Fair Trial v. Free Speech


Hilbert College

Issues in Mass Communication:

Fair Trial v. Free Speech

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(Note: This paper was written at the University of South Carolina)

by: Jill Martin

21 November 1999

The struggle between the right to a free press and the right to a fair trial has been contested for centuries, but the fight has become especially heated in the last 70 years. According to the First Amendment, "Congress shall make no law...abridging the freedom of speech or the press" (American Bar Association 1969); thus, the rights of the press are guaranteed. On the other hand, the Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed," a right supported also by the Fourteenth Amendment: "...nor shall any state deprive a person of life, liberty, or property without due process of law" (American Bar Association 1969). In theory, all three of these Amendments are equally valid and acceptable, but in practice, they have come into conflict (or at least appeared to come into conflict) hundreds of times.

From the lawyers' point of view, pretrial publicity can ruin the objectivity of a jury and thus obstruct the defendant's right to a trial by an impartial jury of his peers. According to Alfred Friendly, the press' coverage of crime has the most potential for harm in two cases: when it reports specific news items that either would not be allowed into court as evidence or are presented unexamined to jurors before the trial begins, and when the intensity and partisanship of its coverage creates a general bias in entire communities (Friendly 1967). Lawyers feel that the defendant's right of being considered innocent until proven guilty is jeapordized by this type of prejudicial publicity (Lofton 1997). Actual headlines such as "Ex-Con Admits He's Mad Dog Killer of Three" and "Beast Hunted in Robbery and Rape of Widow, 71" only serve to justify their concern (Friendly 1967).

One of the most disturbing instances of the media taking over a trial, sparking the modern dilemma, is the Lindbergh kidnapping case of the 1930s. Bruno Hauptmann found himself accused of kidnapping the Lindbergh baby in Flemington, NJ. The media jumped on the case; 141 reporters and photographers, 125 telegraph operators, and 20 messengers attended the trial, stirring up widespread condemnation of Hauptmann. The trial degenerated into a frenzied circus; the people in the courtroom actually applauded the state witnesses. The prosecutor in the case constantly gave newspaper interviews, and in his opening statements, he addressed the issue of the public uproar by saying, "I am not concerned about what the mob is clamoring for, as counsel refers to it, but you can bet your life that if there is a clamor from the people of this country for this man's conviction, I have sufficient faith in the American people to know that it is their honest belief and conviction that he is a murderer. Otherwise, there would be no clamor, if there is one" (Friendly 1967). Not surprisingly, Hauptmann was convicted. After this incident, both the law community and the public realized that the press may have more of an impact on trial outcomes than they had previously thought. Committees were formed to address the problem, but nothing came of them (Friendly 1967).

The battle between lawyers and journalists intensified further in 1954 with the Sheppard trial. On July 4, 1954, Dr. Daniel Sheppard, a wealthy man well-known in society, reported to police that his wife had been murdered. Although his account included a struggle with shadowy attackers whom he said committed the murder, the theory took hold that he had in fact killed her himself, over an infidelity battle, with one of his own surgical instruments. Both the trial judge and the assistant county prosecutor in the case were up for elections and wanted to boost public support; they were both supported by the newspapers. Two nearby newspapers, the Cleveland Press and the Plain Dealer, seemed to be competing with one another to see who could report the most sensational coverage of Sheppard's story. The Cleveland Press used the Sheppard case as its lead story for 23 straight days (excluding Sundays) even before Sheppard's arrest. Any favorable account of Sheppard was buried deep within the newspaper, while incriminating stories and editorials were plastered on the front pages. Coroner Samuel Gerber constantly gave opinions to the press, and other officials involved in the case seemed eager to leak any damning evidence they could find. Sheppard was convicted and spent 10 years either on trial or in jail. Finally, after a retrial, he was acquitted (Friendly 1967). What many do not know, however, is that the U.S. Supreme Court holds that the judge in the Sheppard trial was more at fault than the media for preventing Sheppard from having a fair trial, because he failed to take measures such as a delay until the publicity died down or a change of venue in order to ensure a fair trial. In fact, far from condemning the press and its role in covering crime, Tom Clark, speaking for the Supreme Court, stated, "A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field." He also said that the press "guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism" (Alexander 1999).

The press has long valued its role as a watchdog for justice, even as it sometimes markets its sensationalism for profit. Journalists fear that if they are blocked from reporting what goes on in the judiciary system, then injustice may take hold in courts shielded from public scrutiny (Lofton 1997). Journalists also act as champions of the First Amendment, probably the most famous of the Amendments, which guarantees basic freedoms, including freedom of speech and the press. According to Peter Kane, these freedoms are not priveleges; they are rights, no matter how they are used (1996). Judges in the past few decades have generally upheld these freedoms, even as they apply to criminal trials; in Nebraska Press Association v. Stuart (1976), the Supreme Court decided unanimously that the judge in a previous case should have considered alternatives besides press restraints in assuring a fair trial. In addition, in the case of Mu'Min v. Virginia (1991), the Court found that as long as jurors are questioned about their general ability to put aside pretrial information and their ability to decide a case solely on courtroom evidence, there are no grounds for overturning a conviction even when there was intense publicity about the case (Alexander 1999).

