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 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 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