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4.2.12 WC: 191694 This situation was different; because the only purpose of publishing the child’s photograph was to call attention to his penis. Moreover, his parents had not consented their child to being photographed by a paparazzi on an isolated beach, and so the family’s privacy rights had been violated. Eventually, the matter was resolved by “the court of public opinion” and the “marketplace of ideas.” Viewers of the blog were so outraged and the person who posted it so roundly condemned, that the post was removed. Another area of conflict between the First Amendment and other provisions of the Bill of Rights arises in the context of criminal trials, when the media seeks to publish information—such as an excluded confession—that may prejudice a defendant’s right to a fair trial. A variation on this theme is the media’s refusal to publish the names of alleged rape victims, while publishing the names and mug shots of the defendant. This practice does not directly impinge on the First Amendment because the decision not to publish is made by the media, rather than the government. Indeed, the Supreme Court has struck down a statute that precluded the media from publishing the names of alleged crime victims. I have been involved in several cases that pitted the rights of the media under the free speech rights of the First Amendment, against the fair trial rights of criminal defendants under the Sixth Amendment. I have generally been on the side of the First Amendment, while sympathizing with the situation faced by defendants who would prefer to see the press muzzled when it came to their cases. One case in which I sided with the privacy rights of a public figure over the publication rights of the media was Chappaquiddick. I was part of the defense team organized by Senator Kennedy’s staff. Part of my job was to assure the confidentiality of the testimony given at the inquest concerning the death of Mary Jo Kopenche. The witnesses who were subpoenaed to testify at this secret inquest—especially the young women who shared the house for the weekend—were not offered the right to counsel or other rights available at an open proceeding. We argued with some success, that because the inquest was secret and lacked the usual legal safeguards of public hearings, the right of the witnesses to confidentiality trumped the right of the media to immediate disclosure. The First Amendment requires that the media and dissenters need breathing room and presumption should always be in favor of a maximalist view of free speech. But this presumption is not without significant risks to deservedly good reputations which can be damaged by defamatory or ridiculing speech. As with other potentially harmful types of expression, defamation and ridicule come with a heavy price—one we must be prepared to pay to keep the First Amendment vibrant. Not everyone is prepared to pay that price. 154 HOUSE_OVERSIGHT_017241