Expert Judges 1st Amendment Interpretations

There is a discrepancy between the Supreme Court's theory and practice concerning the press's rights in the coverage of trials, a constitutional law expert said at the Law School yesterday.

"It is time for the First Amendment to come out of the closet," Floyd Abrams, an attorney who represents The New York Times, told an Ames Courtroom audience yesterday.

"We insist that we are not absolutists, slaves to a literal reading of the First Amendment," Abrams said. "And then we invariably rule in favor of the First Amendment interests at stake," he said.

Abrams said the high court justices' theoretical arguments make it seem that there are limits on the media's freedom, but it invariably rules in favor of the press's right to run a story.

Abrams said the Court should adapt its theory to its practice by asserting that the First Amendment protects the press's right to complete immunity from contempt citations in its coverage of trials.

"There are risks," Abrams said. "But at the same time we would be gaining the sureness and certainty that currentlaw cannot provide us with until theory becomesconsistent with practice."

"We live, contentedly, in a society which, infact if not in theory, simply does not countenancewhether contempt citations or prior restraints,"he said.

Abrams argued that in practice, judges rarelyfind the press in contempt of court "for theirpublishing of potentially prejudicial materialsabout forthcoming trials."

And Abrams quoted Justice Byron White as sayingthat the First Amendment creates a "virtuallyinsurmountable barrier between government and theprint media so far as government tampering, inadvance of publication, with news and editorialcontent."

Chief Justice Warren E. Burger has said thecourt can, in theory, find a newspaper in contemptof court for its reporting on trials, but theconditions necessary to sustain such a decisionare virtually unattainable, Abrams said.

In order to find members of the printed mediaguilty, the court must have proof "that furtherpublicity, unchecked, would so distort the viewsof potential jurors...that 12 unbiased jurorscould not be found," Abrams quoted Burger assaying.

Abrams cited one case in which a judgeconcluded, "no punishment could be imposed forcontempt unless there is no doubt that theutterances in question are a serious and imminentthreat to the administration of justice." Abramsresponded to this statement by asking, "When...cana legal test be met that requires proof that thereis `no doubt?'"

But Abrams added, "There are worse ways forlegal systems to function than with a touch ofillusion here and there.