CHIEF JUSTICE Warren Burger struck a blow against press censorship last weekend without speaking or writing a word. His simple refusal to go along with a district judge's misguided prior restraint order in the "60 Minutes" case gave eloquent expression to his belief in the right to publish and broadcast without government interference.
"60 Minutes" had prepared a piece about seven New Orleans police officers indicted for civil rights violations. The officers argued that since some 50 million viewers see the show each week, airing the piece would infringe their right to an unbiased jury. Incredibly, U.S. District Judge Adrian Duplantier agreed. The Fifth Circuit Court of Appeals reversed him, and by early Sunday morning a request to stay the appeals court's order was made to Supreme Court Justice Byron White. He refused and, at 2 that afternoon, so did Chief Justice Burger. The show went on that night.
The Constitution guarantees both a free press and a fair trial, and rarely are they incompatible. In this case, it was the responsibility of the district judge to determine how both could be served. Clearly, he did not give due consideration to a number of alternative solutions. "60 Minutes" is a highly rated television program, but the majority of Americans--including some who live in Dallas, where the case will be tried --never see it. Even those who do regularly watch the news can maintain the independence of thought and critical judgment necessary to serve on a jury. Attorneys for prosecution and defense evaluate the qualifications and biases of prospective jurors at the time of trial, and it is always a painstaking process.
Judge Duplantier undoubtedly thought that it would be easier to pick a jury if prior restraint were imposed on the broadcasters. The judges of the Fifth Circuit and Justices White and Burger were right to refuse to endorse this measure of judicial censorship. Their swift and unequivocal action demonstrated a broad and welcome concern for the Constitution and all the rights it guarantees.