Secret Justice:

Judicial Speech

Judges are often hesitant to talk to

reporters. Some, like Supreme

Court Justice Antonin Scalia,

simply have strict policies

concerning media coverage,

while the story of federal

judge Thomas Penfield

Jackson’s comments on

Bill Gates and the

Microsoft case serves as a

cautionary tale. But after

gaining an awareness of

the limits placed on judges’

speech, reporters should feel

comfortable seeking insight from

those who are most able to shed

light on the judicial system.

Spring 2004

The Reporters CommitteeFor Freedom of the Press

Spring 2004

The Reporters CommitteeFor Freedom of the Press

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2004PAGE 2

The American judicial system has,historically, been open to the public, andthe U.S. Supreme Court has continuallyaffirmed the presumption of openness.However, as technology expands and asthe perceived threat of violence grows,individual courts attempt to keep controlover proceedings by limiting the flow ofinformation. Courts are reluctant to al-low media access to certain cases or tocertain proceedings, like jury selection.

Courts routinely impose gag ordersto limit public discussion about pendingcases, presuming that there is no betterway to ensure a fair trial. Many judgesfear that having cameras in courtroomswill somehow interfere with the deco-rum and solemnity of judicial proceed-ings. Such steps, purportedly taken toensure fairness, may actually harm theintegrity of a trial because court secrecyand limits on information are contrary tothe fundamental constitutional guaran-tee of a public trial.

The public should be the beneficiaryof the judicial system. Criminal proceed-ings are instituted in the name of “thepeople” for the benefit of the public.Civil proceedings are available for mem-bers of the public to obtain justice, eitherindividually or on behalf of a “class” ofpersons similarly situated. The public,therefore, should be informed —well informed — about trials of publicinterest. The media, as the public’s rep-resentative, need to be aware of threatsto openness in court proceedings, andmust be prepared to fight to insure con-tinued access to trials.

In this series, the Reporters Commit-tee takes a look at key aspects of courtsecrecy and how they affect the news-gathering process. We examine trendstoward court secrecy, and what can bedone to challenge it.

The first article in this “Secret Jus-tice” series, published in Fall 2000,concerned the growing trend of anon-ymous juries. The second installment,published in Spring 2001, covered gagorders on participants in trials. Thethird, published in Fall 2001, coveredaccess to alternative dispute resolutionprocedures. The fourth, published inWinter 2002, covered access to terror-ism proceedings. The fifth, publishedin Summer 2003, concerned sealedcourt dockets.

This report was researched and written byJames McLaughlin, who is the 2003-2004McCormick-Tribune Legal Fellow at theReporters Committee.

From O.J. Simpson to MarthaStewart, courtroom dramashave emerged as a staple of

modern news coverage. And with afresh wave of high-profile trials dom-inating the headlines in 2004 —Michael Jackson, Kobe Bryant andScott Peterson, to name a few — thetrend is unlikely to die anytime soon.

While lawyers, litigants, analystsand even witnesses provide a runningcommentary in the news media, thevoice of the most authoritative par-ticipant — the judge — is usuallysilent, except for written opinionsand the occasional ruling from thebench. Many judges simply choose toavoid talking to the press.

But is that the way it has to be?Not necessarily, according to some

judges and reporters. Robert Pirraglia,a judge in Providence, R.I., for 20years, argues that a more candid judi-ciary could improve news coverage andultimately benefit the public.

“There needs to be more contactbetween judges and reporters, moreexchange of information,” says Pir-raglia, who is retiring from the RhodeIsland District Court this spring.“The ground rules have to be clear,but if there’s no communication, thechasm between the media and thejudiciary will continue.”

More judges are coming aroundto that point of view, says Gary Heng-stler, director of the Donald W. Rey-nolds National Center for Courts andthe Media, located in Reno, Nev.“The old rule of flatly refusing to talkto the press is breaking down.”

Others suggest that judges who talkto reporters do more harm than good.

