Chapter Seven
Objectives
• To understand the conflict between the
First and Sixth amendments
• To be able to list the traditional judicial
remedies to control publicity.
• To understand rights of reporters,
including the right to use cameras and
video equipment in the courtroom.
Access to governmental
proceedings and info
• Three areas: judicial,
executive, and legislative
meetings and documents
• Theory of access: media
acts as surrogate for the
public—not everyone can
see trial in person, so media
tells us what’s going on
– No 1A right to gather
information!
The OJ Simpson trial
• Courtroom drama: OJ won
criminal trial, but lost civil
trial to victims’ families that
said he was liable for deaths
(lower burden of proof)
• Media frenzy! Media told
public all about past domestic
issues between OJ and Nicole
Brown
– Result? Judges more wary about
media in courtroom, whether
reporters or cameras
Access to the judicial system
• Clash between 1A rights of
press and 6A rights of
defendants
– First Amendment gives media
and the right to report crime
news.
– Sixth Amendment guarantees a
person accused of a crime the
right to a speedy and public trial
before an impartial jury.
Access to the judicial system
• But common law right to open courthouse and
court records
– Supreme Court in 1970s started to form 1A right for
access to courts
• Three ways judges try to
control journalists:
– 1. Gag orders
– 2. Closing the courtroom
– 3. Forbidding cameras in
courtroom
Prejudicial Publicity Problem
Areas
•
•
•
•
Confessions: given to police
Test results: polygraph, lie detector
Priors: defendant’s past criminal record
Heresay evidence: stories that tend to
influence the public mood against the
defendant
Early cases
• Irwin v. Dodd (1961)
• Rideau v. Louisiana (1963)
• Sheppard v. Maxwell (1966)
Early cases
• Irwin v. Dodd (1961): “Mad Dog Irwin” had
confessed to 6 murders; was convicted of one
and alleged that jurors had been affected by
publicity claiming he was guilty
– Court said that regardless if jurors
said they could be impartial, publicity
undoubtedly affected, as 8 of 12 said
they thought Irwin guilty before trial
• Rideau v. Louisiana (1963): Court
overturned death penalty because TV station
had shown film of Rideau in jail cell confessing
to police without attorney present—deprived of
due process because jurors had seen film
Sheppard v. Maxwell (1966)
• Sensational case—Dr. Sam Sheppard accused
of murdering his wife
• Lots of media publicity (jurors’ photos on front
page, their addresses available to media,
reporters inside the bar, etc.)
• Sheppard convicted; appealed
• Court said publicity (“carnival
atmosphere”) surrounding trial
resulted in defendant’s right
to fair trial being denied
– Given new trial as directed by Court and acquitted–
but had already spent 12 years in jail
Sheppard’s “laundry list” to
control media outside gags
• Time/Place/Manner restrictions: how many
journalists, use of courtroom space
• Admonishing jury and reporters: warning jury
to focus on evidence, warning reporters
• Insulating witnesses: physical control of where
witnesses are
• Proscribing out-of-court statements (gag orders):
telling people involved in case (lawyers,
witnesses, and defendants) not to talk to media
Sheppard’s Remedies
• Gag order: form of prior restraint; an order
issued by judge to prevent prejudicial info from
publication—enforced with contempt citations
• Continuance: request to delay trial’s start to let
pretrial publicity die down separating jury in a
controversial case
• Change of venue: request to move the trial from
one geographic location to another
• Admonish the jury: tell them to disregard the
media publicity about the case
• Sequester the jury: confine them in a place
where they will not be able to read about the
trial
Nebraska Press Association v.
Stuart (1976) Gag Orders
• Another sensational case; Erwin Simants accused
of murdering entire family in Sutherland, NB
• Court declared gag orders
a form of prior restraint,
presumed unconstitutional on
their faces (against
recommendations of
press-bar guidelines!)
• Three-part test written by
Justice Byron White is
tough standard
White’s three-part test in NPA
• Gov’t has burden of proof to demonstrate that:
– 1) nature and extent of pretrial publicity would impair
defendant’s right to fair trial
– 2) no alternative measures which could mitigate effects
of publicity
– 3) prior restraint would
effectively prevent the harm
• Court said judges must
deal with media effects
without curbing media
• Since this case, valid gag
orders are rare; three justices said prior restraints
always unconstitutional
Should you obey a gag order?
