AustinCountry.com | The Constitution in Conflict

The Constitution in Conflict:
Free Press v. Fair Trial

Austin Helms
Mississippi College
2004

The U.S. Constitution has been the supreme law of the United States since its ratification in 1788. The document is the oldest functioning constitution of any government in the world and the shortest written (Oak Hill, 1999). It is the manuscript that Benjamin Franklin cried tears of joy while signing (Oak Hill, 1999). This is the text that John Adams called “the greatest single effort of national deliberation that the world has ever seen,” and George Washington referred to as “little short of a miracle” (Oak Hill, 1999, p. 29).

However, despite all the Constitution’s great accomplishments, it is not perfect. Over the many years since the document’s adoption, questions have risen regarding phrasing, the meaning of words, and the order of importance within the Bill of Rights. Usually, the Supreme Court finds the meaning of the Constitution through interpretation. Still, what happens when the Constitution seems to contradict itself?

One such instance of this is the First Amendment’s guarantee of the freedom of the press and the Sixth Amendment’s assurance of a fair trial. Should the press be allowed unlimited access to court hearings and documents if the publication of such materials could hinder an individual’s trial proceedings? Can a judge close the same hearings and documents from the media’s eyes and restrict their First Amendment rights?

The purpose of this paper is to explore the U.S. Supreme Court’s stance on this issue and discuss some of the landmark cases that have set the precedent on media in the courtroom. To begin with, however, an awareness of First and Sixth Amendment rights is imperative to understanding the debate of free press versus fair trial.

The First Amendment

          Congress shall make no law respecting an establishment of religion, or prohibiting
          the free exercise thereof; or abridging the freedom of speech, or of the press; or the
          right of the people peaceably to assemble, and to petition the Government for a
          redress of grievances. (Oak Hill, 1999, p. 45)

When it comes to the freedom of the media, the First Amendment only says that the freedom of the press shall not be reduced. When taken in context with the rest of the sentence, the First Amendment spends little time on the freedom of the press. Nonetheless, there have been numerous cases pertaining to the full meaning of this freedom.

The Constitution provides for several checks and balances among the three branches of government. The purpose of this is to prevent any one branch from extending their power by allowing the other two branches to limit that power. From a Jeffersonian viewpoint, the press should do the same. “I am... for freedom of the press, and against all violations of the Constitution to silence by force and not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents” (Ford, 2001, p. 2). In this case, the press should act as a “fourth branch of government, constantly keeping tabs on the government's activities and actions” (Mount, 2003, p. 3).

A completely free press would, in theory, be free of all prior restraint. In this manner, there would be no pressure on the press to publish or not publish certain items. As W. Blackstone observed, “Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity [or audacity]” (FindLaw.com, 2004a, p. 2). In this reasoning, the press has no prior restraint as long as they publish what is not “improper, mischievous, or illegal.” However, who decides if a publication is one of the above? Ultimately, the government and, more specifically, the Supreme Court decide.

The Sixth Amendment

          In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
          trial, by an impartial jury of the State and district wherein the crime shall have been
          committed, which district shall have been previously ascertained by law, and to be
          informed of the nature and cause of the accusation; to be confronted with the
          witnesses against him; to have compulsory process for obtaining witnesses in his
          favor, and to have the Assistance of Counsel for his defense. (Oak Hill, 1999, p. 46)

The Sixth Amendment guarantees rights before and during a trial. The two that usually obtain the most scrutiny in free press/fair trial issues are the speedy and public trial clause (“…shall enjoy the right to a speedy and public trial…”) and the impartial jury clause (“…by an impartial jury…”).

Speedy trial. Probably the first conception of a speedy trial was held in the Magna Carta. A speedy trial is an “important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibility that long delay will impair the ability of an accused to defend himself ” (FindLaw.com, 2004b, p. 1).

Public trial. The idea of a public trial has roots dating back to Biblical times. 1 Timothy 5:20 states, “Those who sin are to be rebuked publicly, so that the others may take warning” (Zondervan, 2001, p. 1572). The reasons for a public trial are manifold: it helps assure a just ruling, it gives an unrestricted view of justice, it also deters misconduct, perjury and decisions make on secret biases (FindLaw.com, 2004c). Besides this, it is also intended, “sociologically, to protect society by having therapeutic value” (O’Connor, 2002, p. 1).

