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Rule 1:19 Subcommittee’s biggest challenge was defining ‘journalist’

After the Massachusetts Supreme Judicial Court approached the judiciary-media committee a few years ago requesting recommendations for updates to Rule 1:19, the Rule 1:19 subcommittee focused in on two fundamental points, said Neil Ungerleider, who co-chaired the subcommittee with Justice John Curran, now retired from Leominster District Court.

“One is that the nature of who is a journalist has changed, and secondly, the change in technology has allowed the use of electronic equipment in a way that was never before possible, and how if at all were we going to accommodate that,” Ungerleider said in a March 12 interview. “The second part was actually a little easier to deal with than the first part, the question of electronic access … The larger issue became deciding who is a journalist, and how was some order going to be brought to that process so that the people who claimed to be journalists actually were, as opposed to people just showing up off the street saying they were a journalist.”

Ungerleider, the general judiciary-media committee co-chair and the manager for WCVB-TV Digital, said it was important to extend access to citizen journalists. He sees professional and citizen journalists as the same.

“There really shouldn’t be a difference,” he said. “They [professional journalists] may reach more people, but why is a reporter for the Boston Globe more important than someone writing a weekly community blog or column or runs a community website in Winchester? Why should that person be less important? It’s kind of contrary to the First Amendment, if you will. Freedom of the press applies to everybody.”

Massachusetts has historically been progressive when it comes to cameras in the courts, having the original Rule 1:19 on the books since the 1980s, Ungerleider said. The subcommittee therefore tried to make the language in the rule as inclusive as possible, to define “even the smallest journalist,” he said.

Ultimately, the SJC approved a rule defining the “news media” as “organizations that regularly gather, prepare, photograph, record, write, edit, report or publish news or information about matters of public interest for dissemination to the public in any medium, whether print or electronic, and to individuals who regularly perform a similar function.”

Taking that view, the Rule 1:19 subcommittee then debated how to accommodate journalists of all kinds, Ungerleider said. Some subcommittee members favored a credentialing process, especially expressing fears that gang members could intimidate witnesses, he said. The subcommittee eventually chose a registration approach instead, requiring news organizations and citizen journalists to fill out a form and submit it to the Public Information Office.

“There is that safeguard, if you will, that the registration process was designed to put in place so that a gang member can’t bring an iPhone into the courtroom,” he said. “A reporter can because they’ve showed the registration when they go in if they’re asked for it.”

Since the updates went into effect in September 2012, Ungerleider has said he’s seen a positive reception from WCVB-TV readers and viewers who can get live updates from the courtroom. Since reporters can use electronic devices such as laptops, cell phones and tablets in reporting from the courtroom, live blogging and Tweeting a trial as it is in progress can put news consumers in the middle of the judicial proceedings as they happen.

“The ability of our reporters to do that is very much welcomed and appreciated on our website because [readers] come … in pretty significant numbers,” Ungerleider said. “The expectation on the part of people who are looking for news has changed. They expect it in real time. They expect it with immediacy. They expect it when it’s happening. And the rule change has allowed us to do that.”

The ability to live blog judicial proceedings is somewhat unique to Massachusetts, Ungerleider said. Blogging, citizen journalism of proceedings and other new reporting ventures possible thanks to technology have transformed Massachusetts reporters’ expectations of covering the courts.

Additionally, the updates to Rule 1:19 coincidentally lined up with the emergence of Twitter and live blogging in reporting, coming at “just the right time,” he said

“It’s easy for reporters who work in this state to forget that the access that they have is really unique and that while some states have cameras, this may be one of the few of only states that allow the use of the electronic devices,” Ungerleider said. “That’s something that’s not happening anywhere else in the country. So this is a very unique set of circumstances that exist in this state.”

Mass. court rule lets traditional, citizen journalists use technology in courts

Last September the Massachusetts Supreme Judicial Court (SJC) updated its rule on camera usage in courtrooms, expanding the scope to citizen journalists and allowing the use of new technology for reporting purposes.

“I think they’re very timely,” SJC Public Information Officer Joan Kenney said of the changes. “I think we’re in the forefront of state courts throughout the country who are implementing new rules.”

Much of Rule 1:19 remains the same, Kenney said. But the changes now allow any professional or citizen journalist who has registered with the public information office and received permission from the presiding judge to record judicial proceedings. It also permits use of electronic devices such as smart phones, laptops and tablets, if it is not disruptive. This means journalists can now live blog a trial or hearing, for instance.

