University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship Winter 1998 Sovereign Indignity? Values, Borders and the Internet: A Case Study Eric Easton University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Courts Commons, First Amendment Commons, and the Internet Law Commons Recommended Citation Sovereign Indignity? Values, Borders and the Internet: A Case Study, 21 Seattle .U L. Rev. 441 (1998). Abridgement presented at Communication and Culture: China and the World Entering 21st Century, Beijing University, August 1996, and republished in Critical Studies 12 (Rodopi 1998) and in 4 Journalism & Mass Commun. 95 (1997), Institute of Journalism, Chinese Academy of Social Science (in Chinese) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. LEAD ARTICLE Sovereign Indignity? Values, Borders and the Internet: A Case Study Eric B. Easton· Introduction . 442 I. The Mahaffy-French Murders 446 A. Investigation and Arrest . 446 B. Press Coverage . 453 C. Pretrial Proceedings . 462 D. Trial and Sentence 467 E. Defiance and Enforcement . 470 1. Public and Media Reaction . 470 2. Defiance in Cyberspace ......... 473 3. Attempts at Enforcement ............ 477 4. Washington Post Article .............. 482 5. The Legal Battle . 488 II. The Publication Ban . 490 A. Text and Rationale . 490 B. The Media Challenge 497 1. Prescribed by Law 499 2. The Oakes Test . 505 • Assistant Professor of Law, University of Baltimore School of Law; B.A., Northwestern University, 1968; J.D., University of Maryland School of Law, 1989. Papers based on portions of this Article were presented at the Association for Education in Journalism & Mass Communication Annual Convention, Atlanta, August 1994, and Communication and Culture: China and the World Entering the 21st Century, Beijing, August 1996. The former is scheduled to be published in a forthcoming issue of The Electronic journal of Communication! La Rewe Electronique de Communication. The latter has been published, in Chinese, in Journalism & Communication, Fall 1997, the quarterly journal of the Institute of Journalism of the Chinese Academy of Social Sciences, and is scheduled to be included in the book, Communication and Culture: China and the World Entering the 21st Century, to be published by Rodopi Editions, Amsterdam. The author would like to thank Shara Mervis Alpert for her diligent work as his research assistant during the preparation of this Article. 441 442 Seattle University Law Review [Vol. 21:441 a. Effect of Pretrial Publicity . 506 b. Availability of Alternatives . 507 c. Effectiveness of the Ban . 508 C. Dagenais v. Canadian Broadcasting Corp. 511 III. Impact . 521 A. On Canadian Law . 521 B. On the Media . 527 C. On National Sovereignty . 537 Conclusion . 543 "I would hope one would see a greater deal of respect from our [American) neighbors for a decision that has been taken by a [Canadi­ an] judge." Ontario Premier Bob Rae1 "With due respect to Canada's sovereign power and the judge's sincerity, his action is both futile ... and wrong in principle." The New York Timesl INTRODUCTION On June 29, 1991, the body of a young girl, dismembered and encased in seven blocks of concrete, was discovered by fishermen at the bottom of Lake Gibson, near Thorold, Ontario. 3 It would be more than a week before Niagara Regional Police could identify the body as that of Leslie Erin Mahaffy, a Burlington teenager who had disap­ peared two weeks earlier.4 The following spring, fifteen-year-old Kristen Dawn French was forced into a car one midafternoon not far from her home in the north end of St. Catharines.5 Two weeks later, on April30, 1992, her naked body was found in the brush off a side road in north Burlington. 6 As a bizarre story of kidnapping, sexual torture, and murder unfolded, horrifying and fascinating the Golden Horseshoe area of southern Ontario, local press coverage was intense, unrelenting, and 1. Sandra Rubin, Canadian Cable OperatOTS Pull Plug as U.S. Stations Break Teale Ban, MONTREAL GAZETTE, Dec. 1, 1993, at Bl. 2. A Bad Gag O,.der in Canada, N.Y. TIMES, Dec. 4, 1993, at 1-20. 3. Cal Millar & Bruce Campion-Smith, Body in Concrete Identified as Girl, 14, from Burlington, TORONTO STAR, July 11, 1991, at Al. 4. ld. 5. Nick Pron & John Duncanson, Police Link Kidnapping; Friends on Alert After St. Kitts Teen Disappears, TORONTO STAR, Apr. 19, 1992, at Al. 6. Donovan Vincent, Slain Girl, 15, Discovered Beside Road in Burlington, TORONTO STAR, May 1, 1992, at Al. 1998] Sovereign Indignity? 443 sensationaF But the story scarcely registered with the great U.S. media machine to the south. 