Impartial jury. The term “impartiality” covers a variety of definitions. First, jurors must be chosen out of a cross section of the community. For centuries, a jury was chosen from the social class to which the defendant belonged. America does not recognize social classes, so a diverse jury is sought (O’Connor, 2002). Next, jurors must by unbiased toward the subjects the case will touch upon. For example, a potential juror with a strong anti-smoking belief should not be chosen to serve on a case involving a suit against a tobacco company. Also, the juror should be able to make judgments by only utilizing the evidence presented, free of any other biases (FindLaw.com, 2001d). Finally, an impartial juror should be one who knows nothing (or as little as possible) about the case at hand. This is another turn from ancient custom from which jurors were chosen on their good judgment and knowledge of case (O’Connor, 2002).

Landmark U.S. Supreme Court Decisions

As can be discerned by examining the First and Sixth Amendment, conflict between “freedom of the press” and “right to a speedy and public trial, by an impartial jury” can occur quite easily. There have been several significant Supreme Court cases that have set up some boundaries as to the amount of coverage that should be given to the media.

Sheppard v. Maxwell (1966). In the case of Sheppard v. Maxwell (the trial that inspired the TV series and the movie The Fugitive), Dr. Sam Sheppard was granted a new trial for his conviction of murdering his pregnant wife 12 years earlier. Sheppard’s attorney, F. Lee Bailey, convinced the Supreme Court that the media’s overblown coverage of the trial prevented Sheppard’s Sixth Amendment rights to a fair trial (Linder, 2004). The Supreme Court, in their 8-1 ruling, stated that the “newsmen practically overtook the entire courtroom, hounding most of the participants in the trial, especially Sheppard” (FindLaw.com, 2004h, p. 11).

In Sheppard’s trial, the press appeared to be out of control. The papers first called for Sheppard’s arrest, and then called him a liar during his testimonies. They even fixed crime scene photos to suggest that a surgical instrument was the murder weapon (Linder, 2004). Everything from the harsh coverage from Ohio’s print and broadcast media to the physical arrangement of the courtroom itself (which allowed the prosecution and the media to cooperate with one another) all worked together to bias the jury against Sheppard before the trial began (Oyez.org, 2004c).

In their ruling, the Court was very severe of Judge Blythin and clearly placed the blame of the biased trial on him (Pember, 2005). Sheppard v. Maxwell did, however, set guidelines for the judge to follow to keep the courtroom impartial. The Court said the judge could do one or all of the following: set in court rules for the media at the offset, set the trial for a later date to let everything calm down, grant a change of venue in hopes of an unbiased jury, rebuke the jury to pay no attention to publicity, sequester the jury to prevent publicity from influencing them, or issue protective (gag) orders to avoid out of trial statements to the media (Kovarik, 2004).

These “gag orders” were perfectly constitutional in securing an individual’s right to a fair trial. However, some judges took them a step farther by using them as a prior restraint on the media to prevent the publishing or airing of particular information about the upcoming case. Between 1967 and 1976, around 50 gag orders were issued (Kovarik, 2004).

Nebraska Press Association v. Stuart (1976). The background to Nebraska was very similar to the Sheppard case. In 1975, Erwin Simants was charged with the murder of all six members of the Henry Kellie family. National media was immediately drawn to the case, much as it was with Sam Sheppard. Faced with the berating received by Judge Blythin in Sheppard v. Maxwell, Judge Hugh Stuart moved to prevent a similar scenario. An order was eventually issued preventing the press from reporting “the existence and nature of any confessions or admissions Simants might have made to police or any third party and any other information ‘strongly implicative’ of the accused” until a jury could be chosen (Pember, 2005, p. 422).

The media outlets in the state appealed the court order to the U.S. Supreme Court on the grounds that their First Amendment rights had been violated. In a unanimous decision, the Court ruled that Judge Stuart’s order was a prior restraint on the press and therefore unconstitutional. The justices were split, however, on whether such orders on the press would be permissible under different circumstances. Four of the justices, including Chief Justice Burger, held that such an order would never be permissible. Another four said it would be tolerable only under extreme circumstances. The final justice wrote that it was no cause to make that decision during this case (Pember, 2005).

