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Following the rulings in Nebraska Press Association v. Stuart and other prior restraint cases, it’s generally understood that courts almost never uphold requests for halts to publication, even if it means protecting a fundamental right, such as a defendant’s right to a fair trial. The Supreme Court has endorsed in Sheppard v. Maxwell (and later in Nebraska Press Association) gag orders on trial participants as a viable alternative to gag orders of the press.
Theoretically, punishing journalists or private citizens engaging in speech ahead of the distribution of their message is the “worst infringement” of the First Amendment right to free expression, the Supreme Court said in Nebraska Press Association. But despite this practice of granting free expression extreme protection, courts have no issue punishing speech or publication after it occurs. This can cause journalists to self-censor and can indirectly limit the freedom of the press.
Without a federally recognized reporter’s privilege, journalists can face civil contempt citations and other sanctions for declining to disclose an anonymous source’s identity. A judge could issue a gag order on trial participants, such as involved attorneys, who would otherwise provide essential information about a trial or court proceeding to reporters. A reporter might get an attorney to speak on the condition of anonymity, and then the judge could demand the reporter give up his source so that source can be punished for violating the original order.
While the press is free to write about a trial and to use anonymous sources, judges can hold journalists in contempt for not disclosing the identity of an information leaker. It could be argued that gag orders on involved parties are equivalent to gag orders on the press. The only distinction is that the government’s burden for proving necessity of a gag order on involved parties is much lighter than the burden for proving necessity of a gag order on the press. By circumventing the press gag order and forbidding involved parties from disclosing information about proceedings, courts can produce the same end result while seemingly upholding the law and not violating any First Amendment protections.
According to the Reporters Committee for the Freedom of the Press (RCFP) First Circuit Open Courts Compendium, there are three requirements for the issuance of a gag order on involved parties: “(1) there is a showing of good cause as required by Rule 26(c); (2) the restriction is limited to the discovery context; and (3) the order does not restrict the dissemination of information obtained from other sources.”
Meanwhile, under the Supreme Court decision CBS Inc. v. Davis, gag orders on the press “may be used only in ‘exceptional cases’ where ‘the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.’”
These standards are clearly very different; it’s much easier for the government to get a gag order on involved parties than on the press. Unlike the test for a gag order on trial participants, the government has a “heavy burden” to prove the necessity of any kind of prior restraint of the press, the Supreme Court said in a per curiam opinion in New York Times Co. v. United States.
Even if a judge hasn’t issued a gag order, state bar guidelines can still legally bind lawyers involved in a case and can curtail a lawyer’s freedom to speak to the press about a case already open to the public, the Supreme Court ruled in 1991 in Gentile v. State Bar of Nevada. Lawyers’ speech doesn’t carry the normal, strong First Amendment protection test of “clear and present danger” of imminent harm or prejudice affecting a defendant.
Instead, the court noted that a “substantial likelihood of material prejudice” test was enough to protect a lawyer’s speech about a case he is directly involved in. The court struck down the specific Nevada Bar guideline for vagueness, but the ruling in favor of Gentile didn’t change the fact that lawyers’ speech, especially addressed to the press, receives less protection than normal speech.
Gag orders can be necessary to protect a defendant’s right to a fair trial. It is important to note that while press freedom is a constitutionally protected right, so is the right to a fair trial. They are equally important rights with equal protections. However, the potential for harm to the defendant is much greater than that to the press. While the press may not be able to print certain facts about a story if a court abridges the First Amendment with a gag order, a defendant risks loss of money, liberty or even his life if publicity prejudices the jurors at his trial.
One of the four main tenets of the Society of Professional Journalists Code of Ethics is to “minimize the harm.” The code reads: “Ethical journalists treat sources, subjects and colleagues as human beings deserving of respect … [They should] [b]alance a criminal suspect’s fair trial rights with the public’s right to be informed.”
Government, the courts in particular, is very defensive of free speech and press, uncommonly so compared to other democratic countries. The framers of the Constitution considered prior government intrusion, particularly prior restraints and licensing schemes, as the worst infringement of First Amendment rights (as discussed in Nebraska Press Association v. Stuart). However, the focus on prior restraint leaves the door wide open for punishment of speech and press after the speech is spoken or words are printed. Criminal punishments after the fact could almost be construed as counter to the freedom of the press as prior restraint.
In particular, journalists who use confidential sources to expose government corruption or wrongdoing could face sanctions if they refuse to disclose their sources in front of a grand jury. Though 49 states currently have shield laws or case law protecting the journalist’s privilege to protect his source, there is no shield law on the federal level.
The U.S. Supreme Court rejected the idea that journalists have more freedom than private citizens in the 1972 case of Branzburg v. Hayes. A Kentucky reporter conducted interviews with marijuana growers, witnessing their illicit activities firsthand. He wrote a story about it and kept his sources’ names confidential, refusing to give up their identities to a grand jury. A Kentucky appeals court found that the then Kentucky shield law would allow a reporter to protect an informant who told the reporter about alleged illegal activity, but would not protect the reporter if he witnessed the illegal activity himself.
