Judge Apparently Thinks He Can Tell Newspaper Which Photos It Can Use

from the that-doesn't-seem-right... dept

Fri, May 22nd 2009 6:11pm — Mike Masnick

Romenesko points us to the news that a judge is considering barring news organizations from showing photos of a handcuffed local legislator, Roger Corbin. Corbin was arrested on tax charges, and (not surprisingly), local news sources have shown photos of him in handcuffs. This seems both accurate and newsworthy. However, the judge seems to think that these photos could bias the jury, saying that it was "troubling" to him that the news organizations used the handcuffed photos rather than photos of Corbin back when he was an upstanding legislator. Of course, as the lawyer for the news organizations pointed out: "Courts do not get [into] telling the media what to publish." The judge then apparently compared the handcuff photos to child porn in explaining that the First Amendment wasn't absolute, and the gov't could restrain the use of certain photos (apparently skipping over the incredibly high barrier normally used to justify anything of that nature). The judge hasn't made a final decision yet, but even the fact that he's considering telling newspapers that they can't publish photos of a guy in handcuffs seems troubling.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: freedom of the press, journalism, newspapers, photos, roger corbin
Companies: news12, newsday

41 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 22 May 2009 @ 7:27pm

Judges are just lawyers in robes. The robes dont give them any more sense, only more power.
[ link to this | view in thread ]
Joe Smith, 22 May 2009 @ 8:43pm

Perp walk
If the judge thinks that the photo is prejudicial maybe he should discourage prosecutors from staging those humiliating perp walks.
[ link to this | view in thread ]
Tony, 22 May 2009 @ 9:16pm

Prior Restraint, anyone????
Although the 6th Amendment gurantees a "trial by impartial jury...", the Supreme Court has been very clear that Prior Restraint is not allowed except in extreme circumstances. (See Nebraska Press Ass'n V. Stuart, 427 U.S. 539 [1976]). The instant case is similar to Stuart, in that the judge wanted to suppress press activity in order to preserve the defendants 6th Amendment rights. The Supreme Court said no-go! I think the judge in this case should do a little research before he decides to do this. He won't win.
[ link to this | view in thread ]
Cyanid Pontifex, 22 May 2009 @ 9:18pm

Child Pornography is banned because it is considered obscene under the Miller test. Seeing a state legislature in handcuffs (even if they were fuzzy, vibrating handcuffs) is in no way obscene. In fact it could be argued that showing a local politician in handcuffs is political speech, which is the most protected category of speech by the First Amendment. Furthermore, as stated in New York Times v. United States, the government cannot exercise prior restraint on the press without showing that the publication of the materials they want to censor will cause grave and irreparable danger.

This judge clearly doesn't understand the First Amendment. If he does order the papers to stop printing these pictures, they have the right and the responsibility to ignore his ruling.
[ link to this | view in thread ]
Tim, 22 May 2009 @ 9:57pm

What about reverse prejuidicialness?
"...the judge seems to think that these photos could bias the jury, saying that it was "troubling" to him that the news organizations used the handcuffed photos rather than photos of Corbin back when he was an upstanding legislator."

If newspapers only show positive photos of people who have been arrested (which is all the photo says, it doesn't say the person is guilty of anything) then would that prejudice the jury in favor of the defendant? Maybe they should show a photo of a before and after shot to even things out and be "fair" to all?! Newspapers aren't in the "fair" business. They report accurately (we hope) the history of the days events and let others be the judges and commentators of history. Newspapers are about facts.
[ link to this | view in thread ]
dennis Gillespie, 22 May 2009 @ 10:26pm

judge needs common sense
The judges name should definitely be printed with this article. He needs to own such an asinine idea, as some have said. Oh, there is the judge's name. It is U.S. District Judge Arthur Spatt. He is the judge who said the clever-less thing about judges should be able to control the media. Imagine that. Imagine a judge thinks he should have the power to control the free press. U.S. District Judge Arthur Spatt thinks he should be able to control the free press to the point of censoring a photograph of the potential crook. Some one charged with steeling money from the government. If the good U.S. District Judge Arthur Spatt knows already that the accused is not guilty, then let his pay check come out of that money when they finally find the thief and the money is replaced by the 'real' dishonest tax payer and returned.
[ link to this | view in thread ]
Anonymous Coward, 22 May 2009 @ 10:51pm

Re: Prior Restraint, anyone????
I think the judge in this case should do a little research before he decides to do this. He won't win.

