Free press, fair trial
When constitutional rights
come into conflict
First Amendment
• “Congress shall make no law …
abridging the freedom of speech, or
of the press …”
First Amendment
• “Congress shall make no law …
abridging the freedom of speech, or
of the press …”
Sixth Amendment
• “In all criminal prosecutions, the
accused shall enjoy the right to a
speedy and public trial, by an
impartial jury …”
Questions
• Is the First Amendment more
important than the Sixth?
Questions
• Is the First Amendment more
important than the Sixth?
• Is the Sixth Amendment more
important than the First?
Questions
• Is the First Amendment more
important than the Sixth?
• Is the Sixth Amendment more
important than the First?
• How might these rights come into
conflict?
Prior restraint
• Unconstitutional in nearly all cases
– The Near v. Minnesota exceptions:
• National security
• Obscenity
• Incitement to violence, or “fighting words”
Prior restraint
• Unconstitutional in nearly all cases
• But denying someone a fair trial is
also unconstitutional
Prior restraint
• Unconstitutional in nearly all cases
• But denying someone a fair trial is
also unconstitutional
• When interests collide, courts
muddle through on a case-by-case
basis
“Lindbergh baby” case
• Lindbergh a
national hero
• Hauptmann
convicted after
massive pretrial
publicity
• Death penalty
eliminated for
kidnapping
Bruno Richard Hauptmann
Sam Sheppard case
• Illustrated the
harm of pretrial
publicity
• Led to a backlash
against the media
• Inspired
The Fugitive
The Sheppards
The crime scene
Public inquest
Sheppard found guilty
• Judge Blythin
(right) up for reelection
• Press allowed the
run of the
courtroom
• Sheppard
sentenced to life in
prison
Sheppard’s appeals
• Turned down by Ohio Court of Appeals
and Ohio Supreme Court (1954 and ’55)
• U.S. Supreme Court denies cert (1955)
• Released on a writ of habeas corpus
(1964)
• Conviction overturned by U.S. Supreme
Court (Sheppard v. Maxwell, 1966)
• Acquitted in second trial (1966)
Sheppard’s sad end
• Became a
professional
wrestler
• Died in 1970
• Who was the real
killer?
Backlash against media
• Earl Warren (left)
writes that Oswald
could not have
received a fair trial
• Gag orders and other
restrictions on the
media become
increasingly common
• Where is the balance
of interests?
Nebraska Press Association
v. Stuart (1976)
• The Burger Court
limits the use of
gag orders
• For all practical
purposes, gag
orders are ruled
unconstitutional
Conditions for gag orders
• Pre-trial publicity would be extensive
and pervasive
Conditions for gag orders
• Pre-trial publicity would be extensive
and pervasive
• No alternative measures would offset
the effects of the publicity
Conditions for gag orders
• Pre-trial publicity would be extensive
and pervasive
• No alternative measures would offset
the effects of the publicity
• A gag order would succeed in
protecting the right to a fair trial
Alternative measures
• What are they?
Alternative measures
• Continuance
– Postpone trial until media frenzy blows
over
Alternative measures
• Continuance
• Change of venue
– Move trial to a place where the crime is
not so notorious
Alternative measures
• Continuance
• Change of venue
• Intensive voir dire
– Question prospective jurors as to
whether they can remain fair and
impartial
Alternative measures
•
•
•
•
Continuance
Change of venue
Intensive voir dire
Jury admonitions
– Remind jurors not to follow coverage in
the media or to discuss the case
Alternative measures
•
•
•
•
•
Continuance
Change of venue
Intensive voir dire
Jury admonitions
Sequestration
– Most extreme, generally (and rarely)
used only for deliberations
The People v. Bryant (2004)
• Alleged victim’s sexual history is
accidentally released to the media
The People v. Bryant (2004)
• Alleged victim’s sexual history is
accidentally released to the media
• Justice Hobbs: Media should be
forbidden to use it under Colorado’s
rape shield law
The People v. Bryant (2004)
• Alleged victim’s sexual history is
accidentally released to the media
• Justice Hobbs: Media should be
forbidden to use it under Colorado’s
rape shield law
• Justice Bender: That violates the
First Amendment
The People v. Bryant (2004)
• Alleged victim’s sexual history is
accidentally released to the media
• Justice Hobbs: Media should be
forbidden to use it under Colorado’s
rape shield law
• Justice Bender: That violates the
First Amendment
• What do you think?
Press-Enterprise II (1986)
• Press Enterprise I was about jury
selection
Press-Enterprise II (1986)
• Press Enterprise I was about jury
selection
• This case is about pre-trial hearings
• Burger writes for the majority
– If it looks like a trial, then it should be
treated like a trial and be open to the
public
Press-Enterprise II (1986)
• Press Enterprise I was about jury
selection
• This case is about pre-trial hearings
• Burger writes for the majority
– If it looks like a trial, then it should be
treated like a trial and be open to the
public
– Grand-jury proceedings would be secret
because secrecy is their very purpose
Chandler v. Florida (1981)
• Nothing inherently unconstitutional
about the presence of television
cameras in court
Chandler v. Florida (1981)
• Nothing inherently unconstitutional
about the presence of television
cameras in court
• Television journalists do not have a
right to be in the courtroom
Chandler v. Florida (1981)
• Nothing inherently unconstitutional
about the presence of television
cameras in court
• Television journalists do not have a
right to be in the courtroom
• Same situation as today
Chandler v. Florida (1981)
• Nothing inherently unconstitutional
about the presence of television
cameras in court
• Television journalists do not have a
right to be in the courtroom
• Same situation as today
• What do you think?
Other cases in brief
• Richmond Newspapers Inc. v.
Virginia (1980)
– Murder trial closed after first three
ended in mistrial
– Justice Burger: Right to attend criminal
trials “implicit” in the First Amendment
– Trial can be closed only if there is a
specific finding that it is necessary
Other cases in brief
• Richmond Newspapers Inc. v.
Virginia (1980)
• Press-Enterprise I (1984)
– Jury selection must be open to public in
most cases
– Exceptions
• “Substantial probability” that defendant’s
right to a fair trial would be harmed
• No reasonable alternative
Other cases in brief
• Richmond Newspapers Inc. v.
Virginia (1980)
• Press-Enterprise I (1984)
• California First Amendment Coalition
v. Woodford (2002)
– All parts of an execution must be visible
to the media, not just parts of it
– Attempts to close parts an
“exaggerated response” to security
concerns
