The Silha Center Bulletin

Winter/Spring 2019: Volume 24, No. 2

2019 Spring Forum Tackles Balancing Freedom of the Press and the Right to a Fair Trial

On April 30, 2019, the Silha Center for the Study of Media Ethics and Law and the Minnesota Pro Chapter of the Society of Professional Journalists (SPJ) hosted the 2019 Silha Center Spring Forum titled “Free Press — Fair Trial: The Ethics of Writing Wrongs.” More than 50 journalists, journalism students, and community members gathered in Murphy Hall on the East Bank of the University of Minnesota, Twin Cities campus to discuss how to balance First Amendment protections for freedom of the press and the Sixth Amendment, which provides that “the accused shall enjoy the right to a speedy and public trial,” often referred to as the right to a “fair trial.” The forum’s four panelists included KARE 11, Minneapolis’ NBC affiliate, political reporter John Croman, Minneapolis Star Tribune police reporter Libor Jany, Minneapolis-based defense attorney Paul Engh, and civil rights attorney Nekima Levy Armstrong, who previously served as president of NAACP Minneapolis.

SPJ Chapter President and Mankato Free Press editor Joe Spear began the forum by discussing the SPJ Code of Ethics, which states that “ethical journalism is truthful, compassionate, independent, and transparent.” He added, “We need ethical journalism and journalists who work each day with the profession’s highest standards in mind now more than ever.”

Silha Center Director and Silha Professor of Media Ethics and Law Jane Kirtley, who moderated the panel, noted that the balancing of freedom of the press and fair trials was an especially “timely topic” due to the then-ongoing trial of former Minneapolis Police Officer Mohamed Noor, a Somali-American, who was found guilty the day after the forum of third-degree murder and second-degree manslaughter for the 2017 shooting death of 40-year-old personal health coach Justine Damond.

On April 9, 2019, Hennepin County, Minn. Fourth Judicial District Court Judge Kathryn Quaintance had reversed an earlier ruling in which she had limited public and media access to key evidence in the trial, including photographs and police body-worn camera (BWC) footage connected to the case. Among the cases cited by Quaintance was Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980), in which the U.S. Supreme Court held that “the right to attend criminal trials is implicit in the guarantees of the First Amendment.” She also cited Nebraska Press Association v. Stuart, in which the Supreme Court held that restricting the media’s freedom to communicate with trial participants and to report what they say would constitute a prior restraint, “the most serious and least tolerable infringement on First Amendment rights.” 427 U.S. 539, 559 (1976). However, some limitations on the press remained, including holding the trial in a small courtroom with minimal seating for the press. (For more information on the Noor trial and Quaintance’s ruling, see “Media Coalition Wins Legal Victory to Access Body Camera Video in Trial of Former Minneapolis Police Officer” on page 1 of this issue of the Silha Bulletin.)

Kirtley said that the main issue the panel would focus on was how “media access to trials, as well as other information regarding crimes and criminal background, should balance the public’s interest in the right to know and the defendant’s right to a fair trial.” She added that it was “safe to say that this is an issue that is not going to go away.”

Levy Armstrong, the co-founder of Black Pearl, LLC, a “multi-faceted company that provides business consulting, talent management services, and media management services,” according to the company’s website, began the panel by explaining that she was frequently on the “front lines fighting for racial justice” where “issues surrounding fair and accurate media coverage has been one of the primary concerns that we have expressed on behalf on communities of color, particularly the African-American community.” Levy Armstrong discussed how she had previously been involved in “skirmishes with different media outlets” regarding the “portrayal of black men in particular as criminals,” among other concerns.

Levy Armstrong argued that the media should be more “culturally competent,” including in reporting on Noor, noting that police shootings usually involved white officers, not officers of color. She added, “We are tending to operate as though things are fair, that the justice system truly is blind and that these policies are neutral when we know that that is not the case. There is definitely going to be disparate impact on communities of color[.]”

Croman began by acknowledging that it was important for journalists to be more aware of problems with racial bias and that in more than one instance, journalists from outside the United States had been “surprised by how the [American media] covers crime,” including the practice of identifying suspects before they are convicted. Croman cited Larson v. Gannett Company, Inc., which arose on Nov. 29, 2012 in Cold Spring, Minn. after plaintiff Ryan Larson was named as the sole suspect in the shooting death of police officer Tom Decker. No. A17-1068, 2018 WL 2090538 (Minn. Ct. App. 2018). Law enforcement officials held a joint press conference about the shooting and issued a press release stating that “[w]ithin an hour” of the shooting, a SWAT team arrested Larson, who “was booked into the Stearns County Jail on murder charges.” Multiple news outlets, including KARE 11 and the St. Cloud Times, covered the shooting and subsequent investigation, focusing heavily on statements given during the press conference and information in the press release. However, in August 2013, Larson was officially cleared as a suspect, and summarily sued KARE 11 and the St. Cloud Times, alleging the coverage of his arrest was defamatory.

