---------- Forwarded message ----------
Date: Tue, 11 Feb 1997 06:31:28 -0800 (PST)
From: Declan McCullagh
To: fight-censorship@vorlon.mit.edu
Subject: Indiana judge extends gag order to the Net, from TNNN
The Netly News Network
http://netlynews.com/
Gag On This
by Declan McCullagh (declan@well.com)
February 10, 1997
The point of moving a trial or selecting a jury from a distant
county is, of course, to prevent jurors from being influenced by the
local media and opinions of the nearby community. But what if the
media are global and the community is virtual?
That enigma is causing problems for an Indiana couple on trial
for reckless homicide in the November 1995 death of their son from
meningitis. Bill and Sarah Planck had hoped to demonstrate their
innocence through the Net, and so another son created a web site with
documents from a counter-lawsuit filed against the county welfare
agencies and sheriff's department, detailing how police threatened and
intimidated the family.
Now the judge presiding over their criminal trial has ordered the
Plancks to pull the plug on the site.
Madison County judge Fredrick Spencer told me he extended an
existing gag order to the Internet because the tort claim notice could
influence jurors. "We went two counties away to get the jury. But
people in Randolph County have computers and America Online. So to
avoid any possible problem, I ordered them to take it off," Spencer
said.
Spencer says the order was necessary to preserve the integrity of
the trial. "It's only the trial that I'm concerned with," he said. "If
I don't do what I can, I risk having to do [the trial] over again."
Yet as soon as the Plancks yanked the documents offline on
January 27, copies sprouted on the web site of a supporter -- beyond
the reach of Judge Spencer.
Who's right, Spencer or the Plancks? I posed that question to
David Post, a professor at Georgetown Law School. "Gag orders may in a
way be a thing of the past," he replied.
"It becomes an enforcement dilemma with respect to the Internet.
It's a hell of a lot easier to enforce that gag order [locally]. You
really only have to keep your eye on a very small number of
dissemination vehicles," Post said. "Gag orders are violated on
occasion, but by and large you have some confidence that they'll be
respected. Obviously you can't anymore."
Gag orders stem from the right to an impartial jury. "We think
that sometimes -- rarely, but sometimes -- that can best be
accomplished by controlling the kind of information potential jurors
might see. The Net deforms the landscape," Post said.
Katharine Liell, the Plancks' attorney, was reluctant to discuss
the case for fear of violating the gag order -- which covers her as
well. "I'm uncertain what I can and can't say due to the vagueness of
the gag order," she said. "Gag orders are supposed to be specific in
nature, but I don't understand the nature or breadth of this gag order
so I'm not comfortable commenting at this time."
The legal question at issue in this prosecution is whether the
Plancks are guilty of four felony charges, including reckless homicide
and involuntary manslaughter, in the death of Lance Planck from
pneumococcal meningitis. The verdict may depend on the answer to one
question: Did the Plancks wait too long to call 911? More than the
couple, however, is on trial. The case also reveals how a child
protection agency can be used as a weapon to threaten parents and
divide a family. The mirrored documents tell a sad story of a poor
family who lived in a trailer park and home-schooled their eight
children, and their long-standing battle with Madison County social
workers.
The first salvo came in 1992, when a social worker visited the
Planck home to investigate the children's alleged vision problems.
Based on that visit, a judge ordered that their eyes be examined. A
month later, police invaded the Planck home and forcibly removed the
children. The tort notice describes other encouters, including tear
gas canisters lobbed into their home and warrantless arrests.
"I've known the Plancks for a long time," said Brent Tobin, an
electrical engineer who mirrored the web site. "I've lived in the town
all my life. I know there's nothing going on there. The deputy
prosecutor made them out to be religious weirdos, but they're not."
"I put up the web site since I don't feel that the county
government should have jurisdiction over the World Wide Web. I think
there should be freedom of speech. I feel gag orders are a violation
of rights," Tobin said.
For his part, Judge Spencer emphasized that his gag order
"expires at the end of the case. Free speech is an important right and
I'm going to be the last person to have a problem with it."
What about the mirror site? Has his order accomplished anything?
"The Planck supporters are going to put it on there," Spencer replied.
"If you're suggesting that I'm tilting at windmills, perhaps you're
right."
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