Says Ron Rotunda, a law professorat George Mason University who haswritten about ethical restrictions onjudges’ speech, “I don’t see why judgesever have to talk privately with re-porters when they are free to addressany topic they want in their opinions.”

Judge-SpeakThe working relationship between judgesand the news media By James McLaughlin

AP

PH

OT

O, D

AV

ID L

ON

GS

TR

EA

TH

Secret Justice:A continuing series

Federal Judge Richard Matsch,who presided over the OklahomaCity bombing trial, was swarmedby reporters at an airport.

Federal Judge Richard Matsch,who presided over the OklahomaCity bombing trial, was swarmedby reporters at an airport.

SPRING 2004 SECRET JUSTICE: JUDICIAL SPEECH PAGE 3

A Tradition of SilenceFor the most part, judges and journalists have kept their

distance from each other, a separation embodied in the cultureand symbolism of the courts themselves.

Dick Carelli, a spokesperson for the Administrative Of-fice of U.S. Courts, frequently participates in seminars androundtable discussions about the news media’s coverage ofthe courts. At one such event, he says, a reporter pointed outthat “the physical architecture of the courtroom, the factthat the judge is sitting on high, the black robes — it allreinforces the divide between the judge and everyone else,”says Carelli, who covered the Supreme Court for TheAssociated Press for 24 years.

“It can be daunting” for a reporter to approach a judge,Carelli says.

That reticence works both ways. Hiller Zobel, a retiredMassachusetts Superior Court judge who presided over theinfamous 1997 trial of British nanny Louise Woodward, saysthat some judges view talking to reporters as asking for trouble.

“The attitude of some judges is like that of [former OhioState football] coach Woody Hayes, who said about theforward pass that three things can happen, and two of themare bad,” Zobel says.

It doesn’t help that when judges do grant interviews, theyhave frequently been second-guessed or embarrassed. Inperhaps the worst-case scenario, U.S. District Court JudgeThomas Penfield Jackson was removed from the biggestcase of his career — the government’s antitrust suit againstMicrosoft — for comments he made to journalists.

In a series of “embargoed” interviews with reporters for TheNew York Times, The Wall Street Journal and others, Jacksoncandidly revealed his impressions of what was happening in hiscourtroom, while proceedings were still pending. Amongother things, he called Bill Gates a “smart-mouthed kid,”compared imposing a judicial remedy to smacking a mule with

a two-by-four, and likened Microsoft executives to a gang ofdrug dealers. (See sidebar on page 4)

Although the U.S. Court of Appeals in Washington,D.C., stopped short of finding that Jackson was actuallybiased against Microsoft, it found that he had to be removedbecause his comments “created an appearance that he wasnot acting impartially.”

The Lessons of MicrosoftTo some, the Microsoft debacle teaches a simple lesson:

Judges shouldn’t talk to reporters. Period.That hard-line view is embraced by David Sentelle, one of

the nation’s most prominent conservative jurists. Sentelle sitson the D.C. Circuit, the court that disqualified Jackson. A fewmonths after joining the opinion removing Jackson, Sentellewrote in The Federal Lawyer, “No judge in the United Statesshould ever submit to an interview with the media about anongoing adjudication, or even a recent one.”

Rotunda, the George Mason law professor, agrees. “Theworst thing judges can do is talk off-the-record,” he says. “Thenext worst is to talk for attribution, but not in open court.

“If a judge wants to explain something, he can say it in court,and reporters can write it down,” Rotunda says.

The ethical rules that apply to state and federal judges allowfor some room for public commentary about pending cases,but not a lot. The American Bar Association’s Model Code ofJudicial Conduct, adopted in Washington, D.C., and everystate but Montana, instructs judges to refrain from “any publiccomment that might reasonably be expected to interferesubstantially with a fair trial or hearing” while a case is“pending or impending.” Montana’s Canon of Judicial Ethicscontains a similar rule.

Likewise, federal judges are supposed to avoid comment on“the merits of any pending or impending action,” according toCanon 3A(6) of the Code of Conduct for United States Judges.