On May 7, 2018, the Minnesota Court of Appeals ruled that the fair report privilege extends to protect news reports that fairly and accurately summarize information relayed by a law enforcement agency at an official press conference or in an official press release. The case has been appealed, but as the Bulletin went to press, the Minnesota Supreme Court had not announced a ruling in the case. (For more information on the background of Larson and the Minnesota Court of Appeals ruling, see Minnesota Court of Appeals Says Fair Report Privilege Extends to Cover Law Enforcement Press Conferences and News Releases in “Minnesota and Federal Courts Grapple with Defamation Questions; Right-Wing Radio Host Faces Several Defamation Lawsuits” in the Summer 2018 issue of the Silha Bulletin.)

Croman explained that “journalists and police are pretty tight” and “develop relationships” because reporters get “a lot of news from law enforcement.” Croman asserted that the press “doesn’t always believe” the police, but that “until we have other information, we have to go with it. If somebody gives us reason to doubt what [the police are telling us] . . . then we will start asking the police.” Croman ultimately concluded that because of this close relationship, “fair media coverage [is] a tough one,” especially when balancing the public’s “need to know” versus potential problems such as “polluting the jury pool.” He contended that journalists therefore “have a responsibility” regarding balancing the First and Sixth Amendments.

In his opening remarks, Engh first cited Gentile v. State Bar of Nevada, in which the U.S. Supreme Court struck down Nevada’s limits on attorney speech, finding that Nevada Supreme Court Rule 177, which prohibited attorneys from making statements if he or she “knows or reasonably should know that it will have a substantial likelihood of materially prejudicing” the case, was unconstitutionally vague. 501 U.S. 1030 (1991). However, a 5-4 majority of the Court held that the “speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press,” meaning that although Nevada’s rule was unconstitutionally vague, states could impose a “likelihood of material prejudice” test under the First Amendment.

Engh also discussed Sheppard v. Maxwell, in which the Supreme Court ruled that pretrial publicity and coverage in newsrooms can violate defendants’ Sixth Amendment rights to a fair trial. 384 U.S. 333 (1966). The Court held that the judge in a case has the power and responsibility to ensure a fair trial, meaning he or she could restrict press activity, change the venue, and issue gag orders, among other options.

Engh then turned to his own experiences as the defense attorney for former Falcon Heights, Minn. police officer Jeronimo Yanez, who was ultimately found not guilty of shooting and killing 32-year-old African American Philando Castile during a traffic stop in 2016. The shooting, as well as the subsequent trial and not-guilty verdict, received significant media attention. Engh said during the forum that he “encouraged access to [the trial for] the media” and that “everyone with a press pass” could get into the courtroom. He therefore criticized the decision in the Noor trial to limit the seating for the press and public.

Engh argued that he viewed the Sixth Amendment “as a reason to invite the press” into courtrooms because it allows for not only a “public trial,” but also public oversight of the proceedings, a means of ensuring that defendants get a fair trial. “The public should look at these trials,” he said. “And they should watch them carefully. As many people that want to see it should see it.” However, Engh acknowledged that it is possible press coverage can create issues of bias or create unfair depictions of defendants, two arguments often raised in preventing media access to trials.

Finally, Jany addressed some of the concerns raised by Levy Armstrong, contending that although he worked with “immensely talented reporters and videographers and camera people,” journalists “do need to be called out from time to time about our coverage and the way that we frame certain stories,” including related to race and crime where “we all have racial blind spots.” Jany contended that in order for the media to overcome these problems, reporters need to “steer clear of establishment experts” and only focusing on the “official narrative.” However, he asserted that most reporters “do try to, with time permitting, have conversations about . . . how to frame certain issues [and] which experts and sources to reach out to. We are not just sitting there and gleefully digging up people’s criminal histories just so we can fill the newspaper.”

Croman later added that he felt the best way for newsrooms to “counteract” racial bias is to “hire people who represent . . . the racial makeup of the audience.” He continued, “As you bring in more people of color . . . you are going to end up just naturally having more people say ‘Hey, wait a minute.’”

