Silence in the Court: A Judge Tries to Stifle Coverage
by Al Diamon
Gag me: In a month in which French journalists were slaughtered by terrorists for publishing satirical cartoons, when a German paper was firebombed for reprinting those drawings, when a Saudi blogger was flogged for allegedly insulting Islam, Maine’s little free-press problem could be dismissed as petty. After all, nobody died, was injured or even seriously threatened with legal action. Following a brief delay, the First Amendment’s protection prevailed.
So why am I left with an uneasy feeling? There are a couple of reasons.
On Jan. 5, Judge Jeffrey Moskowitz, deputy chief of the state’s District Court system, ordered two journalists covering a domestic-violence trial in his courtroom not to report on testimony by the defendant (a well-known defense lawyer) or any of the witnesses against him.
The reporters, from the Portland Press Herald and WCSH-TV, after consulting with legal counsel and determining that such a restriction was unconstitutional prior restraint of the press, defied the judge’s order. A day later, Moskowitz himself came to a similar conclusion, rescinding his ruling, which he called “unlawful.”
No harm, no foul?
Moskowitz never explained why he made such an obviously erroneous decision in the first place. The Press Herald’s Scott Dolan reported that the judge came up with the idea during a closed-door meeting with lawyers in the case. Dolan wrote, “[Defense attorney Christopher] Largay denied that he or [assistant attorney general Paul] Rucha suggested the gag order, while also denying that the judge reached the decision on his own. He said the meeting in the judge’s chambers was heated, and Largay was unable to account entirely for what happened.”
Here’s what’s really hard to account for. Moskowitz, as an experienced jurist, must have been aware that the circumstances under which he’d have authority to gag the media are extremely rare and usually involve matters of national security.
No matter how “heated” the situation got, it’s tough to figure how he could have gone so far beyond his authority. If one of the leaders of Maine’s court system displays such ignorance of basic constitutional law, what does that say about the quality of the state’s judges and the training they receive?
There’s also the faint odor here of the legal fraternity trying to spare one of its own (the lawyer/defendant) from public embarrassment. I doubt Moskowitz intended that, but there’s no doubt this mess raised such suspicions.
My second problem with this incident is in some ways even more serious. Because it’s one thing when the government tramples on our rights. It’s quite another when the public displays disdain for, and ignorance of, the First Amendment.
In the hours after this story broke, there were postings on social media defending Moskowitz’s decision. Typical is this one from “pnconusa” on the As Maine Goes website: “There is no inherent right for any American to demand to know about the prosecution of another person. The jury is the individuals (sic) protection from abusive government and the jury are (sic) the representatives of all the people so far as openness is concerned .… Our courts have recognized a right to privacy so it is even possible that a defendant waiving jury trial and confessing to a crime could even argue the entire proceeding be kept from the public as it really is no one (sic) of their business.”
To set the record straight, court proceedings in criminal cases are public records in this country by law, the reason being to prevent secret trials and other abuses. And there was no jury involved in this case, because jury trials aren’t held in Maine District Court.
The news media are making a serious mistake if they believe the public is greatly concerned about press freedom. That’s hardly surprising given the coverage of this case. Stories featured a lot of bloviating about the First Amendment, and righteous indignation from people who could barely conceal their delight at the prospect something they said or wrote might inspire censorship. Nobody bothered to report on why this should matter to anybody else.
Which may be why nobody else cared.
Out-Sourcing: You don’t have to be an expert in newspaper finances to suspect that the Maine Sunday Telegram’s Source section is in trouble. Introduced to much fanfare last year, Source, which covers food and sustainable living with all the boring earnestness of the old Maine Times, has failed to attract advertisers.
In recent weeks, Source has run about six pages, of which a half page or less consists of ads. That’s at least two pages too few to break even.
While the Telegram has continued to run the full section, MaineToday Media’s two other Sunday papers, the Kennebec Journal and Morning Sentinel, have reduced Source to two pages tacked onto another section. Whatever doesn’t fit is relegated to the website.
Sources (no pun intended) at MaineToday say there have been discussions about Source’s future, but no radical changes are likely before summer.
Odds and sods: The best piece of journalism the Bangor Daily News has published in months didn’t get any ink at all. Maine Focus editor Erin Rhoda’s “The Offending Dilemma” showed up on the BDN’s website early in the new year, but never made it into the dead-tree edition. Rhoda produced a stunning piece on how the state’s courts are failing to address the causes of domestic violence by not requiring those convicted of the crime to attend batterer-intervention programs. She sat through meetings, interviewed perps and victims, analyzed statistics and dispelled myths. Compelling stuff, easily worth a couple pages of newsprint — even if it meant skipping recipes and celeb gossip for a day. Too bad that didn’t happen.
DigPortland’s short lifespan ended Jan. 19, when the owners of the alternative weekly agreed to sell it to the rival Portland Phoenix, which promptly shut it down. That deal also ended a lawsuit by the Phoenix against two Dig executives, Marc Shepard and John Marshall, for breach of contract. Dig began publishing in November and featured numerous former Phoenix staffers and freelancers (including me), most of whom are now out of jobs. The paper’s demise can be blamed on a miscalculation by co-publishers Shepard and Jeff Lawrence, who built their business plan around the proposition that the Phoenix would fold, leaving Portland a one-alt-weekly town. But, according to several sources, the Phoenix benefited from substantial outside financial help from a local businessperson. Once it became clear that established paper wasn’t going away – and that the new paper faced substantial operating losses and legal expenses in its first year (said to be in the neighborhood of half a million bucks) – the Boston-based owners pulled the plug.
Saga Communications, owner of seven Portland-area radio stations, has settled a lawsuit filed by the Nielsen rating service claiming Saga was using Nielsen’s numbers without paying for them. Saga has agreed to once again buy Nielsen’s statistics in several markets, but not Portland. So the latest local survey of listeners, released in early January, doesn’t include Saga’s outlets, such as talker WGAN or country station WPOR. For the record, classic hits WFNK topped the list, followed closely by rock station WBLM and Top 40 outlet WJBQ.
In addition to serving as The Bollard’s media critic, Al Diamon writes a weekly political column that runs in the Daily Bulldog and the Current Publishing papers. He can be emailed at firstname.lastname@example.org.