Written by: Ed Bushnell
Researched by: Jeff Richards
Edited by: John Deininger

On March 30, six teenage girls in Lakeland, Florida, allegedly took turns beating 16-year old Victoria Lindsay for half an hour while two teen boys acted as lookouts. Planning to broadcast the beating on YouTube and MySpace as an apparent retaliation for insults Lindsay posted on her own MySpace page, the girls took turns videotaping the attack.

Polk County Sheriff Grady Judd was upset about the incident, and upset about the way the teens reacted to their subsequent arrest: “They were laughing and joking,” he said. In fact, Grady was so appalled at the alleged behavior that he released parts of the videotaped beating. Within days of its release, the video and the sheriff’s statements were broadcast in print, television, and online sources around the country.

The media blitz was stymied on April 9, when a Florida judge issued a gag order, restricting lawyers, law enforcement and witnesses from releasing information about the case. Rusty Franklin, who is representing one of the alleged lookouts, requested the order in response to what he described as the “barrage of inflammatory, prejudicial information” pertaining to the case.

Why does it matter if parties affiliated in the case release information to the general public? Isn’t it their First Amendment right? A gag order represents the clash and compromise between two fundamental rights: the right to free speech, and the right to a fair trial.

Why gag orders?

The Supreme Court has upheld court-imposed gag orders on numerous occasions despite the obvious issues of governmental restrictions on speech they can raise. The Court’s reasoning often rests on the principle that a criminal defendant’s right to a fair trial justifies a limited restriction on speech.

According to the Supreme Court, defendants should not be punished for a crime unless there has been “a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, [and] excitement . . . .” In order to ensure that such a fair trial exists, “the jury’s verdict [must] be based on evidence received in open court, not from outside sources.”

When potential jurors hear or read endless news reports regarding an upcoming case, they are receiving evidence from outside sources. When parties to a lawsuit release information to the media, they are inevitably releasing only information that helps their case. Consequently, the information is one sided and steers the public toward favoring a specific agenda.

Worse yet, some of the information may not even be admissible as evidence at trial. For example, Sheriff Judd told the press about certain joking statements some of the defendants made while in jail, including, “I guess we’re not going to the beach this week,” and “Am I going to miss cheerleading practice?” The sheriff failed to mention who specifically made these alleged statements, so the media and the public may be inclined to apply the statements to all the defendants collectively. Such a characterization is grossly unfair to whichever defendants didn’t make those statements, and might be considered inadmissible hearsay in court (there are a host of hearsay exceptions that might allow these statements to be admitted, but ultimately it would be up to the judge to decide).

By channeling the statements and video through the media, the sheriff publicized potentially-inadmissible and prejudicial evidence. This tainted evidence could reach possible jurors in the case. Certainly the press was not cross-examining Judd to determine the truth of these statements. What if he was mistaken as to who said what? What if he misheard due to a hearing defect? Even if the statements occurred, should they be offered as evidence of guilt on the part of the defendants? Are the released parts of the video more prejudicial to the defendants than the video in its entirety? These are questions more appropriate for the courtroom than the television, newspaper, or internet.

Harsh Public Response

Instead, people have read or seen one side of the story and come to their own conclusions, most of which are harshly anti-defendant. A local, online news story about the incident prompted dozens of readers’ response posts, many as passionate as this one: “SCUMBAG WHITE TRASH . . . MAY YOU GET WHATS [sic] COMING TO YOU DO YOU KNOW WHAT KARMAIS? [sic] ITS [sic] COMIN’ TO GETCHA . . . .”

What if the above poster was called for jury duty in this case? Maybe the court would dismiss that person for prejudging the defendants before the trial… but maybe it wouldn’t. Could the poster jettison his or her prejudices formed after hearing the out-of-court statements made by the sheriff and ensure the defendants receive a fair trial? The more people who have seen reports of the story or the video, or heard the sheriff’s opinion that the attack is “animalistic,” the less likely the jury will be made up of people who approach the trial without prejudice.

Florida Precedent

A 1999 Florida State Court of Appeals case held that a gag order preventing the plaintiffs of a medical malpractice lawsuit from talking to the media was a violation of their First Amendment right to freedom of speech. In Rodriguez, the plaintiff and her counsel placed advertisements and appeared on talk shows in an effort to contact potential witnesses that could bolster their case.

However, that case is different from the current case in a crucial respect: it was a civil action, while the alleged teen beating case is a criminal action. Although the Rodriguez court stated that “pervasive, adverse publicity does not inevitably lead to an unfair trial,” the court should determine whether there can be limitations placed on the parties when speaking to the media on a case by case basis.

If the Florida standard is to determine gag orders case by case, a strong argument can be made in the present criminal case that such an order is warranted as it jeopardizes the defendants’ Constitutional right to a fair trial.

Gag orders and the media

Although courts have repeatedly upheld gag orders against the parties to a lawsuit when communication may jeopardize the defendants’ right to a fair trial, the bar is much higher when applying gag orders to the media. When a government prohibits the media from reporting about an issue due to potential prejudice, it is called prior restraint, and it is generally found to be unconstitutional. The government “carries a heavy burden of showing justification …. of such a restraint.” It seems that burden is never met. The government couldn’t overcome the burden when it attempted to prohibit the New York Times and the Washington Post from publishing the contents of a classified study regarding Vietnam against the Executive Branch’s wishes. More on point, the trial court in a multiple murder case could not justify prohibiting the press from reporting on the murders despite the fact that “there would be intense and pervasive pretrial publicity concerning this case.”

Post-release gag order too late?

If the gag order was issued to prevent unfair prejudice against the defendants, but can’t extend to the media, hasn’t the damage already been done? The sheriff has already released the potentially damning statements and the videotape. The court is likely powerless to stop news outlets from reporting on the story and playing the tape ad nauseam. Ironically, the gag order revives the story, prompting the media to continue covering the story and reach an even wider audience.

The gag order in the current case does not extend to the news and print media, and it is unlikely that it could, given previous cases. The Supreme Court called prior restraints on speech and publications “the most serious and the least tolerable infringement on First Amendment Rights.” However, the Court has suggested that although the government cannot restrict the media, a responsible press should “direct some effort to protect the rights of an accused to a fair trial by unbiased jurors.” Of course, how likely is the press to act responsibly when there’s a juicy story to exploit?

Like other recent high-profile cases - for example, the Duke rape case and the Kobe Bryant incident - this case has the potential to be tried in the press before it makes it to the courtroom. Ensuring the defendants get a fair trial is essential, but it must be balanced against individuals’ and the press’s right to freedom of speech. The Polk County State Attorney’s office said the eight teens could face life in prison if convicted of all the charges. With stakes this high, the defendants deserve all the fairness they can get.