Free press, fair trial

1. Free press, fair trial When constitutional rightscome into conflict

2. First Amendment • “Congress shall make no law … abridging the freedom of speech, or of the press …”

3. 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 …”

4. Questions • Is the First Amendment more important than the Sixth?

5. Questions • Is the First Amendment more important than the Sixth? • Is the Sixth Amendment more important than the First?

6. 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?

7. Prior restraint • Unconstitutional in nearly all cases • The Near v. Minnesota exceptions: • National security • Obscenity • Incitement to violence, or “fighting words”

8. Prior restraint • Unconstitutional in nearly all cases • But denying someone a fair trial is also unconstitutional

9. 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

10. “Lindbergh baby” case • Lindbergh a national hero • Hauptmann convicted after massive pretrial publicity • Death penalty eliminated for kidnapping

11. Bruno Richard Hauptmann

12. Sam Sheppard case • Illustrated the harm of pretrial publicity • Led to a backlash against the media • InspiredThe Fugitive

13. The Sheppards

14. The crime scene

15. Public inquest

16. Sheppard found guilty • Judge Blythin (right) up for re-election • Press allowed the run of the courtroom • Sheppard sentenced to life in prison

17. 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)

18. Sheppard’s sad end • Became a professional wrestler • Died in 1970 • Who was the real killer?

19. 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?

20. Nebraska Press Associationv. Stuart (1976) • The Burger Court limits the use of gag orders • For all practical purposes, gag orders are ruled unconstitutional

21. Conditions for gag orders • Pre-trial publicity would be extensive and pervasive

22. Conditions for gag orders • Pre-trial publicity would be extensive and pervasive • No alternative measures would offset the effects of the publicity

23. 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

24. Alternative measures • What are they?

25. Alternative measures • Continuance • Postpone trial until media frenzy blows over

26. Alternative measures • Continuance • Change of venue • Move trial to a place where the crime is not so notorious

27. Alternative measures • Continuance • Change of venue • Intensive voir dire • Question prospective jurors as to whether they can remain fair and impartial

28. 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

29. Alternative measures • Continuance • Change of venue • Intensive voir dire • Jury admonitions • Sequestration • Most extreme, generally (and rarely) used only for deliberations

30. The People v. Bryant (2004) • Alleged victim’s sexual history is accidentally released to the media

31. 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

32. 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

33. 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?

34. Press-Enterprise II (1986) • Press Enterprise I was about jury selection

35. 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

36. 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

37. Chandler v. Florida (1981) • Nothing inherently unconstitutional about the presence of television cameras in court

38. 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

39. 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

40. 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?

41. 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

42. 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

43. 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