Controlling Pre-Trial Publicity

1. 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

2. “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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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