Voices: Erin Andrews trial made public access an issue

NASHVILLE — Inside the Nashville courtroom where Erin Andrews fought for a monetary judgment big enough to send a message about hotel safety, another legal dispute flared.

It was about keeping the public outside.

More specifically, keeping the media out of Judge Hamilton Gayden's courtroom. Over the course of the two-week trial, reporters were shut out of jury selection when they should not have been. Days later there was a suggestion that the media would be kicked out while jurors saw key evidence, though that was never carried out.

Courts in the United States are open to all. It's a guaranteed right of access granted by the Constitution, and it is valid for citizens and media members alike.

"Open government is a hallmark principle of a constitutional democracy," said David Hudson, an adjunct professor at Vanderbilt University Law School and an expert on the First Amendment. "People have a right to receive information and ideas about their public institutions. The media serves a valuable function in providing needed information to the public."

It's important we be inside courtrooms to present readers a full picture and hold leaders accountable.

Another unusual thing that made covering the Andrews case tricky and media access all the more important: So much evidence was already sealed from public disclosure. Many of the filings in the court record — those including private information, financial information and trade secrets — were kept secret because of a protective order signed by the judge in October 2012.

Appropriately, the secretly recorded video of Andrews nude that was the crux of the case also was kept secret. No one — The Tennessean included — objected to that.

Any member of the public can sit in on any case in any court. Media cameras have to follow a few more rules, called Rule 30 of the Tennessee Supreme Court. Rule 30 sets parameters for what the press can do in courtrooms and establishes requirements such as asking for permission to bring in a camera. But the rule doesn't preclude reporters from sitting in and taking notes with a notepad and pen.

Gayden, on day one of Andrews' trial, barred Tennessean reporter Jordan Buie from sitting in on jury selection until The Tennessean's lawyer, Robb Harvey of Waller Lansden Dortch & Davis, got involved. Gayden, who has been on the bench since 1978, said he misinterpreted Rule 30. He then allowed reporters into the courtroom. The Tennessean, like Paste BN, is owned by Gannett Co. Inc.

"The intense media attention called for a quick decision during jury selection and I think I missed the call this time and would do things differently in the future," Gayden said in an emailed statement Friday. "Also, the protection of jurors and potential jurors is an important element that we always must consider."

Gayden said he supports open courts. He said cases like Andrews' require balancing privacy of a victim and decorum in court. There was no shortage of media attention on the case: National and local news crews huddled in the hallway each day, at times following Andrews to and from court.

One day during trial as attorneys discussed how jurors would see the nude videos of Andrews, it came up how best to keep the media from seeing the sensitive images. One option discussed by lawyers suggested removing the media altogether, which prompted Gayden to set a hearing and gave the media agencies' lawyers an opportunity to be heard.

Turned out we didn't need to do that. I clarified with court staff that The Tennessean had no interest in photographing or recording the videos of Andrews nude. But I did want to be in the courtroom.

I wanted to see jurors' reactions, feel the mood, be there if defense lawyers objected.

Gayden allowed us inside.

Staff wheeled in a TV the size of a twin-size bed — or so it seemed — and turned it away from the audience so jurors could see. It was a solution similar to that used during the rape trial of two former Vanderbilt University football players, in which jurors saw video of the assault.

Follow Stacey Barchenger on Twitter: @sbarchenger