Proposal, Outline and Annotated Bibliography
Free Press, Fair Trial:
Where Rights Conflict
I am proposing a research paper on the conflict between the constitutional rights inherent in the First Amendment’s guarantee of freedom of the press vs. the Sixth Amendment’s fair-trial guarantee. I will use an introductory anecdote from my own career in newspapers in which I as an editor along with a cop reporter ran head-on into the conflict while putting together a story about a double-homicide. The well reported story included several graphic details along with a purported confession by the suspect. After we spent an entire evening putting it together, two editors the next morning before deadline redacted most of the more salacious details and also cut the confession out entirely.
The executive editor then wrote an ombudsman column about the incident explaining his philosophy in regards to press-bar guidelines that the paper tried to adhere to.
This paper will then briefly review the history of the free-press, fair-trial conflict, weaving in especially some of the major court cases surrounding the issue in the past half century, some of whose dictates regarding trial remedies only exacerbated the conflict and led to more lawsuits over the issue. This paper will also look at some solutions to the conflict and what other countries do to deal with the conflict.
A. Anecdote taken from own experience
1. Cop story full of details and confession.
2. Redacting by city editor and executive editor before publication.
3. Executive editor’s explanation.
II. Look back at free-press, fair-trial conflict
A. Historical roots
1. Aaron Burr, etc.
2. First Amendment
3. Sixth Amendment
B. Brief history of last half century re: free-press, fair trial conflict
1. Court cases
2. Pendulum swings with rulings
3. Arguments that tilt toward fair trial
4. Arguments that tilt toward free press
III. Prescriptive solutions to free-press, fair-trial conflict
A. What other countries do
B. Trial and pretrial remedies
C. Press restraint and press-bar guidelines
Adam, G. Stuart. “The Thicket of Rules North of the Border.” In Covering the Courts: Free Press, Fair Trials & Journalistic Performance, ed. Robert Giles and Robert W. Snyder, 25-31. New Brunswick, New Jersey: Transaction Publishers, 1999.
Article explores how Canada deals with free-press, fair-trial issues by restricting coverage of trials while they are proceeding.
Bass, Warren. “Silence of the Press: Canada’s Horrific Unreported Trial.” Columbia Journalism Review, September/October 1993. Accessed on Lexis-Nexis on April 3, 2003.
Article explores the coverage of a murder trial in Canada that involved a sweeping ban on press coverage that went far beyond the normally restrictive Canadian law that already tilts more toward the fair-trial side than the free-press side.
Blasi, Vincent. “The Checking Value in First Amendment Theory.” American Bar Foundation Research Journal. Summer 1977, 523-649.
A classic study that explores and affirms the media’s watchdog role.
Costa, John. “News Is Frequently Short on Perspective, but Rarely Cheated of Irony.” The (Bend, Ore.) Bulletin, 7 April 2002.
The executive editor of The Bulletin in Bend, Ore., explains in a column why a newspaper does not publish everything it knows about a crime.
Cowen, Zelman, Alfred Friendly, Gene Blake, Donald H. McGannon, and W.H. Parker. Fair Trial vs. A Free Press. Santa Barbara, California: Center for the Study of Democratic Institutions, 1965.
This collection of essays looks at the issue of free-press, fair trial from several different angles.
Estes v. Texas, 381 U.S. 532 (1965).
The U.S. Supreme Court overturns the conviction of a financier accused of swindling because the televising and broadcasting of the defendant’s trial denied him due process of the law.
Fair Trial and Free Expression. Washington, D.C.: U.S. Government Printing Office, 1976.
This is a background report on the issue prepared for and presented to the Subcommittee on Constitutional Rights of the U.S. Senate Committee on the Judiciary.
Friendly, Alfred and Ronald L. Goldfarb. Crime and Publicity: The Impact of News on the Administration of Justice. New York: The Twentieth Century Fund, 1967.
This is a broad and extensive look at the free-press, fair-trial issue that ranges from the United States to Britain and covers both the problem and proposed solutions.
Gannett v. Depasquale, 443 U.S. 368 (1979).
The U.S. Supreme Court held that barring members of the press and public from a pretrial suppression hearing did not violate the Constitution.
Gerald, Edward J. News of Crime: Courts & Press in Conflict. Westport, Connecticut: Greenwood Press, 1983.
This study focuses on the mass media reporting of crime and its conflict with the courts over fair-trial issues.
Hanson, Christopher. “Weighing the Costs of a Scoop: How a Sniper Trapped the Press
in an Ethical No-Man’s Land.” Columbia Journalism Review, January/February 2003. Accessed on Lexis-Nexis on April 3, 2003.
