The Case for Self-Censorship

In what may be the most dramatic clash of free press and fair trial values in the nation’s history, The Dallas Morning News has taken a position very like that adopted in a very different context by Vice President Al Gore.

Both are proud of what they did-and promise not to do it again.

On March 3, Gore said he would not make any more fund-raising calls from the White House. That same day, The News-in the wake of its spectacular report that Timothy McVeigh had told his defense team that he bombed the Oklahoma City federal building in daytime to maximize the "body count"-filed the following statement with U.S. District Judge Richard Matsch in Denver:

"The Dallas Morning News …has no further plans to report unpublished information from material used as the source for the previous articles.

"The information … has been placed in the exclusive possession of [two outside law firms]…. Counsel will not thereafter provide The News access to the information for news reporting purposes. The News has placed the information with its counsel to preclude attention focused on Mr. McVeigh’s fair trial rights if it made further use of the material."

I especially like the part about the need "to preclude attention focused on Mr. McVeigh’s fair trial rights."

In fairness to The News, its intent was not to confess error, but to avoid being slapped with a gag order-just as its apparent intent in breaking its story on the Internet on the afternoon of Feb. 28, rather than waiting for the next day’s paper, was to get it out before defense lawyers could seek a gag order.

The hard question presented by the McVeigh article is whether-assuming that The News got its information lawfully and ethically, and that it was unquestionably accurate-the article should have been held anyway, to avoid grave damage to McVeigh’s right to a fair trial. But before we get to die hard question, those assumptions bear examining.

First, while The News has stressed (plausibly) that it did not steal the defense documents, it has not ruled out the possibility that its source stole them. And in any event, such documents could only have reached the newspaper through a grievous breach of the attorney-client privilege by someone, possibly a careless or dishonest member of the defense team.

The First Amendment may (or may not) bar imposition of criminal liability for "receiving stolen goods" (or privileged documents) when what’s involved is newsworthy information. But journalists should at least hesitate to publish the fruits of theft, or of a breach of privilege, unless the story serves some important public purpose. The Pentagon Papers, yes; Chelsea Clinton’s diary, no.

Second, the accuracy of the newspaper’s article now appears to be in question.

To be sure, McVeigh attorney Stephen Jones has confirmed that the documents quoted by The News were created by a defense investigator. And, to be sure, it seems very likely (and Jones has not denied) that McVeigh has in some way confirmed to his lawyers hat he did the bombing.

But Jones now claims to have learned-after The News rushed to publish its article-that the purported McVeigh statements were fabricated by a defense investigator for the purpose of coaxing a reluctant witness to talk. And bizarre as that scenario seems, reporters, including Lois Romano of The Washington Post, have discovered some corroboration for it.

Did The News give Jones an adequate opportunity to investigate and explain before it ran with the story? And should it have been more suspicious of a defense document that reads more like a work of pulp fiction than a standard account of a client interview? (Example: "Mr. McVeigh looked directly into my eyes and told me, ‘…We needed a body count to make our point.’")

According to Jones, a reporter for The News first confronted him with the supposed defense document by phone about 3 p.m. on Feb. 28; Jones did not recognize the statements attributed to McVeigh and said this was "not a legitimate defense document" and "not a confession by McVeigh." Jones asked to see the documents, and the reporter refused. The News sent the story out on the Internet that same afternoon.

While Jones’ meandering succession of statements since then has not enhanced his credibility, and while The News may disbelieve him, wouldn’t it have been wiser to give him more time to offer a better-informed response?

Let’s assume for the sake of argument, however, that The News has (and had) irrefutable proof that McVeigh in fact made the statements that it quoted. Should it have held the story to avoid a nationwide flood of pretrial publicity, at a time when 1,000 prospective jurors in the Denver area had already been placed on alert, with the trial date set for March 31?

No way, say a lot of newspeople. "I think they did the right thing," Paul McMasters, a former newspaper editor who is now First Amendment ombudsman for the Freedom Forum, said on "The News Hour With Jim Lehrer." He stressed the "absolute right of the American people to know about a significant event and to give the kind of detail that helps them make up their mind." McMasters and others, including Floyd Abrams, a leading media defense lawyer, also claim that no real harm was done, and that (in Abrams’ words) "there’s no reason to believe that we can’t find a fair jury."

I doubt that. A nationally headlined report of a dramatic confession, to his legal team, by the defendant in the worst mass murder case in the nation’s history is about the most devastating conceivable pretrial publicity. It is clearly inadmissible at trial, and (if believed) it clearly establishes McVeigh’s guilt.

Imagine that you are on the McVeigh jury, and that based on all the trial evidence (including attacks on the reliability of the FBI crime lab), you are pretty sure that he did it, but have a reasonable doubt. But you also recall media reports of defense documents quoting a boastful confession by McVeigh to his own defense team that he wanted a big "body count" Could you put that out of your mind? Would you want to?

The system will muddle through somehow, of course. The search for ignoramus jurors can be carried to new extremes (although some may well feign ignorance to get on the jury); jurors will be duly instructed to put pretrial publicity out of their minds; and in the end, the courts will pronounce that McVeigh received a fair trial. What else can they do? Turn him loose?

My heart doesn’t bleed for McVeigh, because I have little doubt of his guilt. But the integrity of our constitutional system suffers when journalists decide that-since they know the guy is guilty anyway-it’s OK to obliterate his chance for a fair trial.

Journalists do not normally perform cost-benefit analyses before running stories; the presumption is and should be that, in a free society, if a story is true and important, it should be published. But that cannot be an absolute rule. Sometimes the costs are so high that we should hold back. Who would argue for running a story about, say, a hostage rescue mission in progress if it would likely result in the deaths of hostages and rescuers alike?

Of course, the article in The News does not threaten such a disastrous result. That makes it a far closer question. And-if accurate-the article does serve an important public purpose by, among other things, giving the public vital information about the identity and thought process of the monster who murdered 168 people. But the only way for our constitutional system to act on that information is through the same legal process that The News has now compromised.

Does the public really need to know this now? Steven Brill, chairman and CEO of American Lawyer Media (which owns this newspaper) and Court TV, says that he would "give long and hard consideration to waiting until the jury is impaneled," in order to get the information to the public without risking "the possible damage done by reporting it before."

I would argue for waiting until the verdict is in, because of the likelihood that such big news would leak into even a sequestered jury (and so far, this one is not to be sequestered). In the words of Bill Kovach, a former New York Times Washington bureau chief who is now curator of the Nieman Foundation at Harvard University:

"The press’s role in monitoring institutions that have power over people’s lives is to act as a watchdog-not as a lap dog, not as an attack dog. And the role of a watchdog is to bark when things are not as they should be. Here, the system seems to be working just fine….

"If the press begins to short-circuit the process or push the process out of the way, by saying, ‘Hey, the man is guilty,’ that weakens democratic institutions,…and then the press has become a serious problem. And I don’t say that lightly; I’ve spent most of my life in investigative journalism, and I believe in it…. But we need to think a little more about the impact of what we do on the society that we’re serving and that we benefit from….Our constitutional rights carry a responsibility to the Constitution that gave us the rights, and that set up these processes that we monitor."