The Jacko Exception to the First Amendment.
For persons who care about public access to trials, the Michael Jackson case has been a nightmare.

By Peter Scheer

(CFAC, June 27) -- If bad facts make for bad law, then the Michael Jackson case is--for advocates of public access to trials--our worst nightmare. Nothing tests the First Amendment principle of openness like the trifecta of lurid sexual charges, juvenile victims, and a defendant whose celebrity status is virtually without parallel.

And bad law the Jackson case has made in abundance.

Trial judge Rodney Melville broke one access rule after another, ordering the sealing of, among other normally public documents: the search warrant and supporting affidavit for the search of Jackson's "Neverland" estate; the transcript of the grand jury proceeding resulting in Jackson's indictment; and the indictment itself.

In the face of court decisions, e.g., NBC Subsidiary v. Superior Court (1999) 20 Cal. 4th 1178, state statutes, Civil Code Section 1534(a), and a rule of procedure, Rule of Court 243.1, establishing a clear presumption of access to all these records, the judge reasoned that the extraordinary media interest in the case justified extraordinary measures to protect witnesses' privacy and Jackson's right to a fair trial.

To the dismay of First Amendment lawyers, the Court of Appeal (for the second appellate district) recently affirmed nearly all of Judge Melville's rulings. NBC Universal, Inc. v. Superior Court of Santa Barbara County. In a published decision, the appeals court held that, although the Jackson indictment should have been made public (because the contents had been divulged by the prosecutor in open court), access to the search warrant, grand jury records, and other legal documents was properly barred.

As though inspired by Jackson's persona, the appeals court's decision is, well, weird. For one thing, the court records sought by NBC and the other media petitioners had, by the time of the oral argument, all been leaked and posted on the Internet, as the court itself pointed out. Since NBC, like the rest of the world, already had the documents it was demanding, the case had become moot--an abstract legal debate rather than a fight over actual records.

The court should have dismissed the appeal on grounds of mootness, without reaching the merits of the appeal. Indeed, CFAC is a signatory to a letter to the state Supreme Court requesting "de-publication" of the appeals court's decision on that basis. (If de-published, the opinion would stand, but could not be cited as precedent.)

One might ask: If NBC et al. had all the records they wanted, why did their lawyers, led by Theodore J. Boutrous Jr. of LA's Gibson, Dunn & Crutcher, persist in an appeal which has yielded such "bad law"? Shouldn't they have pulled the plug at oral argument (if not earlier)? With 20/20 hindsight, it's easy to argue they made the wrong judgment. At the time of oral argument, however, the lawyers must have thought that the appeals court was leaning in their direction.

The other weird aspect of the appeals court's decision is that, both logically and in the court's own characterization of the holding, it applies exclusively to Michael Jackson, whose trial, the court says, was "sui generic"--one of a kind. Courts don't usually fashion rules for a single person. But, then, there will never be another person quite like Jackson.

Fine, let's call the decision the Jacko Exception to the First Amendment. And if a court ever relies on it to withhold court records, just remind the judge that the opinion may only be invoked by the Gloved One.