Our View- Victory for the First Amendment
“Congress shall make no law abridging the freedom of speech, or of the press”
— First Amendment, U.S. Constitution
Since its adoption more than 200 years ago, the First Amendment has proclaimed the press shall be free of government interference, a logical extension of the right to free speech. James Madison’s first draft read like this:
”The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
Despite Madison’s sentiments, freedom of the press has never been inviolable. The First Amendment is subject to interpretation by Congress, by the courts and by the very people it strives to protect. Violations are common.
With that as background, we turn to Nov. 29 when the Tribune’s rights were compromised by a court order that was a compromise itself.
El Dorado County Superior Court Judge Jerald Lasarow ordered the Tribune to print only black-and-white photos of two people charged with killing a 9-year-old girl. The Tribune challenged the ruling as unconstitutional, and Lasarow clarified his order Thursday to allow the Tribune to resume printing color photographs.
Lasarow was not acting in a vacuum, but rather in the high-pressure environment of a potential death penalty case. His initial ruling followed a defense motion to have James Csucsai and Lisa Platz attend pretrial hearings in regular clothes instead of orange jail jumpsuits. He denied that motion Nov. 29, but granted it on Thursday.
The reasoning is that having defendants appear in jail clothing can subconsciously influence jurors to presume the defendants are guilty.
“In most instances, parading the defendant before the jury in prison garb only serves to brand the defendant as someone less worthy of respect and credibility than others in the courtroom,” the California Supreme Court wrote in 1982, following a similar U.S. Supreme Court ruling in 1976.
Public Defender Richard Meyer, who represents Platz, wrote that, “In light of the small jury pool and extensive press coverage, published images of the defendant in ‘jail garb’ creates a risk of prejudice.” Csucsai’s attorney, David Eyster, joined in Meyer’s motion.
It’s an imaginative argument, and one that apparently carried weight with the judge, but it rests on a false premise. In a nutshell, the defense said the same rules applied to a jury also must be extended to a city of 25,000 people.
Lasarow’s Nov. 29 compromise was equally imaginative — and equally as wrong. He ordered the Tribune to only run pictures of Platz and Csucsai in black-and-white, concluding our readers wouldn’t be able to identify the clothing as jail garb if they couldn’t see its tell-tale orange hue or any “jail-type insignia.”
Lasarow’s first order was issued with no notice to the Tribune and no opportunity for a hearing. It was flawed on several fronts, most notably because it established a “prior restraint” on what the newspaper can and cannot publish. Such actions are patently unconstitutional and 10 minutes in a law library would have disclosed that fact.
In Thursday’s hearing, Lasarow said he never ordered the newspaper to refrain from publishing photos it already possessed. That’s revisionist history, in our view, since every attorney in the room had the same understanding that such publication was barred.
The second problem arose because media outlets — and their attorneys — perked up their ears as news of the black-and-white order spread. The judge’s attempt to limit pretrial publicity resulted instead in national publicity. The photos of Platz and Csucsai became newsworthy in themselves.
You can debate whether the public has a “right” to see Csucsai and Platz in their orange jail jumpsuits. You can question what responsibility the press has to ensure a fair trial. We would insist, however, that such responsibility rests with the Tribune and not with Judge Lasarow.
Besides, the whole argument misses the point. The real question, one that’s certain to be asked at trial, is whether jurors can be trusted to honor their oaths, listen only to the evidence presented and reach a fair verdict.
Judge Lasarow’s order presumed the citizens of South Lake Tahoe are not worthy of that trust and, even worse, that he could dictate what they see in the newspaper. It’s one thing to say that justice is blind, quite another to put blinders on those who seek justice.
Judge Lasarow has served this community well for 10 years. Nothing in this conflict leads us to believe he is a bad judge, only that he made a bad call. It’s unfortunate the dispute had to be settled in such a public manner, but that’s typical both in the courtroom and in the newsroom.
If there is an object lesson in this, it’s that the Tribune and its readers share the same right to witness court proceedings, talk about them and even write about them without undue interference. Our sincere hope is that in the future we won’t need to hire lawyers to assert those rights, because we have enjoyed good relations with law enforcement, attorneys and court officers for several years.
Having said that, we note that three new judges will be elected in March, along with the sheriff and district attorney. We would ask all the candidates, along with everyone who’s already part of the judicial process, to evaluate their commitment to First Amendment issues. We think they’re important, and we hope they will too.
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