Chapter 8 focuses on the laws affecting journalists’ attempts to access sessions and records of the judicial branch. It also addresses the fundamental tension between the First Amendment rights of freedom of speech and of the press, and the Sixth Amendment right of fair and open public trials.

The fair trial/free press debate presents fundamental concerns about newsgathering as well as publication, and the chapter deals with the use of reporters themselves as sources, the ethical and legal obligation to protect confidential sources, and the extent and limits of judicial powers to punish disobedience or disruption of its proceedings. This includes whether journalists may be compelled to share information in their possession and the effects press coverage has on criminal investigations and trials and on the ability of society to prosecute criminals successfully and fairly. As such, it offers another illustration of the Court’s continuing struggle to balance competing rights.

The Sixth Amendment guarantees criminal defendants the right to a speedy trial by an impartial jury in the district where the crime was committed. A fair trial requires impartial jurors and an impartial judge. This does not mean jurors must be ignorant of the crime. It means they have no fixed idea about guilt or innocence and will determine guilt based only on the evidence presented in court. Media coverage of crime often includes details about the crime scene, evidence, arrests, the character and criminal history of the defendant, and the charges. Some of the information presented in the news may be incorrect or may not be admissible in court. Some of it may be highly prejudicial. While studies disagree on whether publicity harms juror deliberations and verdicts, courts struggle with the effect of media on court processes. Although the media have a First Amendment right to publish this information, such pretrial publicity may undermine the defendant’s Sixth Amendment right to a fair trial.

Voluntary bench/bar/ press guidelines suggest limits to the content of media coverage of ongoing law enforcement investigations and trials.

The U.S. Supreme Court ruled that judges must withdraw from proceedings when there is substantial likelihood of a risk of bias. State laws designed to protect the appearance of judicial impartiality by prohibiting judges from taking public stands on issues that may come before them in court are unconstitutional. The Sixth Amendment guarantee of a speedy trial does not extend to speedy sentencing.

Beginning with Justice Harry Blackmun’s concurrence in Gannett v. DePasquale, the U.S. Supreme Court has increasingly made clear that the right to an open public trial belongs to the public as well as the defendant. In Richmond Newspapers v. Virginia, the Supreme Court established that both the First Amendment and common law provide a public right to attend criminal trials. The presumption of openness extends to pretrial hearings, voir dire and other historically open proceedings. Both Richmond Newspapers and Globe Newspaper v. Superior Court precedents strictly limit the government’s ability to require the closure of certain portions of trials. Rather, the two Press-Enterprise cases created tests to determine when proceedings are open and when they may be closed. The experience and logic test states that “historically open” proceedings in which openness enhances the process itself are presumptively open. Such presumptively open proceedings may be closed only if the party seeking closure can demonstrate the high probability that (1) openness would infringe on the right to a fair trial, (2) alternatives to closure would be inadequate and (3) closure would protect fair trial effectively.

Cameras do not enjoy the same presumptive right of access to trials under the Supreme Court’s ruling in Chandler v. Florida. Although cameras are not inherently prejudicial to fair trials, broadcast and new media access to courts is not guaranteed. Some studies suggest, and some jurists agree, that use of new media (especially by jurors and judges) undermines the integrity and solemnity of court proceedings. The Supreme Court disfavors cameras. Some courts in every state allow cameras. Judicial discretion, rules of criminal procedure and precedent generally determine access for cameras, broadcasting and new media. Court administrative offices increasingly use these technologies to facilitate their processes and enhance public access.

Both the First Amendment and the common law rights of access court records are less extensive than the right of access to criminal trials. In Nixon v. Warner Communications, the Supreme Court held that courts are not required to make all records in the possession public. Courts may and do withhold materials that are available through other avenues and/or that are not presented in open court. However, the Press-Enterprise cases established that transcripts of court proceedings released after the fact are not sufficient to ensure public confidence. Generally, court rules and policies and state laws (sometimes) determine access to court records not presented in open courtrooms. Thirty years ago, before most people became more comfortable with the ease of electronic access, the Supreme Court’s decision in Department of Justice v. Reporters Committee for Freedom of the Press suggested that readily searchable electronic records posed a heightened threat to privacy and other interests that might justify limits on electronic access. Nonetheless, electronic access to both state and federal court records eases gathering of these materials.

To protect judicial proceedings, courts take care in composing juries and in limiting the influence of external sources, including media. Since the Supreme Court’s ruling in Sheppard v. Maxwell more than 60 years ago, courts have used both careful selection of a jury pool that draws a good cross-section of the community and detailed voir dire questioning of potential jurors to protect trial fairness. Judges also use admonitions, instructions, and sequestration to encourage jurors to consider only the evidence presented in court in rendering a verdict. The Supreme Court established in Mu’Min v. Virginia that judges enjoy some latitude to impose reasonable, narrowly drawn restraining orders that limit the speech of trial participants.

Court restraining orders that limit trial participants’ extrajudicial discussion of trials generally are constitutional if a substantial likelihood exists that publicity would harm the fair trial. However, gags on the media rarely are constitutional. After Nebraska Press Association v. Stuart, courts must consider three things before imposing a media gag: (1) the amount of harmful media coverage, (2) the potential effectiveness of alternatives to a gag, and (3) the likelihood that a gag would remedy the harmful publicity.