Justice Antonin Scalia forbidsbroadcast reporters from taping hisspeeches, a policy that hasinfuriated the news media.

AP

PH

OT

O, G

EO

RG

E B

RID

GE

S

A federal marshal made headlinesthis spring when she seized and erasedthe audio recorders of two reporterscovering a speech by Justice AntoninScalia at a high school in Hatties-burg, Miss. She told both journaliststhat the seizure was in accordance toScalia’s policy against the recordingof his speeches.

The April 7 incident drew imme-diate criticism from the news media,and ultimately resulted in a rare apol-ogy from the justice.

It also highlighted the questionof the news media’s access, or lackthereof, to the justices of the Su-preme Court of the United States— who, despite their extraordinaryinfluence, are fairly unknown to the

public at large.As Nat Hentoff observed in an

April 16 column in The Village Voice,a 1990 poll found that 59 percent ofAmericans could not name one Su-preme Court justice. There is noth-ing to suggest that the percentage haschanged much over the years. Su-preme Court proceedings have neverbeen videotaped, and justices tend tokeep a low profile.

“The justices tend not to do inter-views, period,” says Supreme Courtspokesperson Kathy Arberg. “Thereare very rare exceptions, such as whena justice gives an interview relating toa book” that the justice wrote.

Hidden High CourtHow media-friendly are Supreme Court justices?

Continued on page 6

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2004PAGE 4

The official commentary to the federal rule makes clear thatthe prohibition applies to all proceedings in any court,federal or state.

The rules don’t foreclose all extrajudicial commentary,however. The Model Code specifically allows judges toexplain “for public information the procedures of the court.”As Pirraglia puts it, “Judges can provide a ‘scorecard’ ofwhat’s coming up.”

Judges are also free to speak generally about the law inscholarly articles or speeches, and to conduct informationalbriefings for journalists covering a case, provided they don’tcross the line and disclose their views on the merits.

Hengstler, of the National Center for Courts and theMedia, cites the Mike Tyson rape trial as a case in which ajudge made herself available to reporters without gettinginto trouble. Judge Patricia Gifford of Marion CountySuperior Court in Indianapolis, Ind., met daily with report-ers in informal question-and-answer sessions to help themwith procedural and technical points.

A judge is also free to comment on a case after it is over— but, as the Microsoft case illustrates, the judge better besure that the case is gone for good. Even though Jackson’scomments were embargoed until after he ruled, the com-plex case was still very much alive on appeal, and it wouldhave returned to his courtroom on remand from the appealscourt if he had not been disqualified.

The counter-example is Robert Alsdorf, a judge on theKing County Superior Court in Seattle, Wash. Alsdorf iswidely praised for having given a thoughtful televisioninterview to explain his controversial decision to invalidatea state ballot initiative on car taxes. Notably, he did notmake his comments until after the dispute was resolved.

The content of the statement also matters, of course.Alsdorf’s measured remarks “enhanced public respect forthe judiciary,” Hengstler says. By contrast, Jackson’s per-sonal attacks on Bill Gates undermined the appearance ofimpartiality, the appeals court found.

Costs and BenefitsCritics of judges who speak to the media contend that

there is little value in giving private interviews, even if it istechnically permitted by the rules.

“Yes, a judge is allowed to talk to reporters about courtprocess, procedure and so forth” Rotunda says. “Butthere’s a slippery slope problem. The easiest way for ajudge to explain what’s going on is to say it on the recordand in open court.”

In Rotunda’s view, “the problem is when judges talk tothe press because they want to become popular. The reasonwe give [federal judges] lifetime tenure and salary protec-tion is so they don’t feel the need to be popular.”

Pirraglia, the Rhode Island judge, concedes that judgesshould tread carefully. “What a judge says about a case can— not necessarily will, but can — influence a reader morethan what others might say,” he says. “Because the speakeris a judge, his words may carry more weight or authority.”

