The Volokh Conspiracy - Court Refuses To Order Restrictions on Reader Comments at Media Web Pages Related to Death Penalty Trial:

This decision, in State v. Cobbins — the Christian/Newsom murder trial — was handed down in mid-April, but I just saw it because it just got posted on Westlaw. So I thought I'd note it, especially since I haven't heard of any earlier cases on the subject:

All defendants, at the hearing, requested that this Court order (1) media outlets to disable a portion of their websites (their internet forums) to prohibit web users from posting comments about any stories related to this case; (2) require media outlet internet users wishing to utilize the internet forums to use their true names and addresses; (3) or that this Court establish guidelines for acceptable comments on the internet forums and employ real-time monitors to ensure compliance. In Defendant Cobbins' written motion, he asserts that the intensive media coverage generated by this case "has fueled hostile threats, accusation, and diatribes by the public ... directed toward [the defendant], his co-defendants, and toward the attorneys who have been appointed by this Court to represent the various defendants."

The written motions focus on the internet sites of local media and the public's ability to publish comments anonymously on those cites. Included in Defendant Cobbins' motion are various samples of comments posted by the public which discuss this case, the defendants, and the attorneys involved. Defendant Cobbins argues further in his motion that "[i]f the media cannot responsibly report, and/or monitor the public dissemination of its website content where such failure to monitor affects the effective representation of counsel for one or more defendants, it should not be allowed to further publicly disseminate information about this case." He also asserts that "[w]hile the public has a right to be informed about these proceedings, that privilege will always be subservient to the constitutionally guaranteed right to receive effective assistance of counsel where one is charged with a capital crime." ...

In Nebraska Press Ass'n v. Stuart, the Court established a three-part test to be used in determining whether a prior restraint is invalid; a trial court must determine (1) the nature and extent of pretrial publicity, (2) whether alternative measures would be likely to mitigate the effects of unrestrained pretrial publicity, and (3) how effectively a restraining order would operate to prevent the threatened danger.

In this case, the publicity has been extensive, detailed, and arguably misleading at times from a legal perspective. The relief sought currently is not the complete bar of media coverage of the proceedings, but rather a bar to the sharing of ideas between citizens who read or listen to the local media reports concerning this case, who wish to make anonymous public comment on the same in the media internet forums.

This Court has already granted alternative measures to mitigate the effects of unrestrained pretrial publicity by granting a change of venire to those defendants who have made the request; therefore, the juries who will hear and decide the charges will not be from the local media coverage area. The relief sought also would not necessarily effectively operate to prevent the threatened danger. Counsel asserts that the restraint is necessary to ensure the effective representation of the defendants. Only two media outlets intervened in these proceedings. The internet is not restricted to use by the media alone. Private citizens have access to and utilize the internet everyday to freely discuss and exchange ideas whether on the internet forums of the two media outlets or otherwise.

Considering all the factors, this Court cannot find that disabling the internet forums of the media internet sites would be an appropriate restraint.

In addition to and in the center of the issue of restraint and freedom of speech in this case is the issue of whether anonymous speech on these internet forums is protected and whether it should be restricted. The Supreme Court has recognized that the First Amendment protects anonymous speech....

The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas. The "ability to speak one's mind" on the Internet "without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate." People who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court....

So long as people are not committing any wrongdoing, they should be free to anonymously participate in the online forums. Accordingly, this Court does not find that any restraint on the internet forums would be appropriate in this case.

In addition to the request by all four defendants discussed above, Defendant Cobbins' motion includes an alternative motion to allow counsel to withdraw due to the threatening nature of the comments made anonymously in the media.... In this capital case, this Court has called upon some of this area's finest defense attorneys to represent the named defendants. At this court's request, the attorneys have graciously, and at great personal sacrifice, accepted these appointments and are zealously representing their clients as they are required to do by law. As pointed out by counsel, fees paid in appointed cases do not compare with the fees received by most attorneys in non-appointed cases. This Court greatly appreciates the sacrifices made by the members of the bar, on both sides of the courtroom, who accept this Court's appointments and who assist in the pursuit of justice. Without the dedication of these attorneys, our criminal justice system could not function.

At the hearing, Assistant District Attorney Leland Price announced that the State stands ready to investigate and/or prosecute anyone who anonymously or otherwise engages in criminal conduct toward any person, be it attorney, victim's family member, court personnel or otherwise. While this court understands counsel's concerns with the various general comments in the media concerning attorneys in this case, this court does not find that any of the comments rise to a level which would require allowing counsel to withdraw at this time....

