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Free Press, Fair Trial: When Constitutional Rights Come into Conflict
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Free Press, Fair Trial: When Constitutional Rights Come into Conflict

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To accompany lecture on Sheppard v. Maxwell, Nebraska Press Association v. Stuart, and related cases on the clash between First and Sixth Amendment rights.

To accompany lecture on Sheppard v. Maxwell, Nebraska Press Association v. Stuart, and related cases on the clash between First and Sixth Amendment rights.

Published in Education , News & Politics
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Transcript

  • 1. Free press, fair trial
    When constitutional rightscome into conflict
  • 2. First Amendment
    “Congress shall make no law … abridging the freedom of speech, or of the press …”
  • 3. First Amendment
    “Congress shall make no law … abridging the freedom of speech, or of the press …”
    Sixth Amendment
    • “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury …”
  • Questions
    Is the First Amendment more important than the Sixth?
  • 4. Questions
    Is the First Amendment more important than the Sixth?
    Is the Sixth Amendment more important than the First?
  • 5. Questions
    Is the First Amendment more important than the Sixth?
    Is the Sixth Amendment more important than the First?
    How might these rights come into conflict?
  • 6. Prior restraint
    Unconstitutional in nearly all cases
    The Near v. Minnesota exceptions:
    National security
    Obscenity
    Incitement to violence, or “fighting words”
  • 7. Prior restraint
    Unconstitutional in nearly all cases
    But denying someone a fair trial is also unconstitutional
  • 8. Prior restraint
    Unconstitutional in nearly all cases
    But denying someone a fair trial is also unconstitutional
    When interests collide, courts muddle through on a case-by-case basis
  • 9. “Lindbergh baby” case
    Lindbergh a national hero
    Hauptmann convicted after massive pretrial publicity
    Death penalty eliminated for kidnapping
  • 10. Bruno Richard Hauptmann
  • 11. Sam Sheppard case
    Illustrated the harm of pretrial publicity
    Led to a backlash against the media
    InspiredThe Fugitive
  • 12. The Sheppards
  • 13. The crime scene
  • 14. Public inquest
  • 15. Sheppard found guilty
    Judge Blythin (right) up for re-election
    Press allowed the run of the courtroom
    Sheppard sentenced to life in prison
  • 16. Sheppard’s appeals
    Turned down by Ohio Court of Appeals and Ohio Supreme Court (1954 and ’55)
    U.S. Supreme Court denies cert (1955)
    Released on a writ of habeas corpus (1964)
    Conviction overturned by U.S. Supreme Court (Sheppard v. Maxwell, 1966)
    Acquitted in second trial (1966)
  • 17. Sheppard’s sad end
    Became a professional wrestler
    Died in 1970
    Who was the real killer?
  • 18. Backlash against media
    Earl Warren (left) writes that Oswald could not have received a fair trial
    Gag orders and other restrictions on the media become increasingly common
    Where is the balance of interests?
  • 19. Nebraska Press Associationv. Stuart (1976)
    The Burger Court limits the use of gag orders
    For all practical purposes, gag orders are ruled unconstitutional
  • 20. Conditions for gag orders
    Pre-trial publicity would be extensive and pervasive
  • 21. Conditions for gag orders
    Pre-trial publicity would be extensive and pervasive
    No alternative measures would offset the effects of the publicity
  • 22. Conditions for gag orders
    Pre-trial publicity would be extensive and pervasive
    No alternative measures would offset the effects of the publicity
    A gag order would succeed in protecting the right to a fair trial
  • 23. Alternative measures
    What are they?
  • 24. Alternative measures
    Continuance
    Postpone trial until media frenzy blows over
  • 25. Alternative measures
    Continuance
    Change of venue
    Move trial to a place where the crime is not so notorious
  • 26. Alternative measures
    Continuance
    Change of venue
    Intensive voir dire
    Question prospective jurors as to whether they can remain fair and impartial
  • 27. Alternative measures
    Continuance
    Change of venue
    Intensive voir dire
    Jury admonitions
    Remind jurors not to follow coverage in the media or to discuss the case
  • 28. Alternative measures
    Continuance
    Change of venue
    Intensive voir dire
    Jury admonitions
    Sequestration
    Most extreme, generally (and rarely) used only for deliberations
  • 29. The People v. Bryant (2004)
    Alleged victim’s sexual history is accidentally released to the media
  • 30. The People v. Bryant (2004)
    Alleged victim’s sexual history is accidentally released to the media
    Justice Hobbs: Media should be forbidden to use it under Colorado’s rape shield law
  • 31. The People v. Bryant (2004)
    Alleged victim’s sexual history is accidentally released to the media
    Justice Hobbs: Media should be forbidden to use it under Colorado’s rape shield law
    Justice Bender: That violates the First Amendment
  • 32. The People v. Bryant (2004)
    Alleged victim’s sexual history is accidentally released to the media
    Justice Hobbs: Media should be forbidden to use it under Colorado’s rape shield law
    Justice Bender: That violates the First Amendment
    What do you think?
  • 33. Press-Enterprise II (1986)
    Press Enterprise I was about jury selection
  • 34. Press-Enterprise II (1986)
    Press Enterprise I was about jury selection
    This case is about pre-trial hearings
    Burger writes for the majority
    If it looks like a trial, then it should be treated like a trial and be open to the public
  • 35. Press-Enterprise II (1986)
    Press Enterprise I was about jury selection
    This case is about pre-trial hearings
    Burger writes for the majority
    If it looks like a trial, then it should be treated like a trial and be open to the public
    Grand-jury proceedings would be secret because secrecy is their very purpose
  • 36. Chandler v. Florida (1981)
    Nothing inherently unconstitutional about the presence of television cameras in court
  • 37. Chandler v. Florida (1981)
    Nothing inherently unconstitutional about the presence of television cameras in court
    Television journalists do not have a right to be in the courtroom
  • 38. Chandler v. Florida (1981)
    Nothing inherently unconstitutional about the presence of television cameras in court
    Television journalists do not have a right to be in the courtroom
    Same situation as today
  • 39. Chandler v. Florida (1981)
    Nothing inherently unconstitutional about the presence of television cameras in court
    Television journalists do not have a right to be in the courtroom
    Same situation as today
    What do you think?
  • 40. Other cases in brief
    Richmond Newspapers Inc. v. Virginia (1980)
    Murder trial closed after first three ended in mistrial
    Justice Burger: Right to attend criminal trials “implicit” in the First Amendment
    Trial can be closed only if there is a specific finding that it is necessary
  • 41. Other cases in brief
    Richmond Newspapers Inc. v. Virginia (1980)
    Press-Enterprise I (1984)
    Jury selection must be open to public in most cases
    Exceptions
    “Substantial probability” that defendant’s right to a fair trial would be harmed
    No reasonable alternative
  • 42. Other cases in brief
    Richmond Newspapers Inc. v. Virginia (1980)
    Press-Enterprise I (1984)
    California First Amendment Coalition v. Woodford (2002)
    All parts of an execution must be visible to the media, not just parts of it
    Attempts to close parts an “exaggerated response” to security concerns