The Court held that the “practical problems associated with implementing a prior restraint on the press in this case would not have served the accused's rights” (Oyez.org, 2004a, p.1). To determine whether a prior restraint order was necessary, the Court created a test, examining whether “the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger” (FindLaw.com, 2004e, p. 15). This test gave three requirements a restrictive order must meet in order to pass under First Amendment light. The order could only be reasonable if: (1) it is undeniable that the publicity concerning the test is extreme and persistent, (2) there is no alternative to lessen the effects of pretrial publicity, and (3) the restrictive order will actually stop potentially damaging materials and negative publicity from reaching prospective jurors (Pember, 2005).

Judge Stuart did not follow any of these. According to the Court’s decision, Stuart acted prematurely, did not consider other methods and failed to take into account local gossip. The small community in which Simants was arrested was already full of rumors about him and what he might have said to the police (Pember, 2005).

Court cases in subsequent years after Nebraska Press Association v. Stuart have strengthened the weight of the decision. Indeed, since the Nebraska case, the number of gag orders has dropped significantly. It is important to note, though, that the U.S. Supreme Court never held restrictive orders placed on trial participants to be unconstitutional. The lack of judgment on the Courts behalf would seem to suggest that the power of the judge to restrict what jurors, attorneys and police say to the press is encouraged (Pember, 2005).

Richmond Newspapers, Inc. v. Virginia (1980). The case built out of a direct result of a ruling one-year prior in Gannett v. DePasquale. In this ruling, the Court allowed a pretrial hearing to be closed. Most of the judges agreed that a public trial is the right of the defendant and may be waived. However, many judges took this ruling to mean that all judicial proceedings could be closed (Kovarik 2004). The next year, the Richmond Newspapers challenged such an order.

As restrictive orders fell out of use, many judges were looking for alternatives to keeping pretrial publicity to a minimum. In Virginia, a state judge, on a motion from the defendant, closed all trial proceedings from the public. The murder trial had been through three mistrials, and the defendant wanted to prevent his previous testimony brought into light through media coverage. The prosecution had no objections “and there then ensued apparently the first secret criminal trial in the history of this country” (Goodale, 1980, p. 1).

Two reporters of Richmond Newspapers, Inc. challenged the order on First Amendment grounds. The U.S. Supreme Court assented and overturned the judge’s decision. The right to attend trials was not only implicitly implied in the First Amendment, the opinion read, but also trials have historically been open and, as noted previously, a trial in public lowers the chance of perjury and “provides an outlet for public concern” (Reynolds, 2003, p. 2). “The Court held that the First Amendment encompassed not only the right to speak but also the freedom to listen and to receive information and ideas” (Oyez.org, 2004b, p. 1). Richmond asserted that “without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated [or disemboweled]” (FindLaw.com, 2004g, p. 3).

          In the concurring opinion of Justice Stevens:
          This is a watershed case. Until today the Court has accorded virtually absolute
          protection to the dissemination of information or ideas, but never before has it
          squarely held that the acquisition of newsworthy matter is entitled to any
          constitutional protection whatsoever. (FindLaw.com, 2004g, p. 22)

Press-Enterprise v. Riverside Superior Court (1986). The U.S. Supreme Court established that the public and press had the constitutional right to attend criminal trials with the Richmond ruling. In 1984, the Press-Enterprise Company of California challenged a judge-issued closing of the voir dire proceedings (the process in which impartial jury members are chosen). The U.S. Supreme Court overturned the order stating that the jury selection process is a vital part of the judiciary process and must remain open (Work, 2004).

Two years later, Press-Enterprise again filed suit against the court when a judge ordered a preliminary hearing to be closed at the behest of the accused. The U.S. Supreme Court once again reversed the inferior courts order by claiming that “the qualified First Amendment right of access to criminal proceedings applies to preliminary hearings” (FindLaw.com, 2004f, p. 2). First of all, the decision held that the type of hearing utilized has traditionally been open, and secondly, “public access to such preliminary hearings is essential to the proper functioning of the criminal justice system” (FindLaw.com, 2004f, p. 2). Through this ruling the Court set up a rather complex set of rules a judge must meet to constitutionally close off any part of the judicial process.

The first thing a judge must decide before closing a document or proceeding is whether the law considers it presumptively open or not, i.e., normally open to the public and press or not (Pember, 2005). If the judge discerns that the proceeding or document has been traditionally or historically open or that public and press access will play a positive role in the judicial process, then the judge must declare it presumptively open. After this occurs, either party can seek to close the proceeding or document (Pember, 2005).

