Ceaseless struggle The ‘gag order’ controversy at us district court shows how press rights make for a frequent battleground — even in a fairly liberal state like Rhode Island BY IAN DONNIS

When Ernest C. Torres, the chief judge of the USDistrict Court in Providence, made a proposal that was quickly attacked as an overly broad restriction on free speech, he didn’t seem to anticipate the storm of protest. Yet media advocates were hardly reassured when the court initially denied access to public comments on the concept — part of the first major overhaul of the court’s local rules in a generation — to a Providence Journal reporter.

By all accounts, the controversy over what critics called a "blanket gag order" at the court may be headed toward a mutually satisfying conclusion. After the sharp response by media and free speech advocates, Torres extended the public comment period on the entire proposal of new rules until September 30. Although the judge considers the outpouring of First Amendment concerns to be without merit in this instance, he cites the public vetting of the proposal as an effective forum for airing objections.

Still, despite the promise of a good ending, this skirmish show how press freedoms and the First Amendment remain a frequent source for contention even in a fairly liberal place like Rhode Island. It illustrates the local presence of vigorous advocates for press freedom and open government, and how the Providence Journal, even after suffering some of the common effects of media consolidation, remains chief among them. Perhaps most significantly, the clash reflects the constant tension between those government entities that control information and the media organizations that seek it on behalf of the public. (For a prime example, consider how the Federal Emergency Management Agency [FEMA] briefly adopted a policy prohibiting the media from covering the recovery of bodies killed because of Hurricane Katrina — and how, according to the Reporters Committee for Freedom of the Press, after that policy was dropped, a member of the Army’s 82nd Airborne Division told a reporter and photographer from the San Francisco Chronicle that their credentials would be taken, and they would be bounced from Louisiana, if they wrote about or took photos of body recovery.)

Even if the lack of specificity in the most controversial part of the federal court’s proposal left some local observers scratching their heads, particularly because of Torres’s exactitude as a judge, they accept at face value his explanation that he was trying to clarify the rule governing confidential information at the court. It’s possible, as Torres maintains, that this dispute is an instance of "making a mountain out of a molehill." Then again, in an era when the Bush White House stands as the most secretive administration since that of Richard Nixon, the clash can also be viewed through the prism of 19th-century abolitionist Wendell Phillips’s famous refrain: "Eternal vigilance is the price of liberty."

CONFIDENTIAL MATTERS

The protest over the proposed "Disclosure of Non-Public Information" rule came after the US District Court in Providence issued a June 21 notice, indicating that new local rules were being mulled for adoption, and inviting written public comments before an August 12 deadline.

The reaction was swift and sure. Although Torres indicated the measure was meant to preclude the release of confidential information that could unfairly prejudice a case, critics cited the absence of the word "confidential" in the new rule, and they hit on how it marked no difference between "confidential" information and a far larger array of information considered not part of the public record. The proposal was rapped as a sweeping edict that could, as the ProJo reported in July, stop parties to court cases, their lawyers, and court employees from revealing any information about a pending case unless a judge offered permission or unless the information is "part of the public record."

An ad hoc coalition of media groups, including the Associated Press, the Providence Journal Company, Access/RI, the Rhode Island Broadcasters’ Association, the Rhode Island Press Association, and the New England Society of Newspaper Editors, responded by hiring Providence lawyer Joseph V. Cavanagh Jr., a noted media specialist, to register objections to the proposal. (Acting separately, the Reporters Committee for Freedom of the Press, a nonprofit group based in Arlington, Virginia, also filed written comments.)

As Cavanagh wrote, "The judiciary has an interest in and the power to control access to and disclosure of confidential information. An appropriate process which protects that interest is unobjectionable and in the public interest. However, as drafted, the Proposed Rule is overbroad and unnecessarily runs counter to First Amendment interests of the public, the media, and the participants in open and full access to judicial proceedings and information related thereto. On its face, the Proposed Rule is tantamount to a blanket gag order which, if adopted, would impermissibly restrict the dissemination of information about which the public is entitled to know."

While Torres indicated a subsequent recognition that the proposal could have been worded better, as well as a willingness to change it, the judge didn’t win points with his critics when he told the Journal’s Edward Fitzpatrick in an August 18 story, "Some people seem to be paranoid on this question, and some are just off base." (Similarly, after the public comments were denied to Fitzpatrick while he was preparing the same story — court clerk David A. DiMarzio told him it wasn’t an obviously public file, and cited the need for direction from Torres — they were made available less than a week later.)

Steve Brown, executive director of the Rhode Island chapter of the American Civil Liberties Union, says of the proposal, "I have to assume that the broad nature of the wording was inadvertent. I certainly don’t think that the concerns that were expressed by the ACLU and a number of other groups was the result of ‘paranoia.’ The concerns were based on a very objective reading of the language. I don’t question the judge’s position that the proposal was never intended to have the consequences that it appeared to have, but I don’t think we were paranoid in pointing out the breadth of the text."

Torres has denied any link between the controversial proposal and the source confidentiality case that last year landed WJAR-TV investigative reporter Jim Taricani in four months of home confinement, but Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, sees it differently. "I think that this is a judge who was very aggravated by Taricani’s refusal to cooperate, and I think this judge doesn’t have a heck of a lot of sympathy for journalists and the function that journalists perform in a democratic society," she says. "I think this is about control. Every day of the week, I see judges around the country coming up with measures that add greater control for judges, and those measures usually have some sort of negative impact on the people’s right to know what the courts are up to."

Some local reporters believe the federal court in Providence has traditionally controlled information more tightly than its counterparts in Hartford, Boston, and elsewhere. Taricani gives the court good marks in affording access to cover trials, although he says, "This federal court takes a more conservative view of openness." WPRI/WNAC-TV investigative reporter Jack White, the dean of local mob reporters, says, "Providence is incredibly restrictive as far as reporters are concerned." When audiotapes from a bugged Mafia induction ceremony in Medford, Massachusetts — the first time such an event was recorded by federal investigators — were played in federal court in Hartford, copies of the tapes were released to reporters the same day, White says. By contrast, the US District Court in Providence declined to make even transcripts available from audio recordings played during the Plunder Dome trial of Rosemary Glancy. (Disclosure: I am a frequent panelist with White on WPRI-WNAC’s Newsmakers.)

Torres rejects assertions that the federal court in Providence is more restrictive than others in the region. He notes how an overflow room was created for additional spectators to accommodate public interest during the Plunder Dome trials, and says that releasing information to the media was complicated by how not all of the recordings on individual government discs were admitted into evidence. Torres says the claim that information presented in court "is somehow being kept secret is totally inaccurate and unfounded."

As far as the proposed rule governing confidential information at the court, Torres says all of the public comments will be taken into consideration. "That’s the whole purpose of having the public comment . . . We are interested in receiving input on the rules," he says. "Where it sort of got out of hand, some people sort of seemed to be imputing some sort of ulterior motive. That just simply is not so."

In terms of the perceptual gulf between how the controversial proposal was created and how it was received, Torres says, "I can’t read other people’s minds. I think part of it is where people are standing. [Members of the media] have their particular interests that they are concerned about. I don’t blame them for that."