Rape Shield: shield or sieve?

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Shield or Sieve? People v. Bryant and the Rape Shield Law in HighProfile Cases
RICHARD I. HADDAD∗
Rape shield laws are evidentiary measures that aim to protect rape complainants’ privacy and dignity by preventing the disclosure of damaging and irrelevant information about their sexual history at trial. More broadly, by defending complainants’ privacy interests, these laws encourage the reporting of sexual assaults and further the prosecution of such crimes. As an evidentiary measure, however, the scope of the rape shield law is limited, and in high-profile cases, its protections can crumble under the glare of the public spotlight. This Note uses the case of NBA superstar Kobe Bryant to examine the operation and effectiveness of the rape shield law in cases involving celebrity defendants. It argues that the humiliation that his accuser suffered cannot be blamed on a failure of the rape shield law itself. Rather, the case highlights broader institutional deficiencies that often plague high-profile adjudications. Instead of targeting the construction of the rape shield law itself, effective reform should focus on curing these institutional deficiencies.

I. INTRODUCTION
On June 30, 2003, NBA superstar Kobe Bryant was indicted on charges of sexually assaulting a nineteen-year-old hotel desk clerk.1 On September 1, 2004, Colorado prosecutors decided to drop the case against Bryant, citing his accuser’s “unwillingness
∗ Writing and Research Editor, COLUM. J. L. & SOC. PROBS., 2005–2006. The author thanks Professor Robert A. Ferguson for his invaluable guidance and commentary, and is grateful to Todd Anten, Rebecca Gutner, and Patty Li for their efforts and suggestions throughout the editing process. 1. Moira McDonough, Internet Disclosures of a Rape Accuser’s Identity (Focus on the Kobe Bryant Case), 3 VA. SPORTS & ENT. L. J. 284, 285–86 (2004).

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to go forward.”2 Although the accuser never came forward publicly, she was subjected to an enormous amount of negative publicity. Despite a judge’s early decorum order prohibiting the reporting of the accuser’s name,3 her name, yearbook photo, phone number, home address, email address, and aerial photos of her home were all widely available on the Internet soon after her accusation.4 Syndicated radio talk show host Tom Leykis made national headlines by stating her name on the air during a national broadcast.5 Websites created consumer products like underwear, t-shirts, tank tops and coffee mugs bearing the accuser’s name and pictures of her and Bryant.6 Many of these public images were affixed to derogatory statements such as “whore alert” and “lying bitch,” and included digitally altered photographs depicting her in sexual positions with Bryant.7 These disclosures and images were not limited to the Internet. At grocery stores nationwide, tabloids affixed her name to pictures capturing her in “party-hearty mode,” conveying the prejudicial implication that “women who party can’t also be rape victims.”8 Even the mainstream press, while taking great pains to refrain from reporting her name,9 disclosed her age, hometown, college, and hobbies. It published obscure details including her failed audition for American Idol, the death of a girlfriend, an alleged drug overdose, and a breakup with a boyfriend, and repeated salacious stories that her alleged “friends” shared on morning television and with newspapers and magazines.10

2. Steve Henson & Lance Pugmire, Prosecution Drops Charges in Kobe Bryant Rape Case, L.A. TIMES, Sept. 2, 2004, at A1 (quoting Eagle County District Attorney Mark Hurlbert). 3. Kate Zernike, What Privacy? Everything Else but the Name, N.Y. TIMES, Aug. 3, 2003, § 4, at 4. 4. McDonough, supra note 1, at 285. 5. Bob Baker, The Internet Is Reshaping Bryant Story, L.A. TIMES, July 26, 2003, at A1 6. McDonough, supra note 1, at 285. 7. Id. at 285, 308. 8. Mike Littwin, Rape Shield Law Can’t Offer Complete Protection, ROCKY MOUNTAIN NEWS, Mar. 2, 2004, at 7A. 9. See infra Part V.B. 10. Zernike, supra note 3.

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More ominously, there were hundreds of threats against the accuser’s life,11 several of which led to arrests.12 Rumors surfaced in late November 2003 that intense media scrutiny spurred the accuser to seek medical treatment, and her attorneys say she fled her hometown after facing “public scorn, hatred, and ridicule.”13 In a March 2004 letter to the court, her mother implored the court to set a trial date: the letter detailed the death threats from which the family’s worries stemmed and the accuser’s efforts to escape public scrutiny by leaving school, avoiding friends and family, and moving to four states in six months.14 After receiving hundreds of e-mails daily — some containing death threats, others from men asking for dates — the accuser shut down her email and phone accounts.15 In effect, her life was ruined over the course of the proceedings. Rape shield laws are evidentiary measures that aim to protect rape complainants’ privacy and dignity by preventing the disclosure of damaging and irrelevant information about their sexual history at trial. More broadly, in defending complainants’ privacy interests, rape shield laws encourage the reporting of sexual assaults and further the prosecution of such crimes.16 This Note uses Bryant’s case as a lens through which to examine the operation and effectiveness of the rape shield law in cases involving celebrity defendants. Although commentators have attributed the disintegration of the case against Bryant, and the plight to which his accuser was subjected, to the ineffectiveness of the rape shield law,17 this Note argues that, as an evidentiary measure,
11. According to the accuser’s mother, the accuser had been the target of “hundreds of death threats” and “thousands of obscene messages.” Steve Henson, Bryant’s Accuser’s Mother Pleads for Quicker Process, L.A. TIMES, Mar. 26, 2004, at A1. 12. The FBI became involved, and three men were arrested in separate incidents, two of whom eventually went to prison. Jeff Benedict & Steve Henson, The Case Against Kobe Bryant Unraveled in a Mock Trial, L.A. TIMES, Nov. 6, 2004, at A1. 13. Kathryn Masterson, Trial Turnaround, CHI. TRIB. RedEye Edition, Sept. 2, 2004, at 9 (quoting the complainant’s attorneys). 14. Henson & Pugmire, supra note 2. 15. Benedict & Henson, supra note 12. 16. See, e.g., Jeffrey Matrullo, Note, People v. Bryant and Prior Restraint: The Unsettling of a Settled Area of Law, 4 CONN. PUB. INT. L.J. 347, 366 (2005). 17. See, e.g., Michelle J. Anderson, Time to Reform Rape Shield Laws: Kobe Bryant Case Highlights Holes in the Armor, 19 CRIM. JUST. 14 (Summer 2004), available at 2004 WL 2187513; Michelle J. Anderson, Toughen Rape Shield Laws, CHI. TRIB., Sept. 3, 2004, at C21 (“A stronger ‘rape shield’ law might have provided the scaffolding necessary to allow the prosecution to present its case . . . . The Bryant case signals that it is time to

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the rape shield law operated in the exact manner it should have. The law itself was not the problem. As an evidentiary protection, however, the scope of the rape shield law is limited, and Bryant’s case highlighted broader deficiencies by which rape complainants’ privacy interests can be injured. Many of these problems stemmed from extralegal factors inherent to the high-profile nature of the case. To cure these deficiencies, effective reform must therefore aim to supplement, rather than change, current rape shield laws. The high-profile nature of Bryant’s case did not affect the operation of the rape shield law itself. Because the proceedings and the parties involved were thrust under the public microscope, however, the purposes for which the rape shield law was erected were defeated. Part II of this Note examines the history and development of the rape shield law and explores the differences among the versions used in various jurisdictions. Part III demonstrates that in Bryant’s case, the Colorado rape shield law operated as effectively as any existing or proposed rape shield law could have. Despite this legal effectiveness, the complainant’s ordeal indicates that the purposes for which rape shield laws were enacted were not achieved. This failure does not impugn the rape shield law itself, however; as shown in Parts IV and V, the complainant’s experience is attributable to the public scrutiny to which the case was subjected and the governmental ineptitude that plagued its adjudication. Each of these factors stemmed from the case’s high-profile nature, and each fed off of and exacerbated the effects of the others. Part V examines the legacy of the case and the role played by the evolution of the media and advances in communications technology, and Part VI surveys the legal reforms that have been proposed in its aftermath. This Note concludes that, rather than aiming at the rape shield law or the media, effective reform must target the courts and other governmental actors. The state can protect complainants’ privacy, safety, and dignity, but to mitigate the effects of governmental and judicial error, reform must reduce the possibility of its occurrence.
reform rape shield laws to provide victims with real protection at trial.”); Editorial, Shame on Us: Bryant Trial Reveals our Attitudes on Rape, DALLAS MORNING NEWS, Sept. 3, 2004, at 34A (calling rape shield laws “a pathetic joke”).

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Moreover, in a high-profile case, such a reduction will minimize the exacerbating effects of the media spotlight. These institutions have the power and authority to buttress the protections offered by rape shield law and to ensure that such laws are truly wielded as shields.