At this point, the Press-Enterprise Test must be applied (Pember, 2005). First, the party seeking to close the presumptively open proceedings or documents must advance an overriding interest (such as right to a fair trial or protection of a witness) that may be harmed if the proceeding is open or the documents released. Then, the same party must prove to the court that if the item in question is declared open, there is substantial probability that the abovementioned interest will be violated. If the party seeking closure completes these two tasks, it is the judge’s responsibility to deliberate whether or not there is an alternative. If there is no alternative, the next step the judge must follow is to narrowly customize the closure so that the public and press restriction remains minimal (only close the portion of the document or proceeding that is under scrutiny). If all these conditions are met, the judge must finally prepare a thorough document that can be reviewed by an appellant court to record his decision and the reasons behind it (Pember, 2005).

Attempts at Compromise

The previous four trials were only part of the many free press/fair trial issues coming out of the last 50 years. Following this trail of U.S. Supreme Court decisions, it is apparent that the Court has consistently ruled in favor of the First Amendment rights of the people over the Sixth Amendment rights of the individual. Alternatively, the Court has also allowed provisions, strict though they may be, in which the defendant’s Sixth Amendment rights can be maintained. Many organizations outside the U.S. judicial system have attempted to provide voluntary guidelines to help ease the issue and prevent future conflicts.

In many states, the media and the state bar associations have worked together in order to set guidelines of ethical behavior when free press/fair trial issues arise. For example, the Virginia Bar Association, the Virginia Press Association and the Virginia Association of Broadcasters co-published the News Media Handbook on Virginia Law and Courts. The principles set forth in this publication include: (1) a recognition of co-equal rights of free press and fair trial, (2) an understanding that the public has the right to as much information as possible as long as it does not damage the defendant’s Constitutional rights, (3) the belief that the courtroom should be “free from passion, prejudice and sensationalism,” (4) the knowledge that the judge has the primary responsibility of securing a fair trial, (5) an admonishment to news editors to remember that a person is innocent until proven guilty, that readers/listeners/viewers are potential jurors and that a person’s reputation should not be ill-treated unnecessarily, (6) a warning to lawyers to not manipulate the media to advance his side, and finally, (7) an encouragement to the bar, law enforcements and to the media to work together (Kovarik, 2004, p. 3).

Some have gone a step farther in defining stories that could possibly damage the defendant’s Sixth Amendment rights. The American Bar Association, for example, has suggested several types of such stories (Lynch, 2004). Stories that claim the defendant has made a confession or even stories signifying that there might be a confession can sway potential jurors. Also, danger lies in stories that print information that is not allowed in trial, such as the defendant’s results on a polygraph test or refusal to take one and the past criminal record of the accused. Publishing/airing lack of credibility of a witness or the personal opinions of a witness about other trial participants should also be avoided. Any stories about the defendant’s character or features that tend to inflame public opinion against the defendant should not be allowed (Lynch, 2004).

Conclusion

As can be seen, the First and Sixth Amendments frequently come into conflict, and rarely can both be appeased simultaneously. “The judicial system always seems to want something from the press and the press something from the judicial system. Seldom is either satisfied” (McMasters, 1999, p. 1). Although the U.S. Supreme Court’s efforts have provided some very helpful tests to assist a judge’s decision on limiting one of the Amendments, the issue is far from being clearly decided. Should the public’s right to know be considered as a priority over a defendant’s right to a fair and speedy trial? Does the responsibility to answer this question remain solely on the U.S. Supreme Court?

According to McMasters (1999), the courts are not the only one who can help remedy this problem. The press, law enforcements and trial participants could do more. The first step, he says, is to not assume that there is an irreparable rift between the First and Sixth Amendments. “In fact, it is a rare situation where the interests of a free press and a fair trial can’t be accommodated simultaneously” (McMasters, 1999, p. 2). The issue is not between the interests of judicial process and the interests of the press, he contends, but rather, the interest that should be held first and foremost is that of the public and their potential misunderstanding of judicial functions. “When that interest is put first, the others tend to fall into place” (McMasters, 1999, p. 2).

Remember that Mount (2003) stated that the press is supposed to function as a fourth branch of government that continually watches the functions of the other three branches in a sort of accountability role. The press and the judicial branch need to cooperate to reach their full potential. The press helps the law enforcement by independently uncovering details they may have missed, and the press should serve the public by educating them on the judicial process. As McMasters (1999) stated, “The search for justice on the one hand and the search for truth on the other must not become competing exercises.”