This seems to me the right result. I'm generally skeptical of speech restrictions aimed at preventing jurors from being prejudiced at trial; and courts are as well. The Supreme Court in Nebraska Press Ass'n v. Stuart (1976) has held that in principle such restrictions may be permissible, but it set up a pretty stringent test that must be passed before they can imposed met (quoted above), and my sense is that in practice courts very rarely impose them. I recognize that jurors may hear things about the case that they shouldn't hear — rumors, allegations, information about excluded evidence, and so on. But judges should be able to do a pretty good job of persuading jurors to set that aside, and to focus on what they hear in the courtroom. All of us are familiar in our daily lives with rumors that prove to be false, newspaper accounts that omit important details, media accounts that we mishear because we aren't closely focused on them, and so on. Jury instructions that remind jurors of that, and remind them to pay attention only to things that they hear in court, that they can focus on and remember well, and that are subject to cross-examination shouldn't be hard to accept or counterintuitive. They won't be perfect, but I suspect they should be fairly reliable, especially since they come from a high-authority figure that jurors are likely to view positively.

But whatever one might say about the risk of incurable juror prejudice from media accounts, it would apply least to user comments, especially anonymous ones. Such comments are so low in credibility that it's hard for me to see jurors being much influenced by them, especially in the face of instructions from a judge that explain why such out-of-court sources should be ignored. So the judge's conclusion here strikes me as entirely correct on this.

Threats to lawyers are a different matter, and certainly something that jury instructions can't cure. Nonetheless, the risk that a few speakers might use online comments to threaten lawyers doesn't justify, I think, imposing special restrictions on all speakers (or even all anonymous speakers); and people who really want to seriously threaten lawyers would still be able to threaten them even if comments are shut down on certain articles at various media sites. Plus requiring people to use their accurate names and addresses isn't self-enforcing; certainly the newspaper can't practically enforce that. So someone who wants to threaten someone would still be able to do so, just using a false name and address — the proposed orders wouldn't really prevent such threats, except insofar as they might catch a few of the most foolish threateners.