But Pirraglia, and others, argue that there are substantialbenefits that can come from a better line of communicationbetween judges and journalists. Access to the judge cangreatly enhance the quality and accuracy of a reporter’sstory, for instance.

There are other means for journalists to get the storywhen they cover a court proceeding, of course. Reporters

When legal pundits contend that judges shouldrefuse to talk to reporters, they frequently cite U.S.

District Judge Thomas Penfield Jackson as Exhibit A.In June 2001, Jackson — a 1982 Reagan appointee to

the federal bench in Washington, D.C. — was disqual-ified from the government’s antitrust suit against Mi-crosoft Corp. for secretly discussing the case withreporters during the trial.

A closer look at the record, however, suggests that itwas the content of Jackson’s remarks that got him introuble, not the mere fact that he spoke to the press.

While the case waspending, Jackson grant-ed lengthy interviews toThe New York Times, TheWall Street Journal, TheNew Yorker and even TheDartmouth Online. (Jack-son is a 1958 graduate.)Jackson “embargoed” hiscomments by agreementwith reporters, delayingpublication until after hehad ruled. But when hiscolorful quotes did ap-pear — while the casewas on appeal — they hadan explosive impact.

On his decision to splitMicrosoft in two, Jacksontold two New York Timesreporters:

“A man had a trainedmule who could do all kinds of wonderful tricks. One daysomebody asked him: ‘How do you do it? How do you train themule to do all these amazing things?’

‘Well,’ he answered, ‘I’ll show you.’ He took a 2-x-4 andwhopped him upside the head. The mule was reeling and fellto his knees, and the trainer said, ‘You just have to get hisattention.’ . . . I hope I’ve got Microsoft’s attention.”

On Microsoft founder Bill Gates, he told KenAuletta of The New Yorker:

“He’s a smart-mouthed young kid who has extraordinaryability and needs a little discipline. I’ve often said to colleaguesthat Gates would be better off if he had finished Harvard.”

Jackson even compared Gates to Napoleon, tellingAuletta:

“If I were able to propose a remedy of my devising, I’drequire Gates to write a book report [on Napoleon Bonaparte],because I think he has a Napoleonic concept of himself and his

Speaking out of SchoolJudge Thomas Penfield Jackson spokefreely to reporters during the Microsoftantitrust trial, and paid a big price

AP

PH

OT

O,

RIC

FE

LD

Judge Jackson wasn’t shyabout expressing his ill feelingstoward Microsoft and Gates.

SPRING 2004 SECRET JUSTICE: JUDICIAL SPEECH PAGE 5

can attend the proceedings, speak to the attorneys, and getthe reaction of legal experts who aren’t involved in the case.In addition, courts themselves are becoming more media-friendly. Pleadings and opinions are increasingly availableon the Internet, saving reporters a separate trip to thecourthouse every time they need a document. Most courtsalso have press offices with spokespersons and other admin-istrative staff to respond to media inquiries.

Still, access to the judge is irreplaceable. For obviousreasons, judges are far more knowledgeable about what isgoing on in their courtrooms than an administrative stafferis. Their insight and perspective can help ensure accuracy inthe news media’s reporting.

“Reporters, at least the best of them, are taking thelanguage of legal mumbo-jumbo and trying to convert itinto plain English,” says Carelli, the federal court spokes-man and former AP correspondent. “That can be a difficulttask. And judges are starting to recognize that they share theresponsibility to facilitate better, more accurate reportingon legal matters.”

Toward that end, small groups of judges and reportershave been gathering in a series of seminars co-sponsored bythe Committee on the Judicial Branch of the Judicial Con-ference of the United States and the Freedom Forum’s FirstAmendment Center. The objective of the informal, off-the-record meetings is to discuss ways of improving the media’scoverage of the courts.

“We lock a small number of judges and an equal numberof reporters up in a room for a few hours and see whathappens,” Carelli jokes. To date, six such seminars havebeen held, with the first taking place in 1999.

