Pretrial Publicity and the Gag Rule

Pretrial Publicity and the Gag Rule First Amendment case law has encouraged a vigorous press in American public life. However, under the Sixth Amendment, a fair trial in a criminal court requires that the judge and jury make their judgment solely on the basis of the evidence introduced in the courtroom. When vast publicity threatens the conduct of a fair trial, a fundamental conflict occurs between two constitutional rights—a fair trials and a free press.

Traditionally, the Supreme Court had been reluctant to attempt any control of pretrial publicity. But Irvin v. Dowd (1961), Rideau v. Louisiana (1963), and Sheppard v. Maxwell (1966)—where the Court reversed criminal convictions because of prejudicial publicity—contributed to a heightened judicial awareness of the potential dangers of pervasive publicity. This awareness in turn led many trial courts to impose certain controls on the press's reporting of criminal proceedings.

The issuance of “gag orders” restricting the press from reporting certain facts regarding trials constituted one such control. In the wake of Sheppard, despire the Courts holding that press coverage serves a vital role as it “guards against the miscarriage of justice,” some trial courts faced with criminal trials attracting much publicity resorted to gag orders against the press. Bid the mid‐1970s, gag orders threatened the hard‐won freedoms previously secured by the press.

In*Nebraska Press Association v. Stuart (1976), the Court invalidated a gag order on the grounds that it was an unconstitutional prior restraint on the press. The Court held that such a prior restraint could be sustained only if the prohibited publicity constituted a clear and present danger to the defendant's right to a fair trial. As a result of that decision, gag orders on the press must now be regarded as presumptively unconstitutional.

In Oklahoma Publishing Co. v. District Court of Oklahoma County (1977), the Court struck down a gag order restricting the press from publishing the name or picture of a juvenile involved in a delinquency proceeding. In Landmark Communication v. Virginia (1978), the Court struck down a state statute preventing the press from covering activities of the state Judicial Review Commission. In Smith v. Daily Mail (1979), the Court struck a similar law preventing the press from publishing the name of a minor charged in juvenile court. Despite the Nebraska Press ban, some judges try to do indirectly what they cannot do directly and have attempted to control prejudicial publicity by curtailing the flow of information to the press. One means of controlling the media is closure of trial proceedings to the public and press. However, in Richmond Newspapers, Inc. v. Virginia (1980), the Court greatly narrowed a judge's ability to close trials and held that the paramount right of the public and press to attend criminal trials was guaranteed by the First and Fourteenth Amendments. Globe Newspaper Co. v. Superior Court (1982), Press‐Enterprise Co. v. Riverside Superior Court I (1984), and Press‐Enterprise II (1986) made it clear that open trials were the rule, and excluding the public and press from even a portion of a trial was the rare exception. Another means of curtailment is the restriction of information divulged by trial participants to the press. In Gentile v. State Bar of Nevada (1991), although finding the state's guidelines too vague, the Court held that some restrictions on lawyers' speech, if carefully drawn, may be constitutional.

Thus, while the Supreme Court has allowed certain limited and indirect restrictions on the press and its freedom to report on pending criminal trials—such as closure on a case‐by‐case basis and restrictions on broadcasting—gag orders on the press itself, which are now categorized as prior restraints, are to all intents and purposes prohibited.

See also Speech and the Press.

Patrick M. Garry

, revised by

S. L. Alexander