Constitutional clash erupts over reporter's Ford trial testimony

NewsChannel 5 claims judge's gag order is First Amendment breach against investigative reporter Phil Williams, who is set to testify against former senator

Email | Print By E. Thomas Wood

Does a television reporter's right to free speech trump a disgraced senator's right to a fair trial, or vice versa?

That question has come up after U.S. District Judge Todd Campbell on Wednesday ordered witnesses who will testify in the corruption trial of former State Senator John Ford (D-Memphis) to say nothing about the Ford case in public. One of those scheduled witnesses, it so happens, is NewsChannel 5 investigative reporter Phil Williams.

The TV station and Williams filed suit late Thursday in federal court, raising a constitutional objection to the gag order. "To the extent that the court's order restricts Mr, Williams and/or NewsChannel 5 from reporting on this trial, it is a 'prior restraint' of the free speech and free press that is impermissible under the First Amendment to the United States Constitution," they charged.

NewsChannel 5 and the reporter are seeking a modification of the order (available at this link) that will allow Williams to file stories on the case. Their petition and an accompanying memorandum of law, filed by Ron Harris of Neal & Harwell in Nashville, are at this link.

Williams became part of the story he was covering — Ford's alleged use of his office to funnel money to a health maintenance organization that was secretly paying him — one day in 2005 when he went through the drawers of the desk in the office Ford had abandoned when he quit the Senate. The reporter found notes from the HMO, which he turned over to federal authorities after reporting on their apparently incriminating content.

The prosecution has presumably called Williams to testify about that discovery, and he and the station have raised no public objection to the summons.

Legal experts who reviewed the gag order and NewsChannel 5's filings opposing it have offered divergent opinions to NashvillePost.com.

Rod Smolla, dean and professor of law at Washington and Lee University School of Law in Lexington, Va., came down on the side of Judge Campbell. Smolla has authored several books and a series of columns in the online magazine Slate on free speech issues, as well as arguing First Amendment cases before the U.S. Supreme Court.

"Courts do have substantial discretion to restrict statements of witnesses, at least prior to testimony," Smolla said. "My own view is that a journalist is no exception. The rules of procedure and law that apply to others apply to journalists as well. It would take a showing of bad faith or abuse of discretion to overcome this presumption."

Doug Lee, an attorney in Dixon, Ill. and a legal correspondent for the Nashville-based Freedom Forum First Amendment Center, took an opposing stance.

"There are competing constitutional interests at stake here," Lee said. "But I think the station's analysis is correct. I'd be surprised if the judge doesn't modify the order."

Lee conceded that the judge has broad latitude to place restrictions on witnesses. "But there's a difference here," he said, "because the order potentially bars the reporter from publishing something he would otherwise be able to publish."

Lee also noted that there is no danger of tainting potential jurors in the Ford case because the jury has already been chosen and warned to avoid any media coverage of the case.