Some of the best solutions to the free press/fair trial problem involve balancing the First and the Sixth Amendments. According to Kane, those in the judicial system can protect Sixth Amendment rights without interfering with the First Amendment. This kind of balance, he says, was outlined after the Sheppard trial and actually demonstrated in the LaBianca murder trial (1996). Upon closer examination, the conflict between the two Amendments is not as clear as it at first seems. Professor Laurence Tribe determines that the Sixth Amendment places the burden of a fair trial entirely on the government, and it does not also give the government permission to invade other Constitutional rights in attaining this fair trial (Bunker 1997). Constitutional considerations aside, studies have found that pretrial publicity may not even affect jury impartiality. A study by the Institute of Communications Research at the University of Illinois shows that, although newspaper coverage affected jurors' initial opinions, it did not prejudice their verdicts. This study, which used a rather nonrepresentative sample, is not conclusive, but it is also not unsupported. In general, studies show that publicity does not affect jurors as much as people think (Friendly 1967).

Bibliography

The American Bar Association Legal Advisory Committee on Fair Trial and Free Press. (1974) Fair Trial/Free Press Voluntary Agreements. The American Bar Association Legal Advisory Committee on Fair Trial and Free Press.

The American Bar Association Legal Advisory Committee on Fair Trial and Free Press. (1969) The Rights of Fair Trial and Free Press. The American Bar Association Legal Advisory Committee on Fair Trial and Free Press.

American Bar Association Advisory Committee on Fair Trial and Free Press. (1968) Standards Relating to Fair Trial and Free Press. Institute of Judicial Administration.

Alexander, S. L. (1999) Covering the Courts: A Handbook for Journalists. University Press of America, Inc.

Avery, Donald R. (1997) "The Case of Lizzie Bordon (1893): 'Elizabeth Bordon Took an Axe.'" The Press on Trial: Crimes and Trials a Media Events. Greenwood Press.

Bennett, W. Lance. "The Press Coverage of the Hinckley Case: A Case Study of a Crime News Serial." Communication and Litigation: Case Studies of Famous Trials. Southern Illinois University Press.

Brummett, Barry. (1990) "Mediating the Laws: Popular Trials and the Mass Media." Popular Trials. The University of Alabama Press.

Bunker, Matthew D (1997) Justice and the Media: Reconciling Fair Trials and a Free Press. Lawrence Erlbaum Associates.

Bush, Chilton R. (1970) "What We Have Learned." Free Press and Fair Trial. University of Georgia Press.

Campbell, Douglas S. (1994) Free Press v. Fair Trial: Supreme Court Decisions Since 1807. Praeger Publishers.

The Special Committee on Radio, Television, and the Administration of Justice of the Association of the Bar of the City of New York. (1967) Freedom of the Press and Fair Trial: Final Report with Recommendations. Columbia University Press.

Daniel, Clifton and Paul C. Reardon. (1968) Fair Trial and Free Press. American Enterprise Institute for Public Policy Research.

Dardenne, Robert. (1997) "The Case of Charles Manson (1970): 'Plump, White Rabbits.'" The Press on Trial: Crimes and Trials a Media Events. Greenwood Press.

Freedman, Warren. (1988) Press and Media Access to the Criminal Courtroom. Quorum Books.

Friendly, Alfred and Ronald L. Goldfarb. (1967) Crime and Publicity: The Impact of News on the Administration of Justice. The Twentieth Century Fund.

Gerald, J. Edward. (1983) News of Crime: Courts and Press in Conflict. Greenwood Press.

Kane, Peter E. (1986) Murder, Courts, and the Press. Southern Illinois University Press.

Lofton, John. (1997) Justice and the Press. Beacon Press.

Sanford, Bruce W. (1999) "No Contest." Covering the Courts: Free Press, Fair Trials, and Journalistic Performance. Transaction Publishers.

Schmidt, Richard M. Jr. and Kevin M. Goldberg. (1999) "The Rearden Ruckus." Covering the Courts: Free Press, Fair Trials, and Journalistic Performance. Transaction Publishers.

Siebert, Fred S. (1970) "Trial Judges' Opinions on Prejudicial Publicity." Free Press and Fair Trial. University of Georgia Press.

Siebert, Fred S. (1970) "Access by Newsmen to Judicial Proceedings." Free Press and Fair Trial. University of Georgia Press.

Thaler, Paul. (1997) "The Case of O.J. Simpson (1995): 'No Closer to Greek Tragedy Than Oedipus Hertz.'" The Press on Trial: Crimes and Trials a Media Events. Greenwood Press.

Wilcox, Walter. (1970) "The Press, the Jury, and the Behavioral Sciences." Free Press and Fair Trial. University of Georgia Press.

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