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