8 On May 18, 1993, Paul Bernardo and Karla Homolka, husband and wife, were formally charged with both crimes.9 On July 6, Homolka pleaded guilty in a St. Catharines courtroom to the two manslaughter charges laid against her.10 She was convicted the same day by Justice Francis Kovacs, who sentenced her to twelve years in prison. 11 What might have remained merely grist for the tabloids attracted international media scrutiny when Justice Kovacs put the story off limits to all reporters, Canadian and foreign alike. 12 Overnight, the story drew the attention of publishers and broadcasters, lawyers and legal scholars, college students and computer hackers throughout Canada and the United States.13 At the time of Homolka's conviction, Paul Bernardo faced two first-degree murder charges in connection with the deaths of Mahaffy 7. This Article will track the Homolka-Bemardo story largely through the pages of The Toronto StaT because of the thorough coverage it gave to this story from July 1991 on and its contemporaneous accessibility through NEXIS. ToTonto Sun reporters Alan Cairnes and Scott Burnside also covered the story from the beginning, as did St. Catharines StandaTd reporter Ann Marie Owens. Other papers covering the story were the Toronto Globe and Mail and the Kingston Whig-Standard. Several competing books and screenplays by reporters and others were under contract very early on. Susan Walker, Bernardo Arrest Sparks TV, Film and Book War, TORONTO STAR, Apr. 24, 1993, at At. 8. The Buffalo News, for example, did not begin covering the story until December 1992. Janice L. Habuda, Police Find 911 GalleT in Teen Slaying, BUFFALO NEWS, Dec. 4, 1992, available in LEXIS, NEWS Library, ARCNWS File. Of the NEXIS "Major Newspaper Files," only the St. Petersburg Times carried brief items on the story in 1992, and they were buried in larger multisubject features. Jim Fox, Ontario May Allow Gambling, ST. PETERSBURG TIMES, Apr. 26, 1992, at 22A; Jim Fox, Ontario Hit with Tax Hikes, ST. PETERSBURG TIMES, May 3, 1992, at 30A. The arrest of Paul Bernardo in February brought additional coverage from Newsday and the Orlando Sentinel Tribune. Sex Crimes Suspect, NEWSDA Y, Feb. 19, 1993, at 14; Second Suspect in Deaths Being Watched in Canada, ORLANDO SENTINEL, Feb. 21, 1993, at A18. 9. Cal Millar & Nick Pron, Bernardo and Wife Charged in Slayings; Homolka Accused of Manslaughter in Mahaffey, FTench Cases, TORONTO STAR, May 19, 1993, at At. Paul Bernardo legally changed his name to Paul Jason Teale on Feb. 13, 1993, allegedly because of a family rift, but this article will generally refer to him as Bernardo and to his wife as Homolka to avoid confusion. Suspect Changed Name a Week Before His Arrest, TORONTO STAR, Feb. 26, 1993, at A4. 10. John Duncanson & Nick Pron, Homolka Ente-rs Plea; Families of Slain Girls in Tears, TORONTO STAR, July 6, 1993, at At. 11. Nick Pron & John Duncanson, Homolka Gets 12 Years, TORONTO STAR, July 7, 1993, at At. 12. See, e.g., Canada Bans U.S. Media from Manslaughter Trial, WALL ST. J., July 6, 1993, at B2; Anne Swardson, Canada Bars U.S. Media from Trial; Judge FeaTs Publicized Evidence Would Prejudice Related Case, WASH. POST, July 7, 1993, at A25. 13. See infTa text accompanying notes 234-69. 444 Seattle University Law Review [Vol. 21:441 and French, as well as fifty-three other related and unrelated charg­ es.14 His trial had not yet been scheduled, however, and Justice Kovacs feared that details of the case against Homolka and her plea would jeopardize the integrity of Bernardo's trial.15 Over the objection of Bernardo's own defense team, Justice Kovacs closed Homolka's trial to all but accredited Canadian journal­ ists, families of the victims and accused, and a handful of court officials. 16 He also prohibited publication, until after Bernardo's trial, of all aspects of Homolka's trial except for the barest description of Homolka's indictments and sentence.17 While the mainstream Canadian media complied in good faith with Justice Kovacs's order, even as they challenged it in court, information and speculation about the Homolka trial and the events leading up to it began flowing over the Internet within weeks. For a handful of activists with access to this vast international network of computer networks, defying the publication ban began as something of a sport. Later, it would become the focus of vigorous debate about Canadian constitutional values. Meanwhile, the combination of a sensational murder mystery, government censorship of the press, and a convenient source of information and rumor proved too much for the American media to resist. Soon Canadians without access to the Internet were learning the proscribed details from U.S.