Balancing Act Favors First Amendment

I spent a good chunk of last Friday observing a hearing in federal court. The issue? A conflict between the First Amendment and the fair trial rights of an accused terrorist.   Always an interesting balancing act. 

The case involved Chris Cornell, a young man from Cincinnati’s west side who was arrested on federal charges earlier this year for threatening to kill, among others, John Boehner. Cornell is being held in the Boone County, Kentucky jail pending his trial.  Cornell’s lawyers went to court in mid- January and got an order prohibiting the Boone County jail from allowing third parties to contact Cornell without the express permission of his lawyers. 

But Cornell’s lawyers also asked that Cornell have access to a phone. And in making that request, they agreed that Cornell could call who he wanted. And that’s where the trouble started. 

Last Wednesday night, during the WXIX news broadcast, Cornell called Channel 19 anchor Tricia Mackie. Through a series of efforts, and over the objection of Cornell’s lawyers, on Thursday morning, Mackie conducted a 60 minute phone interview with Cornell.

 Last Thursday night the interview was set to air, Cornell’s lawyers went to court seeking a contempt citation and an injunction preventing WXIX from broadcasting the interview. The court conducted the hearing on Friday morning. WXIX agreed not to broadcast the interview until after the hearing.

And that’s why I headed over. Cornell’s request that the court prohibit the broadcast was extraordinary. It’s called a prior restraint. And the First Amendment prohibits such an order absent truly extraordinary circumstances. Cornell’s lawyers argued that the violation of the court order was extraordinary enough to permit the prior restraint. 

With all due respect, I disagree. But the court didn’t have to get to that tricky issue.  Because the court concluded neither the Boone County Jail nor Channel 19 violated the order. Cornell initiated the contact, and while that may have upset his lawyers, it didn’t violate the court order.

But there was one other aspect to the proceedings which was a little ironic. The thinking underlying the proceeding was that publicizing the interview would make it impossible for Cornell to get a fair trial. But Cornell’s lawyers presented no evidence to support that assumption. And the irony is that just last week the United States Court of Appeals for the First Circuit rejected a motion by Dzhokhar Tsarnaev, the accused Boston Marathon bomber to move his trial out of Boston. 

Tsarnaev argued the pretrial publicity meant he couldn’t possibly get a fair trial in Boston.  In denying the motion, the appellate court rejected the notion that juries can’t put aside prejudice and publicity and do their jobs.  The opposite perspective is really cynical when you think about it.  It’s a view that shows no confidence in the attitude jurors bring to a proceeding — a genuine desire to do the right thing.  Litigants who argue the cynical view that jurors can’t be fair simply because of prejudicial publicity not only don’t understand the First Amendment, they don’t understand human nature.