II. THE RAPE SHIELD LAW: HISTORY AND DEVELOPMENT
Spurred by dissatisfaction with existing rape laws and the movement for women’s social and political equality, legislatures began constructing rape shield laws in the 1970s and 1980s.18 The legal reform movement from which these laws stemmed has been characterized as a powerful confluence of feminism and national concerns regarding “law and order” and public safety.19 Rape shield statutes were created to prevent the disclosure of information about complainants’ sexual history at trial.20 These laws aimed principally to protect rape victims from the public exposure of their private sexual lives, as illustrated by the original title of the federal rape shield law, the “Privacy Protection for Rape Victims Act.”21 In addition, rape shield advocates contended that the enhancement of complainants’ privacy and dignity during the reporting and prosecution of sex crimes would serve to increase the reporting of such crimes and to ensure greater success in their prosecution by precluding the prejudicial effects of the presentation of a complainant’s sexual history.22 It is estimated that 80% of rapes go unreported, and when they are reported, the likelihood that a rape complaint will lead to a conviction is estimated at 2%–5%.23 The discrepancy between the reporting and actual occurrence of rapes can be attributed primarily to the traditional practice by which an alleged rape victim’s trial testimony often
18. See Marah deMeule, Privacy Protections for the Rape Complainant: Half a Fig Leaf, 80 N.D. L. REV. 145, 147 (2004). 19. See Cristina Carmody Tilley, A Feminist Repudiation of the Rape Shield Laws, 51 DRAKE L. REV. 45, 48 (2002). 20. See Megan Reidy, The Impact of Media Coverage on Rape Shield Laws in HighProfile Cases: Is the Victim Receiving a “Fair Trial”?, 54 CATH. U. L. REV. 297, 300 (2004). 21. Michelle J. Anderson, From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70 GEO. WASH. L. REV. 51, 56 (2002). 22. See DeMeule, supra note 18, at 149. 23. See David P. Bryden & Sonja Lengnick, Rape in the Criminal Justice System, 87 J. CRIM. L. & CRIMINOLOGY 1194, 1210–11 (1997).

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devolved into an expedition through her sexual history.24 The fear of undergoing an ordeal in which that history is publicly disclosed deters many victims from reporting the crime, and those who do report are easily dissuaded from following through on the prosecution and enduring the trial to its conclusion.25 In response to these concerns, Michigan passed the first rape shield law in 1974, and the rest of the states, the District of Columbia, and the federal government eventually followed suit.26 These laws can be roughly divided into four categories, distinguishable by the basis and form of their exceptions: (1) “legislated exceptions” laws, which contain general prohibitions on evidence of prior sexual conduct, subject to at least one legislated exception; (2) “constitutional catch-all” laws, which, in addition to prohibiting evidence of prior sexual conduct, subject to at least one legislated exception, contain an explicit exception allowing the admission of any evidence that, if excluded, would infringe upon the rights guaranteed to a defendant by the federal Constitution; (3) “judicial discretion” laws, which, instead of including legislated exceptions, simply grant to judges the broad discretion to admit or bar evidence of a woman’s sexual history; and (4) “evidentiary purpose” laws, which determine the admissibility of a woman’s sexual history based on the purpose for which the evidence is offered at trial.27

A.

COLORADO’S RAPE SHIELD LAW

Colorado’s rape shield statute, section 18-3-407 of the Colorado Revised Statutes, falls within the third category.28 In keeping with the general purposes described above, and as articulated by the state’s highest court, the law signifies the Colorado legislature’s “unequivocal commitment to the principle that victims of sexual assault should not be subjected to psychological or emotional abuse as the price of their cooperation in prosecuting sex

24. Matrullo, supra note 16, at 365. 25. Indeed, victims have claimed that “involvement with the criminal justice system has been almost as bad as the sexual assault itself.” People v. Bryant, 94 P.3d 624, 629– 30 (Colo. 2004). 26. Anderson, supra note 21, at 81. 27. Id. at 82–85. 28. Id. at 84.

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offenders.”29 The statute aims to protect rape and sexual assault victims from immaterial and humiliating public “fishing expeditions” into their past sexual conduct30 and to avoid subjecting rape victims to the “second trauma” that inheres to an “irrelevant and embarrassing probe into the intimate details of their personal lives.”31 Under Colorado’s law, “evidence of specific instances of the victim’s or a witness’s prior or subsequent sexual conduct, opinion evidence of the victim’s or a witness’s sexual conduct, and reputation evidence of the victim’s or a witness’s sexual conduct shall . . . be presumed to be irrelevant” and therefore inadmissible at trial.32 The law then articulates three exceptions to this rule, including evidence of the victim’s or witness’s prior or subsequent sexual conduct with the actor33 and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant.34 The third exception is the most expansive; it relies on the use of in camera hearings to determine the admissibility of contested evidence, granting the judge the broad discretion to admit evidence of a woman’s sexual history if such evidence is deemed “relevant to a material issue in the case.”35 Critics have argued that this law fails to protect victims at all — that, in effect, this provision grants judges the same power that they exercised before the enactment of rape shield laws.36 The law does not function as a shield because the complainant’s protection is left largely to the judge’s discretion: the onus to protect the victim is shifted from the law to the judge.37 Because of the sweeping nature of this provision and the amount

29. 30. 31. 32. 33. 34. 35. 36. 37.

People v. McKenna, 585 P.2d 275, 278 (Colo. 1978). Id. Claudia J. Bayliff, Past Imperfect, ROCKY MOUNTAIN NEWS, Oct. 18, 2003, at 12C. Colo. Rev. Stat. § 18-3-407(1) (2005). Colo. Rev. Stat. § 18-3-407(1)(a) (2005). Colo. Rev. Stat. § 18-3-407(1)(b) (2005). Colo. Rev. Stat. § 18-3-407(2)(e) (2005). Anderson, supra note 21, at 84. Id.

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of discretion that it gives to the judge, Colorado’s shield law is understood to be relatively toothless.38

B.

RULE 412 OF THE FEDERAL RULES OF EVIDENCE

By contrast, the federal rape shield law, Rule 412 of the Federal Rules of Evidence, is viewed as the nation’s sturdiest.39 The federal rule, a “constitutional catch-all” law, governs admissibility of evidence in any federal proceeding involving allegations of sexual misconduct.40 In criminal cases, the rule permits the admission of evidence involving the complainant’s sexual history or predisposition under only three circumstances.41 Two of these mimic the first two exceptions to Colorado’s rape shield statute. First, “evidence of specific instances of sexual behavior by the alleged victim” can be “offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence.”42 Second, “evidence of specific instances of sexual behavior by the alleged victim” with respect to the accused can be offered by the accused to “prove consent.”43 The third exception to Rule 412 distinguishes it from Colorado’s shield;44 under the federal “constitutional catch-all” provision, all “evidence the exclusion of which would violate the constitutional rights of the defendant” is admissible.45 Like Colorado’s judicial discretion exception, critics have derided this “constitutional catch-all” because of the sweeping discretionary power that it confers to judges. According to this line of criticism, the catchall “often crumbles what is left of the shield because courts routinely misinterpret and exaggerate the scope of the defendant’s constitutional right to inquire into the complainant’s sexual history.”46

38. Maura Dolan, Signs in Bryant Statement Point to Deal in Works, L.A. TIMES, Sept. 2, 2004, at A1 (“Colorado’s shield law is considered relatively weak, although other aspects of the state’s sexual assault laws are unfavorable to defendants.”). 39. Id. (the federal rape shield law is “often viewed as the most favorable to accusers of any in the nation.”). 40. Fed. R. Evid. 412(a). 41. Fed. R. Evid. 412(b)(1). 42. Fed. R. Evid. 412(b)(1)(A). 43. Fed. R. Evid. 412(b)(1)(B). 44. Colorado’s law is, of course, also subject to constitutional limitations. 45. Fed. R. Evid. 412(b)(1)(C). 46. Anderson, supra note 21, at 56.

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Such derision rings hollow under closer examination. At worst, in light of the function of the Constitution as a mandatory constraint on all legislative acts, the “catch-all” can be labeled superfluous in that it simply reemphasizes judicial authority to admit evidence when the Constitution demands such an admission.47 Indeed, one scholar has called the provision “little more than an unimaginative attempt to avoid constitutional challenges” to rape shield laws.48 At best, the provision can be applauded for ensuring that the constitutional rights guaranteed to the accused will not be eclipsed by the protections extended to the accuser or outweighed by an accuser’s potential embarrassment. Moreover, while Rule 412 can be construed to leave the victim’s protection up to the judge’s discretion, that discretion is not unlimited: evidence is admissible only where the Constitution demands its admission. This constitutional grounding distinguishes Rule 412 from Colorado’s rape shield statute. Federal appellate courts rarely find Rule 412’s constitutional exception to be violated,49 and this rarity further undermines the aforementioned criticism.

III. SHIELD OR SIEVE? THE APPLICATION OF THE COLORADO RAPE SHIELD LAW IN PEOPLE v. BRYANT
Federal and state rape statutes are so riddled with holes that they often function more like sieves than shields . . . . The Bryant case signals that it is time to reform rape shield laws to provide victims with real protection at trial. — Professor Michelle J. Anderson
50

Commentators like Professor Anderson, a prominent and vocal rape law scholar,51 have blamed the disintegration of the case

47. Harriet R. Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 MINN. L. REV. 763, 886 (1986). 48. Id. 49. See, e.g., United States v. Powell, 226 F.3d 1181, 1198–99 (10th Cir. 2000) (affirming the exclusion of evidence of the minor victim’s alleged sexual acts with other parties. The court noted that, given the nature of important governmental interests of protecting the victim against invasion of privacy, embarrassment, and stereotyping, the exclusion of the evidence was not “sufficiently weighty to warrant finding a constitutional violation.”). 50. Anderson, Toughen Rape Shield Laws, supra note 17.

