First Amendment and Sixth Amendment

Basic Conflict

  • The First Amendment ensures freedom of the press.
  • The Sixth Amendment guarantees the right to a fair and impartial jury.

Potential Prejudicial Pre-Trial Publicity

  • Confessions
  • Prior criminal records
  • Results of lie detector tests, blood tests, ballistics tests, and other investigatory procedures
  • Character flaws or lifestyle
  • Potential witnesses, testimony, or evidence
  • Speculation by officials
  • Other sensational or inflammatory statements

Remedies for Prejudicial Publicity

  • Change of venue: Moving the trial to a different location.
  • Change of venire: Importing jurors from a different location.
  • Continuance: Delaying the trial.
  • Severance: Trying multiple defendants separately.
  • Voir dire: Questioning potential jurors to identify bias.
  • Sequestration: Isolating the jury during the trial.
  • Judicial admonition: Instructions from the judge to the jury.
  • New trial

Peremptory Challenge

  • A challenge that can be made without any reason or cause.
  • The number of peremptory challenges is determined by state law.

Irvin v. Dowd (1961)

  • Facts: Leslie Irvin was convicted for a murder in Evansville, Indiana, after extensive publicity. The press labeled him "Mad Dog Irvin" and "Confessed Slayer of Six."
  • Importance: The U.S. Supreme Court (USSC) ruled that statements by jurors could be given little weight when many admitted to prejudice against the defendant.

Rideau v. Louisiana (1963)

  • Facts: Wilbert Rideau confessed to murder. His filmed confession was aired by a local television station and seen by approximately 100,000 people in Lake Charles, Louisiana.
  • Importance: The USSC declared that the televised confession effectively served as Rideau’s trial, rendering further court proceedings pointless.

Sheppard v. Maxwell (1966)

  • Facts: Dr. Sam Sheppard was convicted of murdering his wife, Marilyn. The television series and movie, The Fugitive, were based on this case.
  • Importance: The USSC stressed that judges must ensure a dignified atmosphere in the court, including control over the behavior of journalists.

Murphy v. Florida (1975)

  • Facts: Murphy was arrested for robbery and assault. Before his trial on these charges, he had been convicted of murder and interstate transportation of stolen securities. He argued his criminal record prevented him from receiving a fair trial.
  • Importance: The USSC held that members of the jury need not be “totally ignorant of the facts and issues” of a case. Mere familiarity with a defendant did not equal a predisposition against him/her.

Prior Restraints on Media

  • Gag orders on the media
  • Gag orders on news sources
  • Courts must consider three things before issuing a gag order on the media:
    • Quantity and content of media coverage
    • Potential effectiveness of alternatives to a gag
    • The likelihood that a gag would remedy the harmful publicity

Nebraska Press Association v. Stuart (1976)

  • Facts: Six members of a family were killed. A neighbor confessed to the killings. The judge issued an order prohibiting the publication of news obtained during public pretrial proceedings.
  • Importance: The USSC ruled that gag orders on the media are a prior restraint and should only be used after less restrictive alternative methods are used.

Federated Publications v. Swedburg (1981)

  • Facts: Judge Swedburg ordered reporters to sign an agreement that they would follow Washington’s Bench-Bar-Press Guidelines or they would not be allowed in the courtroom to cover the “Hillside Strangler” case.
  • Importance: The state supreme court ruled that Judge Swedburg’s order was not a prior restraint because no punishment was associated with a lack of compliance.

Landmark Communications, Inc. v. Virginia (1978)

  • Facts: The Virginia Pilot identified a judge being investigated by the Virginia Judicial Inquiry and Review Commission, which reviews complaints concerning judicial misconduct. Divulging the judge’s name violated a state law.
  • Importance: The USSC held that accurate reporting of the conduct of public officials falls under the protection of the First Amendment.

Smith v. Daily Mail Publishing Co. (1979)

  • Importance: The USSC ruled that a West Virginia statute was overbroad because it singled out only newspapers for punishment. The Court stated that a state can punish the media for truthful information “to further a [state’s] need of the highest order.”

Post Publication Punishment

  • Generally, courts have ruled that the First Amendment prohibits punishment of the press for news stories about judicial proceedings.
  • States must provide a compelling governmental interest or prove a serious and imminent threat to the administration of justice.

Cameras in the Courtroom

  • ABA’s Canon 35 - Called for a ban on cameras and the broadcasts of trial.
  • ABA’s Rule 3 A (7) - Modified the original ban to include cameras when an appellate court rules they will not distract trial participants.
  • 14 states and DC allow cameras in courtrooms.
  • 30 states allow some access (VA included).
  • 4 states access with permission.
  • 2 states no access (MS and VT).

