Ch 10 Mass Media Law

When media coverage of a trial is potentially prejudicial,which of the following statements best reflects the Supreme Court's view of how to balance the defendant's Sixth Amendment rights and the public's First Amendment rights?

Both rights are fundamental, and courts must apply narrowly tailored measures to protect the fairness of the trial without unnecessary restrictions on the press

The Sixth Amendment guarantees defendants

a fair, impartial jury and speedy, public trial

The First Amendment guarantees

the press's right to gather and publish information

When media coverage threatens jury imparitality, courts must

balance the rights from the first and sixth amendment

Core Constitutional Tension - First Amendment

Protects freedom of speech, press, public access

risk of prejudicial publicity influencing jurors

Core Constitutional Tension - Sixth Amendment

protects Impartial jury,fair trial

Risk of gag orders or closed proceedings violating press freedom

Irvin v. Dowd (1961)

Irvin was accused of killing six people and was referred to as "Mad Dog Killer" in the media

Case was transferred to another venue, but the case received substantial publicity there as well

Irvin convicted of killing six people

Of the 12 jurors seated, 8 admitted that they believed Irvin was guilty before the trial, but said they could be impartial

Supreme Court ruled that Irvin could not have received a fair trial and reversed conviction, change of venue should have been farther away

PRESUMED PREJUDICE EXISTED

Sheppard v. Maxwell (1966)

Case was too public due to pre-trial publicity. Resulted in unfair trial.

TRIAL LACKED JUDICIAL CONTROL

Skilling v. United States (2010)

Skilling was CEO of Enron Corporation and convicted of conspiracy, securities fraud, making false representations to auditors, and insider trading, he appealed

Supreme Court rejected his claim that he did not receive a fair trial but did find in his favor on issue of honest services

NO PRESUMED OR ACTUAL PREJUDICE - genuine bias was not proven

Voir Dire

Careful juror questioning to detect bias

Filters out partial jurors

Change of Venue / Veniremen

Move trial or bring jurors from another county

Dilutes prejudicial exposure

Continuance

Delay until publicity cools

Reduces community bias

Admonition

Judge instructs jurors to avoid media

Reinforces impartiality

Sequestration

Isolate jurors during trial

Protects from ongoing media influence

Restrictive (Gag) Orders

Courts may limit what participants (not journalists) say to protect fairness.

Prior restraint on the press itself is presumptively unconstitutional.

Nebraska Press Association v. Stuart (1976)

a gag order in a murder trial is an example of a prior restraint on the media

alternatives available (Nebraska Press Association Test)

Closed Courtrooms and Access Rights

Historically, trials were presumptively open.

Modern closure must meet strict scrutiny and specific findings

Gannett Co. v. DePasquale (1979)

pretrial hearings may be closed to protect fair trial

Richmond Newspapers v. Virginia (1980)

First Amendment guarantees public access to criminal trials

Press-Enterprise I (1984)

voir dire presumptively open

Press-Enterprise II (1986)

preliminary hearings presumptively open

To justify closing a courtroom or sealing records, courts must find

- overriding interest likely to be harmed by openness

- substantial probability that openness will harm interest

- no reasonable alternatives

- narrowly tailored closure

- specific, on-record findings

Access to Court Records

public has qualified right under richmond and press-enterprise to inspect judicial records

case where courts may seal records

only for compelling reasons (e.g., trade secrets, privacy, national security)

Digital age

electronic dockets (PACER) expand access but raise privacy and security concerns

Trend with access to court records

balancing transparency with redaction tools rather than wholesale sealing

Estes v. Texas (1965)

early TV coverage denied fair trial

Chandler v. Florida (1981)

upheld limited camera coverage if it doesn't impair fairness

Federal courts still restrict live broadcast

many states permit under rules of discretion

Sunshine in the Courtroom Act

would allow federal judges to authorize cameras on a case-by-case

Bench-Bar-Press Guidelines

voluntary agreements between the media and the judiciary that recommend limits to types of coverage of ongoing judicial proceedings

Aim to reduce prejudicial reporting while preserving access

where are Bench-Bar-Press Guidelines successful?

in states like Washington and Oregon as non-statutory self-regulation

why is prior criminal record prejudicial?

Suggests guilt

why is confession or refusal to testify prejudicial?

Invites bias

why are character attacks prejudicial?

Inflames jurors

why are emotional victim stories prejudicial?

Evokes sympathy

why are sensational visuals prejudicial?

Distracts from facts

Branzburg v. Hayes (1972)

Reporters do not have a First Amendment right to refuse to reveal the identity of confidential sources when subpoenaed to testify before to a grand jury.

Lower courts adopted qualified reporter's privilege tests

Qualified Privilege Tests

1. The information is relevant to a significant issue.

2. It is unobtainable by alternative means.

3. There is a compelling interest in the information.

if all three are met, journalist may be compelled to disclose

State Shield Laws

49 states + D.C. have some form of shield law or privilege protecting journalists

Absolute privilege

few states, covers confidential sources

Qualified privilege

majority; may yield to compelling need

No statute (wyoming)

rely on common law or court rulings

Federal Shield Law

no national shield law, though PRESS Act (2024) proposed

Social media

blurs line between journalists and citizens

Courts must decide (IN REGARDS TO 6TH VS 1ST AMEND)

who qualifies for privilege or press access

Livestreamed trials

revive Sheppard-style concerns

Deepfakes and misinformation

complicate pretrial publicity controls

Prior restraint

LAST RESORT!

alternative safeguards are preferred

Access Rights

extend to proceedings and records unless closure is narrowly justified

Reporter's privilege

exists mainly at state level, not federally

Technology

keeps redefining what "public" and "press" mean in practice

goal of balancing free press vs. fair trial

maintain public confidence and judicial integrity through narrow, evidence-based restrictions.

PRESS Act

Would create federal reporter shield law; pending

Sunshine in the Courtroom Act (proposed 2025)

Would permit cameras in federal courts

AI Evidence Authenticity Rules (emerging)

Courts exploring standards for verifying digital exhibits

Virtual Jury Procedures (post-covid)

Raises new access and fairness questions

Judicial Controls

voir dire, venue change, sequestration (protects fair trial)

Open hearings, access to filings (protects free press)

Press Restraints

Gag orders, embargoes (protects fair trial)

Shield laws, open court precedent (protects free press)

Ethical Measures

Bar-Press cooperation (protects fair trial)

responsible coverage (protects free press)