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Freedom of the Press - News Gathering

court access public special

Another area addressed by the Court involved press claims that to effectively perform their duties for the public, government must provide special access to proceedings and institutions. However, the Court did not recognize such a general constitutional right of access except in criminal trials. The Court also did not recognize a journalist's privilege to withhold information in protecting news sources. Three cases addressed by the Court in 1972 involved reporters challenging subpoenas to testify before grand juries. In all, reporters claimed the promise of confidentiality was imperative to their information gathering activities. Significantly, the Court ruled in Branzburg v. Hayes (1972) that journalists do not have such privileges beyond ordinary citizens. A public interest in law enforcement prevailed over press rights. In Zurcher v. The Stanford Daily (1978) the Court also upheld police use of search warrants rather than subpoenas against news organizations. As a result, in 1980 Congress passed a law prohibiting newsroom searches by government officials except under special circumstances.

Access to public facilities was the topic of two Supreme Court cases in 1974, in Pell v. Procunier and Saxbe v. Washington Post. The Court rejected press claims to a special right of access by upholding rules restricting reporters' access to inmates, like citizens. The finding was further affirmed in the 1978 Houchins v. KQED ruling. The Court essentially held that the First Amendment does not require the government to allow special access not available to the public. Yet, the press does have an important societal role in keeping the public informed. The first issue addressed by the Court in press access to criminal trial proceedings involved protecting a defendant's right to a fair trial. In the 1960s and 1970s, many judges issued "gag orders" forbidding the press to publish certain information. In 1976 Nebraska Press Association v. Stuart the Court overturned a gag order. Some courts responded by closing pretrial hearings to minimize publicity. However, in 1980 in Richmond Newspapers, Inc. v. Virginia the Court ruled that except in rare cases, criminal trials must be open to the press. In 1986 the Court extended the right to pretrial hearings in Press-Enterprise Co. v. Superior Court of California. The entire criminal judicial system was opened to public scrutiny.

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