Publicity in Criminal Cases

Remedies designed to prevent potentially prejudicial press from occurring are also sometimes used to help ensure an impartial jury. However, the First Amendment imposes significant limitations on the trial judge's use of these approaches.

A gag order on the press, prohibiting publication of information that the press has secured, is rarely acceptable under the First Amendment. In Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), the Supreme Court struck down such a gag order imposed by a state judge in connection with a notorious murder case being tried in a small Nebraska town. The Supreme Court concluded that such orders were presumptively unconstitutional, but not that they were always impermissible. Indeed, in connection with the federal trial of former Panamanian dictator Manuel Noriega, the United States Court of Appeals, in United States v. Noriega, 917 F.2d 1543 (1990), upheld a narrowly tailored gag order imposed by the trial judge on the Cable News Network, and the Supreme Court declined review. The order concerned certain tapes of purportedly private conversations between Noriega and his lawyers that the network had obtained. Arguably, these were unusual circumstances in which a gag order on the press was allowed by Stuart. However, the Supreme Court's denial of review does not necessarily indicate the Justices' view on the issue. Many legal commentators have concluded that the Stuart decision imposes a barrier to the use of gag orders on the press that can rarely be surmounted.

Likewise, the imposition of civil or criminal penalties on the press for the publication of information regarding criminal cases is generally impermissible. Tort law, particularly for defamation, may sometimes provide a sanction for the knowing publication of untruthful information related to a criminal case. Supreme Court decisions suggest that the First Amendment would otherwise rarely allow civil or criminal sanctions for the publication of information about criminal cases. For example, in Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978), the Court held unconstitutional, as applied, a state statute criminalizing the publication of information about proceedings conducted by a state judicial tenure commission. The Justices concluded that internal procedures within the commission could largely address the purposes of the statute. Moreover, in Smith v. Daily Mail Publishing Company, 443 U.S. 97 (1979), the Supreme Court struck down a state statute making it a misdemeanor for a newspaper to publish the name of a juvenile offender without written permission from a court. The Justices declared that such a sanction requires "the highest form of state interest" to sustain its validity and implied that the availability of alternative remedies should be considered. In light of the array of less draconian measures commonly employed to protect against prejudicial publicity in criminal cases, this option appears generally unavailable.

Because of the obstacles to preventing the media from divulging information it secures, courts sometimes try to cut off the media's sources by imposing gag orders on attorneys and other participants in the criminal case. In Sheppard v. Maxwell, (384 U.S. 333, 359 (1966)), the Supreme Court criticized the trial judge for failing to make efforts to "control the release of leads, information, and gossip to the press" and later asserted that the judge "might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters." The Supreme Court has also more recently held, in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), that an attorney may be sanctioned, after the fact, for speech about pending litigation to the extent that the statements create a "substantial likelihood" of material prejudice to the case. However, the Court has not ruled on when a trial court may impose a prior restraint on attorney speech, and there has been substantial disagreement on this issue. The Supreme Court also has not ruled on whether a trial judge can impose a gag order on the speech of various other non-attorney participants, such as witnesses, to the same extent as that of attorneys, and, despite the language in Sheppard, the answer is not clear. It is also uncertain what authority the judge may have to impose a gag order on government officials, such as police officers, who are not participants in the criminal proceedings.

Courts also can order closure of judicial proceedings in limited circumstances, though the First Amendment generally protects the press's right of access to the courts. In Gannett Co. v. DePasquale, 443 U.S. 368 (1979), the Supreme Court held that the "public trial" provision in the Sixth Amendment confers no right on strangers to be present when the defendant waives a public trial. However, the Court subsequently held in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), that the First Amendment does confer a right of public access to the trial. The Court has also held in Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ("Press-Enterprise I"), that there is a First Amendment right of access during the voir dire of the jury, which usually occurs immediately before the trial. In Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) ("Press-Enterprise II"), the Court also held that the First Amendment right of access extends to the preliminary hearing, a proceeding that comes shortly after arrest and well before the trial. It appears that this same right of access applies at all pretrial hearings, with the exception of grand jury proceedings, which historically have been secret.

The First Amendment right of access is not absolute. In Globe Newspaper, the Court held that denial of press access at trial is possible if it is shown "that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." However, given the alternative of jury sequestration, this standard for closure of trial appears quite difficult to meet. For closure of a pretrial proceeding, the Court, in Press-Enterprise II, stated that a defendant must show a "substantial probability" of prejudice from an open proceeding and that other "reasonable" alternatives to closure will not protect the right to an unbiased jury. Commentators have indicated that trial courts may have more room under the First Amendment to order closure of pretrial hearings than of the trial itself.

Finally, courts have substantial authority to impose limitations on media in the courtroom. In Sheppard v. Maxwell, the Supreme Court stated that trial courts may limit the number of reporters in attendance. Likewise, courts may restrict the use of cameras. After criticisms raised by overwhelming media coverage in the trial of Bruno Richard Hauptmann in 1935, the American Bar Association House of Delegates adopted Judicial Canon 35, which recommended against photographic or broadcast coverage of court proceedings. Only a small number of states allowed the photographic broadcasting of trials through the 1960s. Since the 1970s, however, there has been a trend among the states toward allowing television cameras in courtrooms, although the circumstances in which they are permitted vary. This trend was so marked, that by 1991, the Courtroom Television Network began nationwide broadcasts on a full-time basis of more sensational trials from state courts across the country. Indeed, by the end of the century, only a tiny number of states, along with the federal government, still banned television cameras altogether from trial courtrooms.

Strong arguments for and against television cameras in the courtroom have been made on both the policy level and on the level of constitutional law. The policy arguments for cameras cover many of the same grounds as those for basic press coverage of the courts. Education of the public about the judicial process is an over-riding theme. The arguments against cameras build on the view that they make the proceedings more politicized and less judicial. These arguments have taken on more credence in the wake of criticism that arose over the televised broadcasts of the O. J. Simpson criminal trial.

At the level of constitutional law, states and the federal courts appear to have substantial flexibility in deciding whether to permit and how to regulate cameras in their courtrooms. In Estes v. Texas, the Supreme Court reversed a conviction as a matter of due process based on prejudice resulting from the chaos surrounding the televising of the proceedings. However, after advancement in camera and lighting technology, the Court later upheld Florida's decision to allow cameras in the courtroom. In Chandler v. Florida, 449 U.S. 560 (1981), the Court ruled that, while the coverage should not compromise the defendant's right to a fair jury, cameras in the courtroom were not generally proscribed. The Court in Chandler did not suggest that the First Amendment creates a presumption favoring camera access. The Court's decision in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), rejecting a claim that the First Amendment required a court to relinquish subpoenaed tapes for copying, also raises doubt that the Court would reach such a conclusion. Commentators have argued that the press's right of access to the courts, first recognized in Globe, in 1982, should create such a presumption. However, at the end of the century, it remained up to each jurisdiction to decide whether to ban cameras from the courtroom or, instead, to permit them under regulations that would protect the criminal defendant's right to a fair proceeding.