• Two conflicting views:
– U.S. v. Dickinson (5CA 1973): pretrial hearing
gagged—reporters felt order invalid, published
anyway; 5CA said order invalid but reporters must
obey anyway; review of gags must be fast
– In re Providence Journal (1CA 1986):
court decided that Journal entitled to
disregard order prohibiting publication
of mat’l from FBI wiretaps about
murder—media could ignore order
when failed on its face to satisfy test
for prior restraints
• High court has not resolved, so best to be safe
and obey gag orders, and appeal them quickly!
Access to judicial proceedings:
Judges vs. Reporters
• After NPA, judges couldn’t gag,
so turned to other means to
control pretrial publicity
• Judges closed:
Pretrial hearings
Trials
Testimony by minors
Jury selection
Preliminary hearing
Civil court proceedings
Access to judicial proceedings
– Gannett v. DePasquale (1979): Court
held that 6A guarantee of public trial
was personal guarantee for defendants,
who could waive right—1A does not
provide access to courts
• Closing courts was option of defendant;
thus motions to close proceedings exploded!
• Richmond Newspapers v. Virginia
(1980): Court reversed itself: right of
access to actual trial is covered by 1A, but kept
ban on pretrial hearings as established in Gannett
Broadening Richmond Newspapers
• Globe Newspaper Co v. Superior Court (1982):
trial judge closed part of rape trial; Brennan
adopted compelling interests test for closing
trial—automatic closure of proceedings is
presumptively unconstitutional
• The Press-Enterprise cases (Press-Enterprise v.
Riverside County Superior Court (1984 &
1986)): expanded right of
access to voir dire in P-E I,
and to pretrial proceedings
in P-E II (eliminating
Richmond Newspaper’s
exception)
Closing the court today
• Closure is occasionally allowed, but courts must
follow precedent in either Richmond Newspapers
or Press-Enterprise
• A case has been made under Press-Enterprise
cases for nearly every kind of judicial
proceeding: plea hearings,
sentencing, motion hearings,
bail hearings
• If closure is allowed, must
be as limited and narrow
as possible
Court documents
• Recognition of 1A guarantee to see public court
documents
• Judges cannot seal without consideration of
public right to know
• Judges can deny public access to court
documents and close
courtrooms only if it
is clearly necessary to
protect defendant’s right
to fair trial
Voluntary guidelines
• Reardon Report recommended (1) pretrial
hearings should be closed if defendant wants
(90% of all trial-related events are pretrial!);
(2) contempt citation should be punishment
against “extra-judicial information”
– Many states adopted these “voluntary” guidelines
• But when one WA judge enforced “voluntary”
guidelines, outraged journalists appealed
– Federated Publications v. Swedberg (WA SC 1981):
WA Supreme Court said not prior restraint, merely
moral promise, not enforceable…Yet, noncompliant
journalists could be ejected from courtroom!
– Later eased, but no more voluntary guidelines
Cameras in the courtroom
• Cameras not historically permitted in
courtrooms
• Estes v. Texas (1965): Court said TV coverage
of trial violated defendant’s due process
– Overturned Billy Sol Estes’ conviction because of
impact of cameras
– Cameras in 1960s bright and
obtrusive, interfered
– Court also questioned impact
of coverage on jurors, quality
of testimony on camera,
additional responsibilities of
trial judge to monitor cameras,
and adverse impact on defendant
A change...
• Chandler v. Florida (1981): Court
moved away from Estes—cameras
now in use are less intrusive, thus
disruption they cause is weaker
– Criminal defendant must show that
televising trial had prejudicial impact
on outcome
– No 1A right of access for cameras, but
states are free to allow them without
violating due process
• Generally up to judge whether to
allow cameras in the court
Cameras in state/federal courts
• Only three states do not permit (IN, SD, MS)
• Usually no cameras in federal courts
– U.S. Judicial Conference experiment 1991-94
allowing cameras in two circuit courts and six
federal trial courts, only civil trials
• No extension of experiment, but increased
pressure from Congress and media
– 1996 rules permitted circuit courts to
decide for themselves; trial courts
discouraged in civil and forbidden in
criminal (only 2CA and 9CA permit)
• Supreme Court: NO!! (Did permit
audiotapes of oral argument after
Bush v. Gore in 2000)
Cameras in California Courts
• Rule 980
– Judges will determine whether to allow
cameras in courtrooms
– Court redefined to include
entire courthouse and its
entrances
– Judges can impose
sanctions on those
who violate the rule
Conclusion: Free press-fair trial
• Following criticism of the Sheppard trial, judges now
have a number of tools to protect against prejudicial
pretrial publicity.
• Cameras in state courtrooms depend on rules of
individual states.
• Prior restraints on publication to protect the right to a
fair trial are ordinarily unconstitutional.
• Judicial proceeding can only be closed for compelling
reasons that are carefully substantiated.