The judge in the Michael Jackson case has issued gag orders on all involved.

Well, almost all.

Gag orders are typical — and perhaps more necessary today than in pre-Internet days — in high-profile cases. The idea behind them is at once simple and complex. A gag order theoretically prevents the parties, their attorneys and others involved in the case from discussing the case in public. The simple argument in favor of this is that we don’t want potential jurors coming in to a trial with too many preconceived ideas. Fact finders — which is how the law views jurors — should be able to come into the courtroom, listen to the evidence and “arrive at” a theoretically unbiased verdict grounded upon that evidence. As the Sixth Amendment to the Constitution puts it, “In all criminal prosecutions, the accused shall enjoy…trial, by an impartial jury.” This cannot happen when the jury pool has already been pushed and prodded to “the correct verdict” by the King of Spin.

On the other hand, the Constitution of the United States guarantees a public right-to-know how the criminal justice system operates. Unless Enron or some other party friendly to whichever political group is in office is facing charges, or unless there’s a national security issue, or unless…well, these aberrations notwithstanding the rule of law upon which our country was built depends upon public confidence in the operation of its system of laws. Thus, the same Sixth Amendment to the Constitution quoted above also states that every person accused of a crime “shall enjoy the right to a speedy and public trial.” (Emphasis added.)

The word “public,” however, is not a synonym for “televised” or “broadcast” or even “published“. And while entertainment organizations such as CNN, Fox News and even CourtTV may go into conniptions over being forced to forgo a blow-by-blow of “he said/he said,” the true interest of the legal system — justice — and the constitutional aim of a fair trial should win out.

Allowing allegations from people tenuously connected with the parties to the case to be aired virtually hourly on sitcoms like the O’Reilly Factor, Fox News Tonight and CNN is an affront to justice. These organizations have no vested interest in seeing justice done. Their goal is to entertain and, in some cases, outrage. If a criminal case against a famous person were to be straightforward and not sensational in and of itself, they have every motivation to make it so. After all, who’s going to watch CNN as the announcer quietly intones, “Here, we see Michael Jackson, entering the courtroom where he will answer to criminal charges before an impartial jury. And now, the weather.” There’s no fun in that! It’s about as exciting as watching bowling on TV! Besides, who cares about the weather if you can’t stir up your own little storm?

The problem with storms is that they often dredge up and spread around a lot of useless garbage. This is as true for the storm that is Fox News as it is for storms like Hurricane Andrew. The difference is that Andrew was an impersonal, uncontrollable force of nature with no sense of morals, while the posers who pretend to bring us the news are personal, controllable forces of our species with no sense of morals.

The Supreme Court of the United States once said,

The principle that justice cannot survive behind walls of silence has long been reflected in the “Anglo-American distrust for secret trials.” A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. This Court has, therefore, been unwilling to place any direct limitations on the freedom traditionally exercised by the news media for “what transpires in the court room is public property.” The “unqualified prohibitions laid down by the framers were intended to give to liberty of the press . . . the broadest scope that could be countenanced in an orderly society.” And where there was “no threat or menace to the integrity of the trial,” we have consistently required that the press have a free hand, even though we sometimes deplored its sensationalism.

But the Court has also pointed out that “legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” — Sheppard v. Maxwell (1966) 384 U.S. 333, 350.

The problem today is that we no longer have a responsible press. In its place, we have a massive entertainment industry with a voracious appetite for increasingly bigger stories. And if the story isn’t big enough by itself, they’ll just use more outrageous reporting techniques, a là the National Enquirer, to build one. As Orson Welles’ character in Citizen Kane said, “If the headline is big enough, it makes the news big enough!” Thanks to the likes of Rupert Murdoch, this is today’s press: anything but responsible. People who previously would be hard-pressed to get some play writing Letters to the Editor find CNN, Fox News and other entertainment organizations ready and willing to put them into the national spotlight.

So what’s the solution? Muzzle the press? I’m not sure that makes much sense, either. For one thing, the freedom of the press is a freedom that is — and should be — nearly equal to the right to a fair trial. Take away either one and our Republic cannot long survive. And unethical publicity hounds such as William Dickerman make it clear that a judge cannot effectively deploy a gag order. There will always be people who will find ways to violate the gag order, or those whom the order will not cover.

Perhaps we need something like an “equal time rule” for parties to a legal action. If one of the “news” outlets wishes to put on a story relating to a trial, and that story itself contains unchallenged allegations which are going to be trumpeted constantly in the “press”, then perhaps there should be some kind of requirement that an equal amount of time for a rebuttal will be given during the same time period. (The latter idea is there to keep O’Reilly-types from crucifying people during prime-time and then giving “equal time” during the 2 to 3 a.m. slot.)

I mean — why not? — if we’re going to try the case in the “press”, then let’s at least make it a fair trial.