to do with the information they were given, and the constitution supports that right. (http://www.firstamendmentcenter.org/Press/news.aspx?id=13639)

* The general public was allowed into a Brownsville, Texas administration meeting while press were denied. PEN USA believes this sort of selective banning is an affront to the freedom of the press, especially if reporters are barred from covering events that are open to the general public. (http://www.brownsvilleherald.com/ts_comments.php?id=59888_0_10_0_C)

* A newspaper intern was escorted from the arraignment of a prominent grocery chain manager accused of fraud. In response to the press not being allowed in the courtroom, Jim Harrington, director of the Texas Civil Rights project, said the First Amendment gives the news media the same access to courtrooms as the public, and the reporter had the right to stay. (http://www.firstamendmentcenter.org/news.aspx?id=13646)

The Reporters Committee for Freedom of the Press in its recent study entitled Secret Justice wrote, “Criminal proceedings are instituted in the name of “the people” for the benefit of the public. Civil proceedings are available for members of the public to obtain justice, either individually or on behalf of a “class” of persons similarly situated. The public, therefore, should be informed—well informed—about trials of public interest. The media, as the public’s representative, needs to be aware of threats to openness in court proceedings, and must be prepared to fight to insure continued access to trials.” PEN USA agrees. The lack of media access to public events is disturbing to PEN USA’s First Amendment Action Committee, due to the disregard it shows toward Freedom of the Press, but also due to the escalating frequency of such occurrences.

Over the next two years, The Reporters Committee for Freedom of the Press will continue the Secret Justice study, examining trends toward secrecy in the courtroom.  In addition to investigations into the growing trend of “secret juries,” the current report includes information on gag orders, alternative dispute resolution, and the limited access to terrorist proceedings; the various ways public and press access into the nation’s courtrooms is slowly being eroded.  A quote on the website states, “We will examine trends toward secrecy, what they are, how they limit information, and what can be done to challenge court secrecy.”

The report can be found here: http://www.rcfp.org/secretjustice/