Potential Supreme Court Nominee Ruled Twice on Media


If, as rumored, President George W. Bush announces that he is nominating Judge Edith Brown Clement to the U.S. Supreme Court, much of the focus will soon fall on her possible views on abortion, civil rights, and alleged political leanings. But she also has at least two major press rights rulings to consider.

In late-April 2001, a three-judge panel of the 5th U.S. Circuit Court of Appeals rejected arguments by two Louisiana newspapers, a wire service, and a television station in a case decided by U.S. District Judge Clement. Four years earlier, Clement rejected a motion by media groups to intervene in a sexual harassment lawsuit against a former superintendent and school board, but granted the media access to transcripts of secret settlement proceedings and unsealed the court record.

The 2001 case

The 5th Circuit rejected the news media’s arguments that Clement should have released jurors’ names and pretrial questionnaires after a celebrated trial. “The judge’s power to prevent harassment and protect juror privacy does not cease when the case ends,” the appeals panel said.

It also rejected arguments that the combined anonymous jury and gag orders violated the constitutional right to open trials. But it found that Clement was wrong to tell reporters not to “circumvent” her order keeping the names secret.

“I think the court did vindicate our position that prior restraint on the media’s lawful newsgathering activities is not going to be permitted. And that’s good,” said attorney James. R. Swanson.

The Associated Press, New Orleans Times-Picayune, The (Baton Rouge) Advocate, WDSU-TV and the Louisiana Press Association challenged the judge’s orders after the trial ended.

The jury convicted Louisiana’s insurance commissioner, Jim Brown. He was sentenced to six months in prison and a $50,000 fine for lying to an FBI agent about the liquidation of a failed insurance company.

The case stemmed from an earlier investigation of former Gov. Edwin Edwards’ dealings with riverboat casino operations. Edwards was convicted of racketeering in the gambling case but was acquitted in the insurance matter.

The appeals panel’s ruling dealt with the news media’s appeal only, not other appeals by Brown and Edwards.

An AP story about the ruling related:

“‘The court went to extraordinary lengths to preserve the integrity of the jury system and conduct a fair trial in the face of relentless publicity, some of it generated by the parties themselves,’ said the opinion written by Judge Edith H. Jones and released May 1.
For the most part, Clement was within her bounds, Jones wrote for the three-judge panel that included E. Grady Jolly and Jerry E. Smith.

“The panel rejected arguments that Clement should have given a legal explanation for her order.

“‘It rests on an earlier promise of anonymity, which itself was grounded in well-documented threats by the media and the defendants to jurors’ privacy and independence,’ Jones wrote. ‘The drumbeat of publicity surrounding the Edwards prosecutions continues to this day. Requiring the court to recite such details and repeat obvious facts would be a meaningless exercise.’

“Clement also told jurors that any who wanted to talk to reporters could do so, and asked them, one by one, if they wanted their names made public. None did.

“‘The measures used by the district court, while at the outer limit of permissible restrictions, were narrowly tailored to prevent real threats to the administration of justice, not just in this case but in the subsequent related prosecutions,'” Jones wrote. ‘If jurors voluntarily waive their anonymity and consent to interviews on matters other than jury deliberations, so be it. They need not become unwilling pawns in the frenzied media battle over these cases.’

“Attorneys for the news media argued that Clement’s order against circumvention of or interference with the anonymous jury would keep reporters from using any information that they got independently, outside the court.

“If Clement meant only that reporters could neither reveal jurors’ identities nor get confidential court records, the order would stand, Jones wrote.

“‘It could be tricky to determine how much information revealed in an independently gathered news article might compromise juror anonymity,’ she wrote. ‘Nevertheless, a violation of the orders would subject the press to sanctions. The orders thus plausibly constituted a prior restraint because it gagged the press from reporting some kinds of independently gathered stories pertinent to the trial.'”

The 1997 case

Clement rejected a motion by media groups to intervene in a sexual harassment lawsuit against a former superintendent and school board in Covington, but granted the media access to transcripts of secret settlement proceedings and unsealed the court record.

She let stand an order prohibiting the disclosure of the sexual and medical histories of parties and nonparties, through documents, statements or transcripts. She rejected the media’s contention that the order was a prior restraint on speech, holding that it was “narrowly tailored” and applied to the litigants and not to the media.

Clement also noted that the media would be prejudiced because it would be unable to report on and publish the terms of the settlement, and that the settlement was a topic of public interest because it concerned the conduct of public officials and the disbursement of public funds.

The (New Orleans) Times-Picayune and the Louisiana Press Association moved in February 1997 to intervene in the civil lawsuit in order to challenge the confidentiality orders and to seek access to a transcript of the settlement proceedings. The media argued that the orders violated their First Amendment right to receive information.

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