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against Bryant and the corresponding devastation of his accuser’s privacy on the weakness of Colorado’s rape shield law, arguing that a “[s]tronger rape shield law might have provided the scaffolding necessary to allow the prosecution to present its case.”52 In Bryant’s case, Judge Terry Ruckriegle held admissible the accuser’s sexual activity in the 72-hour span preceding her medical examination and her sexual history with two key prosecution witnesses.53 This ruling delivered a crushing blow to the prosecution and to the complainant, and critics point to it as proof of the ineffectiveness of the Colorado rape shield law.54 This evidence, however, would have been admitted under any existing rape shield law,55 including Rule 412, which Anderson characterizes as the “most favorable to accusers of any in the nation.”56

A.

AS COMPARED TO EXISTING LAWS

In a closed hearing, a defense DNA expert testified that another man’s semen had been found on the body of Bryant’s accuser during her medical examination, but noted that Bryant’s own post-incident physical examination failed to produce any indication of a second man’s DNA.57 Based on this evidence, the expert contended that the accuser had sex with the other man in the hours after she was with Bryant.58 In addition to offering an alternative explanation for the accuser’s injuries, this testimony cast doubt on the truth of her previous testimony, and under section (1)(b) of Colorado’s rape shield law, her sexual activity in the 72-hour span preceding her medical examination was admitted only in light of this significance. Similarly, section (b)(1)(A) of
51. Professor Anderson’s research and published work focus on rape law, law and sexuality, and feminist legal theory. See http://www.law.villanova.eduacademics/faculty/ biographies/faculty/anderson/. 52. Anderson, Toughen Rape Shield Laws, supra note 17. 53. Henson & Pugmire, supra note 2. 54. Anderson, Toughen Rape Shield Laws, supra note 17 (“The Bryant prosecution fell apart when . . . Judge Terry Ruckriegle applied Colorado’s rape shield law and admitted evidence of the alleged victim’s sexual activities . . . . Defense attorneys intended to put the victim on trial, and the rape shield law did not prevent them.”). 55. Dolan, supra note 38 (“No shield law would have prevented defense lawyers from presenting that evidence to a jury.”). 56. Id. 57. Lance Pugmire & David Wharton, Case Showed Cracks Early, Experts Say, L.A. TIMES, Sept. 2, 2004, at A30. 58. Id.

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Rule 412 would have allowed the admission of this evidence for the same purposes of physical identification. Judge Ruckriegle also admitted evidence of the accuser’s prior sexual involvement with two of the state’s witnesses under Colorado’s judicial discretion provision.59 Because these witnesses testified for the prosecution, this evidence would be admissible under section (b)(1)(C) of Rule 412, the “constitutional catch-all,” pursuant to the Confrontation Clause of the Sixth Amendment, which provides a defendant the opportunity to prove his accuser’s bias.60

B.

AS COMPARED TO A PROPOSED “MODEL RAPE SHIELD”

In light of the perceived deficiencies of existing rape shield laws, Anderson has designed a “New Rape Shield Law” to “protect women’s sexual license” and to “ensure that consent to sexual intercourse is temporally constrained, specific as to act, and nontransferable to others.”61 In Bryant’s case, however, even this model shield would not have prevented the admission of the aforementioned evidence. This undermines Anderson’s criticism of the Colorado rape shield and her attribution of the deterioration of the case against Bryant to the weakness of that law. Moreover, the failure of Anderson’s model shield to produce a different evidentiary result weakens the reasons underlying demands for rape shield enhancement. Under Anderson’s proposed rape shield law, “[d]irect or opinion evidence of the complainant’s sexual conduct and sexual communication prior or subsequent to the instance in question is inadmissible, subject to” three exceptions, including “(1) Evidence of an alternate source for the semen, pregnancy, disease, or injury that the complainant suffered;” “(2) Evidence of negotiations between the complainant and the defendant to convey consent in a specific way or to engage in a specific sexual act at issue;” and “(3) Evidence of the complainant’s bias or motive to fabricate the

59. Id. One of these witnesses was the bellboy at the hotel at which Bryant’s encounter with his accuser took place. The bellboy was the first person with whom the accuser spoke after the incident. He testified for the prosecution, but had had sex with the accuser two days before the incident. The second witness was the accuser’s ex-boyfriend, who also testified for the prosecution. 60. See infra note 65. 61. Anderson, supra note 21, at 147.

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charge of rape.”62 These exceptions are tightly tailored to the three elements of the crime of rape: the first exception accounts for evidence that would be relevant to sexual penetration and force, and the second and third account for evidence that would be relevant to non-consent.63 Bryant’s defense offered evidence of his accuser’s sexual activity in the 72-hour span preceding her medical examination to provide a plausible alternative explanation for the physical injuries that the accuser may have suffered. Bryant’s defense sought to delineate these injuries as the product of multiple consensual sexual encounters occurring within a short period of time. The first exception to Anderson’s proposal clearly renders such evidence admissible. In justifying this exception, Anderson acknowledges that, “[t]o the extent that the state wants to prove that the defendant caused a physical injury in an effort to prove the element of force, the defendant should be able to refute that showing, even if it means revealing the woman’s unrelated sexual history.”64 Similarly, Anderson’s third exception would allow the admission of evidence regarding the accuser’s previous sexual involvement with two prosecution witnesses for the same reason that Judge Ruckriegle admitted this evidence under Colorado’s judicial discretion provision: the admission of this evidence ensured Bryant’s ability to present evidence of the complainant’s (here, her witnesses’) bias. Moreover, according to Anderson’s own arguments, its admission is constitutionally required: as Anderson demonstrates, the third exception to her proposal comports with a powerful line of Supreme Court jurisprudence emphasizing the constitutional imperative of allowing the defendant to probe for witness or complainant bias.65 Rather than functioning as a “sieve,” therefore, Colorado’s rape shield merely condoned Bryant’s exercise of that constitutional right, and Anderson’s proposed shield would have produced the same evidentiary rulings.
62. Id. 63. Id. 64. Id. at 149. 65. Together, Davis v. Alaska, 415 U.S. 308 (1974), Delaware v. Van Arsdall, 475 U.S. 673 (1986), and Olden v. Kentucky, 488 U.S. 227 (1988) (per curiam) serve to secure defendants’ right to cross-examine witnesses for bias under the Confrontation Clause. See Anderson, supra note 21, at 156–58.

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Instead of allowing a defendant accused of rape to present as evidence “all the promiscuous sexual history he can find to tarnish the complainant in the eyes of the jury,” Anderson’s proposal lets him “defend himself by using the complainant’s prior sexual history only when such evidence is relevant to an element of the crime and not prejudicial to the truth-seeking process.”66 The admissibility of the aforementioned evidence under Anderson’s proposed shield does not discredit or expose any flaw in her proposal. Rather, it corroborates the validity and necessity of the evidentiary rulings and relevant exceptions by which this evidence was admitted in Bryant’s case. Moreover, in the face of Anderson’s and others’ derision of the Colorado rape shield and its operation in Bryant’s case, the production of identical evidentiary results under Anderson’s proposed shield redeems the technical effectiveness of Colorado’s rape shield statute. If Anderson’s proposal can be viewed as a standard by which rape shield laws should be measured, this uniformity of results demonstrates that, in Bryant’s case, the rape shield law operated exactly as it should have.67

IV. THE MANIFESTATIONS OF CELEBRITY: THE PROBLEMS THAT INHERE TO HIGH-PROFILE CASES
What’s clear to see is that the problem with high-profile rape cases is that, inevitably, for all involved, they’re high-profile rape cases. –Mike Littwin, The Rocky Mountain News
68

If the rape shield law worked in Bryant’s case, the severe humiliation and trauma that his accuser suffered indicates the existence of other legal inadequacies. Bryant’s fame guaranteed that every nuance of his case would be closely followed on television, in newspapers and magazines, on the Internet, and at water coolers, sports bars, coffee shops, and other gathering places nation-

66. Anderson, supra note 21, at 153. 67. In keeping with this analysis, other commentators argue that, throughout Bryant’s case, Colorado’s rape shield law operated effectively and remained intact. Amy Herdy, Weak Case Closes with a Whimper, DENV. POST, Sept. 2, 2004, at A1. 68. Littwin, supra note 8.

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wide. Accordingly, the drastic invasion of his accuser’s privacy can be partially attributed to his celebrity in and of itself. But the governmental ineptitude with which the case was handled shattered any remnants of that privacy by exacerbating her humiliation and compromising her security. These mistakes and miscues stemmed from the visibility that necessarily accompanied Bryant’s celebrity status, and they served to intensify the public scrutiny generated by that status. Finally, this public scrutiny aggravated the foibles of Bryant’s prosecution by magnifying its every move. Each of these factors fed off of the others; each exacerbated the other factors’ effects. This feedback effect can be viewed as a direct result of the case’s high-profile nature.

A.

GOVERNMENTAL INEPTITUDE

The only time this young woman has considered removing herself from the case was when the people sworn to protect her rights have failed. There is no safety from the court. — John Clune, attorney for the accuser, to Judge Ruckriegle at an open 69 hearing, July 7, 2004.

