First Amendment vs. Sixth Amendment

Over the years, First Amendment protections of speech and the press have often clashed with the Sixth Amendment, which guarantees an accused individual in “all criminal prosecutions … the right to a speedy and public trial, by an impartial jury.” In 1954, for example, the Sam Sheppard case garnered enormous nationwide publicity and became the inspiration for the TV show and film The Fugitive. Featuring lurid details about the murder of Sheppard’s wife, the press editorialized in favor of Sheppard’s quick arrest; some papers even pronounced him guilty. A prominent and wealthy osteopath, Sheppard was convicted of the murder, but twelve years later Sheppard’s new lawyer, F. Lee Bailey, argued before the Supreme Court that his client had not received a fair trial because of prejudicial publicity in the press. The Court overturned the conviction and freed Sheppard.

Gag Orders and Shield Laws

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A major criticism of recent criminal cases concerns the ways in which lawyers use the news media to comment publicly on cases that are pending or are in trial. After the Sheppard reversal in the 1960s, the Supreme Court introduced safeguards that judges could employ to ensure fair trials in heavily publicized cases. These included sequestering juries (Sheppard’s jury was not sequestered), moving cases to other jurisdictions, limiting the number of reporters, and placing restrictions, or gag orders, on lawyers and witnesses. In some countries, courts have issued gag orders to prohibit the press from releasing information or giving commentary that might prejudice jury selection or cause an unfair trial. In the United States, however, especially since a Supreme Court review in 1976, gag orders have been struck down as a prior-restraint violation of the First Amendment.

“If you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a sound bite. Please don’t introduce that insidious dynamic into what is now a collegial court.”

SUPREME COURT JUSTICE ANTHONY KENNEDY, 2007

In opposition to gag rules, shield laws have favored the First Amendment rights of reporters, protecting them from having to reveal their sources for controversial information used in news stories. The news media have argued that protecting the confidentiality of key sources maintains a reporter’s credibility, protects a source from possible retaliation, and serves the public interest by providing information that citizens might not otherwise receive. In the 1960s, when the First Amendment rights of reporters clashed with Sixth Amendment fair-trial concerns, judges usually favored the Sixth Amendment arguments. In 1972, a New Jersey journalist became the first reporter jailed for contempt of court for refusing to identify sources in a probe of the Newark housing authority. Since that case, thirty-five states and the District of Columbia adopted some type of shield law, and other states (except Wyoming) have some shield law protection through legal precedent. There is no federal shield law in the United States, leaving journalists exposed to subpoenas from federal prosecutors and courts. Revelations that the U.S. Department of Justice had obtained phone records of the Associated Press renewed calls for a federal shield law in 2013.

Cameras in the Courtroom

The debates over limiting intrusive electronic broadcast equipment and photographers in the courtroom actually date to the sensationalized coverage of the Bruno Hauptmann trial in the mid-1930s. Hauptmann was convicted and executed for the kidnap-murder of the nineteen-month-old son of Anne and Charles Lindbergh (the aviation hero who made the first solo flight across the Atlantic Ocean in 1927). During the trial, Hauptmann and his attorney complained that the circus atmosphere fueled by the presence of radio and flash cameras prejudiced the jury and turned the public against him.

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MEDIA IN THE COURTROOM

Photographers surround aviator Charles A. Lindbergh (without hat) as he leaves the courthouse in Flemington, N.J., during the trial in 1935 of Bruno Hauptmann on charges of kidnapping and murdering Lindbergh’s infant son.

After the trial, the American Bar Association amended its professional ethics code, Canon 35, stating that electronic equipment in the courtroom detracted “from the essential dignity of the proceedings.” Calling for a ban on photographers and radio equipment, the association believed that if such elements were not banned, lawyers would begin playing to audiences and negatively alter the judicial process. For years after the Hauptmann trial, almost every state banned photographic, radio, and TV equipment from courtrooms.

As broadcast equipment became more portable and less obtrusive, however, and as television became the major news source for most Americans, courts gradually reevaluated their bans on broadcast equipment. In fact, in the early 1980s the Supreme Court ruled that the presence of TV equipment did not make it impossible for a fair trial to occur, leaving it up to each state to implement its own system. The ruling opened the door for the debut of Court TV (now truTV) in 1991 and the televised O.J. Simpson trial of 1994 (the most publicized case in history). All states today allow television coverage of cases, although most states place certain restrictions on coverage of courtrooms, often leaving it up to the discretion of the presiding judge. While U.S. federal courts now allow limited TV coverage of their trials, the Supreme Court continues to ban TV from its proceedings, but in 2000 the Court broke its anti-radio rule by permitting delayed radio broadcasts of the hearings on the Florida vote recount case that determined the winner of the 2000 presidential election.

As libel law and the growing acceptance of courtroom cameras indicate, the legal process has generally, though not always, tried to ensure that print and other news media are able to cover public issues broadly without fear of reprisals.