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A VICTORY NOT TO CROW ABOUT

[by James Kilpatrick] We of the press recently won a victory in the courts of California. Im sorry we won. As a partisan of a press that is both free and responsible, I express regret. This was a case we should have lost.

The underlying facts are not in dispute. Sixteen years ago a salesman in Southern California was shot and killed. It transpired that the killing was murder for hire, set in motion by a prominent auto dealer. The dealer subsequently was convicted of masterminding the plot. His assistant call him James Jackson was at first charged as a co-conspirator. In 1992, when the case went to trial, Jackson pleaded guilty to a reduced charge of being an accessory after the fact. He served a three-year prison term, with time off for good behavior. The San Bernardino Superior Court granted him a certificate of rehabilitation. Then he vanished into civilian anonymity.

is no indication that the First Amendment provides less protection to historians than to those reporting current events.

publicity. Nevertheless, the court sent the TV station home free. Since the Cox Broadcasting case in 1975,

The California court relied chiefly upon the opinion of the U.S. Supreme Court in Cox Broadcasting v. Cohn in 1975. The case involved the gang rape and murder of a 17year-old in Georgia. At the time, Georgia law prohibited publication of the names of rape victims, but a reporter for Station WSB-TV picked up the victims name from the indictments. In a news broadcast, the reporter identified the dead girl. Her father sued for invasion of privacy. He won in the lower courts but lost on the stations appeal. The high court defined the question: Wheth-

the high court repeatedly has reaffirmed the gist of its holding. In cases from Oklahoma, West Virginia, and most recently from Florida in 1989, our right as reporters truthfully to report judicial proceedings has been upheld. The Florida case involved a one-paragraph report of a rape in Jacksonville. The victim sued the weekly Florida Star for disclosing her name. The newspaper won, 6-3, but Justice Thurgood Marshall observed pointedly that our cases have carefully eschewed reaching the ultimate question, of whether truthful publication may never be punished.

Not for long. In 2001 a television company, Discovery Communications, produced a documentary about the 1988 plot. The show identified Jackson as a bit player. It included a mug shot of him, taken at the time of his arrest. He sued for invasion of his privacy. The producer responded that the Jackson portion was based upon official records of a public judicial proceeding. Images of Jackson, counsel contended, were therefore privileged under a string of Supreme Court precedents. Case dismissed. Last December the California Supreme Court unanimously affirmed. The crime of 1988 may not have been newsworthy in 2001, but this was of no consequence. And true, Jackson had lived an obscure, lawful life and become a respected member of the community. No matter. The press has an absolute right to report the contents of public records. The case had become history, said Justice Kathryn M. Werdegar, and there

er the state may impose sanctions on the accurate publication of the name of a rape victim obtained from public records more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection. Said Justice Byron White: We are convinced that it may not do so. Justice William O. Douglas sweepingly concurred. The state may not penalize truthful publication of news of the day. Any other rule would inevitably induce self-censorship by the media, thereby inhibiting the rough and tumble discourse which the First Amendment so clearly protects. Justice White was not so sure of that. Powerful arguments can be made that, however it may be defined, there is a zone of privacy surrounding every individual, a zone within which the state may protect him from intrusion by the press, with all the attendant

The long and short of it is that we of the press have an unqualified right to publish accurate and timely reports of judicial proceedings. We also have a right to resurrect old cases, such as the 1988 murder for hire in California. It may not be news of the day, but we can do it. The question in cases such as the case of James Jackson is, Should we do it? Tell me. After a long life of rough and tumble, I must be turning soft. (Readers are invited to send dated citations of usage to Mr. Kilpatrick. His e-mail address is kilpatjj@aol.com.) COPYRIGHT 2005 UNIVERSAL PRESS SYNDICATE This feature may not be reproduced or distributed electronically, in print or otherwise without the written permission of uclick and Universal Press Syndicate.

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