Maria J. Avila © News Demonstrators organized by Colorado INSIGHT carry placards and shout slogans at the Rocky Mountain News on Aug. 3 as they protest the media's coverage of the Kobe Bryant case.

Skewed priorities inform News editor's anguish over Bryant case transcripts

August 7, 2004

Gaston Bony was recently provisionally released from a six-month prison sentence in an Ivory Coast prison. He was publication director of the weekly newspaper, Le Venin. His "crime" was to accuse the mayor of Agboville of corruption. In prison his health deteriorated and he was repeatedly threatened with execution.

Abdulgha- ni Memetemin is a writer from the Xinjiang region of China. His crime was to translate news articles which the authorities didn't want translated and recruit journalists for the German-based East Turkistan Information Center. He has been sentenced to nine years in prison.

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Around the world there are hundreds of journalists facing similar repression as they fight for press freedom.

In Washington is the Freedom Forum's Journalists Memorial. It records the names of journalists who have died while covering the news. At of the beginning of this year there were 1,528 names inscribed. So far this year 44 journalists have died covering the news.

For Gaston Bony and Abdulghani Memetemin, for those 1,572 dead, press freedom was precious and worth dying for. Here it is different. The great fight for press freedom, to "protect" the First Amendment, has been played out in the desperate effort of several media organizations including those in Denver, to publish details of the sexual activities of Kobe Bryant's accuser, drawn from erroneously obtained court transcripts.

A modestly edited version of the transcripts was released by the judge in the case on Aug. 2. Because of the media's gritty determination we now know that the young lady was wearing purple panties on the night in question, that she was wearing yellow panties when she went for a rape test and that those panties may have had semen from someone who didn't play hoops for the Lakers. It has come to this: the fight for press freedom, the fight to make real the 45 words written by James Madison that constitute the First Amendment, is now a fight to protect, and thus, nurture, the deepening vulgarity of popular culture.

It was then with a certain dismay that I read News Editor and Publisher John Temple's column last Saturday. If ever there was an example of applying an issue of great principle to an issue which is utterly trivial in any sense the Framers of the Constitution would have understood, here it was.

In his column, Temple castigated the seven news organizations that had obtained the transcripts for not disobeying the judge's injunction that they not publish them. Asking the news organizations to put themselves above the law, Temple wrote that if the transcripts had come into his hands "I might have acted differently," i.e., he would have published. He adds: "I think it would have been better if at least one of the seven had published a story at the outset. Our job is to report newsworthy information as soon as we are able to do so accurately . . . And now, based on the excerpts that have been released, we know there was newsworthy material in the transcripts."

Purple, yellow or semen- stained panties are not - or at least in a more human and mature moral universe should not be - newsworthy. And then this: "We are best served as a nation by a robust press." I agree. I've spent many hours these past few days reading basic legal texts on the press and the First Amendment and yes, Madison and Hamilton would also agree. It's just that panties were not what they had in mind. What they had in mind was articulated brilliantly by Justice Louis Brandeis in a 1927 Supreme Court ruling: "Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. . . . They believed that freedom to speak as you will and speak as you think are means indispensable to the discovery and spread of political truth . . ."

When Judge Terry Ruckriegle released the transcripts he clearly did so with foreboding that the purposes of justice were not being served. He commented: "The effect of this release is to present narrowly limited, one-side \[sic] evidence and argument to the public prior to the selection of a jury and without reference to the totality of the evidence. This court has struggled for several weeks with the obvious and conflicting convergence of rights presented by this situation." In this he was echoing comments made by Chief Justice Warren Burger when the Supreme Court, in 1971, refused to prevent The New York Times publishing the Pentagon papers. Burger wrote: "In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government . . . Only those who view the First Amendment as an absolute in all circumstances - a view I respect but reject - can find such cases as these to be simple or easy."

In the Bryant case, the imperative of a free and unfettered press collided with other, equally powerful imperatives, the right to a judicial system that functions with integrity, and the rights of plaintiff and defendant to a fair trial.

As I write, the wire services are reporting that the young woman is seriously considering withdrawing from the case, in the belief that she cannot get a fair trial. I have no idea what happened in the hotel room.

What I do know is that what has happened here is an appalling travesty of what the Framers of the Constitution intended.

Michael Tracey is a professor at the University of Colorado at Boulder's School of Journalism and Mass Communication. He can be reached at mediacritic@RockyMountainNews.com.

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