Kirtley then asked the panel whether they supported allowing cameras in courtrooms. According to Kirtley, Minnesota was among the most restrictive states regarding allowing audio and video recording in courts, despite a July 2, 2018 order by the Minnesota Supreme Court allowing audio and video recording in most criminal proceedings “after a guilty plea has been accepted or a guilty verdict has been returned.” (For more information on the Minnesota Supreme Court’s 2018 order, see “Minnesota Supreme Court Allows Audio and Video Recordings in Some Portions of Criminal Cases” in the Summer 2018 issue of the Silha Bulletin. For more information about the evolution of cameras in Minnesota courtrooms, see “Court Access: Federal Law Would Allow Cameras in U.S. Courts,” in the Fall 2007 issue of the Silha Bulletin, “Minnesota Supreme Court Holds Hearing on Cameras in Courts: Minnesota Supreme Court Holds Hearing on Cameras in Courts in the Summer 2008 issue; “Minnesota Advisory Committee Resists Cameras in Courts” in the Winter 2008 issue, “Minnesota High Court Approves Cameras in-Court Pilot Program” in the Winter 2009 issue, “Federal and State Courts Consider Proposals to Permit Cameras in Trial Proceedings” in the Fall 2010 issue, “Battles to Gain Camera/Audio Access to State and Federal Courtrooms Continue” in the Fall 2011 issue, “Minnesota Senate Expands Floor Access; State Supreme Court Approves Cameras” in the Winter/Spring 2011 issue, “Silha Spring Ethics Forum Focuses on Cameras in the Courtroom, Status of Minnesota Pilot Project” in the Spring 2012 issue, “Minnesota Supreme Court Approves Use of Cameras in Civil Cases, Considers Expansion to Criminal Cases” in the Fall 2013 issue, and Minnesota Supreme Court Eases Restrictions on Courtroom Cameras in Criminal Cases in “Updates to State Laws Create Challenges, New Benefits for News Organizations” in the Summer 2015 issue.)

Levy Armstrong responded that she supported cameras in the courts because it is “important for the public to see what’s happening in courtrooms.” However, she also emphasized the importance of addressing underlying societal issues related to race and bias before the trial even takes place.

Levy Armstrong provided the example of “Pointergate,” which began on Nov. 6, 2014 when KSTP-TV, the ABC affiliate in Minneapolis, aired a report that showed a picture of then-Minneapolis Mayor Betsy Hodges with an African-American man, whose face was blurred, smiling and pointing at each other, a gesture KSTP reporter Jay Kolls described as “a known gang sign.” Kolls did not identify the man in the picture by name, but described him as a “twice-convicted felon for drug selling and possession and illegal possession of a firearm.” Critics of the KSTP report argued that Hodges and Navell Gordon, the man in the photo, were simply pointing at each other, and accused KSTP of taking the picture out of context. (In December 2014, the Silha Center for the Study of Media Ethics and Law co-sponsored a forum that discussed the ethics behind the KSTP news story regarding “Pointergate.” For more information on the event and “Pointergate,” see “Silha Center Co-Sponsors Forum on Ethics of ‘Pointergate’ Broadcast” in the Fall 2014 issue of the Silha Bulletin.)

Croman also supported allowing cameras in Minnesota courtrooms, emphasizing that several other states provided greater access. He said, “If you have a camera in the courtroom . . . you can describe [what is happening],” including the “expressions on the faces of those testifying.” However, he noted that KARE 11’s policy was not to show jurors and only rarely show audience members.

Conversely, Engh stated that he had “mixed feelings.” He explained that his concern was that “defendants are subjected to a generalized ‘trashing’ in our society before they are convicted.” He continued, “I’ve had a lot of clients who’ve been acquitted who can never quite get over the adverse publicity and pictures in the paper. Their reputations are absolutely ruined in the Google era. I think the danger of having a visualization of the courtroom can contribute to the ‘trashing’ of those innocent people.”

The remainder of the forum including a Q&A session with the audience, during which one Hubbard School of Journalism and Mass Communication student asked the panel for their thoughts on the negative criticism directed at news outlets regarding their coverage of police-involved shootings. Jany argued that such criticism “tends to hone in or focus on a handful of stories and it doesn’t take into consideration the overall coverage.” He explained that journalists continue to write about the shooting “for weeks after the [incident],” as reporters and news organizations seek out new information and provide more in-depth reporting in order to get a “fuller picture.”

Levy Armstrong emphasized the importance of the media, protestors, and the public in holding police accountable. “I think we need to understand that we are dealing with public servants who we pay to protect and to serve and to follow the law,” she said. “When you have that much unchecked power that is given to one entity, it is a recipe for disaster if you are not ensuring accountability.”

A link to a video of the forum is available on the Silha Center website at silha.umn.edu. Silha Center activities, including the annual lecture, are made possible by a generous endowment from the late Otto and Helen Silha.

Scott Memmel

Silha Bulletin Editor