Fueling what attorneys called a classic 1st Amendment battle, a San Bernardino County judge Thursday barred two newspapers from publishing photographs taken in court of a police officer accused of assaulting 11 women while on duty.
Judge Robert Fawke said using the pictures would hinder Officer Ronald VanRossum's ability to get a fair trial by compromising the investigation. VanRossum's 6th Amendment right to a fair trial outweighed the press' 1st Amendment right to publish the photos, he said.
"I am balancing the public's right to know with his [6th] Amendment rights," Fawke said. "And he has a constitutional right to a fair trial."
Attorneys representing the Los Angeles Times and the Press-Enterprise of Riverside said the judge's ruling violates the Constitution and promised to appeal.
"We'll be asking the courts to act as quickly as possible," said Alonzo Wickers, representing The Times. "We will argue the judge does not have a basis to restrain the newspaper from publishing photos."
The dispute began last Friday at a hearing for VanRossum, a 14-year veteran of the San Bernardino Police Department arrested last week and charged with 27 counts of kidnapping, rape and battery.
Authorities said VanRossum, a patrolman who worked the night and graveyard shifts, targeted women walking alone in the San Bernardino area, many of them drug addicts or with a history of prostitution.
During the hearing in San Bernardino Superior Court, several members of the media requested permission to take VanRossum's picture. Fawke granted all requests. But defense attorneys and Deputy Dist. Atty. Jon Ferguson objected as deputies brought VanRossum into the courtroom.
The defense and prosecution argued that because investigators are still interviewing potential witnesses and victims in the case, no photographs of the defendant should be taken. "We want witness memories to be a product of their own recollections rather than some intervening fact introduced by the newspaper," Ferguson said outside court Thursday.
After attorneys raised objections at last week's hearing, Fawke rescinded his approval of the photographs. But by then, photographers from The Times and Press-Enterprise had pictures of VanRossum. Fawke warned the news organizations that he would hold them in contempt of court if they published the photos.
Attorneys for the two newspapers said many court rulings have established that 1st Amendment rights trump 6th Amendment rights in such circumstances.
Douglas Mirell, a 1st Amendment attorney in Los Angeles not involved in the case, agreed that the law appears to be on the side of the news media. "There is a long line of U.S. Supreme Court decisions which establish the principle that the media is free to publish information it has lawfully obtained," he said. "Once that information is out of the bag, the courts are precluded from attempting to stuff it back into the bag."
Mirell cited several cases that have tested the issue, known as prior restraint. The term refers to attempts to keep the media from publishing information or photographs.
The most famous case involves the New York Times in its fight with the White House in 1971 to print excerpts from Pentagon papers, which outlined the United States' growing involvement in the Vietnam War. White House attorneys asked the U.S. Supreme Court to bar the paper, and the Washington Post, from further stories on the documents. But the court ruled that not even their claim of national security was enough to uphold prior restraint.
"As regretful as a judge may be for having issued an order [allowing photos], the remedy can not be suppression of those photos. Clearly, that would violate the 1st Amendment's prohibition against prior restraint," Mirell said.