Free Press, Fair Trial: When Constitutional Rights Come into Conflict

Free press, fair trial

When constitutional rightscome 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 Sixth Amendment more important than the First?

Questions


• 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

• InspiredThe Fugitive

The Sheppards

The crime scene

Public inquest

Sheppard found guilty

• Judge Blythin (right) up for re-election

• 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 Associationv. 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



• No alternative measures would offset the effects of the publicity



• 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?


• Continuance– Postpone trial until media frenzy blows over


• Continuance• Change of venue

– Move trial to a place where the crime is not so notorious


• Continuance• Change of venue• Intensive voir dire

– Question prospective jurors as to whether they can remain fair and impartial


• Continuance• Change of venue• Intensive voir dire• Jury admonitions

– Remind jurors not to follow coverage in the media or to discuss the case


• 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



• Justice Hobbs: Media should be forbidden to use it under Colorado’s rape shield law




• Justice Bender: That violates the First Amendment




• Justice Bender: That violates the First Amendment

• What do you think?

Press-Enterprise II (1986)

• Press Enterprise I was about jury selection


• 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 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



• Television journalists do not have a right to be in the courtroom




• Same situation as today




• 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


• 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


• 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

Education

Free Press, Fair Trial: When Constitutional Rights Come into Conflict