The Timothy McVeigh case and its impact on media law

Photo: AP

Timothy McVeigh’s bombing of a federal building in downtown Oklahoma City on April 19, 1995, caused the deaths of 168 people, 19 of them children. More than 600 others were injured, and 300-some buildings were affected, resulting in at least $650 million in damage. It is among the most deadly, destructive acts of domestic terrorism in United States history.

In journalism circles, McVeigh’s case is also remembered for another reason: It has come to be a classic in the free press-fair trial area. McVeigh’s trial, which produced his conviction and death sentence, addressed various evidentiary issues and his guilt—but it also caused the collision of the First Amendment guarantee of a free press, the Fifth Amendment guarantee of due process, and the Sixth Amendment guarantee of a trial by impartial jury. It created a durable framework for determining when court records are public, and it signaled how the emerging technology of the Web would shift thinking about prior restraints on the press.

All of these threads provided discussion fodder for a recent panel at a journalism historians conference, exploring the bombing and its implications for media law.

Appearing were Stephen Jones, the lead defense attorney for McVeigh; Robert Nelon, a First Amendment lawyer at the firm Hall Estill in Oklahoma City who represented a coalition of national news media in the case; Brett Johnson, a journalism professor at the University of Missouri; and yours truly. Together, we tried to put the McVeigh case in perspective and understand what it means today.

A framework for access to court filings

From start to finish, public interest in the case was intense and news coverage pervasive.

“The media interest was extraordinary,” Nelon said during the panel. “Reporters covered the rescue and recovery, the personal stories of victims, the response of police and fire units, the cooperation of public officials and outside groups like the Red Cross, and the motivations of McVeigh and [accomplice Terry] Nichols.”

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That teed up several problems during pretrial and trial proceedings, among them media access to hundreds of pleadings filed under seal, many without a description of their contents. A coalition of media organizations, including CBS, ABC, NBC, The New York Times, and The Washington Post, all represented by Nelon, filed a motion to unseal those documents, arguing that court records are presumptively open to the public.

Before the judge held a hearing, the parties reached a compromise allowing many of the records to be unsealed. Then, Richard P. Matsch, the presiding judge, ruled on the contested ones and created a framework to decide future sealing requests. That framework, which drew from common law principles and the landmark Supreme Court case Press-Enterprise v. Superior Court, has stood up since.

Matsch developed a five-factor test for determining when the First Amendment compels access to materials filed under seal. The judge evaluates (1) whether the materials fall within the tradition of public access to criminal cases; (2) whether access to the materials will play a positive role in the proceeding; (3) whether there is a substantial probability that an interest other than access will be prejudiced by their disclosure; (4) whether the need to protect that interest overrides the interest in access; and (5) whether sealing by the court is essential to protect the other interest, considering all reasonable alternatives.

Jones, McVeigh’s attorney, remains critical of the judge on some points, but not this one.

“History will record that Matsch’s decisions were a watershed in changing a generally relaxed attitude toward press freedom,” Jones said. “He wanted to ensure the defendant received a fair trial, and he issued a series of orders that have withstood scrutiny. None has been overruled, and they’re cited throughout the country.”

Coverage of a confession

But the most dramatic turn in the McVeigh trial came February 28, 1997, shortly after jury notices had been distributed. The Dallas Morning News reported, citing internal defense-team documents, that McVeigh had confessed to the bombing. Notably, the paper published the story first on its website, then in its print edition—the first time a metro paper broke such a big story on its website.

The reason may have been strategic. Another pair of media lawyers who worked on the case, Thomas Kelley and Steven Zansberg, later wrote in a law journal of being called to the judge’s chambers for a prior-restraint hearing, with publication of the story apparently imminent.

“While we were in the building, we learned that The Dallas Morning News had posted the story of McVeigh’s confession onto its website,” they wrote. “[W]e soon were informed that there would be no argument heard or action taken on any request to enjoin publication of the McVeigh confession story—it was too late to do so, because the genie had already been let out of the bottle.”

Nelon recalled during the panel that Morning News editors were concerned that Jones might try to interfere with publication.

“Posting the story online got it out there before that could happen,” he said. “It also accounted for alternate theories I’ve heard: That [Jones] might have tried to spin the story before the print edition went to press, or that the paper feared being scooped by a competitor, or that—simply—a good journalistic principle held that such a blockbuster story should be made public at the earliest possible moment.”

For his part, once the story was published, Jones accused the Morning News of hacking into his computer systems and stealing the alleged confession. Then, he denied its authenticity, saying it was a hoax and not real—and later said his team had fabricated it to smoke out a potential witness. (You can read the Morning News’ response from the time here.) It remains unclear just how the paper obtained the purported confession and whether there was truth in any of Jones’ versions, but the press deemed Jones a liar one way or the other: By fabricating the confession, or, if it was real, by lying about its authenticity.

At any rate, two weeks later, Playboy published an article on its website based on a 60-page chronology prepared by the defense recounting McVeigh’s story of how he had carried out the bombing. ABC, NBC, and CBS all aired programs following up on the Morning News’ and Playboy’s reporting.

That coverage, Jones argued at the panel, was “highly prejudicial” and advanced the government’s theory that McVeigh deserved capital punishment because he bore primary responsibility for the bombing. Jones asked the judge to dismiss the case, or change the venue again, or delay the trial for a year. The judge refused.

“We lost the judge,” Jones said during the panel. “He’s an outstanding jurist, but he couldn’t conceive that a trial over which he was presiding could be infected by news coverage. It was, and he was powerless to stop it. And, frankly, even if he had granted my requests, there’s no assurance the same thing wouldn’t have happened again. So, he developed a fiction, the idea that jurors go through a transformation in which they put out of mind everything they’ve read about a case.”

Nelon, the media lawyer, agreed that no juror could do what the court expected—a sobering thought for those seeking to balance press freedoms and fair-trial rights. But he also offered an optimistic assessment of the long-term significance of the case for local media.

“It improved the depth, quality, and sensitivity of reporting,” Nelon said. “Reporters who were here in 1995 learned so many lessons about journalism—telling a story compellingly, getting facts right—all in an emotionally charged environment that demanded professionalism. I’ve represented the media here for 35 years, and those lessons have been passed down to the younger journalists here. No one in Oklahoma City escapes the echoes of that day in April.”

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Jonathan Peters is CJR’s press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.