Free Press/Fair Trial

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Although press coverage has challenged the fairness and dignity of criminal proceedings throughout American history, intensive consideration of free pressfair trial issues by the Supreme Court has mainly been a product of recent decades. The first free pressfair trial issue to receive significant attention was the extent of press freedom from judges' attempts to hold editors and authors in contempt for criticizing or pressuring judicial conduct in criminal proceedings. The next category of decisions to receive attention, reversals of convictions to protect defendants from pretrial publicity, began rather gingerly in 1959, but in the years following the 1964 Warren Commission Report the Supreme Court reversed convictions more readily and dealt in considerable detail with the appropriate treatment of the interests of both the press and defendants when those interests were potentially in conflict. More recently, the Court has considered whether the press can be enjoined from publishing prejudicial material, and whether the press can be excluded from judicial proceedings.

In view of the large number of free pressfair trial decisions handed down over the years by the Supreme Court, this particular corner of the law of freedom of the press is probably the best developed of any, and offers a particularly instructive model of how the Supreme Court seeks to accommodate colliding interests of constitutional dimension. Overall, the Court has sought a balance that respects Justice hugo l. black ' sobiterdictum in the seminal case of bridges v. california (1941) that "free speech and fair trial are two of the most cherished policies of our civilization, and it would be a trying task to choose between them."

In one of our history's pivotal first amendment cases, the Supreme Court in 1941 sharply restricted the power of state judges to hold persons in contempt for publishing material that attacked or attempted to influence judicial decisions. By a 5–4 vote in Bridges the Supreme Court struck down two contempt citations, one against a newspaper based on an editorial that stated that a judge would "make a serious mistake" if he granted probation to two labor "goons," the second against a union leader who had sent a public telegram to the secretary of labor criticizing a judge's decision against his union and threatening to strike if the decision was enforced. Black's majority opinion held that the First Amendment protected these expressions unless they created a clear and present danger of interfering with judicial impartiality. From the start, this test as applied to contempt by publication has been virtually impossible to satisfy. Black insisted that "the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished," and, in order to remove predictions about the likelihood of interference from the ken of lower courts, the Court reinforced the strictness of this standard by using an apparently irrebuttable presumption that judges would not be swayed by adverse commentary. "[T]he law of contempt," wrote Justice william o. douglas in Craig v. Harney (1947), echoing a position taken in Bridges, "is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate." Under these decisions, it seems doubtful that anything short of a direct and credible physical threat against a judge would justify punishment for contempt.

For general First Amendment theory and more specifically for the rights of the press in free pressfair trial contexts, the chief significance of the contempt cases is the emergence of a positive conception of protected expression under the First Amendment. As Black put it in Bridges, "it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public questions." Drawing upon the decisions in near v. minnesota (1931) and de jonge v. oregon (1937), which stressed the Madisonian conception of free expression as essential to political democracy, opinions in the contempt cases shifted the clear and present danger rule toward a promise of constitutional immunity for criticism of government. The contempt cases are thus the primary doctrinal bridge between the Court's unsympathetic approach to political dissent during and after world war i and the grand conception of new york times co. v. sullivan (1964) that the central meaning of the First Amendment is "the right of free discussion of the stewardship of public officials." Beyond this, the contempt cases make it clear that protecting expressions about judges and courts is itself a core function of the First Amendment. Douglas put it this way in Craig, in words that have echoed in later free press-fair trial cases: "A trial is a public event. What transpires in the court room is public property.… There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it."

Although the contempt cases focused on the rights of the press and others who sought to publicize information about trials, the next set of free pressfair trial cases, without dealing with the right to publish, looked with a sympathetic eye toward defendants who might have been convicted because of prejudice caused by such publications. Although individual Justices had objected bitterly to the prejudicial effects of media coverage on jurors, not until 1959 did the Supreme Court reverse a federal conviction because of prejudicial publicity. The first reversal of a state court conviction followed two years later in irvin v. dowd (1961), where 268 of 430 prospective jurors said during their voir dire examination that they had a fixed belief in the defendant's guilt, and 370 entertained some opinion of guilt. News media had made the trial a "cause célébre of this small community," the Court noted, as the press had reported the defendant's prior criminal record, offers to plead guilty, confessions, and a flood of other prejudicial items.