A former print reporter who now teaches journalism ethics at the University of Maryland explores the free-press, fair-trial dilemma surrounding the Washington Post's publication of the purported confession of one of the D.C.-area sniper suspects.
Hentoff, Nat. “Javert of ‘Les Miserables’ Lives: A Prosecutor’s Revenge.” The Village Voice, 2 April 2002. Accessed 3 April 2003 at http://www.villagevoice.com/issues/0215/hentoff.php
A columnist explores the use of prejudicial pre-trial publicity by a prosecutor in a case involving a police officer accused of torturing Abner Louima.
Meiklejohn, Alexander. Free Speech and Its Relation to Self-Government. New York: Harper & Brothers, 1948.
A noted philosopher explores what the First Amendment’s guarantee of free speech means. He says the sole consideration in whether freedom of speech as embodied in the First Amendment is an absolute or qualified right is whether that expression contributes to successful self-government.
Nebraska Press Association v. Stuart. 427 U.S. 539 (1976)
Supreme Court ruling that restored the media’s right to report on preliminary hearings.
Oregon State Bar-Press-Broadcasters Joint Statement of Principles, 1993. Accessed 3 April 2003 at http://www.openoregon.com/New .../Statement of Principles.shtm).
A list of principles that many media outlets still follow when dealing with issues of free-press vs. fair trial.
Otto, Jean. “Covering ‘Confession’ just part of process.” Rocky Mountain News, 6 April 1997. Accessed on Lexis-Nexis on 3 April 2003.
A newspaper ombudsman polls the public about the rightness or wrongness of publicizing a purported confession by Timothy McVeigh.
Pember, Don R. “Does Pretrial Publicity Really Hurt?” Columbia Journalism Review, September/October 1984, 16-20.
A noted media law expert and longtime journalism professor at the University of Washington considers the question of the effect of pretrial publicity on trials.
Reardon, Paul C. and Clifton Daniel. Fair Trial and Free Press. Washington, D.C.: American Enterprise Institute for Public Policy Research, 1968.
This is a debate in book form between then Massachusetts Supreme Court Justice Paul C. Reardon and then New York Times Managing Editor Clifton Daniel.
Riley, Sam G. “Pretrial Publicity: A Field Study.” Journalism Quarterly. Summer 1973, 17-36.
This survey of potential jurors in the case of Army Green Beret Capt. Jeffrey MacDonald for the murder of his wife and two children found that while publication that a person is a suspect in a crime leads to bias and prejudgment, a majority of respondents did not prejudge the captain.
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).
U.S. Supreme Court held that a state trial judge’s order – at the request of the defendant – to close a murder trial violated the First and Fourteenth Amendments.
Sanford, Bruce W. “No Contest: The Trumped-Up Conflict Between Freedom of the Press and the Right to a Fair Trial.” Media Studies Journal, Winter 1998, 2-9.
The author, an authority on communications law and general counsel to the Society of Professional Journalists, says that safeguards to protect the right to fair trial from pretrial publicity are sufficient and that one overriding theme of the past 40 years is that the courts need an aggressive, probing media to act as a check on judicial power.
Schmidt, Richard M. and Kevin M. Goldberg. “The Reardon Ruckus.” Media Studies Journal, Winter 1998, 18-23.
Study notes that when media feared that courts and government were going to clamp down on access to the courts, the American Association of Newspaper Editors became one of the original sponsors and creators of media guidelines on press coverage.
Sheppard v. Maxwell, 384 U.S. 333 (1966).
U.S. Supreme Court overturned defendant’s conviction for the slaying of his wife and children because of the pretrial and trial publicity, and in the process outlined some trial remedies that courts could take to protect a defendant’s right to a fair trial.
Siebert, Fred S. “Trial Judges’ Opinions on Prejudicial Publicity.” In Free Press and Fair Trial: Some Dimensions of the Problem, ed. Chilton R. Bush. Athens: University of Georgia Press, 1970, 1-22.
This study showed that about 75 percent of those judges surveyed said they believed trial-level remedies such as voir dire, change of venue, change of venirement, continuance, admonition and sequestration are either highly or moderately effective as safeguards against pretrial publicity.
Wilcox, Walter. “The Press, the Jury and the Behavioral Sciences.” In Free Press and Fair Trial: Some Dimensions of the Problem. ed. Chilton R. Bush. Athens: University of Georgia Press, 1970, 49-73.
The author explores the problem of achieving valid results through studies of how variables such as pre-trial press coverage affect juries.