Some judges have even tried their hand at writing a mocknews story about a case, to experience the challenge oftranslating legalese into accurate but readable copy, he says.

Productive communication with the news media also canprotect the independence of the judiciary, Pirraglia be-lieves. “The media need the courts to protect the FirstAmendment, and judges need the media to inform thepublic about what goes on in the courts,” he says. “To acertain extent, we need each other to protect our respectiverights and obligations.”

Carelli agrees. “The independence of the judiciary is tiedvery closely to public perception — whether people believethey can get a square deal [in the courts],” he says. “Journal-ists are surrogates for the public.”

Improving Access, One Step at a TimeThe media and the judiciary are vastly different institu-

tions with distinct and sometimes adversarial roles, as wellas ethical restrictions that prevent judges from speakingfreely. Thus, it is doubtful that reporters will ever have thesame access to judges as they do to politicians, celebritiesand other newsmakers.

Nevertheless, there are steps a reporter can take toopen a line of communication with a judge. Carelli, whocovered the courts for years, offers surprisingly simpleadvice: “Introduce yourself,” he says. “The judges arejust human beings.”

While covering the Supreme Court, Carelli often en-couraged reporters new to the beat to send letters ofintroduction to all nine justices. Most justices were recep-tive, he said, and some invited journalists to stop by cham-bers and say hello.

company, an arrogance that derives from power and unal-loyed success, with no leavening hard experience, no reverses.”

He candidly revealed his impression of the credi-bility of Microsoft’s witnesses, telling The Wall StreetJournal:

“Falsus in uno, falsus in omnibus. [Untrue in one thing,untrue in everything.] I don’t subscribe to that as absolutelytrue. But it does lead one to suspicion. It’s a universal humanexperience. If someone lies to you once, how much else can youcredit as the truth?”

And, in a strikingly blunt assessment of his own courtof appeals, Jackson told Auletta:

“What I want to do is confront the Court of Appeals with anestablished factual record which is a fait accompli. And part of theinspiration for doing that is that I take mild offense at theirreversal of my preliminary injunction in the consent-decree case,where they went ahead and made up about 90 percent of the

facts on their own.”Not surprisingly,

the appeals court didnot take kindly to suchremarks. In a blister-ing opinion, the courtsaid Jackson’s com-ments “convey the im-pression of a judgeposturing for posteri-ty, trying to please thereporters with color-ful analogies and ob-servations bound towind up in the storiesthey write.”

The seven-judgepanel unanimouslydisqualified Jackson,who was replaced by

U.S. District Cout Judge Colleen Kollar-Kotelly.Jackson’s disqualification is widely viewed as a cau-

tionary tale for judges who consider speaking to thenews media. But, as the appeals court acknowledged,the problem lay in the content of his statements, not thefact that he met with reporters.

In its opinion, the appeals court expressly concededthat Jackson could have spoken about the case in generalterms even while it was pending, but found that he hadgone too far and “disclosed his views on the factual andlegal matters at the heart of the case.”

Stubborn to the end, Jackson stood by his comments.In fact, even when he recused himself from a separatecase involving Microsoft in March 2001 — acknowl-edging an “appearance of personal bias” — he couldn’tresist one last shot at the company.

In his recusal order, he described the softwaremaker as “a company with an institutional disdain forboth the truth and the rules of law that lesser entitiesmust respect.” ◆

AP

PH

OT

O, A

ND

Y R

OG

ER

S

With the case still pending, Jacksoncalled Microsoft founder Bill Gatesa “smart-mouthed young kid.”

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2004PAGE 6

More simple advice from Carelli: Be physically present atthe courthouse. “It’s very difficult for a reporter to have anykind of relationship with a judge if the reporter is going to beat the courthouse twice a year, and write a story on a federalcourt case five times a year,” he says.

Judges, too, can take steps to improve dialogue with report-ers. According to Pirraglia, some judges have experimentedwith letting the media devise the guidelines under which theycover a proceeding, subject to the judge’s approval.