In 1963, the special problems of television were introduced into the pretrial publicity fray by Rideau v. Louisiana, producing another reversal by the Supreme Court of a state conviction. A jailed murder suspect was filmed in the act of answering various questions and of confessing to the local sheriff, and the film was televised repeatedly in the community that tried and convicted him. The Supreme Court held that "[a]ny subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality." Two years later, in estes v. texas (1965), a narrowly divided Court held that, at least in a notorious case, the presence of television in the courtroom could generate pressures that added up to a denial of due process.

In the mid-1960s the Court took a more categorical and more aggressive stance against prejudicial publicity. The shift was consistent with the warren court's growing impatience toward ad hoc evaluations of fairness in its review of state criminal cases. This period of heightened concern for the defendant was triggered by the disgraceful media circus that surrounded the murder trial of Dr. Sam Sheppard. Before Sheppard's trial, most of the print and broadcast media in the Cleveland area joined in an intense publicity barrage proclaiming Sheppard's guilt. During the trial, journalists swarmed over the courtroom in a manner that impressed upon everyone the spectacular notoriety of the case. "The fact is," wrote Justice tom c. clark in his most memorable opinion for the Court, "that bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard." The deluge of publicity outside the courtroom, and the disruptive behavior of journalists inside, combined to make the trial a "Roman holiday' for the news media" that "inflamed and prejudiced the public."

In Sheppard v. Maxwell (1966) Clark adumbrated the techniques by which trial judges may control prejudicial publicity and disruptions of the judicial process by the press. The opinion is a virtual manual for trial judges, suggesting proper procedures initially by listing the particular errors in the case: that Sheppard was not granted a continuance or a change of venue, that the jury was not sequestered, that the judge merely requested jurors not to follow media commentary on the case rather than directing them not to, that the judge failed "to insulate" the jurors from reporters and photographers, and that reporters invaded the space within the bar of the courtroom reserved for counsel, created distractions and commotion, and hounded people throughout the courthouse.

But the Sheppard opinion went beyond these essentially traditional judicial methods for coping with publicity and the press. The Court identified the trial judge's "fundamental error" as his view that he "lacked power to control the publicity about the trial" and insisted that "the cure lies in those remedial measures that will prevent the prejudice at its inception." Specifically, Clark admonished trial judges to insulate witnesses from press interviews, to "impos[e] control over the statements made to the news media by counsel, witnesses, and especially the Coroner and police officers," and to "proscrib[e] extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters.…"

Sheppard left open the central question whether the courts could impose direct restrictions on the press by injunctions that would bar publications that might prejudice an accused. In nebraska press association v. stuart (1976) the Supreme Court, unanimous as to result though divided in rationale, answered this question with a seemingly definitive No. The Nebraska state courts had ordered the press and broadcasters not to publish confessions or other information prejudicial to an accused in a pending murder prosecution. Some of the information covered by the injunction had been revealed in an open, public preliminary hearing, and the Supreme Court made clear that a state could in no event bar the publication of matters disclosed in open judicial proceedings. As to other information barred from publication by the state courts, Chief Justice warren e. burger's majority opinion went by a curious and circuitous route to the conclusion that the impact of prejudicial publicity on prospective jurors was "of necessity speculative, dealing … with factors unknown and unknowable." Thus, the adverse effect on the fairness of the subsequent criminal proceeding "was not demonstrated with the degree of certainty our cases on prior restraint require." Burger's opinion made much of the fact that the state court had not determined explicitly that the protections against prejudicial publicity set out in Sheppard would not suffice to guarantee fairness, as if trial court findings to this effect might make a difference in judging the validity of a prior restraint against publication. And Burger said again and again that he was dealing with a particular case and not laying down a general rule. But because Burger termed the evils of prejudicial publicity "of necessity speculative," and viewed the prior restraint precedents as requiring a degree of certainty about the evils of expression before a prior restraint should be tolerated, his opinion for the Court seems to be, in the guise of a narrow and particularistic holding, a categorical rejection of prior restraints on pretrial publicity. Lower courts have read the decision as an absolute bar to judicial injunctions against the press forbidding the publication of possibly prejudicial matters about pending criminal proceedings.

