The Media and the Criminal Justice System

JOUR3060 Communication Law & Regulation

CONFLICTING CONSTITUTIONAL GUARANTEES

1st Amendment: Congress shall make no law ...abridging the freedom of speech,

or of the press; or the right of the people peaceably to assemble…

6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense

9th Amendment: The enumeration in the Constitution, of certain rights, shall not

be construed to deny or disparage others retained by the people

PRE-TRIAL PROCEEDINGS Arrest / Charge Discovery Plea Bargaining Motions Voir Dire

Trial: opening arguments evidence presented testimony given closing arguments judgment rendered Sentencing

Post-Trial appeal? serve sentence

FREEDOM OF THE PRESS(Issues of Pretrial Publicity)

Sheppard v. Maxwell (1966) http://www.oyez.org/cases/1960-1969/1965/1965_

490 1:15 – 6:00

FREEDOM OF THE PRESS Estes vs. Texas (1965): broadcast media

NOT allowed in court Chandler vs. Florida (1981): courts MAY

allow cameras to cover criminal trials

Gannett Co. v. DePasquale (1979): access to public trials

Richmond Newspapers v. Virginia (1980): access to criminal trials

FREEDOM OF THE PRESS Pre-Enterprise v. Superior Court I (1984): establish public’s

right to witness jury selection in criminal trials

Waller v. Georgia (1984) Press-Enterprise / Waller Test: Pre-trial proceedings presumed to

be open, unless: 1) overriding interest likely to be prejudiced 2) closure is broader than necessary to protect interest 3) alternatives to closure not considered 4) trial court makes findings of fact to support closure

Press-Enterprise v. Superior Court II (1986): establish public’s right to witness pretrial hearings in criminal cases Press-Enterprise II Test: Pre-trial proceedings cannot be closed,

unless: 1) specific, on-the-record findings justifying closure, 2) closure necessary to preserve higher values, 3) closure is narrowly tailored to serve that interest

FREEDOM OF THE PRESS Cincinnati Gas & Electric Co. v. General

Electric Co. (1988): example of legitimate interest justifying closure

Craig v. Harney (1947): news articles not “clear and present danger”

Nebraska Press Association v. Stuart (1976): prior restraint of news coverage is unconstitutional

Zurcher v. Stanford Daily (1978): search of student paper office led to Privacy Protection Act of 1980