References

FindLaw.com. (2004a). U.S. Constitution: First Amendment: Annotations pg. 6. Retrieved on July 17, 2004 from http://supreme.lp.findlaw.com/constitution/amendment01/06.html

FindLaw.com. (2004b). U.S. Constitution: Sixth Amendment: Annotations pg. 2. Retrieved on July 17, 2004 from http://supreme.lp.findlaw.com/constitution/amendment06/02.html

FindLaw.com. (2004c). U.S. Constitution: Sixth Amendment: Annotations pg. 3. Retrieved on July 17, 2004 from http://supreme.lp.findlaw.com/constitution/amendment06/03.html

FindLaw.com. (2004d). U.S. Constitution: Sixth Amendment: Annotations pg. 5. Retrieved on July 17, 2004 from http://supreme.lp.findlaw.com/constitution/amendment06/05.html

FindLaw.com. (2004e). U.S. Supreme Court: Nebraska Press Assn. v. Stewart, 427 U.S. 539 (1976). Retrieved on July 14, 2004 from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=427&invol=539

FindLaw.com. (2004f). U.S. Supreme Court: Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). Retrieved on July 15, 2004 from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=478&invol=1

FindLaw.com. (2004g). U.S. Supreme Court: Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). Retrieved on July 14, 2004 from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=448&invol=555

FindLaw.com (2004h). U.S. Supreme Court: Maxwell v. Sheppard, 384 U.S. 333 (1964). Retrieved on July 16, 2004 from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&navby=case&vol=384&invol=333&friend=oyez

Ford, P. L. (Ed.). (2001). Thomas Jefferson to Elbridge Gerry, January 26, 1799, with draft. Retrieved on July 17, 2004 from
http://memory.loc.gov/cgi-bin/query/r?ammem/mtj:@field(DOCID+@lit(tj090014))

Goodale, J. C. (1980). The three-part open door test in Richmond Newspapers case. Retrieved on July 17, 2004 from http://www.jamesgoodale.net/images/31.doc

Kovarik, B. (n.d.). Free press and free trial. Retrieved on July 16, 2004 from http://www.radford.edu/~wkovarik/law/1.7fairtrial.html

Linder, D. (2004) Fair trial issues and the First Amendment. Retrieved on July 17, 2004 from http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/fairtrialissues.htm

Lynch, D. (n.d.). Free press / fair trial. Retrieved on July 17, 2004 from http://academics.smcvt.edu/dlynch/freepresstrial.htm

McMasters, P. (1999). Too often public is injured in collision of rights. Retrieved on July 17, 2004 from http://www.firstamendmentcenter.org/commentary.aspx?id=2656

Mount, S. (2003). Notes on the U.S. Constitution. Retrieved on July 16, 2004 from http://www.usconstitution.net/constnotes.html

Oak Hill Publishing. (1999). The U.S. Constitution and fascinating facts about it. Naperville, IL

O’Connor, T. (2002). Overview of Sixth Amendment rights. Retrieved on July 11, 2004 from http://faculty.ncwc.edu/toconnor/410/410lect14.htm

Oyez.org. (2004a). Nebraska Press Assoc. v. Stuart. Retrieved on July 17, 2004 from http://www.oyez.org/oyez/resource/case/273/

Oyez.org. (2004b). Richmond Newspapers Inc. v. Virginia. Retrieved on July 17, 2004 from http://www.oyez.org/oyez/resource/case/328/

Oyez.org. (2004c). Maxwell v. Sheppard, 384 U.S. 333 (1964). Retrieved on July 17, 2004 from http://www.oyez.org/oyez/resource/case/1129/

Pember, D.R. & Calvert, C. (2005). Mass media law 2005/2006. New York: McGraw-Hill.

Reynolds, A. (2003). Communication law notes. Retrieved on July 17, 2004 from http://www.journalism.indiana.edu/syllabi/alreynol/j300spring03/notes15.html

Work, C. (2004). Free press / fair trial. Retrieved on July 16, 2004 from http://www.umt.edu/journalism/student_resources/class_web_sites/media_law/fpft.html

Zondervan. (2001). Zondervan NIV wide margin Bible. Grand Rapids, MI