PERSPECTIVES ON THE PRESS AND THE COURTS : Overreacting to Effects of Publicity : Judge Ito is unnecessarily exaggerating the tension between the First andSixth amendments.

Perhaps more than any other case in American history, the O.J. Simpson murder trial is forcing constant examination of the tension between protecting a free press and guaranteeing a fair trial. This has been especially evident in developments of the past week. Judge Lance A. Ito suspended jury selection for two days to focus on whether a new book about Nicole Brown Simpson compromises O.J. Simpson’s right to a fair trial. Then, Thursday, after resuming jury selection, the judge excluded the press from monitoring the voir dire process.

The events of the past few days cause me to worry that Ito has lost perspective on the issue of media publicity and, indeed, is overreacting to each new media story. Although Simpson’s Sixth Amendment right to a fair trial is certainly as important as the First Amendment freedom of the press, Ito’s actions do little to better ensure a fair trial and, in fact, violate the First Amendment.

It is easy to exaggerate the effects of any day’s news on prospective jurors. Yet, for all of the media attention, there is still every reason to believe that 12 people can be found who will decide the case based on the evidence presented in the courtroom. A poll done earlier this week by KCBS-TV revealed that more than 60% of the people polled either believe that Simpson is innocent or have not made up their minds. Last Friday, the judge himself recognized that all of the media publicity, and particularly the many false reports, make it likely that jurors will disregard what they have heard or read and will base their decision on what is presented at trial.

Moreover, Ito’s actions will do little to enhance Simpson’s chances of getting a fair trial. For all his worry about prejudicial publicity, Ito caused enormous attention to be focused on a book that otherwise would have faded from the news after a day or two. Nor is excluding the press from covering jury selection justified by the events of this week. There were no allegations that the media were in any way irresponsible in reporting on the jury selection process or that any reporter violated the judge’s stringent restrictions. Although apparently one prospective juror complained about media stories, no names or other identifying information about the panel were ever reported.

Most troubling, Ito’s actions run afoul of the First Amendment. In Press-Enterprise Co. vs. Superior Court, in 1984, the Supreme Court expressly held that a state court’s order closing the voir dire of prospective jurors in a criminal trial violated the First Amendment. The Supreme Court long has emphasized the importance of allowing the public, and the media as its eyes and ears, to attend all phases of a criminal trial. The defense called on Ito to delay the trial for a year and to release Simpson on bail. For the public to assess whether such extreme steps are necessary, people need to know how prospective jurors are answering questions about their views and their exposure to media reports.

In sending a letter to media executives asking them not to air interviews with the author of the new book, Ito impermissibly tried to exercise control over the media. Without a doubt, a judicial order stopping the broadcasts would have been an unconstitutional prior restraint. Although Ito did not go this far, it is not the role of the judge, or any government official, to put pressure on the news media to change their stories or programs.

Ito understandably is concerned with assuring Simpson a fair trial. But he must put each day’s stories in a longer-term perspective of the months of pretrial and trial proceedings. He must remember that in numerous other high-publicity cases, ranging from McMartin Preschool to William Kennedy Smith to the trial of the officers for beating Rodney King, juries decided based on the evidence in the courtroom and returned acquittals, despite predictions that publicity would prevent that result.

By overreacting to media reports, Ito is unnecessarily putting himself at war with the news media and exaggerating the tension between the First and Sixth amendments. I hope that he will turn his attention away from the press, which he cannot and should not control, and focus on what is in his domain: reminding prospective jurors not to read or listen to anything about the case; carefully questioning them about what they have seen or heard, and at trial, instructing them to decide solely based on the evidence in the courtroom. These steps should be sufficient to protect Simpson’s right to a fair trial without compromising the First Amendment.