Both civil and criminal contempt citations force trial participants to comply with court orders. On occasion, judges will delay or relocate a trial to overcome impediments to fairness, including excessive and prejudicial media coverage. These remedies are rare because they are expensive and interfere with the right to a speedy trial. Limits on identifying jury members are controversial and should pass the Press-Enterprise test.

Due to the increased sensitivity of juvenile defendants, victims and witnesses, juvenile proceedings do not have the same degree of openness as trials involving adults. Many juvenile proceedings are presumptively closed, while others may be closed with a less stringent showing of need. State laws vary greatly in their approach to the openness of juvenile proceedings. Many states passed rape shield laws to respond to similar concerns about open sexual assault proceedings, even when they involve adults. National security concerns also increase the likelihood of closed proceedings, and a preponderance of the proceedings and records of the special courts that hear Foreign Intelligence Surveillance Act cases involving alleged terrorism are sealed.

However, laws that automatically close presumptively open trials are unconstitutional. Closures of presumptively open trial proceedings must be justified on the grounds that they are essential to preserve the fair trial process. Such closures should meet the Press-Enterprise test that requires them to be narrowly tailored and the only effective alternative to prevent a substantial threat to a fair trial. Special rules and conditions limit access to trials involving juveniles, sexual assaults or state secrets and national security issues.

While it has long been accepted that certain communication between certain individuals is privileged (client/lawyer, spouse/spouse, or patient/doctor), the application of such a privilege to journalists is far more controversial and far less certain. When information is shared in confidence, the concept of privilege obtains because forcing lawyers or doctors to reveal such information would severely reduce the flow of information and harm their professional practice and judgment. Many journalists and their advocates claim a similar kind of privilege should exist when journalists obtain information from sources, particularly sources that provide information only on the condition of confidentiality. Some argue that the First Amendment freedom of the press clause should be read to grant this privilege.

However, judges have the power to force individuals to provide evidence essential to the legal proceeding. Subpoenas that order reporters to appear in court and testify (even to the identities of confidential sources) are legal. Properly issued search warrants of reporters and newsrooms also are legal under the First Amendment, the Supreme Court held in Zurcher v. Stanford Daily. Somewhat similar to a subpoena that compels compliance, a search warrant authorizes law enforcement agents to look for materials on a specific site. However, whereas subpoenas do not demand immediate compliance, search warrants do. To blunt the effects of the Court’s ruling in Zurcher, Congress passed the Privacy Protection Act. The act restrains the scope and authority of law enforcements to search newsrooms. As more generally, national security concerns may override legal protections.

Only an uncertain and qualified reporter’s privilege to refuse to disclose confidential information sometimes protects journalists. The U.S. Supreme Court in Branzburg v. Hayes (1972) sketched out the elements of this privilege. The Court said privilege does not apply when there is a showing that (1) there is probable cause to believe the reporter has clearly relevant information, (2) the information cannot be obtained by other means that are less intrusive of First Amendment values, and (3) there is a compelling and overriding interest in the information. This limited privilege is unclear in many respects, including to whom it applies. The Supreme Court was very clear that no reporter’s privilege exists in grand jury situations. In the Branzburg ruling – itself complex and convoluted – the Court suggested that state and federal lawmakers should consider legislation that would provide the kind of protection reporters had been seeking.

Some state constitutions and state shield laws may protect news personnel from disclosing confidential information. The scope and application of shield laws vary broadly. Shield law rulings are extremely fact-specific. The lack of uniformity – not merely across shield laws, but more broadly, in the realm of reporter’s privilege – is significant. Congress has not passed a federal shield law.

When reporters refuse to comply with a subpoena, they may be charged with contempt (criminal or civil) of court and sentenced to jail. Reporters may challenge subpoenas in court on First Amendment grounds or under federal criminal and civil rules. The three-part Branzburg test often determines whether the privilege stands. If the subpoena is not quashed, reporters must comply. Failure to comply may result in jail and fines. Recent studies suggest that state court contempt citations against reporters are increasing with some newsgatherers spending lengthy stretches in jail.

Trial observers may challenge the closure of court sessions but should get an objection on the court’s record at the time of the closure order.

Outline

I. Access to Courts and Court Records

1. Presuming the Openness of Trials
2. Broadcasting and Recording Court Proceedings
3. Using Newer Technologies in the Courts
4. Accessing Court Records
5. Electronic Access to Court Records

1. Following Sheppard
   
   1. Selecting Jurors
   2. Instructing the Jury
   3. Sequestering the Jury
   4. Relocating the Trial
   5. Delaying the Trial
   6. Making Juries Anonymous
   7. Limiting Speech Outside the Court
2. Impartial Judges

III. Balancing Interests

1. Requiring Evidence
2. Penalizing Failure to Comply
3. Protecting Juveniles
4. Protecting Sexual Assault Victims
5. Protecting State Secrets and National Security
6. Closing Courts

IV. Advancing the Flow of News

1. Guiding Media Coverage of Courts
2. Protecting Confidential Information
3. Providing a Limited Privilege
4. Applying Shield Laws
5. Clarifying What Shield Laws Cover
6. Finding Other Protections
   
   1. The Privacy Protection Act
   2. Facing National Security Claims
7. Challenging Court Closures