Controlling Pre-Trial Publicity
• A court is obligated to try to make sure the defendant gets a
fair trial.
• Doing this may include controlling the information released by
the press.
• The US DOJ issued the Katzenbach Doctrine, which:
– Condemned the release of information designed to affect a trial;
and
– Forbade federal officials from releasing information related to a
trial.
• The ABA and other legal organizations followed suit. Today,
releasing such information can constitute a breach of ethics
and even obstruction of justice, if it’s extreme enough.
Public Communications Law Lecture 13
Slide 1
“Gag” Orders
• The Supreme Court has upheld the use of “gag orders.”
– These forbid participants in a case from releasing certain
information relating to a pending trial to any third party.
• However, to issue such a gag order, the judge must conclude
that:
– It is necessary because of intense pretrial publicity to protect the
jury pool from being tainted; and
– There is no reasonable less restrictive alternative that would
achieve the same goal.
• Freedom of speech guarantees grand jury witnesses from
publishing their own testimony after the trial is over.
• In most cases, gag orders end when the trial ends.
Public Communications Law Lecture 13
Slide 2
Prior Restraints on the Media
• It’s much easier to keep the information from the media in the
first place (through gag orders, etc.) than to stop the media
from publishing it once they get it.
– As discussed earlier, prior restraint on a publication is very hard
to get.
– This applies even if the publication would taint the jury pool.
• The Supreme Court ruled that barring publication of information the
media received lawfully was unconstitutional even where the
release of the information would have prejudiced the defendant.
• Prior restraint can only be obtained in extreme cases. Factors
in this analysis are:
– The nature and extent of the pretrial coverage;
– Whether other measures can be used instead of prior restraint
– How effective the order would be in curbing the harmful publicity.
Public Communications Law Lecture 13
Slide 3
Prior Restraints on the Media
(exceptions)
• A temporary restraining order, pending a determination, may
be a little easier to come by, even though it is prior restraint.
• The Supreme Court has allowed prior restraint when the
media member came across the information because he was
a participant in the trial.
• Using other methods to achieve restraint (e.g., ordering a
paper to reveal information about their subjects as a way to
prevent the publication in the first place) is a little easier to
obtain than an outright prior restraint.
• Prior restraint was upheld to bar publication of details about
an alleged sexual abuse victim.
Public Communications Law Lecture 13
Slide 4
Punishment after Publication
• Publishing lies may create issues of defamation discussed
earlier in the course, and can also include torts of invasion of
privacy.
• Even if the media violates a law by revealing information, it’s
is very hard to punish a media outlet for revealing truthful
information. For example, the Supreme Court did not allow
punishment of media outlets for:
– Divulging the name of a judge in an ethical inquiry, against state
law; or
– Publishing the names of 14 year old murder suspects.
Public Communications Law Lecture 13
Slide 5
Public Access to Courtroom Trials
• Aside from the defendant’s right to a public trial, the public
also has a constitutional right to watch trials.
– Although the Supreme Court was unclear about why, this means
that, in general, a court cannot bar the presence in the courtroom
of the media or the public.
– There is an exception where there is a “compelling” interest in
the court doing so. Some cases in which this balancing test
comes up:
• Where the alleged victim of a sexual assault is a minor;
• When minors will testify; and
• Cases where national security or a government’s investigative
process could be revealed to the government’s detriment.
– Still, even in those cases, most of the time a bar from the
courtroom has been considered unconstitutional.
Public Communications Law Lecture 13
Slide 6
Access to other Stages in the Proceeding
• Jury Selection
– The constitutional right of public trials applies equally at jury
selection and cannot be prohibited save for a compelling reason.
• This is especially true with the voir dire, which courts would often
like to keep closed, so as to not tip off potential future jurors in a
case as to what the issues are, what the other jurors have said, etc.
• Pretrial hearings
– These also must be open to the public.
• A “reasonable likelihood” that a public hearing would prejudice the
defendant’s right to a fair trial was not enough to exclude the public!
• In both cases, to close the court, the judge must have a
compelling reason and believe that there is no reasonable
alternative to accomplish the objective but closure.
Public Communications Law Lecture 13
Slide 7
Access to court records
• Transcripts of trials have basically the same rules as court
hearings and trials.
• Tapes used in evidence during the trial process are also
public record and may be sought and rebroadcast by the
media; although that question is less clear and is a debate in
the circuits.
• Some exceptions:
– Some discovery documents in civil trials may be withheld from
the public based on the privacy rights of those impacted by those
records.
– Motions and briefs are not given the same level of protection as
court proceedings and can be withheld from the public based on
interests, such as keeping secret government investigative
procedure .
Public Communications Law Lecture 13
Slide 8
Other Media and Public Access Rules
• Interviewing Jurors
– During trial, of course, jurors are off limits to everyone regarding the
case, especially the media.
• The judge can, and usually does, tell the jurors that they don’t have to be
interviewed if they don’t want to.
– After trial, in most cases, jurors can be interviewed at will. But in some
cases, this can be prohibited.
• Since there’s no right to know what happened in jury deliberations, there’s
not really a constitutional guarantee of post-trial access to the jurors.
• Voluntary Guidelines Accepted by Police and Courts
– Many agencies and courts have agreed to only disclose certain
information about pending trials.
• However, when judges try to enforce these rules, it becomes an issue of
prior restraint and may be stopped by trial or appellate courts.
Public Communications Law Lecture 13
Slide 9
Contempt Power
• Judges can punish journalists for disregarding their orders:
– Civil contempt: Seeks to coerce someone to do something.
• e.g., “Divulge your source or you’re going to jail until you do.”
– Criminal contempt: Punishes past action that disrespected the court.
This can be by fine, jail time (up to a limit), or both.
• Judges can, and often do, hold journalists in contempt for failing to
divulge their sources when they are subpoenaed!
• There are, however, limits on this power:
– Imposing contempt for coverage of a trial and other conduct outside the
presence of the judge is generally not allowed.
• A contempt order can stand even if the original judicial order that
was violated is later found to be unconstitutional!
– Unless the original order “transparently” violated the 1st Amendment.
Public Communications Law Lecture 13
Slide 10