Reporters have proven worthy of that responsibility, hesays. “Often, the reporters have come up with guidelines thatare more strict than what the judge himself might have done.”

Such developments appear to be contributing to a trend infavor of greater media access to judges. While no official data

is kept, Hengstler says fewer judges are adhering to a rigid ruleagainst talking to reporters.

To accelerate that trend, the National Center for Courtsand the Media trains judges on how to handle media re-quests, give interviews and deal with the pressures of a high-profile trial.

Perhaps the most ambitious suggestion comes from Pirra-glia. “I’d like to see a journalist follow a judge around for a day,and vice versa, so that each can be educated about the other’sfunction,” he says. “I realize it would be expensive, but it’sworth it.

“Judges can have relationships with the press and still fulfilltheir institutional obligations — and in the process, bettereducate the public.” ◆

Supreme Court Justice ClarenceThomas rarely speaks in court, letalone to the news media.

AP

PH

OT

O, S

CO

TT

AP

PLE

WH

ITE

Justice Sandra Day O’Connor,for instance, gave interviews to TheNew York Times, CNN and othersto promote her 2003 book, “TheMajesty of the Law.” Chief JusticeWilliam Rehnquist has also giveninterviews in connection with hisbooks.

In addition, all nine of the currentjustices give speeches in public, somemore often than others. Rehnquistfrequently addresses audiences onsuch topics as the state of the legalprofession, judicial administrationand legal history. Justice Ruth BaderGinsburg is well known for promot-ing women’s issues, while StephenBreyer, a former Harvard law pro-fessor, tends toward more scholarlytopics, such as administrative lawand judicial rule-making.

At the other end of the spectrum,Justices David Souter and ClarenceThomas make relatively few speech-es. Thus, when Thomas defendedhis controversial views on race in a1998 speech to the National BarAssociation, an organization of Afri-can-American attorneys and judges,it gained national media attention.

Typically, justices speak at suchevents as commencement ceremo-nies, bar association meetings or con-ferences of other judges. By tradition,each justice also speaks at the annualmeeting of the judges of the circuitcourt over which he or she presides.

Media access to speeches by thejustices varies, and can be influencedby the setting. If a justice agrees tospeak to a private organization, for

Hidden High Court

example, the organization’s own pol-icy may affect press access. “Thearrangements are worked out be-tween the inviting organization andthe justice,” says Arberg.

When it comes to the high court’sofficial business, the news mediaenjoy considerably better access. Oralarguments are always open to thepublic and press, although camerasand recording devices are forbidden.In cases of great public interest, thecourt has recently begun releasingaudio recordings after the argumentconcludes. The court also releases atranscript of every argument — al-though it does not specify whichjustices asked which questions, andit typically takes up to three weeksfor a transcript to be released.

But nonofficial business is largelythe domain of the individual justice.The tape-recording incident involv-ing Scalia, for example, publicizedthe fact that he has a specific policyagainst any audio or video recordingof his remarks. Arberg says she doesnot know if any other justices on thecourt have such policies.

In an April 9 reply to a letter ofprotest from The Reporters Com-mittee for Freedom of the Press,Scalia wrote he would revise hispolicy to permit the print media torecord his remarks for purposes ofensuring accuracy. However, headded, “The electronic media havein the past respected my FirstAmendment right not to speak onradio or television when I do notwish to do so, and I am sure thatcourtesy will continue.”

But there are no clear rules gov-erning a judge’s ability to enforcesuch preferences. In response to theScalia incident, Sens. CharlesSchumer (D-N.Y.) and PatrickLeahy (D-Vt.), both of the SenateJudiciary Committee, urged the Ad-ministrative Office of U.S. Courts inan April 12 letter to establish “clearguidelines for judges setting the pub-lic or private nature of their remarks,and the appropriate remedial stepsthat may be taken when the judges’requests are not honored.”