	[Eugene Volokh, July 20, 2009 at 9:24am] Trackbacks Court Refuses To Order Restrictions on Reader Comments at Media Web Pages Related to Death Penalty Trial: This decision, in State v. Cobbins — the Christian/Newsom murder trial — was handed down in mid-April, but I just saw it because it just got posted on Westlaw. So I thought I'd note it, especially since I haven't heard of any earlier cases on the subject: All defendants, at the hearing, requested that this Court order (1) media outlets to disable a portion of their websites (their internet forums) to prohibit web users from posting comments about any stories related to this case; (2) require media outlet internet users wishing to utilize the internet forums to use their true names and addresses; (3) or that this Court establish guidelines for acceptable comments on the internet forums and employ real-time monitors to ensure compliance. In Defendant Cobbins' written motion, he asserts that the intensive media coverage generated by this case "has fueled hostile threats, accusation, and diatribes by the public ... directed toward [the defendant], his co-defendants, and toward the attorneys who have been appointed by this Court to represent the various defendants." The written motions focus on the internet sites of local media and the public's ability to publish comments anonymously on those cites. Included in Defendant Cobbins' motion are various samples of comments posted by the public which discuss this case, the defendants, and the attorneys involved. Defendant Cobbins argues further in his motion that "[i]f the media cannot responsibly report, and/or monitor the public dissemination of its website content where such failure to monitor affects the effective representation of counsel for one or more defendants, it should not be allowed to further publicly disseminate information about this case." He also asserts that "[w]hile the public has a right to be informed about these proceedings, that privilege will always be subservient to the constitutionally guaranteed right to receive effective assistance of counsel where one is charged with a capital crime." ... In Nebraska Press Ass'n v. Stuart, the Court established a three-part test to be used in determining whether a prior restraint is invalid; a trial court must determine (1) the nature and extent of pretrial publicity, (2) whether alternative measures would be likely to mitigate the effects of unrestrained pretrial publicity, and (3) how effectively a restraining order would operate to prevent the threatened danger. In this case, the publicity has been extensive, detailed, and arguably misleading at times from a legal perspective. The relief sought currently is not the complete bar of media coverage of the proceedings, but rather a bar to the sharing of ideas between citizens who read or listen to the local media reports concerning this case, who wish to make anonymous public comment on the same in the media internet forums. This Court has already granted alternative measures to mitigate the effects of unrestrained pretrial publicity by granting a change of venire to those defendants who have made the request; therefore, the juries who will hear and decide the charges will not be from the local media coverage area. The relief sought also would not necessarily effectively operate to prevent the threatened danger. Counsel asserts that the restraint is necessary to ensure the effective representation of the defendants. Only two media outlets intervened in these proceedings. The internet is not restricted to use by the media alone. Private citizens have access to and utilize the internet everyday to freely discuss and exchange ideas whether on the internet forums of the two media outlets or otherwise. Considering all the factors, this Court cannot find that disabling the internet forums of the media internet sites would be an appropriate restraint. In addition to and in the center of the issue of restraint and freedom of speech in this case is the issue of whether anonymous speech on these internet forums is protected and whether it should be restricted. The Supreme Court has recognized that the First Amendment protects anonymous speech.... The right to speak anonymously extends to speech via the Internet. Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas. The "ability to speak one's mind" on the Internet "without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate." People who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court.... So long as people are not committing any wrongdoing, they should be free to anonymously participate in the online forums. Accordingly, this Court does not find that any restraint on the internet forums would be appropriate in this case. In addition to the request by all four defendants discussed above, Defendant Cobbins' motion includes an alternative motion to allow counsel to withdraw due to the threatening nature of the comments made anonymously in the media.... In this capital case, this Court has called upon some of this area's finest defense attorneys to represent the named defendants. At this court's request, the attorneys have graciously, and at great personal sacrifice, accepted these appointments and are zealously representing their clients as they are required to do by law. As pointed out by counsel, fees paid in appointed cases do not compare with the fees received by most attorneys in non-appointed cases. This Court greatly appreciates the sacrifices made by the members of the bar, on both sides of the courtroom, who accept this Court's appointments and who assist in the pursuit of justice. Without the dedication of these attorneys, our criminal justice system could not function. At the hearing, Assistant District Attorney Leland Price announced that the State stands ready to investigate and/or prosecute anyone who anonymously or otherwise engages in criminal conduct toward any person, be it attorney, victim's family member, court personnel or otherwise. While this court understands counsel's concerns with the various general comments in the media concerning attorneys in this case, this court does not find that any of the comments rise to a level which would require allowing counsel to withdraw at this time.... This seems to me the right result. I'm generally skeptical of speech restrictions aimed at preventing jurors from being prejudiced at trial; and courts are as well. The Supreme Court in Nebraska Press Ass'n v. Stuart (1976) has held that in principle such restrictions may be permissible, but it set up a pretty stringent test that must be passed before they can imposed met (quoted above), and my sense is that in practice courts very rarely impose them. I recognize that jurors may hear things about the case that they shouldn't hear — rumors, allegations, information about excluded evidence, and so on. But judges should be able to do a pretty good job of persuading jurors to set that aside, and to focus on what they hear in the courtroom. All of us are familiar in our daily lives with rumors that prove to be false, newspaper accounts that omit important details, media accounts that we mishear because we aren't closely focused on them, and so on. Jury instructions that remind jurors of that, and remind them to pay attention only to things that they hear in court, that they can focus on and remember well, and that are subject to cross-examination shouldn't be hard to accept or counterintuitive. They won't be perfect, but I suspect they should be fairly reliable, especially since they come from a high-authority figure that jurors are likely to view positively. But whatever one might say about the risk of incurable juror prejudice from media accounts, it would apply least to user comments, especially anonymous ones. Such comments are so low in credibility that it's hard for me to see jurors being much influenced by them, especially in the face of instructions from a judge that explain why such out-of-court sources should be ignored. So the judge's conclusion here strikes me as entirely correct on this. Threats to lawyers are a different matter, and certainly something that jury instructions can't cure. Nonetheless, the risk that a few speakers might use online comments to threaten lawyers doesn't justify, I think, imposing special restrictions on all speakers (or even all anonymous speakers); and people who really want to seriously threaten lawyers would still be able to threaten them even if comments are shut down on certain articles at various media sites. Plus requiring people to use their accurate names and addresses isn't self-enforcing; certainly the newspaper can't practically enforce that. So someone who wants to threaten someone would still be able to do so, just using a false name and address — the proposed orders wouldn't really prevent such threats, except insofar as they might catch a few of the most foolish threateners.