Beyond its rejection of prior restraints against the press to control pretrial publicity, the Nebraska Press Association decision emphatically affirmed all the methods of control set out in Sheppard, including the validity of judicial orders of silence directed to parties, lawyers, witnesses, court officers, and the like not to reveal information about pending cases to the press. Such orders, indeed, have flourished in the lower courts since the Nebraska Press Association decision.

The free press/fair trial conundrum has also presented the Supreme Court with the only occasion it has accepted to shed light on the very murky question whether the First Amendment protects the right to gather information, as against the right to publish or refuse to publish. No doubt in response to the Supreme Court's rejection of direct controls on press publication, either by injunctions or by the contempt power, several lower courts excluded news reporters and the public from preliminary hearings and even from trials themselves to prevent the press from gathering information whose publication might be prejudicial to current or later judicial proceedings. Initially, in gannett co. v. de pasquale (1979), reviewing a closing of a preliminary hearing dealing with the suppression of evidence, the Supreme Court found no guarantee in the Sixth Amendment of public and press presence. The decision produced an outcry against secret judicial proceedings, and only a year later, in one of the most precipitous and awkward reversals in its history, the Court held in richmond newspapers v. virginia (1980) that the First Amendment barred excluding the public and the press from criminal trials except where special considerations calling for secrecy, such as privacy or national security, obtained. The decision marks the first and only occasion to date in which the Court has recognized a First Amendment right of access for purposes of news gathering, and the Court was careful to limit its holding by resting on the long tradition of open judicial proceedings in English and American law. One year later, in Chandler v. Florida (1981), the Court held that televising a criminal trial was not invariably a denial of due process, thus removing Estes as an absolute bar to television in the courtroom.

The pattern of constitutional law formed by the free pressfair trial decisions has several striking aspects. While direct judicial controls on the right of publication have been firmly rejected, the courts have proclaimed extensive power to gag sources of information. (See gag orders.) Participants in the process can be restrained from talking, but the press cannot be restrained from publishing. However, the broad power to impose secrecy on sources does not go so far as to justify closing judicial proceedings, absent unusual circumstances. The interests of freedom of expression and control over information to enhance the fairness of criminal trials are accommodated not by creating balanced principles of general application but rather by letting each interest reign supreme in competing aspects of the problem. Moreover, the principles fashioned in the cases tend to be sweeping, as if the Supreme Court were acting with special confidence in fashioning First Amendment standards to govern the familiar ground of the judicial process. And in dealing with its own bailiwick, the judicial process, the Supreme Court has acted not defensively but with a powerful commitment to freedom of expression.

Benno C. Schmidt, Jr.


Friendly, Alfred and Goldfarb, Ronald 1967 Crime and Publicity. New York: Twentieth Century Fund.

Jaffe, Louis 1965 Trial by Newspaper. New York University Law Review 40:504–524.

Lewis, Anthony 1980 A Public Right to Know about Public Institutions: The First Amendment as Sword. Supreme Court Law Review 1980:1–25.

Schmidt, Benno C., Jr. 1977 Nebraska Press Association: An Expansion of Freedom and Contraction of Theory. Stanford Law Review 29:431–476.

Taylor, Telford 1969 Two Studies in Constitutional Interpretation. Evanston, Ill.: Northwestern University Press.

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