1. Athletes’ celebrity status often subjects them to overly aggressive prosecution. Although the criminal justice system often allows professional athletes to benefit from preferential treatment, at the other end of the spectrum, athletes are often subjected to excessively aggressive prosecution by virtue of their celebrity status.70 Overeager prosecutors “single out” these athletes as “sacrificial lambs,”71 and Bryant appears to have been held to this type of heightened prosecutorial scrutiny. Indeed, one law professor labeled Bryant’s case a “cautionary tale about prosecutorial excess.”72 Because of the circumstances that surrounded the alleged assault and the evidentiary weaknesses that emerged later, Eagle
69. Benedict & Henson, supra note 12. 70. Laurie Nicole Robinson, Professional Athletes — Held to a Higher Standard and Above the Law: A Comment on High-Profile Criminal Defendants and the Need for States to Establish High-Profile Courts, 73 IND. L.J. 1313, 1327 (1998). 71. Id. 72. Blaine Harden, Bryant Case is Called a Setback, WASH. POST, Sept. 3, 2004, at A8 (quoting University of Colorado at Boulder law professor Paul Campos).

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County District Attorney Mark Hurlbert had “an extremely thin and dubious case” from the beginning, argues Paul Campos, a University of Colorado law professor and an expert on the state’s sexual assault law.73 After Eagle County spent more than $230,000, over 10% of the district attorney’s entire annual budget, on the 14-month-long proceedings, the prosecution dropped the case and dismissed all charges against Bryant, citing the accuser’s reluctance to go forward.74 Hurlbert defiantly insisted that, but for this sudden unwillingness, he could have won a conviction,75 but legal observers vehemently disagreed and treated the prosecution’s announcement with disdain.76 These observers contend that media pressure and Bryant’s celebrity status led the prosecution to pursue a case that should not have progressed nearly as far as it did.77 “This case was weak and it was weak from the outset,” former Denver prosecutor Craig Silverman said.78 “Every legal analyst saw it. Why didn’t Mark Hurlbert see that? Why did he waste so much of the taxpayers’ money?”79 Hurlbert’s insistence on prosecuting a flimsy case is all the more disturbing because, according to one study, it flies in the face of other prosecutors’ wary reluctance to pursue “anything but an ironclad case against professional athletes because they know that the defense will have every available resource at its fingertips.”80 Women who file rape
73. Id. 74. Henson & Pugmire, supra note 2 (quoting Eagle County District Attorney Mark Hurlbert). 75. Id. 76. See Herdy, supra note 67. 77. According to one local lawyer, “This dismissal comes a year late . . . and one wonders if a thorough investigation would have spared everyone this agony . . . . The [Eagle County] Sheriff’s Department had an obligation to find the facts, whether they were good or bad, and it’s clear they put blinders on . . . . There was a rush to arrest [Bryant], vilify the guy, then sit back and gripe when all the facts turned out against them. The woman was not asked the tough questions. [The prosecution] didn’t want to test the scientific evidence — why? Because they wouldn’t have liked the results.’” Id. (quoting Larry Pozner, a Denver criminal defense lawyer and past president of the National Association of Criminal Defense Lawyers). 78. Id (citing former Denver prosecutor Craig Silverman). 79. Id. 80. Carrie A. Moser, Penalties, Fouls, and Errors: Professional Athletes and Violence Against Women, 11 SPORTS LAW. J. 69, 78 (2004). One former prosecutor involved in the trial of an NFL player stated, “I vastly underestimated the dynamic of trying a sports figure, I’d probably have had a better chance prosecuting the President of the United States than an athlete.” Id.

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complaints against athletes are at a distinct disadvantage when they enter the legal system, and prosecutors’ blind pursuit of their target further accentuates that disadvantage.81 The stubbornness with which Hurlbert conducted the case produced “an unmitigated disaster for true victims of sexual assault” that legal analysts fear will “make it more difficult for these women to come forward.”82 But for Bryant’s celebrity status, the case probably would not have been prosecuted; his accuser would have been spared her scarring ordeal, and the ensuing legal debacle would have been avoided. 2. Judicial and prosecutorial difficulties with media scrutiny of high-profile cases
This case [was] the poster child for the worst way we can treat a victim in a sexual assault case. — Cynthia Stone, Colorado Coalition Against Sexual Assault
83

Bryant’s accuser’s ordeal was further aggravated by repeated judicial and prosecutorial miscues. This pattern of ineptitude supports the general proposition that judges, prosecutors, and trial courts are often unprepared for and incapable of handling the heightened demands and intense public scrutiny that inevitably accompany high-profile cases.84 a. Prosecutorial Ineptitude The blunders that marked the adjudication of Bryant’s case illustrate the difficulties that often attach to the prosecution of rich and famous defendants. In the eyes of observers, Eagle County prosecutors “found themselves continually overmatched by Bry-

81. Id. at 77 (using the Mike Tyson case as an example of the incredible resources, economic and otherwise, that an athlete may employ in his criminal defense. Tyson’s case highlights the unfair advantage that players and athletes bring to the table when they enter into a courtroom. “Conviction rates for athletes . . . are startlingly low compared to arrest statistics.”). 82. Herdy, supra note 67 (quoting former Denver prosecutor Craig Silverman). 83. Dolan, supra note 38. 84. Robinson, supra note 70.

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ant’s high-priced legal team.”85 The prosecution was blamed for inviting scrutiny of the accuser’s sexual history and behavior; by presenting evidence of her physical injuries, including bruising, prosecutors effectively permitted Bryant’s defense to counter with evidence connecting the injuries to other sexual activities.86 Once the prosecution cracked open the door to such a defense, Bryant’s attorneys astutely and aggressively broke it down with thinly-veiled attacks on the victim’s character and sexual history. While the rape shield law limited the defense to arguing for the admissibility of the evidence as a plausible alternative explanation for any physical injury to the accuser, Professor Campos notes that “[t]he real defense argument, of course, is that the accuser is sexually promiscuous, and often engages in the behavior that the defense claims took place.”87 But for the prosecution’s introduction of physical evidence, the defense could not have insinuated such an argument. In addition, the prosecution’s incompetence ultimately contributed to the accuser’s decision to withdraw from the case: one of the “issues that went into her decision to withdraw . . . was that she lost some faith in the prosecution,” admits Ingrid Bakke, one of Bryant’s prosecutors.88 The dismissal of the charges against Bryant can be attributed to the very prosecutorial ineptitude that caused the proceedings to drag out for fourteen months. b. Judicial Ineptitude The Eagle County court system proved itself even clumsier than its prosecutors, and this clumsiness wreaked considerable havoc on the accuser’s privacy. In blatant violation of court rules and Judge Frederick Gannett’s repeated warnings, defense attorney Pamela Mackey blurted out the accuser’s name six times during preliminary hearings.89 Mackey apologized each time,90 but

85. Editorial, A Costly Case, ST. PETERSBURG TIMES, Sept. 5, 2004, at 2P. 86. Dolan, supra note 38. The exceptions to Colorado’s rape shield statute permit such a response. See supra Part II.A. 87. Paul Campos, Rape Shield Laws Out of Date, ROCKY MOUNTAIN NEWS, Jul. 27, 2004, at 39A. 88. Benedict & Henson, supra note 12. 89. Elliott Teaford et al., Graphic Testimony in Bryant Hearing, L.A. Times, Oct. 10, 2003, at A1.

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Gannett’s inability to control the attorney’s behavior highlights the ease with which Bryant’s high-priced defense exploited the deficiencies of Eagle County’s governmental personnel. In one preliminary hearing, while cross-examining Eagle County Detective Doug Winters, Mackey challenged the prosecution’s assertion that a medical examination showed evidence consistent with “penetrating . . . trauma” by asking whether the evidence was also consistent “with a person who’d had sex with three different men in three days.”91 The prosecution objected, and Judge Gannett immediately halted the questioning.92 But, “as lawyers say,” the L.A. Times reported, “the question amounted to a bell that can’t be unrung,” and one observer noted that the hearing ended “with that bell ringing in everybody’s head.”93 Mackey’s “inquiry [was] designed to cast doubt from coast to coast, in newspapers and on television, on the 19-yearold’s credibility.”94 It succeeded in doing so only because Judge Gannett had denied two attempts by Bryant’s attorneys to close the hearing at which the question was aired.95 Because the hearing was open to the public and to the media, Mackey’s loaded question generated scores of detrimental headlines and weeks of speculation about the accuser’s sexual history.96 In this way, Judge Gannett’s decision effectively obliterated any remaining shred of the accuser’s dignity. Mackey may have rung the bell, but Judge Gannett’s inexplicable refusal to close the hearing gave her the opportunity to do so. These episodes do not paint a complete picture of Gannett’s ineptitude. Under Colorado law, at preliminary hearings, prosecutors can offer hearsay evidence to satisfy their minimal legal burdens, and as a result, in the words of a former prosecutor, “[n]o conscientious prosecutor voluntarily exposes his or her witnesses to unnecessary pretrial cross-examination.”97 The fact
90. Alan Abrahamson & Steve Henson, Bryant Defense Manages to Get its Side Aired, L.A. TIMES, Oct. 10, 2003, at A29. 91. Id. 92. Id. 93. Id. (quoting former Denver prosecutor Craig Silverman). 94. Id. 95. Teaford et al., supra note 89. 96. Abrahamson & Henson, supra note 90. 97. Alice Vachss, The Charge of Rape, the Force of Myth, WASH. POST, Nov. 2, 2003, at B2.

