Free Press/Fair Trial (Update)

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The Supreme Court has firmly established a first amendment right of access to criminal proceedings. In Press-Enterprise Co. v. Superior Court (1986), the Court held that a "presumption of openness" in criminal trials extends to aspects of the trial beyond the actual testimony of witnesses. All trial matters, such as the jury selection (voir dire) process, are presumptively open. The media can be excluded only if the trial court specifically finds compelling reasons to close the trial and finds that less-restrictive alternatives cannot safeguard the defendant's right to a fair trial.

Since 1984 the Court has defined the scope of the media's right of access. In Waller v. Georgia (1984), the Court expanded the right of access to pretrial evidentiary hearings, although it did so on the basis of the defendant's Sixth Amendment right to an open trial. In Press-Enterprise, the Court concluded that the media have a qualified First Amendment right of access to pretrial proceedings that can be overcome only by "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Therefore, courts must decide case-by-case whether any portion of a criminal proceeding can and should be closed. Laws that automatically close proceedings, such as the Massachusetts law in globe newspaper company v. superior court (1982) excluding the press from hearing the testimony of young victims of sex crimes, are constitutionally infirm.

Although the media's general right to attend and report on court proceedings has been secured, courts do possess limited power to restrict press access to information outside the courtroom door. Not only do courts retain the power to issue gag orders directed at parties, attorneys, and witnesses in a case, but attorneys are now subject to professional disciplinary action if they make extrajudicial statements that have a "substantial likelihood of materially prejudicing an adjudicative proceeding." The Court upheld the constitutionality of such orders in Gentile v. State Bar of Nevada (1991). The Court also held in Seattle Times v. Rhinehart (1984) that courts may limit the media's access to information by sealing information under a protective order.

Difficult issues still facing the courts include the use of cameras inside the courtroom and whether the press's right of access also applies in civil cases. The Court has never found that the press has a constitutional right to use cameras in the courtroom. However, in chandler v. florida (1981), the Court held that televising trials is constitutionally permissible. Thus, it is left to the discretion of legislatures and trial judges to decide whether to permit the televising of trials. Courts typically will balance the interest of the public in viewing the proceedings against the possible disruption of the proceedings from televised coverage. Another major concern for courts is the possible effect of camera coverage on unsequestered jurors. The televised trials of high-publicity cases, including the 1994 murder trial of football star O.J. Simpson, has caused many courts to reconsider their willingness to allow cameras in the courtroom.

Traditionally, issues involving press access to trials have focused on the media's coverage of criminal proceedings. The Court has never explicity ruled on whether the same rights of access apply to civil proceedings. The First Amendment would seem to safeguard such access. Historically, the press has had access to civil, as well as criminal, proceedings. Even more importantly, the critical role of the press in allowing the public to scrutinize the performance of its governmental institutions and officials applies with equal force to civil trials. The free press, rather than being an obstacle to a fair trial, is one of the means by which a fair trial can be ensured.

Laurie L. Levenson

(see also: Freedom of the Press.)


Barber, Susanna 1987 News Cameras in the Courtroom: A Free Press–Fair Trial Debate. Norwood, N.J.: Ablex Publishing Corp.

Freedman, Warren 1988 Press and Media Access to the Criminal Courtroom. New York: Quorum Books.

Uelmen, Gerald F. 1997 Leaks, Gags, and Shields: Taking Responsibility. Santa Clara Law Review 37:943–979.

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Free Press/Fair Trial (Update)

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