[This is a web reprint of Dave Kopel's "Talk Back to the Media" column from the Rocky Mountain News. Recent Talk Back to the Media columns are available at www.RockyMountainNews.com. This older column appears on the Kopel website with the permission of the Rocky Mountain News.]

Withholding news has merit

July 16, 2005

by David Kopel

Are newspapers and other media socially irresponsible when they accurately report the news? I think the answer is "yes, sometimes." The most recent case in point is the Boulder Daily Camera and its publication of the mug shot of Phillip Martinez, the alleged perpetrator of a notorious assault.

On July 5, Martinez was arrested, based on the suspicion that he had attacked Andrew Sterling, a 22-year-old University of Colorado student, on June 3, yelled racial epithets, and broken the man's jaw. The attack was very unsettling to many people in Boulder, especially because of the city's strong stance against racism. Although the assault is hardly as famous as the JonBenet Ramsey case, it is perhaps the most notorious crime committed within the Boulder city limits since the Ramsey killing.

Two Wednesdays ago, the Boulder police released a mug shot of Martinez, which the Daily Camera promptly posted on its Web site. Prosecutors then sought and obtained a court order forbidding the Daily Camera from publishing the photo. Although the Daily Camera kept the Web site photo, the Camera did not publish the photo in its print edition.

The prosecutors and court agreed that publication of the photo could destroy the criminal case. Crime witnesses had not yet attended a lineup to determine whether they recognized Martinez as the perpetrator. If Martinez were innocent, witnesses might pick him out of a lineup anyway because they remembered his picture from the paper and thought he looked "familiar." Conversely, if Martinez were guilty, he would have a good argument that the trial court should exclude the witness identification obtained by a lineup that was tainted by publication of the photo.

Yet the Daily Camera rushed into court, bringing a lawsuit claiming that the order to delay publishing the photo was a "prior restraint" in violation of the First Amendment. Last Saturday, a Camera editorial acknowledged "a reasonable concern" that "publishing Martinez's picture could jeopardize the investigation."

Nevertheless, the Camera argued that the court order was unconstitutional. On Tuesday, after the witnesses had spoken with the police, the district attorney asked the judge to lift the order, and the judge did so. The Camera then published the picture in its print edition.

As a legal matter, there are good arguments on both sides of the case. As an ethical matter, the Camera was plainly in the wrong.

On one hand, readers of the Camera's print edition had to wait nearly an extra week before seeing the picture of Martinez. On the other hand, earlier publication of the picture could have destroyed a serious criminal case, thus harming the major public interest in having justice done regarding the June 3 assault. As an ethical matter, there's simply no justification for a trivial exercise in First Amendment rights (publishing the photo sooner rather than later) at the potential cost of the total destruction of a person's Fifth Amendment right to a fair trial.

Moreover, the Camera, like the Denver dailies, has a long record of voluntarily suppressing information in order to protect other social interests. As a general rule, none of the papers prints the names of alleged victims of sexual assault. The non-publication is based on the theory that victims will be more likely to press charges if they are not afraid of their names being published. Whether you agree or disagree with the media policy, the policy shows that the media (except for fringe media such as supermarket tabloids) agree that in some cases, the ethical thing to do is to withhold information from readers.

Indeed, the media ought to withhold information more often. Some murderers - particularly school shooters and assassins of famous people - are motivated by the prospect of posthumous publicity. Why should the media give these killers what they want, and thereby encourage more such crimes in the future? As a start, how about never putting a suspected killer's photo on the cover of a newsweekly or the front page of a newspaper? Instead, put the victims on the front.

Even better would be to minimize (although not to eliminate entirely) any reference to the perpetrator's name. Making names such as Eric Harris or Mark David Chapman (John Lennon's assassin) into household words has the effect of encouraging other evil, attention-seeking monsters to commit hideous crimes in order to receive similar levels of attention.

A related, and more difficult, question is how to cover terrorism without fulfilling the terrorists' objective of making the terrorists seem more powerful than they really are.

In this short column, I'm only trying to start a dialogue - and not to provide definitive answers about how the media should modify current practices that have the effect of encouraging publicity-seeking murders. I am suggesting that the media ought to begin discussing the issue much more extensively, both in professional publications and with the readers.