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From O.J. to Kobe: Open records offer facts amid frenzy
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

Before Kobe Bryant, there was O.J. Simpson.

Simpson’s “trial of the century” drew unprecedented media coverage and criticism. In the process, both the news media and the legal community learned a few things.

The media learned that a celebrity defendant and a violent or sexual crime can fuel endless hours of talking-head television. Find a few telegenic and loud attorneys, set them loose and reap the ratings.

The nation’s judges learned that they can’t count on self-restraint from the media and that any attempts to prevent a circus-like atmosphere will have to come from inside the courtroom.

Defense lawyers and prosecutors learned about the volatility of the court of public opinion and were reminded that they need to control the flow of information before a jury is selected.

Concern about public access to information about the case has now led the lawyers for Los Angeles Lakers player Kobe Bryant to try to keep police records in his felony sexual assault case sealed prior to trial.

The defense attorneys and the district attorney in the case contend that the release of documents compiled by the Eagle County Sheriff’s Department to support search and arrest warrants would impede a fair trial.

If the attorneys are successful, documents that would otherwise be available to the public would remain hidden. The Los Angeles Times and other news media are asking that the files be opened.

It’s a familiar constitutional clash. The First Amendment gives the news media the right to publish information and also provides for substantial access to the courts and the judicial process. On the other hand, the Sixth Amendment guarantees criminal defendants the right to a fair trial.

A judge will consider those competing interests and render a decision, but one question remains.

What’s the point?

Attorneys in the case are attempting to prevent access to information gathered by presumably credible and professional law enforcement personnel. At the same time, the American public and the prospective jury pool are being bombarded by highly prejudicial news, information and rumors:

  • Sports talk radio and cable television have spent endless hours asking, “Did Kobe do it?”
  • Bryant and his wife held a press conference, accompanied by his attorney, during which the defendant offered an emotional apology for his adultery but denied being guilty of sexual assault.
  • The Orange County (Calif.) Register reported that friends of the alleged victim said she overdosed on pills two months ago and was rushed to a hospital.
  • Chat rooms and message boards on the Internet are full of allegations and innuendo about the alleged victim in the case. As Patrick Hruby wrote for, “It’s out there. All of it. Her name. Her number. Where she lives. Where she went to high school. The color of her eyes. Even the floor plan to her parents’ house. Anything and everything to satisfy your interest. Your curiosity. Your rubbernecker’s impulse.”
  • conducted an online survey, with 45% of participants saying they didn’t think Bryant committed the crime.
  • On a gambling Web site, people are being urged to bet on the outcome of the trial. Another site offers “Free Kobe Bryant” T-shirts and caps, with similar products supporting Martha Stewart, Sammy Sosa and Pete Townshend.

Both the defense attorneys and prosecutors have ethical obligations; their motions to seal the documents reflect those. Defense attorneys want to minimize prejudicial material gathered by the authorities, and the district attorney has an affirmative duty to protect a fair trial.

The truth, though, is that they’re just going through the motions. There’s no good reason to seal public documents in a case amid a tidal wave of public speculation.

Courts have long grappled with the challenge of prejudicial publicity in highly visible cases. In 1935, the trial of Bruno Hauptmann, accused of kidnapping Charles Lindbergh’s baby, was disrupted by reckless newspaper, radio and newsreel reporters. The 1954 murder trial of Sam Sheppard (which inspired “The Fugitive” television series) was tainted by prejudicial TV and newspaper coverage.

But those were the good old days of media excess – a handful of TV channels, newspapers and radio. Today’s landscape is much different, with hundreds of content-hungry cable channels, no-holds-barred talk radio and Internet sites, all of which feast on rumor, speculation and sensationalism.

In truth, there’s little that courts can do to stem the flow of prejudicial publicity. On July 24, a judge limited what attorneys in the Bryant case can say to the press. But those orders don’t – and shouldn’t – apply to cable-television pundits and talk-show hosts. Judges can seal documents, but that can hide facts from public view and let rumors run wild.

Yet for all the concern about media overkill and public fascination with these cases, justice really depends upon what happens inside the courtroom. No matter what they’ve read or heard outside, jurors are sworn to consider only the evidence they’ve seen in court and to deliver a fair and impartial verdict.

In the end, the key to a fair trial rests where it always has: in the hands of a capable judge and a conscientious jury.


Colorado judge imposes gag order in Kobe Bryant case

Meanwhile, journalists grapple with long-standing policies against identifying accusers in rape cases. 07.25.03

Cameras allowed at Kobe Bryant court hearing
Eagle County Court Judge Fred Gannett places no restrictions on what cameras can record in court on Aug. 6. 07.28.03

Judge in Kobe Bryant case warns reporters not to name accuser
First Amendment attorney Floyd Abrams says Colorado county court's order may be unconstitutional. 07.30.03

Federal judge freezes O.J. Simpson book money
Order comes as part of lawsuit filed by Ron Goldman's father accusing former NFL star of creating shell corporation to hide cash. 01.05.07

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