So? What has he got to lose?
[ link to this | view in thread ]
Nathan, 23 May 2009 @ 12:23am

Re: judge needs common sense
Fuck you, U.S. District Judge Arthur Spatt!
[ link to this | view in thread ]
Anonymous Coward, 23 May 2009 @ 12:52am

Re:
Cyanid, I think seeing a state legislature OUT of handcuffs is obscene, but that's just me...
[ link to this | view in thread ]
beebopwilly, 23 May 2009 @ 4:47am

This judge should be slapped until he's a whimpering heap of tear and urine-stained robes, and then run out of town on a rail. What a Nazi pig he is! It's fascist bastards like this who would like to turn this country into their own little concentration camp playground, where their whim reigns supreme, and nobody has any rights except them. Filth!!!
[ link to this | view in thread ]
Aixkami, 23 May 2009 @ 5:01am

Convenient Constitution
The First Amendment isn't absolute...neither is the Second Amendment..., come to think of it, neither is the right to "life, liberty, and the pursuit of happiness." If you believe in freedom of speech, freedom of press, right to bear arms (to protect yourself against people who murder, rape, rob, (and I'm not even referring to our government!)) if you believe in the right to life for EVERYONE, INCLUDING those who are disabled, elderly, unborn, you have been soundly defeated in today's political culture. In today's society, judges throw out pieces of the founding documents when they're inconvenient, or when they don't agree with the judge's personal views, and the system of checks and balances we're supposed to have to protect against this very tyranny is so broken and powerless, that it is essentially dead. If you're a pervert, murder, rapist, thief, politician, then you're covered, and your rights will be defended....we've exchanged bad for good... and we as a populace are getting exactly what we've asked for. Thank God for forums like this that still publish these types of stories to at least make sure some of it is known! Oh, and I'm probably now on a domestic terrorism watchlist, LOL.
[ link to this | view in thread ]
Todd, 23 May 2009 @ 5:14am

If you are on trial for something, you would have had to have been arrested. Why would a picture of you in handcuffs be prejudicial?
[ link to this | view in thread ]
Anonymous Poster, 23 May 2009 @ 5:20am

Re: Re: Prior Restraint, anyone????
He can look like a fool for basically ignoring the Constitution in an attempt to control the press from the bench.

So I'd say he could lose the respect of his peers, if he hasn't lost it already after pulling this stupid stunt.
[ link to this | view in thread ]
TDR, 23 May 2009 @ 5:52am

Now all we need is someone to put those photos online and then the idiot won't be able to hide it anymore. Because once something is digital and online, it's everywhere.
[ link to this | view in thread ]
Anonymous Coward, 23 May 2009 @ 10:16am

Re: Re: Re: Prior Restraint, anyone????
So he could loose a little face? That's it? Big freaking deal. I bet it won't keep him up a night.
[ link to this | view in thread ]
Cyanid Pontifex, 23 May 2009 @ 2:24pm

Re: Re: Re: Re: Prior Restraint, anyone????
Unfortunately, you can't fire Federal Judges, and such a ruling is not grounds for impeachment. Were he to do something that was grounds for impeachment, this decision of his could be used as additional evidence to impeach him, but sadly enough, there is effectively no harm that can be done to him because of this.
[ link to this | view in thread ]
Anonymous Coward, 23 May 2009 @ 5:38pm

Importantly, the federal district court judge has NOT ruled on the motion that was argued by opposing counsel. The fact he asked questions and made statements during the course of oral argument is not at all unusual. In fact, the Supreme Court does it all the time.
[ link to this | view in thread ]
BTR1701, 23 May 2009 @ 6:28pm

WTF
Not sure what country this judge thinks he's in, but there's about 200+ years of 1st Amendment jurisprudence that says he's full of it.

In the Pentagon Papers case, the Supreme Court ruled that the New York Times could publish sensitive military documents during the Vietnam War, even though it might put troops at risk.

If the lives of American soldiers in war time isn't enough to trump the 1st Amendment, I have no idea why this judge thinks banning a picture of a politician in handcuffs is going to pass constitutional muster.
[ link to this | view in thread ]
bob, 23 May 2009 @ 7:13pm

Re: Convenient Constitution
To think this all started when some farmer wanted to grow wheat for his household only to make bread, and not to sell.
But the feds got the SCOTUS to sign off on not allowing him to do that.
Thus the slow removal of liberty commenced.
[ link to this | view in thread ]
gerf, 23 May 2009 @ 8:11pm

It's always an issue
If you watch this classic video of "why to never talk to the police," he gives the great piece of information that when you are in a jury trial, you can be assumed guilty by the jury just because they see you in that orange jump suit and in handcuffs.
http://www.youtube.com/watch?v=6wXkI4t7nuc
[ link to this | view in thread ]
Overcast, 23 May 2009 @ 8:12pm

Judges are just lawyers in robes. The robes dont give them any more sense, only more power.