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that the prosecution did so by exposing Detective Winters to Mackey’s penetrating queries constituted one of its most significant blunders, and the disastrous results of that exposure highlight the enormity of the mistake. But Judge Gannett magnified the repercussions of that mistake when, in his opinion binding the matter over for trial, he included a gratuitous caveat lamenting the inherent weakness of the prosecution’s evidence.98 In a regular case, these unnecessary comments may have been harmless, but at the center of the media circus that Bryant’s case had already become, they proved catastrophic. Because of Judge Gannett’s comments, the media dutifully and breathlessly spilled ink about the weakness of the overall case against Bryant.99 Judge Gannett’s criticism of the prosecution’s case became a selffulfilling prophecy: in light of the significance accorded to public perception in a case tried in the public spotlight, commentators have referred to these early reports as “the beginning of the end.”100 The other major mistakes committed by the Colorado court system have been well documented. The totality of these foibles effectively eviscerated the accuser’s anonymity and led a national columnist to derisively view Eagle County’s justice system as that of a “small county being run by comics and fools.”101 Starting in September 2003,102 court officials inadvertently posted the accuser’s name and other private information on a state website three times.103 Ironically, because of the immensity of the public’s interest in the case, the state had constructed and maintained the website only to facilitate media coverage.104 This further underscores the extent to which the high-profile nature of the case contributed to the miscues that plagued its adjudication. Amazingly, these postings were not the court’s most consequential or egregious blunder. That designation was not earned
98. Id. 99. See, e.g., Jim Spencer, Bryant Case Looking Like Defense Dunk, DENV. POST, Oct. 16, 2003, at B1. 100. Pugmire & Wharton, supra note 57. 101. Bill Plaschke, Ball Back in His Court; Bryant Is Now Free to Decide His Fate, L.A. TIMES, Sept. 2, 2004, at D1. 102. Pugmire & Wharton, supra note 57. 103. Benedict & Henson, supra note 12. 104. Colorado State Judicial Branch — People v. Bryant Media Information, at http://www.courts.state.co.us/exec/media/eagle/pressindex.htm (last visited Oct. 22, 2005).

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until late June 2004, when a court clerk mistakenly e-mailed transcripts of a closed-door hearing to seven news organizations.105 In these transcripts, a DNA expert detailed evidence indicating that Bryant’s accuser had sex with another man soon after the alleged rape.106 Under Colorado’s rape shield law, this evidence should have been kept secret and out of open court pending an evidentiary ruling on its admissibility.107 Because of the court’s mistake, however, the transcripts were published on August 2.108 Their salacious contents triggered a new round of damaging headlines about the accuser’s alleged sexual activities and further exacerbated the public humiliation to which she was subjected.109 “The prejudice to this girl was beyond measure,” her attorney Lin Wood said, noting that, in light of the fact that the release occurred only three weeks before jury selection was to begin, it further poisoned the small Eagle County jury pool.110 According to the accuser’s attorneys, these accidental releases of confidential information explained her growing hesitation to cooperate with the prosecution as the case progressed, and that hesitation culminated in the dismissal of the case.111 Judge Ruckriegle blamed the errors on budget cuts that had taxed his staff.112 “We had no idea those mistakes would be under such a microscope and be disseminated instantly around the world,” the judge said,113 but this naïveté did not mitigate the effects of the mistakes, and the releases further undermined the privacy purposes for which the nation’s rape shield laws were originally enacted.114 Because of constant governmental mistakes and the heightened public scrutiny by which those mistakes were aggravated
105. Id. 106. Id. 107. Pugmire & Wharton, supra note 57. 108. Benedict & Henson, supra note 12. 109. Id. 110. Id. 111. Id. 112. Henson & Pugmire, supra note 2. 113. Id. 114. One national newspaper columnist decried the way in which Ruckriegle “allowed constant and suspicious leaks to sink any semblance of fairness to either Bryant or the alleged victim,” rendering the “quicksand that is apparently Eagle County justice” even more dangerous. “Playing on the same field as powerful attorneys and national media, he was out of his league.” Plaschke, supra note 101.

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and magnified, one advocate labeled the case “the poster child for the worst way we can treat a victim in a sexual assault case.”115 As a result, despite the successful legal operation of the rape shield law, it proved completely ineffective in regards to its underlying purpose of protecting the complainant’s dignity and privacy. The media’s relentless coverage of the entire saga exacerbated the governmental ineptitude with which the case was handled, and that ineptitude led to further media saturation. Ultimately, the confluence of these factors created a vicious cycle that consumed the case. One newspaper labeled the culmination of that cycle a “massive legal and social debacle” and worries that its visibility may lead “future victims of rape [to] decide [that] the price of reporting the crime is too high.”116

V. THE NEED FOR REFORM
Her story becomes everyone’s story . . . . If she could get justice, everyone could. If she’s not able to, that has an effect on everyone else. Everything that’s uncomfortable and bad about the justice system was illuminated by the Kobe Bryant trial. — Sarah Courtney, a graduate student at the University of Missouri who was sexually assaulted by an athlete117 Driving the streets of Tucson, Laura Todd Johnson yelled beseechingly at the car radio last week when it blared the news that Kobe Bryant’s accuser no longer wanted to press her sex-assault case. “No!” pleaded Johnson, a lawyer and former prosecutor — and a rape victim as a teen. “You have to do it! Don’t give up; you can do this!” — Kevin Simpson & David Olinger, The Denver Post
118

A.

THE LEGACY OF PEOPLE v. BRYANT: ITS EFFECT ON FUTURE VICTIMS

These sentiments exemplify the anger and empathy felt by other sexual assault victims upon learning of the abrupt conclu115. Dolan, supra note 38 (quoting Cynthia Stone of the Colorado Coalition Against Sexual Assault). 116. Editorial, A Costly Case, supra note 85. 117. Kevin Simpson & David Olinger, Bryant Case Has Far-Flung Fallout, DENV. POST, Sept. 5, 2004, at A1. 118. Id.

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sion to the saga. According to one law professor, “Few rape cases receive close media attention, but those that do can have a powerful effect on future victims and on future jurors.”119 The most serious consequence of Bryant’s case will be future victims’ unwillingness to come forward with accusations because of the fear of suffering the same fate as Bryant’s accuser.120 Sexual assault counselors attempt to mitigate these effects by reminding victims that the spotlight under which Bryant’s case played out is atypical for rape prosecutions. They tell other victims that “[t]he average perpetrator doesn’t have the money to hold a press conference,” and while “Bryant can hire a dream team[,] [m]ost perpetrators just have a defense lawyer.”121 Despite these efforts, however, rape victim advocates report that the case “already has had a chilling effect on reporting rape.”122 Because of the national prominence accorded the case, Bryant’s accuser’s ordeal signifies a major setback in a three-decadelong effort to persuade women to report rape and to stop defense lawyers from attacking complainants’ credibility by exposing their sexual histories.123 This effort constituted a driving thrust behind the very creation of rape shield laws, and it remains among their primary objectives. Rape victim advocates worry that defense lawyers may use Bryant’s defense as a model by which to circumvent the relevant rape shield laws. “This decision will be seized on by defense attorneys around the country,” one advocate laments, fearing that “[i]t will take us back to when the emphasis in a trial was on the actions of the victim.”124 In this way, the rape shield law has been eroded, but only because it appears to have been eroded: after watching Bryant’s case unfold and reading about the experience that his accuser suffered, it is natural for many victims to be skeptical of the assurances that rape shield statutes aim to provide. As a result, their effectiveness in encouraging the reporting of such crimes has inevitably decreased. Nonetheless, the subjection of Bryant’s
119. Gail Gibson, Bryant Case Ends, but Not the Issues, BALT. SUN, Sept. 3, 2004, at 1A (discussing comments made by Howard University law professor Andrew E. Taslitz). 120. Harden, supra note 72. 121. Masterson, supra note 13. 122. Harden, supra note 72. 123. Id. 124. Id (quoting Sasha Walters, director of advocacy services at Chicago-based Rape Victim Advocates).

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accuser to such a traumatic ordeal does not necessarily impugn the rape shield law itself. Rather, it proves a commentator’s observation that “[e]ven the strictest rape shield laws can do little to protect accusers from embarrassing disclosures in celebrity cases . . . .”125 The nightmare that the accuser was forced to endure illustrates the truth of the proposition that “the law can only protect you so much.”126 In the words of University of Southern California law professor and rape law scholar Susan Estrich, “When you’ve got a high profile defendant in a highly competitive news environment and the Internet era, you’re not going to get any protection.”127

B.

THE EROSION OF PRIVACY PROTECTIONS: THE EVOLUTION OF THE MEDIA, THE INTERNET, AND SOCIETY

Over the course of the last three decades, rape shield laws have afforded complainants a measure of privacy inside the courtroom.128 Over the same period of time, however, the evolution of communications technology and of the media has led to the public distribution of information that, in a high-profile case, effectively destroys complainants’ chances of enjoying any semblance of privacy in the court of public opinion.129 These developments can be partially traced to the tabloidization of American culture. The voyeurism that increasingly captivates society has “alter[ed] standards of newsworthiness.”130 In turn, this tabloidization has eroded privacy expectations, opening the door to greater encroachments upon individuals’ lives and shrinking the zone of information considered too personal to be exposed to the public.131 Against this background, the fact that Bryant’s accuser never came forward publicly did not preclude the widespread publication of her name and detailed personal information. In keeping
125. Seth Stern, Bryant Case Tests Limits of Rape Shield Laws, CHRISTIAN SCI. MONITOR, Oct. 22, 2003, at 2. 126. Zernike, supra note 3 (quoting Professor Susan Estrich). 127. Id. 128. Anderson, supra note 21, at 54–55. 129. deMeule, supra note 18, at 166. 130. McDonough, supra note 1, at 305. 131. See Solveig Singleton, Privacy Versus the First Amendment: A Skeptical Approach, 11 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 97 (2000).