For the foreseeable future, itappears that media access to Su-preme Court justices will remainan ad hoc affair, regulated mostly bythe justices’ individual preferencesand the media’s willingness to pushthe issue. ◆

Continued from page 3

SPRING 2004 SECRET JUSTICE: JUDICIAL SPEECH PAGE 7

Like all citizens, judges have a FirstAmendment right of free speech. Butthat right is tempered by the ethicalrestrictions that come with judicial of-fice — restrictions that often preventthem from speaking freely about pend-ing cases. This guide presents the text ofthe rules that bind most judges and sum-marizes the most significant interpreta-tive decisions.

The Code of Conductfor United States Judges

Federal judges are subject to Canon3A(6) of the Code of Conduct for Unit-ed States Judges, which provides:

“A judge should avoid public com-ment on the merits of a pending orimpending action, requiring similar re-straint by court personnel subject tothe judge’s direction and control. Thisproscription does not extend to publicstatements made in the course of thejudge’s official duties, to the explana-tion of court procedures, or to a schol-arly presentation made for purposes oflegal education.”

The most famous case involving Can-on 3A(6) is United States v. MicrosoftCorp., 253 F.3d 34 (D.C. Cir., 2001),discussed on page 4. But other federalcourts have offered key interpretationsas well.

In re Boston’s Children First, 244F.3d 164 (1st Cir. 2001). After U.S.District Court Judge Nancy Gertnertold the Boston Herald that a schooldiscrimination case pending in hercourtroom was “more complex” than asimilar lawsuit before another judge,she was disqualified by a federal courtof appeals in Boston. The appeals courtsaid there was no evidence that Gert-ner was biased, and acknowledged thatshe gave the interview to refute inac-curate statements made by an attor-ney. But the court found that hercomparison of the complexity of twocases was a comment “on the merits,”in violation of Canon 3A(6).

In re International Business Ma-chines Corp., 45 F.3d 641 (2d Cir.1995). In an antitrust case that dwarfedeven Microsoft in complexity and scale,IBM forced the recusal of U.S. DistrictCourt Judge David N. Edelstein, whohad presided over the massive litigationfor a staggering 43 years. The U.S. Court

of Appeals in New York cited Edel-stein’s 1982 interviews with The NewYork Times and The Wall Street Journal,in which he sharply criticized the JusticeDepartments’ handling of a related caseagainst IBM.

United States v. Cooley, 1 F.3d 985(10th Cir. 1991). A federal judge inWichita, Kan., was disqualified for tell-ing the TV program “Nightline” thatanti-abortion protestors were “breakingthe law” by blocking access to a clinic inviolation of the judge’s order. The ap-peals court found that both the sub-stance of U.S. District Court JudgePatrick Kelly’s comments and his choiceof forum conveyed “an uncommon in-terest and degree of personal involve-ment in the subject matter.” In an unusuallystrong remedy, the appeals court orderednew trials for each of the protestors.

In re Barry, 946 F.2d 913 (D.C.Cir. 1991). Nearly a decade before histrouble on the Microsoft case, JudgeThomas Penfield Jackson stirred con-troversy by criticizing the jury in thedrug trial of D.C. Mayor Marion Barry,over which Jackson had presided. Speak-ing at Harvard Law School, Jackson saidhe had never seen a stronger govern-ment case and scolded jurors for refus-ing to apply the law. A divided panel ofthe U.S. Court of Appeals in Washing-ton, D.C., refused to remove Jackson,saying that while his comments “maybe” a violation of Canon 3(A)(6), theydid not meet statutory criteria for recus-al. On remand, Jackson sentenced Barryto six months in prison and a $5,000 fine.

