Ed Andrieski © Pool Los Angeles Lakers star Kobe Bryant, center, stands before Judge Terry Ruckriegle in an Eagle County courtroom in May. Ruckriegle's recent orders that a transcript in the Bryant sexual assault case be destroyed by media outlets that received it by accident has touched off a First Amendment debate.

Media's motive in Bryant case dispute is making money, not defending rights

By Michael Tracey
July 10, 2004

You may have been following the latest twist in the Kobe Bryant case. In June, the presiding judge, Terry Ruckriegle, held a closed hearing to hear arguments by the defense attorneys about the alleged victim's sexual history. A transcript was made of the hearing. Then a court employee, who had intended to e-mail the transcript to the judge, accidentally ( accidentally?) sent it to various local and national media.

On June 24, the judge, believing that this was a serious challenge to the integrity of the case and potentially seriously prejudicial to both the rights of the accused and the accuser, ordered that anyone who had received a copy of the transcript destroy it. He added that anyone who revealed the contents would be held in contempt of court.

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The local news media were aghast that they could not use information which they were never intended to have in the first place. They are now are asking the Colorado Supreme Court to overrule the judge, led in this by Denver's premier media lawyer, the dapper Tom Kelley. Their argument is that Ruckriegle's order amounts to prior restraint on the press - censorship - thus violating the First Amendment.

Read any textbook on the First Amendment and you will inevitably find quoted these words from the English jurist, Sir William Blackstone, written in the late 1760s: "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."

It is true, as Kelley has been saying, that the Supreme Court has overwhelmingly supported no prior restraint.

I'm sure he will be citing in his argument, for example, the 1976 case of Nebraska Press Association v. Stuart, where the court famously upheld this principle. What he will probably forget to mention are these words of Chief Justice Warren Burger, who wrote the court's opinion: "The extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly . . . It is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct such effort to protect the rights of an accused to a fair trial by unbiased jurors."

Burger also said something which speaks to a sense one has that the media think that the First Amendment is the premier amendment. "The authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other."

The problem I have with this pleading by the media, including this paper, is that Kelley doesn't represent constitutionalists, he represents entrepreneurs. The stuff of their life and dreams are not the nostrums of democratic culture, they are of the bottom line, and sex scandals sell.

The point of unsealing the Bryant document is not about the public's right to know, and the media's right to publish whatever they wish. It is about satisfying the public's desperate need for salacious details about sex. And that need embodies a brute reality about the culture, that is in considerable part emotionally and sexually juvenile, obsessed with, but ultimately fearful of, its own sexuality.

You can absolutely guarantee that across this fair land there are literally millions of people who obsessively follow and document the minutest details of the Peterson trial, the Bryant saga and the Jackson fiasco, just as there were for O.J. and the Ramsey case. The only meaningful question is, why? What is it about such lives, which are manna from heaven for the media, that leads them to obsess at the spectacle of the pathetic and the wretched, the banal and the lewd?

Kelley, on behalf of his clients, garbs his claims in the language of First amendment rights, of freedom of speech. Nonsense. As they say in the hill country of Texas, you put lipstick on a pig and dress it in Armani but it's still a pig.

He represents a news industry which is no longer about the needs of a democratic culture, it is about pandering to base and impoverished taste, because that's where the gold can be dug.

What should be done?

Let's accept that there are moments when a principle is important enough that its defense should be undertaken even on an issue which is in any large sense of no real significance (whether Bryant is or is not a rapist is of no great public consequence).

The solution, if this must be pursued, is obvious: defend the principle, win the right to publish the deposition and then refuse to do so. That would be the mature thing to do, and would signal that while the news media believe in the First Amendment's guarantee of freedom of speech, they also believe in the Sixth Amendment's commitment to the rights of a fair trial.

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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