To accompany lecture on Sheppard v. Maxwell, Nebraska Press Association v. Stuart, and related cases on the clash between First and Sixth Amendment rights.

1. Free press, fair trial When constitutional rightscome into conflict

2. First Amendment “Congress shall make no law … abridging the freedom of speech, or of the press …”

4. Questions Is the First Amendment more important than the Sixth? Is the Sixth Amendment more important than the First?

5. Questions Is the First Amendment more important than the Sixth? Is the Sixth Amendment more important than the First? How might these rights come into conflict?

6. Prior restraint Unconstitutional in nearly all cases The Near v. Minnesota exceptions: National security Obscenity Incitement to violence, or “fighting words”

7. Prior restraint Unconstitutional in nearly all cases But denying someone a fair trial is also unconstitutional

8. Prior restraint Unconstitutional in nearly all cases But denying someone a fair trial is also unconstitutional When interests collide, courts muddle through on a case-by-case basis

9. “Lindbergh baby” case Lindbergh a national hero Hauptmann convicted after massive pretrial publicity Death penalty eliminated for kidnapping

10. Bruno Richard Hauptmann

11. Sam Sheppard case Illustrated the harm of pretrial publicity Led to a backlash against the media InspiredThe Fugitive

12. The Sheppards

13. The crime scene

14. Public inquest

15. Sheppard found guilty Judge Blythin (right) up for re-election Press allowed the run of the courtroom Sheppard sentenced to life in prison

16. Sheppard’s appeals Turned down by Ohio Court of Appeals and Ohio Supreme Court (1954 and ’55) U.S. Supreme Court denies cert (1955) Released on a writ of habeas corpus (1964) Conviction overturned by U.S. Supreme Court (Sheppard v. Maxwell, 1966) Acquitted in second trial (1966)

17. Sheppard’s sad end Became a professional wrestler Died in 1970 Who was the real killer?

18. Backlash against media Earl Warren (left) writes that Oswald could not have received a fair trial Gag orders and other restrictions on the media become increasingly common Where is the balance of interests?

19. Nebraska Press Associationv. Stuart (1976) The Burger Court limits the use of gag orders For all practical purposes, gag orders are ruled unconstitutional

20. Conditions for gag orders Pre-trial publicity would be extensive and pervasive

21. Conditions for gag orders Pre-trial publicity would be extensive and pervasive No alternative measures would offset the effects of the publicity

22. Conditions for gag orders Pre-trial publicity would be extensive and pervasive No alternative measures would offset the effects of the publicity A gag order would succeed in protecting the right to a fair trial

23. Alternative measures What are they?

24. Alternative measures Continuance Postpone trial until media frenzy blows over

25. Alternative measures Continuance Change of venue Move trial to a place where the crime is not so notorious

26. Alternative measures Continuance Change of venue Intensive voir dire Question prospective jurors as to whether they can remain fair and impartial

27. Alternative measures Continuance Change of venue Intensive voir dire Jury admonitions Remind jurors not to follow coverage in the media or to discuss the case

28. Alternative measures Continuance Change of venue Intensive voir dire Jury admonitions Sequestration Most extreme, generally (and rarely) used only for deliberations

29. The People v. Bryant (2004) Alleged victim’s sexual history is accidentally released to the media

30. The People v. Bryant (2004) Alleged victim’s sexual history is accidentally released to the media Justice Hobbs: Media should be forbidden to use it under Colorado’s rape shield law

31. The People v. Bryant (2004) Alleged victim’s sexual history is accidentally released to the media Justice Hobbs: Media should be forbidden to use it under Colorado’s rape shield law Justice Bender: That violates the First Amendment

32. The People v. Bryant (2004) Alleged victim’s sexual history is accidentally released to the media Justice Hobbs: Media should be forbidden to use it under Colorado’s rape shield law Justice Bender: That violates the First Amendment What do you think?

33. Press-Enterprise II (1986) Press Enterprise I was about jury selection

34. Press-Enterprise II (1986) Press Enterprise I was about jury selection This case is about pre-trial hearings Burger writes for the majority If it looks like a trial, then it should be treated like a trial and be open to the public

35. Press-Enterprise II (1986) Press Enterprise I was about jury selection This case is about pre-trial hearings Burger writes for the majority If it looks like a trial, then it should be treated like a trial and be open to the public Grand-jury proceedings would be secret because secrecy is their very purpose

36. Chandler v. Florida (1981) Nothing inherently unconstitutional about the presence of television cameras in court

37. Chandler v. Florida (1981) Nothing inherently unconstitutional about the presence of television cameras in court Television journalists do not have a right to be in the courtroom

38. Chandler v. Florida (1981) Nothing inherently unconstitutional about the presence of television cameras in court Television journalists do not have a right to be in the courtroom Same situation as today

39. Chandler v. Florida (1981) Nothing inherently unconstitutional about the presence of television cameras in court Television journalists do not have a right to be in the courtroom Same situation as today What do you think?

40. Other cases in brief Richmond Newspapers Inc. v. Virginia (1980) Murder trial closed after first three ended in mistrial Justice Burger: Right to attend criminal trials “implicit” in the First Amendment Trial can be closed only if there is a specific finding that it is necessary

41. Other cases in brief Richmond Newspapers Inc. v. Virginia (1980) Press-Enterprise I (1984) Jury selection must be open to public in most cases Exceptions “Substantial probability” that defendant’s right to a fair trial would be harmed No reasonable alternative

42. Other cases in brief Richmond Newspapers Inc. v. Virginia (1980) Press-Enterprise I (1984) California First Amendment Coalition v. Woodford (2002) All parts of an execution must be visible to the media, not just parts of it Attempts to close parts an “exaggerated response” to security concerns