The ABA Model Codeof Judicial Conduct

Canon 3B(9) of the American BarAssociation’s Model Code of JudicialConduct, which has been adopted in 49of 50 states and the District of Colum-bia, provides:

“A judge shall not, while a proceed-ing is pending or impending in anycourt, make any public comment thatmight reasonably be expected to affectits outcome or impair its fairness ormake any nonpublic comment thatmight substantially interfere with afair trial or hearing. . . . This Sectiondoes not prohibit judges from makingpublic statements in the course of theirofficial duties or from explaining forpublic information the procedures ofthe court. This Section does not applyto proceedings in which the judge is a

litigant in a personal capacity.”In 2003, the ABA amended the code

to impose further restrictions on judi-cial speech in the contexts of makingcampaign promises, criticizing juries,and disclosing nonpublic information.But most of the decisions concern Can-on 3B(9).

In re Broadbelt, 683 A.2d 543 (N.J.1996). In a widely cited case, the NewJersey Supreme Court held that Canon3B(9) applies to proceedings anywhere,not just in the judge’s own courtroom.Thus, a municipal court judge was or-dered to stop providing commentary on“Geraldo Live” and other TV programs,even though the cases he discussed hadno chance of being decided by him. Thecase is also notable because the SupremeCourt rejected the judge’s claim that hisFirst Amendment rights were violated.

In re Sheffield, 465 So.2d 350 (Ala.1985). The Alabama Supreme Courtupheld a punishment of two months’suspension without pay for Judge BillyJoe Sheffield of Alabama’s 20th Judi-cial Circuit, who discussed the meritsof a contempt of court proceeding witha newspaper reporter before it tookplace. The court acknowledged that“not all public discussion by the judi-ciary of a pending case is an ethicalviolation,” but said Sheffield crossedthe line by saying “the contempt speaksfor itself” and suggesting the defen-dant could be sued for libel.

Illinois Judicial Ethics Commit-tee, Opinion No. 98-10 (April 8, 1998).Facing a question similar to that in Broad-belt, an Illinois judicial ethics committeereached a slightly different conclusion:Judges may appear on TV or radio showsto discuss legal issues, as long as theydon’t comment on the merits of anyindividual proceeding.

New York Advisory Committee onJudicial Ethics, Opinion No. 96-145(Dec. 12, 1996). A New York judicialethics committee barred a judge, whosename was not revealed, from sending aletter to a newspaper in response to aneditorial critical of the judge’s actions asa county legislator. The committee foundthat the matters addressed by the lettermight be litigated, and could appearbefore the judge. Moreover, the com-mittee said, the judge’s proposed letter— which would have bluntly criticizedthe newspaper and various public offi-cials — would undermine the dignity ofthe judiciary. ◆

The Rules

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SPRING 2004PAGE 8

✉ MAIL WITH PAYMENT TO:THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS1815 N. FORT MYER DRIVE, SUITE 900ARLINGTON, VA 22209... OR FAX (WITH CREDIT CARD INFO) TO (703) 807-2109

NAME

ORGANIZATION

STREET ADDRESS

CITY STATE ZIP

(OPTIONAL:)

CREDIT CARD NO. (MC/VISA ONLY) EXP. DATE

❏ PLEASE SEND ME A PUBLICATIONS LIST.

I would like to order:

individual volumes at $10 each forthe following states:

the complete compendium in one1300-page bound volume for $100.

the complete compendium onCD-ROM for $49.

TAPPINGOFFICIALS’SECRETS

The Fourth Edition of TAPPING OFFICIALS’SECRETS, the most comprehensive guide toopen meetings and records laws in every state,is now available.

Compiled by the Reporters Committeeand based on the work of lawyersacross the country who are expertsin the area, the guide is availableas a printed compendium of allstate outlines or in individualstate booklets.

The guide is also available as aCD-ROM containing searchableversions in Adobe Acrobat format, HTML

files and other formats. The CD-ROM is bothWindows and Macintosh compatible.

The guides are availablefor: $100 for the printed

book; $49 for the CD-ROM;and $10 for a state booklet

(specify state).

Call the Reporters Committee at703-807-2100 or send a check or

credit card information (includingexpiration date) to 1815 North Fort

Myer Drive, Suite 900, Arlington, VA22209.

The Door to Open Government in the 50 States and D.C.