The Supreme Court consolidated Branzburg’s appeal with two other cases, both having to do with reporters seeking a First Amendment reporter’s privilege to not disclose the identities of their sources. In a 5-4 ruling, the court said that a reporter’s privilege does not exist as a constitutionally guaranteed right. Quoting Zemel v Rusk, the court said that “[t]he right to speak and publish does not carry with it the unrestrained right to gather information,” and that the government’s interest in convicting criminals outweighs a reporter’s interest in protecting his sources. The court adamantly insisted that journalists do not enjoy greater rights than any average private citizen.
“We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy,” Justice White wrote for the court. “This we decline to do.”
Even though the case is from the 70s, the justices foresaw another major issue with shield laws: who exactly meets the definition of the press. Said the court, “Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”
University of Georgia Professor William E. Lee observed in a recent Cardozo Arts & Entertainment Law Review article that the court has been consistent in its equal application of speech protections. The 2010 Citizens United decision, he wrote, made media and non-media corporations’ speech equal before the law. Like the court in Branzburg, he noted a federal shield law would encounter this same difficulty of defining who a journalist is:
In the first Citizens United oral argument, Justice Scalia facetiously asked if the term press meant people wearing fedoras with a ticket saying ‘Press’ in the hatband … the fedora definition of a journalist, however, is no more outdated and limiting than the definitions contained in many state shield laws. Defining who is entitled to coverage under a shield law is a most vexing problem.
To resolve this issue, Lee looked to a proposed shield law from a few years ago that did not ultimately pass, the Free Flow of Information Act, as a good guide to defining a journalist. Under that failed bill, a journalist would enjoy a reporter’s privilege if he regularly gathers information, conducts interviews, and disseminates reporting by print, broadcast or other forms of media, all with the intent “to disseminate the public news.”
The bill ultimately failed because President Obama announced that his administration would take a harder line against government leakers of information and because of Wikileaks’ release of thousands of classified documents in 2010 that many found concerning.
Lee seemed pessimistic about the chances of a federal shield law in the near future. Instead, he pointed out that the Department of Justice’s policy to subpoena reporters as a last resort serves as an informal but most secure way currently possible of protecting a reporter’s privilege.
Society of Professional Journalists President Christine Tatum advocated some years ago the passing of the Free Flow of Information Act on the Society’s website. She wrote:
Many of the biggest investigative stories of our age have been based in part on information shared with a reporter by someone who wanted to keep his or her identity a secret. Anonymous sources handed over the Pentagon Papers and unmasked the culprits behind Watergate and Enron. They have outed some of the nation’s worst corporate polluters. They have helped inform Americans’ debates about the Iraq War, the proliferation of nuclear weapons and global warming.
Yes, sources almost always have an agenda when they speak up, but sometimes they have information of vital interest to the general public and much to lose if they’re caught passing it along. If journalists can’t protect their sources’ identities, you will be much less informed about the world.
The freedom of the press. The right to a fair trial. Both constitutionally guaranteed; both of equal import. When they two conflict, how can courts or others resolve the tension between them?
Pretrial publicity of high-profile criminal cases can bias jurors against the accused, making his or her trial unfair. Yet the First Amendment protects pretrial publicity. The Supreme Court confirmed its presumption of constitutionality in the ’70s, making it extremely difficult, but certainly not impossible, for a judge to issue a gag order of the press. There are other indirect methods of restricting press access to the courtroom that judges can use.
Judges, rather than silencing the media, can impose gag orders on court officials and involved parties if they want to control what goes to the press. If, for example, a lawyer leaks something to a reporter on the condition of anonymity, the judge can subpoena the reporter and demand to know the source of the leak. If the reporter stands by his word and refuses to give up his source, he may be sent to jail or otherwise sanctioned. Grand juries may also compel journalists to testify if they have witnessed the commission of a crime firsthand.
While 49 states have laws or judicial rulings that provide some protection to journalists, there is no federal law or Supreme Court precedent that safeguards the reporter’s right to maintain the confidentiality of his source. Post-publication sanctions on reporters could discourage them from writing about high-profile criminal cases. Some argue that gag orders on court officials have become an indirect way of preventing media coverage of criminal cases.
Apart from arguably indirect press restrictions, challenges to the legitimacy of press coverage of criminal cases are common. Despite 40 years of presumptive constitutionality, defendants still appeal convictions on claims of juror bias due to media coverage.
In 2010, for example, former Enron executive Jeffrey Skilling’s appeal based on juror bias made it all the way to the U.S. Supreme Court. In September 2012, convicted murderer and kidnapper Christian Karl Gerhartsreiter, known under his alias “Clark Rockfeller,” appealed his conviction in a Massachusetts appeals court; his appeal was based upon juror bias due to pretrial publicity. A district attorney challenged Quincy-based group Open Court’s freedom to film proceedings in Quincy District Court this past summer.
Even though pretrial publicity enjoys constitutional protection, it remains an issue today, through both challenges from defendants and indirect restriction of press freedom in gag orders of involved parties. Exposure to pretrial publicity can prejudice jurors. On the other hand, the cost of restricting press freedom could outweigh any benefit to society through protecting the accused.
What, then, is the resolution to this struggle?
That’s the thing I’m aiming to find out over the course of the Spring 2013 semester. It’s the main point of my directed study project under the supervision of Northeastern Assistant Professor of Journalism Dan Kennedy.
For now, let’s say the jury’s out on this one.