Mass Communication Law in a Nutshell by T. Barton Carter & Juliet Lushbough Dee & Harvey L Zuckman

Author:T. Barton Carter & Juliet Lushbough Dee & Harvey L Zuckman
Language: eng
Format: epub
ISBN: 9781640204058
Publisher: West Academic
Published: 2020-10-15T00:00:00+00:00

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Chapter VIII

The Free Press-Fair Trial Conflict

A.The Problem

1.Introduction

The Sixth Amendment guarantees that in criminal prosecutions the accused shall be entitled to a speedy and public trial “by an impartial jury.” This constitutional mandate implies that jurors must not be influenced in their determination of the guilt or innocence of the accused by forces outside the courtroom or by information or material not admitted into evidence at the trial.

If journalists report on a defendant’s past criminal record or the fact that he or she has made a confession, the impartiality of individual jurors may be compromised. Because accused persons are entitled only to “impartial” juries and not favorably biased ones, judges must guard against adverse publicity toward the prosecution as well as toward the defendant.

In addition, the criminally accused may not be deprived of life, liberty or property without due process of law, as guaranteed by the Fifth Amendment. Journalists can impede due process by generating pressure on the trial judge through editorial content. Journalists can also disrupt the repose of the courtroom, making fair procedure and calm deliberation difficult if not impossible.

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The problem for the courts in attempting to safeguard an accused’s Fifth and Sixth Amendment rights arises out of the potentially conflicting guaranty of the First Amendment that Congress shall make no law abridging freedom of the press. This guaranty is interpreted to include court orders. Thus, if a judge issues an order designed to assure a fair and impartial trial but which restricts the press, the order may run afoul of the First Amendment. Some restrictive orders, particularly those that bar newspersons from the courtroom, may also violate the “public trial” requirement of the Sixth Amendment itself.

While most of the potential conflicts between fair trial and free press might be avoided by the exercise of restraint and common sense by the media, judiciary, trial participants and law enforcement officials, these qualities are sometimes in short supply, especially in criminal cases of great public interest. Then the conflict becomes real and troublesome. One example will suffice to illustrate the extreme bounds of the problem.

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