This chapter 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. It examines the effects of press coverage of criminal investigations and trials on the ability of society to successfully and fairly prosecute criminals. As such, it offers another illustration of the Court’s continuing struggle to balance competing rights.

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.

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. 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. A fair trial requires impartial jurors and an impartial judge. Media exposure may cause potential jurors to form fixed ideas about the guilt of the defendant before a trial begins. While studies disagree on whether publicity harms juror deliberations and verdicts, courts struggle with the effect of media on court processes. 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 to the U.S. Constitution guarantees criminal defendants the right to a speedy and public trial before an impartial jury to be held in the district where the crime was committed. The U.S. Supreme Court has determined that the right to an open public trial belongs to the public as well as the defendant. To protect these important components of justice, courts take care in composing juries and in protecting the court’s fair process from external influences, including media. The careful selection of jurors includes both the drawing of a fair cross section of the community and the detailed questioning of potential jurors through voir dire. Judges also use admonitions, instructions, and sequestration to encourage jurors to consider only the evidence presented in court in rendering a verdict. Judges use both civil and criminal contempt citations to force participants in the trial to comply with their orders. On occasion, judges will delay or relocate a trial to overcome impediments to fairness. These remedies are rare because they are expensive and interfere with the right to a speedy trial.

Starting in the 1980s, the Supreme Court established that the First Amendment and common law provide a public right to attend criminal trials and many of the hearings associated with trials. The presumption of open proceedings extends to pretrial hearings and voir dire. It may also include other historically open proceedings integral to the trial process. Criminal trials are presumptively open unless the individual seeking to close the trial can show with clear evidence that closure is vital to serve a compelling government interest, such as the fairness of the trial. Some states provide translators in the courtroom to enhance true inclusion of non-native English speakers.

Closures must be limited in scope and duration to provide the broadest possible public access. Grand jury proceedings are closed as are some juvenile proceedings. Laws that automatically close parts of trials are not constitutional. Rather than close trials, court restraining orders that limit public discussion of trials may reduce prejudicial publicity. Gags on trial participants are constitutional if a substantial likelihood exists that publicity would harm the fair trial rights of the defendants. Direct gags on the media rarely are constitutional. However, lengthy appeals may effectively uphold gags that impede trial coverage. Trial observers can challenge the closure of court sessions as individuals or through attorneys.

While the Supreme Court has ruled that cameras are not inherently prejudicial to fair trials, judges in many courts have discretion to permit, deny, or delineate the ability of cameras and other electronic technologies to cover court proceedings. Electronic access to courts varies widely based on distinct court rules and policies established by at either the federal or state level. Most courts allow some electronic coverage during some of their proceedings, but federal trial courts generally are closed to cameras. Judges, attorneys, and scholars continue to debate the costs and benefits of real-time coverage of trials, with some jurisdictions expanding experiments with cameras and web coverage, others moving away, and still others waiting to see the effects of ongoing experiments.

Many states have adopted voluntary bench-bar-press guidelines to delimit the appropriate bounds of media coverage of courts and the proper conduct of trial participants in interactions with the media. Some media organizations choose not to endorse the guidelines out of fear that courts will attempt to enforce them as binding contracts, limiting their editorial discretion in covering judicial proceedings.

The U.S. Supreme Court long has recognized a common law right of public access to court records. This right is not unlimited, and it is shaped by the specific access rules established in each court jurisdiction. State constitutions, public records laws, and court rules vary widely on whether and how they treat public access to court records. Court systems increasing make records accessible online. Restrictions that apply to some information held in courthouse files may be overcome when records are presented in an open courtroom, but those limitations may expand when records go online. Most records presented in court are presumptively open, but may not remain open permanently.

Courts generally must exhaust all reasonable alternatives before sealing presumptively open court records. National security concerns and state secrets privilege sometimes close court records, including any mention of some cases in progress. The U.S. Supreme Court has said media cannot be punished for accurately publishing information legally obtained from court records even when state law prohibits dissemination of the information. The media have no extraordinary right of access to court records that exceeds the right of the public.