State of New Jersey v. Bruno Hauptmann (1935)

  • Facts: Bruno Hauptmann was accused of kidnapping and killing the 18-month-old son of Charles Lindbergh. Over 800 journalists covered the trial.
  • Importance: The media coverage outside the courtroom motivated the ABA to establish Canon 35.

Estes v. Texas (1965)

  • Facts: Estes became the focus of national media attention when he was charged with fraudulently inducing farmers to buy nonexistent fertilizer tanks and property. A two-day pretrial was broadcast live by both radio and television.
  • Importance: Justice Clark declared that cameras in the courtroom would adversely impact jurors, defendants, attorneys, and the judge.

Chandler v. Florida (1981)

  • Facts: Two Miami Beach police officers were charged with burglarizing a restaurant. Two minutes and 55 seconds of the trial were broadcast, depicting only the prosecution’s side of the case.
  • Importance: The USSC ruled that the presence of cameras in the courtroom does not automatically jeopardize a defendant’s right to a fair trial. A defendant must prove the harm that the cameras will cause.

Courtroom Access

  • Pretrial hearings
  • Trial
  • Jury selection
  • Court records

Nixon v. Warner Communications (1978)

  • Facts: A record company wanted the right to copy the Nixon tapes for broadcasting and sale to the public.
  • Importance: The USSC ruled the record company did not have a right of access to the tapes.

Gannett v. DePasquale (1979)

  • Facts: A judge prohibited the press from attending a pretrial hearing in a police officer shooting case. The pretrial hearing concerned a confession and the evidence that resulted as “fruits” of the confession. Gannett used a 6th Amendment right of public trial argument.
  • Importance: The USSC declared that the press and the public do not have a constitutional right to attend pretrial hearings.

Richmond Newspapers, Inc. v. Virginia (1980)

  • Facts: Before beginning the fourth trial attempt of accused murderer John Stevenson, Judge Richard Taylor closed the trial at the request of the defense.
  • Importance: The USSC held that the public and the media have a First Amendment right to attend trials, which are presumptively open unless the state can document an overriding interest in closure.

Globe Newspaper v. Riverside County Superior Court (1982)

  • Facts: A judge ordered a rape trial closed because two of the victims were 16-year-olds and a third was a 17-year-old.
  • Importance: The USSC ruled that a court should not be closed if the names of the minors were already in the public record or if the minors indicated they were willing to testify in the presence of the press.

Press Enterprise I v. Riverside County Superior Court (1984)

  • Facts: A judge closed the voir dire examination of jurors in a rape-murder case. The judge also refused to release the transcripts of the questioning.
  • Importance: The USSC declared the press had a right of access to a transcript of a preliminary hearing so long as it didn’t invade or potentially invade the privacy of jurors’ voir dire information.

Press Enterprise II v. Riverside County Superior Court (1986)

  • Facts: A magistrate excluded the press from a preliminary hearing scheduled to determine whether there was probable cause that a nurse, Robert Diaz, had murdered a dozen hospital patients.
  • Importance: The USSC claimed defendants must provide specific evidence that an open courtroom would present a “substantial probability” of endangering their rights to a fair trial.

Contempt

  • Civil: To get someone to do something.
  • Criminal: Punishes disrespect for the court.
  • Direct contempt: In the courtroom that disrupts the legal process.
  • Indirect contempt: Away from the courtroom.

Bridges v. California (1941)

  • Facts: An official of the International Longshoremen- Warehousemen’s Union was held in contempt after he called a judge’s decision in a union dispute as “outrageous.”
  • Importance: The USSC ruled that punishment for criticism of pending court cases can occur only if there is an extremely serious evil imminent.

Pennekamp v. Florida (1946)

  • Facts: The Miami Herald published a series of inaccurate editorials that accused judges of protecting criminals more than the law-abiding public.
  • Importance: The USSC held that editorials that contain inaccurate information did not pose a clear and present danger to the administration of justice.

Craig v. Harney (1947)

  • Facts: Craig was held in contempt for comments made about a judge outside the courtroom.
  • Importance: The USSC ruled contempt powers should not be used to punish the media for what they communicate “unless there is no doubt that the utterances in question are a serious and imminent threat to the administration of justice.”

Dickinson v. U.S. (1973)

  • Facts: Two reporters violated a judge’s order not to publish testimony in a murder conspiracy case in Baton Rouge, Louisiana.
  • Importance: The U.S. Court of Appeals for the Fifth Circuit declared that an injunction must be obeyed, regardless of the ultimate validity of the court order.