At last, the great First Amendment battle of our time is over, and Jay Leno may once again tell Michael Jackson jokes without fear of violating a court order. Judge Rodney Melville, who’s overseeing the Jackson trial, issued the ruling on Friday, rejecting a request by the singer’s attorneys that the Tonight Show host, whom the defense has subpoenaed as a witness, be subjected to the same gag order surrounding all the other principals in the case.
Jackson’s attorneys have listed Leno as a potential witness, alleging that Jackson’s young accuser had phoned the comic and other celebs to solicit their financial assistance in his cancer battle, and that a suspicious Leno had then phoned the Santa Barbara police. The defense argued that Jackson jokes in Leno’s monologue could affect the trial, while Leno’s own attorneys filed a motion arguing that Leno had a First Amendment right to joke about the case. While he awaited the judge’s decision, Leno made a joke out of the gag order itself, getting surrogate comics (Brad Garrett, Dennis Miller) to tell Jackson jokes for him, or creating silent gags, like his opener to Thursday’s show, in which Leno emulated Jackson’s conduct earlier in the day by entering the studio late and dressed in pajamas.
Judge Melville agreed with Leno’s lawyers that he should be able to joke freely, except about the specific topics on which he might have to testify, areas on which the judge ruled that the gag order still applied to Leno. ”I am not attempting to prevent anybody from making a living in the normal way that they make their living,” Judge Melville said. He added, ”I’d like him to tell good jokes … but I guess I can’t control that.” Everyone’s a comedian.