Press makes case for censorship in Smith trial


December 04, 1991|By ROGER SIMON

William Kennedy Smith is now on trial in Florida, accused of raping . . . whom? Well, we are not supposed to know.

You are not supposed to know, that is. I already know. As do the 12 million people who listen to NBC News each night. As do the 1.1 million people who read a New York Times profile in April.

The rest of you, however, are out of luck. In the dark. And listening to the sound of silence.

Because silence is what you get on CNN and the Court Channel, the two broadcast outlets that are covering the trial live from Palm Beach, whenever the alleged victim's name is mentioned in court.

The Court Channel is using a 20-second delay and CNN is using about a 10-second delay in their broadcasts. And whenever the alleged victim's name is spoken in court, it is deleted.

So if you have been watching the proceedings, you have heard the prosecutor stand up and say things like: "And then Miss [silence] was tackled by Willie Smith and as Miss [silence] struggled . . . "

And you had to wonder: Who is Miss Silence? Why can't we know who she is? Who is stopping the TV stations from telling us?

The first thing you have to understand, however, is that nobody is preventing the media from using the name; the media are censoring themselves. In America, the media rarely can be prevented from publishing anything. (Only in a very few cases, such as the Pentagon Papers, have the media ever been restrained from publication.)

And a Florida law forbidding the media from naming rape victims was quickly declared unconstitutional a few weeks ago.

So when the New York Times profiled the alleged victim and used her name a few months ago, the paper broke no law. What it did do, however, was cause an uproar, especially among its own reporters, who found both the profile and the naming of the victim repugnant.

I found the profile to be a tough, warts-and-all, reporting job. The kind of profile that newspapers print routinely.

Except about rape victims. Rape is a special crime, one that stigmatizes the victim in a special way. (It shouldn't. Rape is never the victim's fault. But, nonetheless, rape does stigmatize.)

And so it is almost unheard of for rape victims to be named. The New York Times did so because NBC had already done so and NBC did so, because, well, it did so.

The Palm Beach case was receiving an extraordinary amount of publicity, the argument went, and since the accused, Willie Smith, was getting a lot of scrutiny, wasn't it fair for the accuser to get some scrutiny, too?

Most papers and the other networks thought not. (And the New York Times stopped using the alleged victim's name.) After all, some said, the name of the victim in the Central Park Jogger rape case was never used, not even when she took the stand in court.

The alleged victim of Willie Smith could not have kept her identity a total secret, however. The law does not allow that. Willie Smith has a right to know who is accusing him. And the Bill of Rights insists upon a public trial. And so the alleged victim must come forward and testify publicly in court and give her name.

When she does, however, I predict most of the media still will not use it. Will the networks also refuse to show her face? I don't know. I do know no such sensitivity is shown toward the accused.

Willie Smith, who during the legal proceedings is cloaked in the presumption of innocence, gets no breaks from the media. He may be innocent, but there is nothing that cannot be printed about him, including past allegations which are not admissible in court.

It is also stigmatizing to be accused of rape, but nobody cares about that. Which is why on one memorable day this July, two New York newspapers printed the same headline: "WILLIE RAPED BEFORE." And a third New York newspaper printed: "He's raped before." (These lurid headlines were based on allegations, which the judge in the current trial threw out of court Monday. Willie Smith has never been arrested on rape charges before now and has never been convicted of rape.)

And while most of the media won't publish the name of the alleged victim, the name of the alleged victimizer has been beefed up a little.

Willie Smith does not use Kennedy as his middle name. Yet the media routinely use it because the Kennedy name is what makes this case so newsworthy and interesting. (The New York Times, it should be pointed out, uses "William K. Smith.")

During its coverage of the trial, CNN runs the graphic: "CNN is deleting names of the alleged victim and family."

CNN is not, however, deleting the names of the alleged perpetrator and his family. Nor is anybody else.

But what are the media going to do if Willie Smith is found not guilty?

Will the media name the woman then? She will no longer be, technically speaking, an alleged victim.

In fact, if Smith is found not guilty it may be because the defense is able to convincingly portray the woman as a vicious or demented liar.

So who will the media be protecting from the stigma of rape if a jury finds that a rape never occurred?

And if the media don't name the woman, isn't that like saying the media still believe Smith did it?

The media have a way out of this: They can argue that if Smith is found not guilty that does not necessarily mean the alleged victim is no longer an alleged victim. It might merely mean that the prosecution failed to meet its burden of proving Smith guilty beyond a reasonable doubt. And a rape still might have occurred.

Some newspapers and TV stations might use this argument and keep the woman's identity a secret forever. Others might reveal her name to the world.

And learning her name might simply depend on which newspaper you read and which network you watch.

Is this consistent? Logical? Sensible?

Of course not. It's journalism.

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