Judge orders reporter to produce public interest story or go to jail

We've all heard the story of Warren Jeffs, the leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints who was recently convicted of two counts of rape and is facing life in prison, but there is another legal saga that originated in that same case which hasn't garnered much national attention.

Katie Baker was covering Jeffs case for the Salt Lake City television station KUTV. She interviewed a number of individuals involved in the case, including Mo Webb, a potential juror. Unfortunately for Baker, her interview with Webb violated a decorum order issued by Judge James Shumate that Baker was only vaguely familiar with.

Upon realizing that she violated the order, Baker apologized to the Court's public information officer and explained that she was unaware of the details of the order. In an October 23 written ruling, (PDF), Shumate found Baker in contempt, arguing that her ignorance of the prohibition is no excuse: "The Court's order would be meaningless if the 'I forgot to read it all' excuse was accepted."

In what Shumate would likely consider a moment of kindness, he did not send Baker directly to jail, nor did he assess an astronomical fine for her mistake. Instead the judge stayed his sentence for 90 days stating that, "Ms. Baker may purge her contempt if, within the said ninety (90) day period she produces a newscast addressing a public need." The ruling goes on to explain that Baker's assignment from the judge does not need to be broadcast at the station, but that she must submit a DVD copy of the newscast to the court.

Baker's attorney David Reymann plans to appeal Shumate's ruling and has asked the judge to grant a stay pending the appeal.

As highlighted in the judge's own ruling, "the elements of contempt of the Court's order are "a party must have (1) known of the duty imposed by the Court's order, (2) had the ability to comply with the order, and (3) willfully and knowingly refused to comply." It seems quite likely that the court of appeals will vacate the contempt order. After all, even Shumate acknowledges that Baker was unaware that her interview with Webb was prohibited.

Whether Baker's actions can be considered contemptuous is obviously central to her appeal, but it is actually Shumate's remedy: that Baker can submit a story addressing a public need of the community, which has ignited the anger of first amendment advocates.

On October 31, the Society of Professional Journalists sent an open letter to Judge Shumate urging him to vacate the contempt ruling against Baker. In the letter, SPJ president Clint Brewer and FOI Chair David Collier argue that it is their belief that "it is unconstitutional to punish Ms. Baker by ordering her to create a public service story."

Gene Policinski, the executive director of the First Amendment Center agrees. In the Tucson Citizen Policinski writes, "when government speaks, we ought to know it's the government talking - not a press under duress, and certainly not the government pretending to be the press."

I'd certainly agree that the order is a scary proposition, and the notion that judges can order reporters to cover certain stories is a blow against democracy on so many levels, but in this case, I'm uncertain that Shumate's alternative to contempt rises to the First Amendment assault that others allege.

If the judge had given Baker an opportunity to erase her contempt by feeding the homeless or volunteering at a local non-profit would that have created the same sort of an uproar? Probably not. She might have still chosen to refuse the settlement and fight the contempt through the appellate process, but I don't think the alternative provision would have drawn any red flags.

By the same token, KUTV is not required to broadcast Baker's report, and it also appears that KUTV is not mandated to use their resources to help Baker either. So, it is not the news media who are being commanded by the judge's strange request, so much as it is Baker herself.

Shumate should certainly reverse his order; everyone acknowledges Katie Baker did not mean to violate the judge's decorum order. I also think that Shumate's offer to purge Baker's contempt was rather short-sighted, but I'm still not convinced that it rises to the level of offense that others have suggested. Either way, I'm glad to see that Baker is seeking to fight the judges ruling and I hope her legal battles are successful.