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with the self-imposed ban to which the mainstream media has adhered for almost thirty years,132 major news outlets have generally refrained from disclosing the accuser’s name. These outlets, however, are “torn between old standards and new fears of losing readers” and viewers to “tabloids and cyberspace,” and these fears have led to divergent publishing standards.133 A decade ago, during the O.J. Simpson trial, gossip tabloids earned a measure of newfound respectability by breaking stories that mainstream media outlets felt obligated to follow, and, according to one such outlet, “the line between tabloid and mainstream journalism has been blurred ever since.”134 One tabloid, The Globe, has printed Bryant’s accuser’s full name on its cover at least once and front-page photos purporting to depict the accuser at least three times.135 But the influence currently wielded by tabloids pales in comparison to that of the Internet. At the time of Bryant’s indictment, there were more than 160 million North American Internet users.136 Every single posting of the accuser’s name and personal information reached an immeasurable number of people; the scope of each disclosure reached as far as the scope of the Internet itself.137 Accordingly, the unbridled power of the Internet raises significant concerns. The rapid dissemination of information that the Internet facilitates is free of the restraints — such as editors, advertisers, source requirements, and ethical rules — employed by the mainstream media, and this freedom inherently diminishes the credibility, reliability, and accuracy of much of the informa-

132. Shirley A. Wiegand, Sports Heroes, Sexual Assault, and the Unnamed Victim, 12 MARQ. SPORTS L. J. 501, 502 (2001). 133. For instance, while two Southern California newspapers and The Denver Post published stories about the accuser’s background, the L.A. Times refused to do so. Baker, supra note 5. 134. Id. 135. ESPN.com, Documents Reveal Agreement with American Media (Jan. 27, 2005), http://sports.espn.go.com/nba/news/story?id=1977392. 136. Baker, supra note 5. 137. Indeed, less than a month after the incident, the Bryant case became one of the most popular online search topics in history. At that point, only the terrorist attacks of September 11, 2001, the war in Iraq, and the 2000 presidential election had drawn more interest, and the name of Bryant’s accuser had been searched more than twice as many times as his own. CBS News, Kobe’s Accuser Named — Twice (Jul. 24, 2003), http://www.cbsnews.com/stories/2003/07/25/national/main565070.shtml.

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tion that the Internet produces.138 Despite the questionable nature of Internet reports, the competitive pressure that they generate is “indirectly responsible for the way a wide variety of characterizations of Bryant’s accuser have made their way into the mass media,” media critic and historian Neal Gabler asserts.139 This pressure leads the mainstream media to maintain “a kind of technical virginity,”140 a spurious practice by which it refrains from disclosing a rape complainant’s name, but willingly reveals detailed information about every other aspect of her life.141 Such straddling only ensures that in today’s society, as Estrich explains, “Anonymity is, you have to go online or listen to the radio to find out a person’s name as opposed to just turning on the TV.”142 This reality signifies the existence of a legal chasm, an area where the law has failed to keep pace with the evolution of the media and of communication technologies. Today, little information can truly be classified as private;143 advances in reporting, media, and technology have made it difficult, if not impossible, to do anything without leaving traces.144 It follows that the perceived weaknesses in the rape shield law that Bryant’s case allegedly exposed may merely be symptomatic of modern society itself.

VI. A SURVEY OF PROPOSED LEGAL REFORMS
Regardless of . . . the truth of [her] claim . . . the treatment of [Bryant’s accuser] on the Internet has been horrific. Criminals do not deserve to receive such inhumane treatment, much less possible victims . . . . While
138. McDonough, supra note 1, at 299. 139. Baker, supra note 5. The Internet has no editor, so everything gets out there. Then it gets picked up by talk radio, which also has no filtering system. Then that process puts pressure on more traditional news outlets, like local newspapers, to pick up the story because it’s out there and people are talking about it. These newspapers are in competitive situations. Once they pick it up, there is pressure on more responsible organizations to [make use of] these rumors, if not publish them as fact. Id. 140. Ellen Goodman, Rethinking the Rape Shield, BOSTON GLOBE, Jul. 31, 2003, at A15. 141. Columbia journalism professor Todd Gitlin calls the practice a “hypocritical cut and paste job.” Zernike, supra note 3. 142. Id. 143. Daniel J. Solove, Access and Aggregation: Public Records, Privacy, and the Constitution, 86 MINN. L. REV. 1137, 1178 (2002). 144. Id.

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Bryant is innocent until proven guilty, the fact that this woman is ravaged and threatened simply for filing a criminal report demonstrates the need for legal action to ensure the protection of victims in society. — Moira McDonough
145

The ordeal suffered by Bryant’s accuser proves that the effectiveness of the rape shield law is limited by its function as an evidentiary protection. Its operation is constrained by the confines of the courtroom itself, and in high-profile cases, even the sturdiest rape shield law cannot prevent the extrajudicial publication of damaging information about the complainant. In Bryant’s case, this publication eradicated any semblance of safety, privacy, anonymity or dignity that his accuser had hoped to enjoy. Moreover, by poisoning the pool from which her jury would be drawn, it precluded any possibility of a fair trial. By preventing the achievement of the underlying purposes for which rape shield statutes were enacted, these disclosures rendered the rape shield law fundamentally toothless. This extrajudicial toothlessness stemmed directly from the high-profile nature of the case. The case’s visibility has also prompted commentators and legislators to examine and evaluate the relationship between rape shield laws — conceived primarily as evidentiary rules for trial — and the minimal protections granted the rape complainant outside the courtroom.

A.

REFORMS DIRECTED AT THE COVERAGE OF RAPE TRIALS: INFORMATION

PENALIZING OR PROHIBITING THE PUBLICATION OF PRIVATE

As evidentiary protections, rape shield statutes aim to disallow information about the complainant’s past sexual behavior from reaching the jury and to protect the complainant from the “second rape” that an unbridled trial process can impose.146 As demonstrated by Bryant’s case, however, rape shield laws cannot properly serve their purposes when, because of the zeal with which the media covers high-profile cases and the corresponding voracity with which the public consumes such coverage, informa145. 146. McDonough, supra note 1, at 309. Reidy, supra note 20, at 319.

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tion that would otherwise be inadmissible at trial is made available to the public. Three decades after the enactment of the first rape shield laws, advances in communications technology have stripped some rape complainants of any semblance of the privacy, safety, and dignity that rape shield laws purport to ensure, and the question of extrajudicial privacy protections remains unresolved.147 Legislative efforts to secure such safeguards have not been as successful as those aimed at the protection of complainants within the courtroom.148 While every state has enacted some form of rape shield statute, only four have created statutes criminalizing the publication of a rape victim’s identity.149 Moreover, the United States Supreme Court has found two previous applications of such statutes to be unconstitutional. Cox Broadcasting Corp. v. Cohn struck down, on First and Fourteenth Amendment grounds, a Georgia statute providing civil liability for publishers of a rape victim’s name that had been obtained through proper means from court records,150 and Florida Star v. B.J.F. forbade the imposition of criminal liability where, due to accidental disclosure by law enforcement, a newspaper lawfully obtained and published a rape victim’s name in violation of a Florida statute.151 Nevertheless, because victims’ rights statutes have the capacity to control the content of information that is disclosed by the media to the general public, they have been touted as the ideal complements to rape shield laws.152 According to this position, these statutes can help rape shield laws function properly in high-profile cases.153 Victims’ rights statutes are properly situated to assist rape shield laws in securing a complainant’s privacy because, unlike rape shields themselves, they offer a means of controlling the flow of information outside of the courtroom.154 This element is “crucial to the overall effectiveness of rape shield

147. deMeule, supra note 18, at 146. 148. Michelle Johnson, Of Public Interest: How Courts Handle Rape Victims’ Privacy Suits, 4 COMM. L. & POL’Y 201, 210–12 (1999). 149. Wiegand, supra note 132, at 501. 150. 420 U.S. 469, 496–97 (1975). 151. 491 U.S. 524, 540 (1989). 152. Reidy, supra note 20, at 326. 153. Id. at 324–25. 154. Id.

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statutes,” its proponents contend.155 In recognition of these arguments, during the Bryant proceedings, Colorado legislators proposed two bills that would criminally proscribe the publication of a rape complainant’s name in violation of a judge’s order.156 Bryant’s case also prompted the proposal of a civil measure for protecting rape complainants. Citing the hate mail and death threats that targeted Bryant’s accuser after the publication of her name, a Colorado legislator proposed a bill that would furnish rape complainants with a direct statutory right to sue those who disclose their names for actual damages, to collect a civil penalty, and to be repaid for attorney fees and costs.157 This proposal comports with the contention that “[t]he tort of public disclosure of private facts may be the best currently available means of protecting a rape victim’s name on the Internet.”158 The wide distribution of Bryant’s accuser’s name and other information can be construed as a violation of her right to privacy and would support her claim under such a tort.159 B. PROBLEMS WITH THESE PROPOSALS These proposals are problematic because the concern for complainants’ privacy that they embody often clashes with the First Amendment. The Supreme Court has recognized “[t]he tension between the right which the First Amendment accords to a free press, on the one hand, and the protections which various statutes and common-law doctrines accord to personal privacy against the publication of truthful information, on the other.”160 In resolving this tension, the Court’s “decisions have without exception upheld the press’ right to publish.”161 Moreover, under these decisions, the media’s assertion of its First Amendment rights is even stronger when such information is procured through lawful means,162 as it was in Bryant’s case.
155. Id. 156. Steve Henson, Judge to Rule on Two Matters, L.A. TIMES, Feb. 2, 2004, at D5. 157. CNN.com, Colorado Considers Revised Rape Law (Jan. 20, 2004), http://www.cnn.com/2004/LAW/01/19/bryant.legislation.ap/. 158. McDonough, supra note 1, at 297. 159. Id. 160. Fla. Star v. B.J.F., 491 U.S. 524, 530 (1989). 161. Id. 162. Id.

