Stifling Free Expression to "Protect" Jurors

By Denniston, Lyle | Washington Journalism Review, December 1992 | Go to article overview

Stifling Free Expression to "Protect" Jurors


Denniston, Lyle, Washington Journalism Review


The myopia that sometimes causes judges to focus only on what is directly in front of them in court was on display recently in Harris County, Texas. Open discussion of important legal questions has suffered as a result.

State courts in Harris County have been trying some of the thousands of damage lawsuits filed nationwide by workers (or their survivors) claiming they were afflicted with lung disease by exposure to asbestos fibers. For many years asbestos was used widely in pipe and duct insulation; many juries have found that inhaling the fibers caused lung disease.

Some of the suits have been filed against a company headed by an outspoken executive who is determined to fight back outside of the courthouse while his lawyers battle inside. That executive is Glenn W. Bailey, chairman and president of Keene Corp.

Keene went out of the asbestos products business 20 years ago, but it is still contesting workers' legal claims. Bailey has become a prolific letter writer, speaker and author of opinion articles on the subject, and the company has placed aggressively worded ads in newspapers. He is determined to convey the message that Keene has been wronged by what he calls "the asbestos monster."

Bailey may be completely off-base in his complaints, but the First Amendment would seem to protect his right to air them. That apparently is not always so in Harris County.

Bailey's company got into trouble there early last March when District Judge Sharolyn Wood was trying a case against Keene. The jury was deliberating when Keene placed an ad in the Houston Chronicle, published in Harris County; it was one that had appeared frequently before, decrying the very expensive "punitive damages and legal fees" that the company has had to pay in asbestos verdicts.

Judge Wood was so incensed by what she considered jury tampering that she held Keene in contempt of court and fined it the maximum $500. "I see this as an absolute attack on the integrity of trial by jury and trials as we know them in this nation," she said. "I take it most seriously." Wood was silent on Keene's claims that the ad was protected by the First Amendment.

That ad in the Chronicle also influenced another judge presiding over a case against Keene: District Judge Tony Lindsay. At the request of lawyers for the workers in that case, and without looking into alternative ways of insulating the jury from potential outside influence, Lindsay barred Keene from advertising in Harris County newspapers about asbestos litigation before a verdict. …

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