Ito Gag Order Unusual but Not Unprecedented

The sweeping gag order proposed by Superior Court Judge Lance A. Ito to stop leaks in the O.J. Simpson murder case is unusual--although not unprecedented--and legal experts say it could be struck down if challenged on the grounds that it violates the 1st Amendment.

In his proposal, which will be debated in court Wednesday, Ito bars anyone connected with the case from discussing documents, exhibits or evidence and mandates that all motions be filed under seal. He justifies his suggestion by citing a “reasonable likelihood” that extensive media coverage will make it difficult to find an impartial jury, and could prevent a fair trial.

Some experts in constitutional law say that argument may be very difficult to defend, given that there has been so much news coverage already.

“To me, it is a little bit like closing the barn door after everything has escaped,” said Julian Eule, associate dean of the UCLA School of Law. “This particular case is a very difficult case for a gag order. You’ve got a tough row to hoe to get an unbiased jury as it is. It is hard to argue that whatever comes from this point on will, in a substantial way, interfere with the ability to get a fair trial.”

While there is ample legal precedent against judges gagging the news media--although some have tried--the issue of whether attorneys’ speech can be restrained is murkier.

Lawyers have been barred from speaking out during several recent high-profile cases. Among them: the rape trials of boxer Mike Tyson and William Kennedy Smith, the nephew of U.S. Sen. Edward M. Kennedy (D-Mass.), as well as the federal trial of four officers accused of beating Rodney G. King. In the King case, a gag order against defense lawyer Harland Braun was overturned and, in the Smith case, the judge narrowed her order after the media protested.

But the U.S. Supreme Court has never ruled on the constitutionality of a gag order on lawyers, according to Erwin Chemerinsky, a constitutional law professor at USC. In one case involving a Nebraska newspaper, the high court suggested restraining the speech of lawyers as a means to avoid putting a gag order on the media.

Lower courts have made it clear that judges have the authority to gag attorneys and other officers of the court--including police detectives, investigators, deputies and employees of crime laboratories, all of whom would be covered under Ito’s proposed order.

The most important precedent, Chemerinsky and others say, is the case of Joel Levine, the lawyer for Richard Miller, an FBI agent who was convicted in 1986 of trading secrets for sex in a romance with a Soviet emigre. His sentence was reduced in May from 20 years in prison to 13.

The judge in the Miller trial ordered attorneys not to talk about it, and Levine appealed and lost. But the 9th Circuit Court of Appeals, which heard Levine’s case, ruled that gag orders must be narrowly focused, and can be imposed only if the speech represents “a clear and present danger . . . to a protected competing interest,” such as the defendant’s right to a fair trial.

This is where Ito’s proposed order would fall down, Chemerinsky said.

“A gag order is only allowed if it is deemed necessary to achieve a compelling government purpose,” he said. “My opinion is that the circumstances here don’t warrant it. . . . There is no evidence that we still couldn’t find 12 people to decide on the merits of this case.”

However, Paul Hoffman, the Santa Monica civil rights lawyer who represented Levine, said he thinks Ito’s proposal to restrict attorneys’ speech is “pretty standard.” Far more troubling, Hoffman said, is the judge’s suggestion that all motions filed in court be sealed.

“I have not seen a gag order that says everything that gets filed in a case has to be filed under seal,” Hoffman said. “If we are going to be true to the 1st Amendment and to the rights of people to see what’s going on in a trial like this, there should be a presumption that things that are filed in court are open rather than secret. . . . Here, the 1st Amendment values have been thrown out.”

He and other experts noted that legal documents are the best means the press has of obtaining and reporting accurate information. If they are sealed, Hoffman warned, reporting will not stop. It will simply be based more on rumor than fact.

Yet Peter Arenella, a UCLA law professor, says there is a rational explanation for Ito’s desire to keep motions under seal. Arenella says attorneys on both sides of the Simpson case have made artful use of court documents by including evidence that is potentially incriminating or exculpatory, knowing these tidbits will be reported by the media.

The judge has no way of controlling this practice short of sealing all the motions, Arenella said. However, he added, “that doesn’t necessarily mean it’s constitutional.”