Balancing Privacy and Fair Trial Rights Against the Public's Right to Information In the Kobe Bryant Case

By MICHAEL C. DORF

Wednesday, Aug. 06, 2003

Last week, Judge Frederick Gannett warned media outlets not to publish or broadcast the names or photographs of the alleged victim, her family members, witnesses, or potential jurors in the Kobe Bryant prosecution. He also warned that representatives of news organizations that fail to comply might be denied a seat in the courtroom.

Meanwhile, the judge will soon decide--perhaps as early as today--whether to make public the police and court records in the case. Until now, these records have been sealed.

The Bryant case thus poses an age-old dilemma: how should a court balance the privacy interests and fair trial rights of persons who appear before it against the public's First Amendment right to information?

Although the legal precedents are complex, they boil down to a fairly straightforward proposition: In general, the public's right to know prevails. However, that general principle can be overcome by a specific showing of risk from disclosure.

Let's see how this proposition plays out in the Bryant case.

Can the Media Be Punished for Revealing the Identity of the Alleged Victim?

The U.S. Supreme Court last addressed the issue of secrecy for an alleged rape victim's identity in the 1989 case of Florida Star v. B.J.F.

At issue there was a Florida law that prohibited major media outlets (what the statute called "any instrument of mass communication") from printing, publishing or broadcasting the name of an alleged victim of a sexual offense. The Florida Star had nevertheless printed a rape victim's name, and a jury had ordered the newspaper to pay $100,000 in damages.

But the Supreme Court voided the civil damages award. It held that the paper had a First Amendment right to print public information that it had obtained "from judicial records which [were] maintained in connection with a public prosecution and which themselves [were] open to public inspection."

Florida Star and every other case posing the issue that has come before the Supreme Court resulted in victories for the media. Yet the Court has consistently declined to adopt a categorical rule that would give news organizations an absolute right to disseminate an alleged rape victim's name--leaving open the possibility that in some circumstances, a gag rule could be upheld.

The Court's cases make reasonably clear, however, that where an alleged rape victim's name is a matter of public record--as in Florida Star, and in the Bryant case--the media may not be barred from disseminating it.

Under the Court's precedents, a law infringing on press freedom must be precisely suited to advance a very important interest. A rape victim's privacy may count as a very important interest. However, the Court has said that gagging the press is too imprecise an instrument for advancing that interest when the state does not also take other measures to ensure the victim's privacy.

The Court's logic appears to be that once a victim's name is available at all--for example, on a police crime blotter or a website--the interest in privacy has been forfeited, and so a gag rule cannot thereafter be justified.

This is a peculiar argument. To take the Bryant case as an example, it's true that the name of Bryant's accuser has appeared on various websites and was used by a radio talk show host. Nevertheless, most people who have not actively sought the name still don't know it.

Thus, to say--as decisions like Florida Star do--that the accuser has no remaining interest in privacy is a little bit like saying that someone whose house has been burglarized in the past has no interest in protecting her remaining property from further burglaries.

However, peculiar or not, that's the law. As a result, Judge Gannett's threat to oust media representatives whose organizations reveal details about the accuser and others is unconstitutional.

It makes no real difference that Judge Gannett proposes to ban reporters from the courtroom rather than impose a civil damages award, as in Florida Star itself. Banishment would clearly be meant as punishment, and a judge cannot punish the press for exercising its constitutional rights, no matter what form the punishment takes.

Should the Record Remain Sealed? What the Law Says

Whether Judge Gannett should unseal the records in the case presents a somewhat different issue. Permitting the public access to the police report and court records could be harmful both to Bryant's accuser and to Bryant himself.

Suppose, for example, that the record contains a medical report indicating that Bryant used force against his accuser. At trial, the physician who prepared that report would be subject to cross-examination by Bryant's attorneys. The physician's testimony might be impeached, and the report thereby discredited. Yet, if the report is made public now, potential jurors will form a preliminary opinion based on the unimpeached evidence. That initial opinion may be difficult to dislodge at trial, and thus going public now jeopardizes Bryant's right to a fair trial.

