This happened a few weeks ago, but still worth mentioning: A Boulder judge last month ordered the fatal child-abuse trial of Alex Midyette moved out of Boulder County because of excessive pre-trial publicity. While rare, changes of venue based on press coverage aren’t that unusual. Here’s the kicker, though: Midyette’s defense complained not so much about my paper’s coverage, but, rather, feedback from the community, in the form of comments posted on our stories at dailycamera.com.
From John Aguilar’s coverage:
Finding an unbiased local jury would be impossible, defense attorneys said, not only because of traditional media coverage but because of interactive forums that reflect — and further influence — community opinion.
In the Camera, “Alex Midyette is described in posts by online readers and investigators as ‘murderer,’ ‘monster,’ ‘baby killer,’ or ‘scum’ who deserves to ‘get the needle,’” defense attorneys wrote in their motion to change venue.
In checking with legal experts, we found this was new territory for the press and the courts, at least in Colorado. Denver’s First Amendment pro, Tom Kelley, told reporter Zak Brown, “It’s an interesting move, and I think it’s a step in the right direction. It’s better than subpoenaing newspapers to establish prejudice. But as with anything involved with the Internet, it hasn’t been happening long.”
So what’s this mean for newspapers? Do we have some kind of extra obligation to patrol reader comments to tamper publicity prior to a defendant’s trial? No, of course not, considering most journalists would agree that a newspaper’s duty is to report events fairly and honestly, not in a manner designed to make it easier for lawyers to select jurors. (Back when I covered courts, prosecutors and defense attorneys used to ask me not to write about their cases in the days leading up to trial, because, they said, it would just make it harder to seat a jury. Our response: The press’ job is to inform the public, not make it easier to find jurors who haven’t read about your case.)
The issue of policing Web comments, however, is a tricky one, and one that readers don’t always seem to understand. The Camera’s policy is fairly straightforward, and a short summary is posted at the end of each story, above the box where readers may leave comments:
Comments are the sole responsibility of the person posting them. You agree not to post comments that are off topic, defamatory, obscene, abusive, threatening or an invasion of privacy. Violators may be banned.
That’s the condensed version, though. If you click on our Privacy Policy & Agreement, you’ll see more specific rules governing what the Camera won’t allow to be posted. Among them:
(C) You will not submit any User Content that:
(i) violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property or proprietary right of any person or entity;
(ii) impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, or otherwise objectionable;
(iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law;
(iv) is an advertisement for goods or services or a solicitation of funds;
(v) includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references;
(vi) contains a formula, instruction, or advice that could cause harm or injury; or
(vii) is a chain letter of any kind.
The Site does not tolerate sock puppeting – controlling multiple accounts with intent to mislead.
Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying the Website will not be permitted.
We at the Camera don’t actively monitor comments, something our readers don’t always believe. We rely on those readers to flag objectionable comments, and, when that happens, editors review the comments, decide whether they violate the user agreement, and, if they do, delete them. After a user’s comments have been deleted repeatedly, that person may see their account disabled.
But because we don’t monitor the comments ourselves, what gets removed is, at least in part, up to the readers, since they must alert us to objectionable material. This often leads to offensive comments being left on one story but deleted from another, not because the Camera isn’t consistent — quite the opposite, actually. We’re being entirely consistent by not actively monitoring user comments and instead relying on readers to alert us.
The Midyette case is an interesting example. During Molly Midyette’s trial last December, her supporters were quick to flag offensive comments posted on our coverage of the case — and we removed those comments that were inappropriate. But that hasn’t happened nearly as much when it comes to stories about Molly’s husband, Alex.
Could that have been deliberate? I have no idea, but, if anything, this case might make lawyers who ultimately hope to secure a change of venue think twice about flagging — or having someone monitor — reader comments posted to newspaper Web sites. When it comes to pre-trial publicity, there traditionally hasn’t been a lot that a defense lawyer could control; either they open up and talk to the press or they don’t. The rest, barring some kind of judicial gag order is out of their hands.
Now, though, they’ve got a bit more power, at least when it comes to seeking removal of potentially prejudicial comments from newspaper Web sites. It’ll be interesting to see how they use it.
