WINSTON-SALEM - U.S. District Court Judge James Beaty denied a motion by the University and Durham to sanction a Web site posted by lawyers of the 38 unindicted members of the 2005-2006 men's lacrosse team in a hearing Tuesday.
Beaty, however, cautioned attorneys for both sides against attempting to sway the media in the case.
"Attorneys are cautioned from issuing statements that will impact the adjudication of the case," Beaty said.
Representatives of the University criticized the players' attorneys for publicizing the case in a U.S. District Court memo filed in late February. They accused the players' attorneys of violating N.C. State Bar Rule 3.6--which prohibits extrajudicial statements that "have a substantial likelihood of materially prejudicing an adjudicative proceeding"-in publicizing their suit against Duke.
The motion cited the plaintiffs' use of a news conference in Washington, D.C., and a press release to announce the suit. Representatives of the players have also hired Bob Bork--son of Robert Bork, President Ronald Reagan's 1987 Supreme Court nominee-as a media consultant for the case. The University's attorneys motioned to sanction www.dukelawsuit.com, a Web site for the case maintained by Bork's firm, Bork Communications Group.
Donald Cowan, the University attorney who filed the complaint motion, presented a series of slides and video clips showing speeches by Bork, Cooper and Steven Henkelman--father of one of the players and a plaintiff in the suit-at the Washington, D.C. press conference.
Cowan said the plaintiffs violated Rule 3.6 through attorney-generated media contact. He noted that Bork's firm has a stated objective of helping their clients fight legal battles in the court of public opinion.
"Isn't the purpose of Rule 3.6 to avoid a trial by media?" he said. "There is nothing wrong, according to Mr. Cooper, with trying this case in the press."
Attorneys for the 38 players filed a response to Duke's motion last month. They argued that the intense media coverage surrounding the original investigation of the three wrongly indicted former lacrosse players justified their publicity strategy.
"Duke University has a very sophisticated media relations machine," said the players' attorney Charles Cooper. "The players were quite apprehensive that the filing of this case would initiate another media offensive by Duke."
Cooper cited a section of Rule 3.6 that allows attorneys to use the media to counteract recent negative publicity against them. He said he was exercising free speech with the media and added that there was no precedent for enforcing the rule in a civil case.
"Lawyers are officers of the court, but they do not leave their First Amendment rights at the door," he said.
Cooper pointed out that the University issued a press release in response to the lawsuit filed in December by the three former unindicted lacrosse players. He said Duke maintained its own Web site with updates on the developments of the original lacrosse case.
Cowan said the Web site from the original lacrosse case had been archived and was no longer updated. The Web site states that its blog is the "official source of information" about the players' suit. Cowan said the claim was a violation and added that the site could exist as long as it was "content neutral."
"The media ought to come into your honor's courtroom, the media ought to report what is going on," Cowan said as he gestured to the reporters watching from the gallery. "What we object to is attorney-generated contact with the media."
Bork immediately posted a response to the ruling on www.dukelawsuit.com.
"We will study the judge's guidance and govern ourselves accordingly," he wrote.
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