News Gathering & the Law (ch 10)

Dec 6 (Study Day) Law Study Session
Exam will be December 13 @ 1 PM




News Gathering & the Law

Journalist role in society is to present a NEUTRAL entity -
- gather news source
- protect news sources
- select information that public should hear (gatekeepers)

∏ What can't journalists share? Information dealing with National Security ∏

Potential Conflict:
1st amendment rigths vs 6th Amendment right of the accused.

Sixth Amendment (right to a fair trial)
"Amy's right NOT to hear how she killed Dr. Nichols"

Right to a fair trial with impartial jurors.


Shepard v. Maxwell 1966
[Accused of killing his wife]
Supreme Court said it was the responsibility of the court to protect fair trial rights of the defendant while still restricting the press as little as possible.

[after this case, courts banned cameras in the courtroom]

"Everyone was in their place...the women were in the kitchen" - Dr. Nichols


Establishing fair Juries: An Impartial Juror
The high court is willing to permit jury service by a person who possesses knowledge or has an opinion about a case, so long as:
1. The knowledge or opinions are NOT SO CLOSELY HELD that they cannot reasonably be put aside in face of evidence; and
2. The publicity surrounding the case is not so widespread and prejudicial as to render a potential juror's assurances of impartiality as unbelievable.


Bench-Bar-Press Guidelines
(Bench: Judge Bar: Lawyer Press: Journalist)
The purpose of these guidelines is is:
1. Tell law enforcement officers what kind of info about a criminal suspect and a crime can be released and published with little danger of harm to the trial process, and
2. Inform journalists that publication of certain kinds of information about a case can be harmful to the trial process.



EX: Mad Dog Irvin (Irvin v. Dowd)



Traditional Judicial Remedies
ways to control the jury

Void Dire - set of questions to selected jurors
(most common remedy to) keep the jury pool untainted
[Such as keeping Dr. Nichols from being a juror.]

Challenge for Cause -
"I don't want her BECAUSE she teaches media law

Preemptory challenges - just because
"they don't have to say why they don't want me, they just don't want me"

Catch: cannot be eliminated because of race or gender

Change of Venue
(moving the trial to Nashville)

Change of Venirement - all the jurors are brought from a different county
They go get jurors from Wilson county

Continuance - granting additional time so the excitement/publicity can die down.

Severance - separating one murder into two cases, defendant lawyers like this to create doubt.

Admonition to the Jury -
"UnRinging the bell" the judge says not to acknowledge the statement. Pretend it wasn't blurted out.

Sequestration of the Jury
(you can't go online, view media?)
only used in extreme cases



Controlling Conduct in Court
1935 "Lindburgh Baby" case.
[lot of photographs ? ]
800 journalists from around the world constantly disrupted trial

1937 lawyers (ABA) proposed banning cameras from courtrooms

1962 - "okay ONE camera" Estes v. Texas. Video cameras did live shots for newscasts with POOL COVERAGE (share one feed) Supreme Court 5-4 said denied him a fair trial..[pretty weak decision]

1981 - Chandler v. Florida - the mere presence of cameras in the courtroom does not prejudice a defendant's right to a fair trial. Gave states the right to make own decisions about cameras in state courts.

2011- by now, 43 states allow cameras, 7 states restrict cameras to judge only hearings (no juries). Many states offer live web casting of proceedings and others provide live video coverage on local stations.

"They [cameras] turn people into idiots" - Dr. Nichols




Controlling Prejudicial Publicity:
Restraints imposed on News Sources

[The time that journalists are most likely to be restricted in a case]

Restrictive Orders - also known as "gag orders" to stop those involved in a case from making public comments

[Gag orders follow strict scrutiny (gov't interest & narrowly tailored). "Gag anyone from talking about that specific info"


Restrictive Orders Aimed at Participants
Not uncommon in high profile cases



Restrictive Orders Aimed at the Press:

1976 - Nebraska Press Association v. Stuart
The judge in a sensational murder trial issued a restrictive gag order.
U.S. Supreme Court ruled this order was an unconstitutional prior restraint on the press.

1978 Landmark Communications v. Virginia - Supreme Court said media could not be punished for publishing truthful information about the judicial system without providing a compelling government need. [Leaked info from someone not gaged can still be printed, protected]

1979 Smith v. Daily Mail Publishing Co. Accurate reporting of the conduct of a public official should be completely protected.

^^^ PRE-TRIAL ^^^ everything was about pretrial




Access to Courtroom: Access to Trials
In Nebraska Press Association (1976) Supreme Court justice said one alternative to pretrial publicly is to CLOSE courtroom.

Many courts started closing trials.

1980 Richmond Newspapers v. Virginia - Supreme Court said press and public have a qualified constitutional right of access to trials, pretrial hearings and jury selection process.

"A CRIMINAL case can be closed only if the state interest in a fair trial overrides the rights of the press and public to attend."

1982 Glove Newspaper Co. v. Superior Court - testimony of minors in sex offense case is not a strong enough state interest in closer [only if there's a compelling need.. and only close off that section where the child is testifying]

To close Criminal Trials {this is Globe]
###


Access to Courtrooms: Access to Jury Selection
Press-Enterprise I and II v. Riverside County Superior Court.

1984 - PE I incorporated jury selection into open proceedings category

[there are times to preserve the rights of the jurors. like asking the jury how many women had been sexually assaulted..who would admit it in front of the press?!]

1. Judge must specify an overriding interest in closure
2. No alternative measures other than closure
3. Judge must document, in writing, why closure is necessary
4. Closure can last only as long as necessary to meet the need for closure


1986 - PE II - Supreme Court held that there is a 1st Amendment right of access to pretrial proceedings.

(PE I & PE II)
PE II TEST:

1. Is there a traditional right of access?
historically - a history of openness
function ally - openness serves democratic process
2. Is the right of access overcome by some other important right?
(privacy of jurors, 6th amendment right of defendant)
a. overriding interest in closure
b. closure narrowly tailored to serve that interest
c. ###

( see notes )





Access to Courtrooms: Access to Court Records

Press enterprise cases (PE) included access to transcripts and commonly seen as establishing a First Amendment right of access to records.

RECORDS are subject to PE test.

Records CAN be sealed if they are not entered into evidence. Very difficult to restrain access if admitted as evidence. They are then a part of the proceedings.

Still working on right to COPY tapes or documents. Some courts feel they are more prejudicial than paper documents.