I think it actually works the opposite..

Slap a badge on many people and they loose half their sense. Toss judge robes on them and they loose it all.
[ link to this | view in thread ]
Anonymous Coward, 23 May 2009 @ 10:52pm

Re: judge needs common sense
On a judges salary? They can't afford to buy any common sense.
VRP
[ link to this | view in thread ]
Anonymous Coward, 23 May 2009 @ 10:55pm

Re: Re: Re: Re: Re: Prior Restraint, anyone????
I thought judges tenure is subject to "good behavior"?
VRP
[ link to this | view in thread ]
VRP, 23 May 2009 @ 11:02pm

Abusing the Free Press
Canadian judges do it all the time; issuing gag orders on news media. It's fun! And their Supreme Court agrees.
VRP
[ link to this | view in thread ]
Noah Body, 23 May 2009 @ 11:56pm

Uh...
Wouldn't not allowing the photos to be shown be rather biased since then the jurors might assume he is a "good person," what ever that means, since he would have to be portrayed in a relative positive manor. It seems to me that either no images or at least one of each should be shown to help subdue bias. But then again, what good would either do since we are in a two party gov't and the mentality of "you're either with us or against us" rules in both camps...?
[ link to this | view in thread ]
Cyanid Pontifex, 24 May 2009 @ 9:29am

Re: Re: Re: Re: Re: Re: Prior Restraint, anyone????
Yes; however, impeachment is a difficult process. Congress basically shuts down during impeachment trials; because of this, they usually wait until they have several judges to impeach so they can be more efficient about it. We have had federal judges sitting in jail, still collecting their paychecks because Congress hasn't gotten around to impeaching them.

Furthermore, a ruling like this does not constitute "bad behavior." "Good behavior" generally refers to things such as murder, arson, rape, theft, etc. Of course, if Congress wanted to, they could impeach him for this; however, as I mentioned earlier, it would be unlikely.
[ link to this | view in thread ]
Anonymous Coward, 24 May 2009 @ 6:01pm

Re:
....and more corruption.
[ link to this | view in thread ]
John Galt, 24 May 2009 @ 7:47pm

Judge in Handcuffs
I think seeing one of his buddies in handcuffs, the Judge is thinking, "Except for the grace of God, there go I". Wonder what the Judge has got to hide?
[ link to this | view in thread ]
Anonymous Coward, 25 May 2009 @ 7:04am

Re:
why not let a judge choose a photo. someone thinks it is a good idea to led judges change the parameters of signed mortgage agreements.
[ link to this | view in thread ]
mike42 (profile), 25 May 2009 @ 9:33am

Re: Re: Reactionaries...
...As they should. A mortgage is a legally binding contract, subject to any applicable law. Perhaps you would like to pay 100% APR on your next loan? Damn those lawyers and judges limiting it to 29%!
[ link to this | view in thread ]
Steve, 25 May 2009 @ 1:41pm

Here's the solution. Judge says they can't publish those photos, paper runs them on THE FRONT PAGE the very next morning. If this Judge wants to get into a 1st amendment pissing contest, then let him dig his hole good and deep by defying him to hit the paper with contempt.
[ link to this | view in thread ]
Rob R., 26 May 2009 @ 6:12am

Re:
That is EXACTLY what I was thinking. Well said.
[ link to this | view in thread ]
Paula Product, 26 May 2009 @ 10:56am

Uh, Mike
Geez, Mike -- You might have pointed out (for the benefit of the majority of commenters here, who apparently couldn't be bothered to read the article) that the judge hasn't actually ordered Newsday not to publish the photos, and has actually *rejected* the defense's motion to order Newsday not to publish them, pending a hearing on the issue. In light of the judge's other rulings mentioned in the article(rejecting the defense demands that the prosecutors stop "perp walks" and refrain from commenting beyond a simple statements of facts) it seems quite likely the court will find that the defendant has not met the high hurdle -- which you pointed out -- necessary to prevent publication. While it's somewhat disappointing that the judge didn't go ahead and reject the argument outright (by finding that nothing the defense might be able to argument would justify such prior restraint), it's worth noting that there *are* countervailing interests involved here. A defendant is entitled to a fair trial, and sometimes that interest collides with the rights of a free press. (And thus, the child porn analogy -- that's a situation where the rights of children and the 1st Amendment rights of others collide, and US law finds the interest in protecting children trumps the 1A interest in that situation.) While I, along with many others, and for the most part even US courts, think that the 1st Amendment interests should (and do) take precedence in a situation like this, it's not quite so ridiculous as you make it out to be for a judge to agree to hold a hearing about the issue and hear from both sides (or rather, several sides). If the judge finds that the defendant's right to a fair trial may be jeopardized by the photos, there are a variety of other things the judge can do short of trying to order Newsday not to publish them. If the judge does try to gag Newsday (and as I said above, that seems unlikely) then your outrage will be entirely justified.
[ link to this | view in thread ]
Anonymous Coward, 26 May 2009 @ 6:15pm

