Rules Barring Judges from Talking to Media about Trials Must Be Ironclad

U Ideas of General Interest -- September 2001University of Illinois at Urbana-Champaign

Contact: Mark Reutter, Business & Law Editor (217) 333-0568; [email protected]

JUDICIAL CONDUCTRules barring judges from talking to media about trials must be ironclad

CHAMPAIGN, Ill. -- The behavior of U.S. District Judge Thomas Penfield Jackson in the Microsoft antitrust case has renewed questions of how far a judge should go in making off-the-record comments to the news media during or after a trial.

Microsoft has targeted Jackson's interviews with journalists -- rather than antitrust issues -- in asking the U.S. Supreme Court to throw out the entire decision. The nation's highest court has not yet announced whether it will hear the case based on Microsoft's argument that Jackson's loose tongue showed bias against the software giant, which was found guilty of engaging in monopolistic practices by Jackson and a U.S. appeals court.

Looking broadly at the question of judicial contacts with the news media, a University of Illinois constitutional scholar writes that a prohibition against judges talking to the media "should be absolute whether dealing with print or electronic media."

This is true not only when a judge is presiding over a case, but also in actions outside a judge's courtroom (such as the O.J. Simpson murder trial) in which any remark made on TV or in the print media might appear to lend "a judicial imprimatur to legal positions being advanced by one of the parties."

In an article in the current University of Illinois Law Review, UI law professor Ronald D. Rotunda rejected Jackson's justifications for granting his interviews with The New York Times and other newspapers during the Microsoft trial.

According to Jackson, the interviews were "embargoed" during the trial and, by agreement with the papers, would not be disclosed until after he had decided the case. Thus, "until the embargo was lifted, what was said to the journalists was simply never said," Jackson asserted. He further defended his interviews as necessary to educate the public and to correct "some of the public distortions" of the facts of the case by "one or both of the parties."

But the trial was not "over" when Jackson issued his opinion, Rotunda wrote, because there were still post-trial motions to be heard as well as a period for appeal by either the company or the Justice Department. Rotunda quotes from a Jackson interview with National Public Radio to make the point that he was aware the case would likely be returned to him at a future date for final resolution. "This made it clear that the case was still pending," Rotunda wrote.

Reviewing the ethic codes for federal judges, Rotunda said that while general legal procedures may be explained in court by a judge, private, off-the-record conversations held with reporters is a violation of the spirit if not specific intent of the 1998 Code of Conduct for U.S. Judges. Jackson has subsequently been removed from the Microsoft case by the appeals court, which nevertheless ratified his findings of fact that Microsoft violated anti-trust laws.

"The proper way for a judge to explain his rulings and to educate the public and news media is to write an opinion, not to give press conferences or engage in extrajudicial comments," Rotunda concluded.

-mr-