Free speech vs. fair trial

We understand U.S. District Judge Linda Reade's concerns about shielding jurors from publicity before the Agriprocessors federal financial fraud trial that began Tuesday with jury selection. Reade is doing her job, trying to ensure a fair trial. That's why she moved proceedings from Cedar Rapids to Sioux Falls, S.D.

We respect her efforts. We also think that it's not necessary or right to stifle all pretrial publicity in high-profile cases.

Earlier this month during a scheduling session for the trial, Reade reacted strongly when an assistant U.S. attorney informed her of an advertisement in the Des Moines Register that questioned the government's actions during and after the May 2008 immigration raid at the Agriprocessors plant in Postville. The ad, titled “Is This Justice?” was paid for by Friends of Sholom Rubashkin, the former plant manager facing more than 100 charges in the case. The ad and a related video also seek donations toward his legal expenses.

Reade, a Gazette reporter wrote, warned that if a similar ad also was published in the Sioux Falls Argus Leader, “I'm going to hit the roof.” No such ad has been published or submitted, Argus Leader officials told us Tuesday.

Even if it had been published in Sioux Falls, we doubt the ad would affect the trial's outcome. Erin Wilgenbusch of Iowa State University's Greenlee School of Journalism agrees. Full disclosure: The Gazette would accept such an ad as long as there was no illegal or libelous content.

During a trial, jurors are instructed by judges not to access media and Internet reports of the case, and that would include advertisements. Of course, that doesn't account for media exposure jurors might have experienced during the pretrial period. A jury selection process is designed to weed out jurors who admit they are prejudiced about the case.

Some rather limited research tends to indicate that extensive pretrial publicity can affect the outcome of a trial. Yet a recent study casts doubt on that generalization. Researchers from Oregon State University and California State University studied more than 1,100 felony murder and bank robbery trials, including the extensively covered O.J. Simpson case. Their 2004 book, “Free Press vs. Fair Trials: Examining Publicity's Role in Trial Outcomes,” reported no statistical difference between guilty verdicts in trials that were heavily covered and trials that got no media attention.

Guaranteeing a fair trial, as the Constitution's Sixth Amendment stipulates, is not an exact science. Sometimes, it may seem in conflict with the First Amendment's guarantee of access to information about court proceedings.

So, do you draw a line at advertisements?

No. A democracy needs a balance of free-speech rights and individual protections.