Re: Re: judge needs common sense
On a judges salary? They can't afford to buy any common sense.

Federal judges are well paid.
[ link to this | view in thread ]
Anonymous Coward, 26 May 2009 @ 9:32pm

Re: Uh, Mike
Let's get real. Since when did "facts" become a necessary prerequisite for arriving at an informed and intellectually honest opinion? Why bother to investigate for yourself when it is so much easier to rant and express righteous indignation over something with which you haven't a clue what is actually going on?
[ link to this | view in thread ]
Mike (profile), 26 May 2009 @ 10:54pm

Re: Uh, Mike
Geez, Mike -- You might have pointed out (for the benefit of the majority of commenters here, who apparently couldn't be bothered to read the article) that the judge hasn't actually ordered Newsday not to publish the photos, and has actually *rejected* the defense's motion to order Newsday not to publish them, pending a hearing on the issue.

True, but as you note later, it seems like the 1st Amendment issue should clearly take precedence here. The very idea of even delaying that decision is troubling.
[ link to this | view in thread ]
Mike Masnick (profile), 26 May 2009 @ 11:23pm

Re: Re: Uh, Mike
Let's get real. Since when did "facts" become a necessary prerequisite for arriving at an informed and intellectually honest opinion?

We take getting things factually correct extremely important. I'm not sure why you would use sarcasm here. I'm not sure why you feel so threatened by what we write around here that you feel the need to attack me and my integrity. It's rather unbecoming.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2009 @ 7:18am

Re: Re: Re: Uh, Mike
I should have been clearer is identifying the "class" to which my comment was directed. It was not techdirt. It was to many of the commenters who in my view have very little appreciation for how our system of laws actually work.

Just like the 1st Amendment, the 6th Amendment is a bedrock principle upon which our nation is founded. The two principles oftentimes clash and must be reconciled to preserve the respective rights each represents (Free Speech versus Right to Trial by an Impartial Jury).

I am disappointed any time I happen to observe what I believe is a lack of understanding of this very important point.
[ link to this | view in thread ]
joshsmith (profile), 1 Jun 2009 @ 10:57pm

TechDirt - Judge Apparently Thinks He Can Tell Newspaper Which Photos It Can Use Romenesko points us to the news that a judge is considering barring news organizations from showing photos of a handcuffed local legislator, Roger Corbin. Corbin was arrested on tax charges, and (not surprisingly), local news sources have shown photos of him in handcuffs. This seems both accurate and newsworthy. However, the judge seems to think that these photos could bias the jury, saying that it was “troubling” to him that the news organizations used the handcuffed photos rather than photos of Corbin back when he was an upstanding legislator. Of course, as the lawyer for the news organizations pointed out: “Courts do not get [into] telling the media what to publish.” The judge then apparently compared the handcuff photos to child porn in explaining that the First Amendment wasn’t absolute, and the gov’t could restrain the use of certain photos (apparently skipping over the incredibly high barrier normally used to justify anything of that nature). The judge hasn’t made a final decision yet, but even the fact that he’s considering telling newspapers that they can’t publish photos of a guy in handcuffs seems troubling. real estate
[ link to this | view in thread ]
Jason, 11 Jun 2009 @ 9:40am

Re: Prior Restraint, anyone????
Actually, in this case, Stuart may not apply because photos had already been publish and the order would have been to cease to publish.

An order to cease speech already taking place does not qualify as preemptive.

It's also kinda stupid because once it's out there, it's out there.
[ link to this | view in thread ]
paul H, DuBois, 17 Dec 2009 @ 8:55am

flag
A US Flag with gold or yellow flitters is a
Military Courtroom Flag and when you are in

a Military Courtroom and your leaving your
Constitutional protected Rights outside
the door of that courtroom
[ link to this | view in thread ]