The First Amendment on Trial

When the four-count guilty verdict against Martha Stewart was announced last Friday, courtroom coverage turned to what the news would mean for Stewart, her eponymous media empire and ongoing and upcoming trials of other high-profile executives charged with white-collar crimes. But among First Amendment advocates, it was not the verdict as much as the judge's actions during the proceedings that dominated conversations. They cite U.S. District Judge Miriam Goldman Cedarbaum's decision to allow jury selection to go on behind closed doors, a ruling protested by a number of news agencies and later overturned by a federal appeals court--though too late to make a difference in this trial. First Amendment experts were also bothered by Cedarbaum's initial upholding of the prosecutors' charge of securities fraud against Stewart for allegedly making false statements of innocence to protect the value of her company's stock. The judge dismissed the defense's claims that the charge violated Stewart's free-speech rights under the First Amendment, saying "such false, factual statements are not protected by the First Amendment." She later dismissed the charge, however, for lack of evidence. NEWSWEEK's Jennifer Barrett spoke with Ken Paulson, executive director of the First Amendment Center, about Stewart's trial and the effects it might have on First Amendment issues in the future. Excerpts:

Did you expect the First Amendment to become an issue in the Martha Stewart trial?

Ken Paulson: It's always amazing to me how cases that seem to have nothing to do with the First Amendment suddenly start popping up on free speech issues. This was a classic example. We saw two pivotal decisions by Judge Cedarbaum that have significant implications for the First Amendment.

In one decision, Judge Cedarbaum said she'd permit a closed-door jury selection process in part because the trial had so much media coverage and potential jurors could be intimidated. Was that a valid argument?

No, that's not a valid argument... The real test is to take a look at what happened after the jury was released. They headed for the talk shows. As it turned out, they didn't need protection, they needed press agents. The truth is that people who serve on the jury are proud of their service and eager to talk about it, and it's also important to hear what they have to say because they give us a window into the justice system that no one else has. The judge initially tried to shape a compromise that involved interviewing the jurors in private and then issuing a transcript. You don't get a good sense of a ballgame if you're just handed a scorecard and a transcript of the play-by-play. The American public deserves to know how justice is being carried out from the beginning to the end of the process.

You're saying that didn't happen in this trial.

Well, we missed the first inning. A federal court overturned her decision, which had no immediate impact on Martha Stewart or this case, but had a positive long-term effect on trials from this point on.

When the three-judge appeals panel ruled against Judge Cedarbaum, it said that that "to hold otherwise would render the First Amendment right of access meaningless." Would you agree?

I agree there was no justification for holding the jury selection in secret. The Supreme Court has been clear on the First Amendment rights for both the press and the public to attend the trials, and it left just a little wiggle room and Judge Cedarbaum wiggled.

What impact do you think the appeals court's decision will have on future trials--or current trials, like Scott Peterson's, in which jury selection is now going on?

There was language that was a little troubling. They explored the possibility of allowing the public to see the jury selection but keeping the jury members anonymous. Here's hoping that judges don't take that as a cue. The American public is not always convinced that justice is administered fairly and you reinforce that impression when you apply different rules for the famous no matter how positive your intent. Look at publicity surrounding Martha Stewart, Scott Peterson and Kobe Bryant. No amount of private jury selection is going to put the playing field back on an even keel. That will take a trial.

Last fall, Judge Cedarbaum brushed aside defense arguments that the initial charge of securities fraud violated Stewart's free-speech rights under the First Amendment. What do you think?

It's true that people can be prosecuted criminally sometimes for uttering falsehoods--that would be perjury, for example, or conspiracy to commit fraud. But it is a stretch to tell defendants that they are not allowed to tell the public that they are innocent. There is no question that the judge's decision earlier not only undercut the First Amendment, but it also undercut the Sixth Amendment right to a fair trial. In this country, we have a right to stand up for ourselves and to assert our innocence. They were trying to prosecute her for exercising her free-speech rights and, in the process, pick up another charge against her. The technical difference is that the prosecution was arguing that she was affecting the stock price and value by proclaiming her innocence to the public. But if you look at any public figure accused of a crime, there are implications for the businesses they run or the sports they play. Stewart was simply exercising her time honored right to free speech. Of course, in the end the judge said there wasn't enough evidence and she threw it out.

Had the charge stood and Stewart been found guilty of it, what effect could that have had on free speech rights?

I think that would have been appealed and the charge overturned on both First and Sixth Amendment rights. You can't have a system in which prosecutors can bring charges and then impose a gag order on the defendant.

What do you think of the judge's actions in this case?

A broader issue is that in so many high visibility celebrity cases, it is the single most important in the judge's career and they tend to get very careful. They take unusual steps to protect the jury, to limit the speech of attorneys, and, whenever possible and appropriate in their view, to limit the free flow of information to the press. But I think all of that misses the point. In the end, the administration of justice just depends upon a conscientious judge and an attentive jury.

What do you think will be long-term effects from the First Amendment issues raised in this case?

I'm sure judges will step more gingerly in deciding whether to close doors on jury selection. Judges in high profile cases hate bad press, but they particularly hate being scolded by appellate courts. I don't think the other charge has legs, but you can always be surprised. Most people saw it as a real aberration and were relieved to see her toss it out. It was much easier for her to get rid of it on a criminal basis. There's probably an upside for the First Amendment in the wake of this trial.