Unsealing the record now could also harm Bryant's accuser by making public details that she would rather keep private as long as possible. Indeed, should there be a plea bargain, the record might never need to become public knowledge, thereby permanently protecting her privacy.

However, I shall not focus here on the alleged victim's privacy interest but on Bryant's fair trial right, as the leading cases appear to make that right pre-eminent. Furthermore, even if there is nothing especially private about or harmful to the alleged victim in the record, the prosecution shares the defense's interest in ensuring a fair trial, if for no other reason than because a fair trial is necessary to obtaining a conviction. Thus, discussion of Bryant's fair trial right encompasses both the defense and prosecution interest in keeping the record sealed.

If both the prosecution and the defense in the Bryant case want the record to remain sealed, isn't that the end of the matter? The relevant precedents suggest not, because the media and public also have interests in the matter.

In a series of cases, the Supreme Court has held that key portions of a criminal prosecution--including a preliminary hearing, jury selection, and the trial itself--must be presumptively open to the public, even when the prosecution and the defense would rather that the proceedings be held in secret.

The Court has based these rulings in part on history: The customary practice of open courts informs our best understanding of the meaning of the First Amendment. However, the cases do not blindly follow tradition. The Justices take the view that criminal proceedings--like most of the important business of government--must generally be open to the public primarily because they believe that public scrutiny is essential to accountable, effective government.

The precedents permit secret proceedings, but only where there is a "substantial probability" that public access would jeopardize the defendant's right to a fair trial (or some equally weighty interest such as witness safety). Crucially, in the 1986 case of Press-Enterprise Co. v. Superior Court of California, the Supreme Court said that "the First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of" his right to a fair trial. Instead, particular evidence of potential harm to the free trial right--or at least argument as to why there is a special risk of harm in this case--must be offered.

It is not entirely clear that the Press-Enterprise line of cases applies to the material currently under seal in the Bryant case. Neither the United States Supreme Court nor the Colorado courts have faced this precise issue before. However, other state courts have held that most phases of a criminal case should be presumptively open, making exceptions only for grand jury proceedings, which, by long tradition have been secret.

Applying the Law on Sealing Orders in the Kobe Bryant Case

Assuming Judge Gannett finds Press-Enterprise applicable in the Bryant case, how should he resolve the issue? Would unsealing the record entail a substantial probability that Bryant's right to a fair trial would be lost?

The mere fact that the case has sparked intense public interest is not, by itself, sufficient to keep the record sealed. Judge Gannett must find some danger in the particular evidence involved in this case. Of course, if he does so find, and if his ruling is not reversed on appeal, then we the public may not know the basis for it--at least, until the trial begins. So if Judge Gannett does decide to seal the record, it's best to wait and see before criticizing his decision; without seeing the very evidence he has sealed, it's almost impossible to know whether made the right call.

Finally, it should be noted that the press has argued that Bryant waived his right to keep the record sealed when he publicly acknowledged having had sex with his accuser, but claimed it was consensual. Having put his own version of events in the public domain, the argument goes, Bryant cannot complain about the dissemination of an alternative version of events.

We shall see--perhaps very soon--whether Judge Gannett finds the waiver argument persuasive. In my view, he should not. Granted, by testifying on a matter about which he is legally entitled to remain silent, a witness may waive the right to keep certain kinds of damaging evidence from the jury. But Bryant didn't testify, he only spoke to the public; the case has not yet reached trial; and Bryant's public statement certainly should not be deemed a waiver of his right to a fair trial. For these reasons, the waiver argument is unpersuasive.

Leaving the waiver issue aside, the law is fairly simple. Judge Gannett must determine whether unsealing the record at this point would lead to a substantial probability of harm to Bryant's fair trial right. If the judge determines that it would, he should leave the record sealed.


Michael C. Dorf is Professor of Law at Columbia University.

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