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In addressing the imposition of liability for the release of true but private facts, the Court decided a line of cases163 on the basis of the guiding principle that the media could not be penalized for further publicizing information that was initially made public through government processes.164 When confronted with the penalization of a newspaper for publicizing a living rape victim’s name in Florida Star v. B.J.F., the Court adhered to that principle, holding that, “where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order . . . .”165 Therefore, when the information at issue is disclosed by the government itself — as it was in Bryant’s case — laws that penalize the further publication of such information are subject to strict scrutiny analysis. Over the course of the last fifteen years, advances in communications technology have greatly broadened the scope of this holding: in effect, in light of the unlimited extent to which any information can be disseminated over the Internet, if a complainant’s jurisdiction uses or leaks her identifying information, she retains no control over the widespread dissemination of her name or any other aspect of her identity.166 This is true even where, as

163. See Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) (holding that the First and Fourteenth Amendments prohibit the imposition of civil sanctions, pursuant to Georgia’s victims’ rights statute, on a newspaper for publishing true information — here, the name of a rape victim — available to the public in official court records); Oklahoma Publ’g Co. v. District Court, 430 U.S. 308 (1977) (invalidating a pretrial order enjoining the media from publishing the name and picture of a juvenile because his appearance at a hearing put this information in the public domain); Smith v. Daily Mail, 443 U.S. 97 (1979) (holding that absent a compelling state interest, state governments may not punish the press for publishing truthful information that was lawfully obtained). 164. McDonough, supra note 1, at 300. 165. Fla. Star, 491 U.S. at 541. In Florida Star, the sheriff’s department prepared a report identifying the victim of a rape and robbery by an unknown assailant. Id. at 527. A Florida Star reporter included the victim’s name in an article derived entirely from this police report. Id. This identification violated the newspaper’s internal policy, id. at 528, as well as pressroom signs instructing that rape victims’ names were not matters of public record and thus were not to be published. Id. at 546. After suffering embarrassment and receiving threatening phone calls, the victim sought police protection, obtained mental health counseling, and changed her phone number and residence. Id. at 528. She settled with the police department for damages related to the release and sued the newspaper. Id. 166. McDonough, supra note 1, at 302.

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in Florida Star and in Bryant’s case, such information was released inadvertently, through an “unfortunate mistake.”167 The media’s First Amendment rights present a legal obstacle to attempts to strengthen rape complainants’ extrajudicial privacy protections because courts have been unwilling to categorically recognize a complainant’s right to privacy as a compelling state interest.168 In balancing the freedom of the press and complainants’ desire for privacy, however, the Supreme Court has made clear that its holdings are “limited.”169 Its decisions indicate that, while the former interests take priority over the latter, there may be occasions where a complainant’s interests would prevail.170 Florida Star can be read very narrowly. It did not afford automatic constitutional protection to all truthful publication.171 It did not hold that a state “may never punish a publication of the name of a victim of a sexual offense.”172 It did “not rule out the possibility that, in a proper case, imposing civil sanctions . . . might be so overwhelmingly necessary to advance [state] interests as to satisfy” the stringent standard to which it held the Florida statute.173 Indeed, the Court has recognized the “highly significant” nature of such interests as complainants’ privacy, their physical safety, and the goal of increased reporting of rape to be “undeniable.”174 In light of the narrowness by which the Court’s holdings have been marked, under certain circumstances, these interests could conceivably outweigh the media’s First Amendment rights. A case as nationally prominent as Bryant’s may very well exemplify such a situation. The rape complainant in Florida Star, B.J.F., was subjected to the same type of ordeal as Bryant’s accuser. At trial, B.J.F. testified that acquaintances and fellow workers brought the article in which her name was disclosed to

167. Fla. Star, 491 U.S. at 547. 168. See Reidy, supra note 20, at 329. 169. Fla. Star, 491 U.S. at 541; see also id. at 533 (stating that “the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsels the Court to rely on limited principles that sweep no more broadly than the appropriate context of the instant case”). 170. Johnson, supra note 148, at 203. 171. Fla. Star, 491 U.S. at 541. 172. Id. 173. Id. at 537. 174. Id.

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her attention and that, after her mother received phone calls threatening to rape B.J.F. again, she was forced to relocate and to seek police protection.175 Like B.J.F., therefore, Bryant’s accuser’s privacy, safety, and dignity were compromised by the publication of her identity and the fact of her alleged victimization, but to a much greater extent than were B.J.F.’s. Since Florida Star was decided in 1989, privacy concerns have been dramatically heightened by changes in the way traditional media and emerging communications tools such as the Internet disseminate information regarding rape and rape trials.176 In Bryant’s case, his celebrity status further magnified these changes. While B.J.F.’s identity was disclosed to a regional newspaper’s limited readership pool, the identity of Bryant’s accuser was broadcast worldwide. While B.J.F. may have been harassed by acquaintances, Bryant’s accuser was tormented, disparaged, and humiliated by millions of Internet users, the front pages of tabloids, radio personalities, and the mainstream media. Her accusation was directed at a national celebrity, and because of the high-profile nature of her case, Bryant’s accuser’s ordeal is distinguishable from B.J.F.’s by virtue of its intensity and its magnitude. This distinction could conceivably be deemed weighty enough to qualify her interests as “compelling,” notwithstanding B.J.F.’s failure to meet that standard.177 Alternatively, another route by which the Court could rule for a complainant involves the crafting of the protective statute at issue. Despite its acknowledgement of the significance of the con175. Id. at 528. 176. Wiegand, supra note 132, at 513. 177. In fact, the Colorado Supreme Court used this distinction to uphold Judge Ruckriegle’s order prohibiting publication of the accidentally-released transcripts from a closeddoor hearing. Although Ruckriegle’s order constituted the type of prior restraint of the media that the Supreme Court of the United States has never endorsed, the Colorado court stated that publication would “harm [a] state interest of the highest order.” People v. Bryant, 94 P.3d 624, 636 (Colo. 2004). In essence, it held that under the circumstances, the Colorado rape shield law and the accuser’s privacy outweighed the media’s First Amendment rights to publish the material. The court distinguished Florida Star by noting that, while that case did not involve a celebrity, “[t]he defendant Bryant is an internationally recognized professional basketball player. The press has been covering every minute detail of this case, and most of this coverage has been published or broadcast nationwide.” Id. at 635. The seven news organizations to which the transcripts were released dropped their plans to appeal to the U.S. Supreme Court. Karen Abbott, Media Groups Drop Plans to Appeal Publishing Ban, ROCKY MOUNTAIN NEWS, Aug. 4, 2004, at 23A.

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cerns for which Florida’s statute had been enacted, Florida Star found three countervailing reasons to prohibit the imposition of liability upon the newspaper.178 The Court cited (1) the manner in which the information was provided to the newspaper;179 (2) the broadness of the negligence per se standard under which liability could be imposed;180 and (3) its finding that Florida’s statute prohibiting publication of complainants’ identities was so “facially underinclusive” that it could not effectively ensure complainants’ anonymity.181 In light of the Court’s explicit delineation of the contours that a statutory penalization of publication must meet, a narrower, facially inclusive statute could be drafted within these contours, and such a statute could avoid the fate that befell Florida’s in Florida Star. In Florida Star, however, the fact that the newspaper learned the sensitive information from the government proved to be the most significant factor. The state’s release of the information at issue triggered the application of “strict scrutiny” analysis — often characterized as “ strict’ in theory and fatal in fact”182 — and thereby doomed B.J.F.’s case. Florida Star only pertains to information released by government officials,183 but no statute can be worded so as to prevent such an inadvertent governmental disclosure. In Bryant’s case, the fact remains that in addition to accidentally posting his accuser’s name on a court website three times, the court itself e-mailed private, sealed evidentiary information to several media organizations. “The First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records,” the Court has declared,184 and the inadver178. Fla. Star, 491 U.S. at 537. 179. Id. at 538 (in inadvertently leaving a police report in the Star’s newsroom, the government failed “to police itself,” and imposing liability on the media for publishing the information would be an ineffective means of ensuring victims’ anonymity). 180. Id. at 539 (an automatic finding of liability could be inappropriate in some cases, such as where the victim’s identity was already widely known, she had voluntarily called attention to the crime, or was otherwise a “reasonable subject of public concern” for reasons such as prior false allegations). 181. Id. at 540 (the statute prohibited publication only in an “instrument of mass communication,” but did not address other means of transmission). 182. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 362 (1978) (Brennan, J. dissenting) (quoting Gerald Gunther, Foreward: In Search of Evolving Doctrine on a Changing Court: A Model, 86 HARV. L. REV. 1, 8 (1972)). 183. McDonough, supra note 1, at 303. 184. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1975).
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tence of a release does not create an exception to this rule. Rather, “[i]f there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information.”185 Therefore, in the ongoing quest to reinforce, strengthen, and extend the protections offered by rape shield laws, reforms can be aimed at the media or the Internet, but the ultimate responsibility remains with the state itself.

