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.

rosetta's stones:
I hereby and herein place a voodoo spell on each lawyer participating, jointly and severally.

Go ahead, make my day.
7.20.2009 10:03am
Such comments are so low in credibility

I'm not sure that unsourced comments are per se low in credibility. Experienced readers can often judge written material by internal evidence in the writing as well as by their own experience judging written material. I certainly look at things skeptically but can extract a lot of info from the bare writing itself.
7.20.2009 10:12am
rosetta's stones:
You have not the powers of extraction substratal to understanding the fate awaiting those lawyers. They'll find out, though.
7.20.2009 10:19am
Here's the comments page for the Knoxville paper.

Looks like two comments were removed by the paper, and one was partially hidden (that one being a denunciation of apparent racism from other commenters).

WBIR doesn't seem to have an archived version of that story up.

The comments on the KNS site look (as depressing as it is to say) much tamer than what I'm used to seeing on many newspaper sites. The fact is that newspaper comment sections and discussion fora seem to be havens for people whose views are so extreme as to cause them to be ostracized from most other web communities: not many sites will allow users to heap praise on, say, the Council of Conservative Citizens, without giving them a heap of scorn in return. On newspaper threads, everything's a pie fight.
7.20.2009 10:30am
Laura(southernxyl) (mail) (www):

Such comments are so low in credibility that it's hard for me to see jurors being much influenced by them

While I agree with your larger point, I think you do not give enough weight to the fact that lots of people, perhaps most, do not have anything like your critical thinking skills. The very people who leave these comments are themselves subject to being called for jury duty. Presumably they find their own comments to be credible, and others will as well.
7.20.2009 10:35am
Context Matters:

Thanks for the link to the Knoxnews story.

Before I saw your comment, I intended to post two excerpts from the Cobbins motion:
A copy of each of the January 30th stories and accompanying reader comments published in KNOXNEWS.COM are attached as collective Exhibit #2 to this motion and are incorporated by specific reference.


A copy of the story and related reader comments from WBIR.COM are appended to this motion as collective Exhibit #3 and are specifically incorporate by reference.


Context matters.

The Cobbins motion can't be fairly evaluated without its incorporated exhibits.

Can anyone post copies of those two exhibits?
7.20.2009 10:41am
LarryA (mail) (www):
It's the requested ban on threats I find most - interesting. "If you intend to hurt a lawyer, we don't want you to post about it." Really?

I'd think just the opposite. "Please, post your threats here. Thanks for the warning. Your email's being analyzed, and if possible we'll get back to you."
7.20.2009 11:39am
The Unbeliever:
I'm interested in the other issue in the case, the defense's "alternative motion to allow counsel to withdraw due to the threatening nature of the comments made anonymously in the media". IANAL so I'm particularly ignorant on this subject; is there any regulation or case law that allows an appointed attorney to be excused under extraordinary circumstances?

Crank Internet commenters are a dime a dozen, but every so often you get the threatening person who's actually serious. If they could get the local police department/FBI/whatever investigator to swear out an affidavit that some particular comment was a serious death threat, that they were investigating but didn't have enough information to protect the target, could defense counsel sue to be released from the case?

The second to last quoted paragraph outlines the expectation that the lawyer's rights to compensation, contract, etc are necessarily curtailed in appointed cases because without it "our criminal justice system could not function". But does that allowance extend to their right to life or security in their person?
7.20.2009 12:31pm
Soronel Haetir (mail):
Prof V,

There are enough stories about jurors ignoring the judges instructions and doing their own research that I think you miss the mark with your belief that such instructions are actually followed. We only hear about the jurors stupid enough to talk about it, or the cases where some other juror got incensed about it.

I suspect there are far more jurors doing outside research than any lawyer really wishes to contemplate.
7.20.2009 12:49pm

Context matters.

The Cobbins motion can't be fairly evaluated without its incorporated exhibits.

Can anyone post copies of those two exhibits?

Really? What could people have possibly written that would have justified the prior restraint?
7.20.2009 1:31pm
AJK, names and addresses, travel schedules, photographs or names and locations of family members--any of those in conjunction with a threat of injury or death might be sufficient.

I would think, though, that the appropriate action would be a request to the news outlets that they moderate comments prior to posting. Their current policy is simply a disclaimer that reads:

Comments are the sole responsibility of the person posting them. You agree not to post comments that are off topic, defamatory, obscene, abusive, threatening or an invasion of privacy. Violators may be banned.

If, on a specific case, the paper decides that they wish to pre-screen comments for ones that are "defamatory, obscene, abusive, threatening or an invasion of privacy," that should be acceptable for all sides, since they're not denying anyone a right previously enjoyed (since such comments are already forbidden) and they're not involving the state in the restraint.

(And having just typed that, please excuse me while I take my ACLU card to the nearest office and submit myself for punishment.)
7.20.2009 2:04pm
Context Matters:
What could people have possibly written that would have justified the prior restraint?

They might have posted credible plans for an assassination attempt, including classified details of an H-Bomb.

I'd also note that they requested alternative relief.
7.20.2009 2:06pm

They might have posted credible plans for an assassination attempt, including classified details of an H-Bomb.

I'd also note that they requested alternative relief.

Even assuming that is what happened (which is obviously not the case), why would suppressing the postings by a satisfactory form of relief? (I'm not really informed enough to evaluate the merits of withdrawal, but it's my understanding that it would be unusual under the circumstances.)
7.20.2009 3:00pm
Context Matters:
... including classified details of an H-Bomb.

Even assuming that is what happened (which is obviously not the case), why would suppressing the postings by a satisfactory form of relief?

I'm not that interested in rearguing U.S. v Progressive in this venue right now. It was a controversial case, with meritorious arguments on both sides.

But why do you assume that the Knoxville media weren't publishing national security H-Bomb secrets down in their comments? Isn't Oak Ridge in Tennessee?

Why do you say, “obviously not the case”?

Look. We must presume that attorneys who filed defendant Cobbins' written motion were arguing in good faith. Until we see evidence to the contrary, we can't just assume that they were making a frivolous, sanctionable motion for improper purposes.
7.20.2009 3:39pm

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