For Leno, gag order in Jackson case isn't a joke

LOS ANGELES -- Have you heard the one about Jay Leno, the gag order in the Michael Jackson case and the First Amendment?

It's no joke, according to one legal expert: Leno, concerned he could be barred from making "Tonight Show" quips about Jackson's molestation trial, can claim constitutional protection.

Leno should prevail with a First Amendment freedom of speech argument, said professor Jamin Raskin of the Washington College of Law at American University.

"The court, in order to avoid a constitutional showdown, would try to draft a very carefully worded gag order that would allow him to make fair comment on the public aspects of the case," Raskin said Thursday.

Leno's attorneys filed a motion with the judge in Jackson's case Feb. 18, a day after he was served with a subpoena to testify for the defense. More than a year earlier, Santa Barbara County Superior Court Judge Rodney S. Melville issued a sweeping order barring anyone involved in the case from discussing it outside court.

The motion, released by the court this week, argues that the order would be prior restraint in violation of the First Amendment and the California Constitution if it were applied to Leno. It asks the judge to lift or clarify the order.

In a statement Thursday, NBC said it was confident the judge "did not intend the gag order to prevent Jay Leno from doing what he has always done, which is entertain the country every night with jokes and comments about current events and breaking news."

It would be ridiculous to apply the gag order to Leno and "Tonight," said comedian Bill Maher, host of HBO's "Real Time with Bill Maher."

"They should absolutely let him do his jokes," Maher said Thursday. "The jokes he's going to make are the same ones he'd make if he wasn't involved in the case."

If the order has given Leno pause, it's hard to tell from his monologues. He's regularly feasted on the trial and Jackson's odd public image.

"More problems today for Michael Jackson," Leno said on "Tonight" Tuesday. "Police now say he served alcohol to two more boys, two minors, in 2003 and he was sleeping with three other boys. So now not only is Michael creepy, he's a little tramp, too."

Leno also joked about using "anatomically correct dolls" when he takes the stand to testify.

Jackson, 46, has pleaded not guilty to charges of molesting a boy; conspiracy and administering an intoxicating agent, alcohol, to his alleged victim.

Jackson's defense contends the family of the boy accusing Jackson of molestation targeted Leno and other celebrities for fraud, in particular by using the fact that the child was a cancer patient.

Would it be a loss if Leno couldn't poke fun at Jackson? Comedian David Brenner decries what he sees as creeping censorship for entertainers but thinks Leno might want to restrain himself on the subject.

"Making jokes about Michael Jackson is like shooting fish in a barrel with a shotgun. It's so easy. ... Pick on something that makes you reach a little bit," said Brenner, who was a frequent "Tonight" guest host in the late Johnny Carson's day.

Maher, who said he's avoided cracks about the case, takes issue with Leno for his string of Jackson jokes, which Maher claims have contributed to the pop star's "iron-clad reputation as a pedophile" whether he's innocent or not.

If Leno needs help on the show, political satirist Will Durst is volunteering.

"Jay should hire me to come and do the Michael Jackson jokes for him," Durst said. "He could hand me the note cards and I could read them. He could stand next to me wearing a gag."