C.

REFORMS DIRECTED AT THE COURT AND ITS OFFICERS

The Supreme Court has noted that, “[w]here information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts.”186 Indeed, while statutes prohibiting or penalizing the publication of rape complainants’ private information are often constitutionally problematic, the courts possess the authority to prevent such information from reaching the media or the public in order to protect the parties’ privacy interests and the fairness and integrity of the proceedings. If utilized properly, such preventative measures are much more effective than the punitive statutes discussed above, because information cannot be published if it is never released, and information cannot be disseminated if it never reaches the media or the public at all. The Supreme Court has instructed that the common law right of access to court records is not absolute, that “[e]very court has supervisory power over its own records and files.”187 The tools that courts can use to limit the disclosure of information to the public include the sealing of court records, the issuance of gag orders on the parties, and the closing of otherwise public proceedings. Judge Gannett used some of these tools in Bryant’s case. At the outset, Judge Gannett issued a gag order barring the attorneys and law enforcement officials from making any out-of-court statements regarding the proceedings.188 After issuing a decorum
185. Id. 186. Fla. Star v. B.J.F., 491 U.S. 524, 534 (1989). 187. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978). 188. Order Re Pretrial Publicity, People v. Bryant, No. 03CR204 (Colo. July 24, 2003), available at http://www.courts.state.co.us/exec/media/eagle/7-03/julydocs.htm.

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order that threatened sanctions and exclusion from court proceedings upon any media or private party who disseminated the image or name of the accuser, he extended that order to restrict activities around the Eagle County Justice Center, forbidding media contact with the parties and photographs of the accuser’s family and witnesses.189 Finally, aside from one video and one still camera, he banned transmitting devices from the courtroom.190 In light of the government’s repeated (albeit inadvertent) disclosures of the accuser’s name and identifying information, however, with regard to that information these orders would likely be ruled unconstitutional under Florida Star, because they penalized the publication of information that the state had previously placed in the public domain. Moreover, in Bryant’s case, extrajudicial statements were not the cause of any of the accuser’s problems. Neither of the parties leaked any publicity; the private information and incriminating allegations to which the public was ultimately exposed were inadvertently disclosed by the court itself or aired in open court. The media learned of and disseminated such information only because of the court’s own mistakes and the court’s refusal to close open proceedings. Cases like Bryant’s demonstrate that, where rape proceedings remain open and public, rape shield laws do not constitute absolute barriers to the exposure of an accuser’s sexual past. In a case in which the teenage son of a high-ranking Orange County sheriff’s official was accused of participating in the gang-rape of an unconscious 16-year-old girl, defense attorneys requested that the judge allow the introduction of evidence of the complainant’s sexual history in order to reveal her desire to be a porn star.191 The defense asked permission to recount one incident in which the complainant allegedly allowed a liquor store clerk to fondle her in return for allowing her to purchase beer, others in which she engaged in prior consensual sex — including videotaped encounters — with all three defendants, a sexual encounter with a

189. CNN.com, Judge Warns Media to Follow His Privacy Directives on Bryant Case (July 30, 2003), http://www.cnn.com/2003/LAW/07/29/bryant.case. 190. McDonough, supra note 1, at 303. 191. Claire Luna, Law No Shield in Rape Trials; Two High-Profile Cases, One in Orange County, Show That Accusers’ History Still Fair game, L.A. TIMES, March 21, 2004, at B1.

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man she knew for only ten minutes, and an interest in sex toys.192 Whether or not these allegations were admitted as evidence, their publication defeats the purposes for which rape shield laws were enacted; when defense motions purporting to detail an accuser’s sexual history make their way into newspapers and onto the Internet, rape shield laws are circumvented. In the aftermath of the Bryant case, California has passed new rape shield legislation. To make a pretrial motion regarding evidence of a complainant’s sexual history, the defense must refer to any such evidence under seal.193 This law aims to prevent the media from making salacious reports based on “evidence” with which defense attorneys attempt to attack complainants’ credibility. Similarly, in hopes of closing a “loophole” in the Colorado rape shield law, the Colorado Senate has approved a measure that would prohibit discussion of a complainant’s sexual history during a preliminary hearing unless a judge rules otherwise, thereby extending to preliminary hearings the rape shield rules that currently govern trial proceedings.194 Colorado State Senator Dan Grossman proposed the bill because the aforementioned “loophole” allowed Bryant’s attorneys to defeat the purposes for which the rape shield law was enacted by putting the complainant herself on trial. Without the change, Grossman said, the case could become a “blueprint” according to which defense lawyers would attack rape complainants.195 In Bryant’s case, at an open preliminary hearing, defense attorney Pamela Mackey triggered months of sensational and damaging headlines by suggesting that the complainant had slept with multiple men in the days surrounding her encounter with Bryant.196 Either of these newly-passed laws would have prevented Mackey’s allegations from reaching the media; either would have mitigated the public scrutiny to which Bryant’s accuser was subjected. As such, both will provide valuable and effective rape shield reform. Even without these laws, however, Judge Gannett could have achieved the same result; because he
192. Id. 193. 2004 Cal Adv. Legis. Serv. 61 (Deering). 194. ESPN.com, Effects of Case Will Spread Beyond Colorado (Mar. 2, 2005), http://sports.espn.go.com/espn/print?id=2--3584&type=story. 195. Id. 196. See supra, Part IV.A.2.b.

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denied two attempts by Bryant’s defense to close the hearing, it was Gannett who allowed Mackey’s loaded inquiries to reach the media.197 Rather than any legal “loophole” or the defense’s lack of scruples, therefore, the court’s own miscue can be blamed for the transformation of the accuser’s sexual history into national headline fodder. Instead of rendering these reforms superfluous, this fact magnifies their value. Even though the court could have achieved their objectives on its own, the fact that it failed to do so further demonstrates that courts generally struggle to handle the heightened demands and pressures that inevitably attach to highprofile cases.198 In light of this systemic failure, the real value of these reforms is that, by making mandatory a measure that was previously left to the court’s discretion, they ensure that such judicial mistakes cannot be made.

VII. CONCLUSION
A few weeks before the dismissal of charges against Bryant, a court clerk mistakenly e-mailed seven news organizations the transcript of a closed-door hearing in which a defense DNA expert detailed evidence indicating that the complainant had sex with another man soon after the alleged rape.199 Colorado’s rape shield law dictated that this evidence be kept secret and out of open court pending an evidentiary ruling on its admissibility. Because of the court’s mistakes, however, redacted versions of the transcripts were released soon thereafter, and their outrageous contents sparked a new round of injurious headlines about the accuser’s alleged sexual activities.200 Neither California’s nor Colorado’s new measures could have prevented the accidental transmission of the e-mail or the publication of its contents. A law by which a court clerk’s mistakes could be prevented or reversed cannot be imagined, and any law that prohibited the media from using information that it received from the government

197. 198. 199. 200.

Abrahamson & Henson, supra note 90. See supra, Part IV.A.2. Benedict & Henson, supra note 12. Id.

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would likely be unconstitutional under the First Amendment doctrine delineated in Part VI.A.201 This underscores the reality that, regardless of legislative attempts to strengthen or supplement existing rape shield statutes, the authority and the responsibility to protect rape complainants’ privacy and safety ultimately lies in the hands of the state. In emphasizing the importance of this responsibility, the Supreme Court has placed the burden on the state to avoid the clash between the media’s First Amendment rights and a rape complainant’s right to privacy.202 In Bryant’s case, the state — the prosecution, the court’s staff, and the judges themselves — repeatedly failed to meet this burden, and much of the horrific plight that the complainant endured can be attributed to this failure. The strength and effectiveness of the rape shield law hinges on victims’ willingness to rely on its assurances. In the aftermath of Bryant’s saga, the rape shield has been weakened because victims perceive it to be weakened. Its purposes cannot be realized if victims hesitate to depend upon its protection, and victims cannot rely on its protection if they cannot trust the government to maintain the confidentiality of private information with which it is entrusted. The Supreme Court has declared that, “[t]o the extent sensitive information is in the government’s custody, it has even greater power to forestall or mitigate the injury caused by its release.”203 In a high-profile rape trial, this governmental power — and the responsibility to which it is attached — reaches its apex. Constructive rape shield reform must ensure the effective utilization of this authority.

201. According to Professor Erwin Chemerinsky, an expert on constitutional law, the Colorado Supreme Court’s decision upholding Judge Ruckriegle’s order barring publication of the transcripts “flies in the face of a long line of U.S. Supreme Court decisions.” He noted that “[t]his is a court order prohibiting publication,” and “[u]nless the Supreme Court dramatically changes the law of the First Amendment, this decision cannot stand.” Steve Henson & Henry Weinstein, Court Bars Disclosure by Media; Colorado Justices Rule, 4-3, That Documents Accidentally Released in the Bryant Case Cannot be Published, L.A. TIMES, July 20, 2004, at D1. See also Matrullo, supra note 16, at 368–77 (criticizing the grounds upon which the Colorado court justified its decision and arguing that it failed to sufficiently weigh the First Amendment interests of the media and the public). 202. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496 (1965). 203. Fla. Star v. B.J.F., 491 U.S. 524, 534 (1989).