About 75 media organizations and 15 news media individuals have registered with the court. Registration is a simple process requiring an applicant to read Rule 1:19, fill out a form and submit it to the public information office.

The number of registered citizen journalists seems to be consistently lower than the number of news organizations, Kenney said.

“That number will probably grow over time,” she said.

Any member of the public is welcome to witness a judicial proceeding and take notes with pen and paper, but use of technology is limited to news media, which the new rule defines as “organizations that regularly gather, prepare, photograph, record, write, edit, report or publish news or information about matters of public interest for dissemination to the public in any medium, whether print or electronic, and to individuals who regularly perform a similar function.”

Kenney noted that the public information office does not check applicants’ credentials, but merely sends an acknowledgment that an applicant verified his or her qualification as a member of the news media on the form. The process is more of an “honor system,” she said.

“The public information office is not in the business of credentialing the journalist. The journalist decides himself whether he or she fits the definition,” Kenney said. “There had been some discussion at our meetings – this is the judiciary-media committee – about whether it should be a registration system or a credentialing system, and it was decided that it should be a registration system, not credentialing.”

The change came as a result of increasing inquiries from both judges and journalists about camera usage in courtrooms, Kenney said.

“Judges were getting requests from nontraditional media types, and citizen journalists were also asking whether they could bring in iPads and laptops, things like that to use, into the courtroom instead of just paper and pen,” Kenney said. “The court recognized that it was time to review the rule.”

The SJC’s judiciary-media committee formed a subcommittee to explore possible revisions to the old rule, which dated back to the 1980s, and recommend what should be changed, if any, Kenney said.

The SJC later updated Rule 1:19 based on the subcommittee’s recommendations, and it went into effect on Sept. 17 of last year. The SJC is still working out the kinks of the rule, though, Kenney said.

“It is new for everyone,” she said. “It’s new for our judges, new for our clerks, new for our court officers and journalists.”

Kenney said despite the kinks in the system, Massachusetts courts are innovators in the use of technology in the courtroom.

“I know many other state judiciaries are considering making some of these changes, and maybe a few of them have, but I think we are one of the leaders in terms of reviewing our rules, updating our rules, and making them contemporary with what’s happening in society,” she said. “The rule was implemented in September. We’re taking a look at how it’s being implemented, looking at what issues that might arise from this, and it’s still very much a work in progress.”

Juror bias through the scientific lens

The free press-fair struggle has helped shape the freedom of the press, including press access to the courtroom and a heavy burden of proving the necessity of press gag orders. Many legal and media experts have weighed in on the benefits and disadvantages of allowing pre- and mid-trial publicity of criminal cases. The conflict even inspired the American Bar Association to release free press-fair trial guidelines. But many psychology researchers have also taken an interest in objectively quantifying the effects of press coverage on juror bias.

In one 2012 study, “Timing and Type of Pretrial Publicity Affect Mock -Jurors’ Decisions and Predicisional Distortion,” researchers from different branches of the University of South Florida evaluated mock-jurors’ responses to exposure to pretrial publicity (shortened to PTP in the text of the study). Each mock juror read the same eight pieces of pretrial news stories. There were four stories with an anti-defendant slant and four with a pro-defendant slant. The only thing that varied in the mock jurors’ exposure to these stories was the order they read them in.

The researchers had 207 college students ages 18 to 57 meet in groups of 12 to fill out mock juror questionnaires. All the students were citizens legally eligible for serving on a jury. After the initial meeting, students were expected to read a piece of pretrial publicity and complete an online survey each day. After a week or two, the group of 12 would reconvene to watch prerecorded trial proceedings on a television and render individual verdicts (there were no jury deliberations).

The researchers concluded:

One important implication of this study is that the timing of conflicting PTP matters. For the defendant, it is important not to leave negative PTP unchallenged. Doing so could result in bias against the defendant becoming so strong that it is difficult, if not impossible, to overcome. In contrast, combating negative PTP with positive PTP in a timely fashion may not only reduce or eliminate the negative PTP bias, but could result in a pro-defense/acquittal bias.

In another recent study, entitled “Pretrial publicity and juror age affect mock-juror decision making,” psychology researchers investigated how age affects jurors’ biases drawn from media coverage of criminal proceedings. Researchers drew subjects from two age groups, college-age subjects ages 18 to 21 and senior citizens ages 60 to 80. There were 78 subjects in the younger group and 76 in the older group.

In the first day, groups of 12 came in, filled out juror questionnaires, read a series of pretrial media stories with both pro- and anti-defendant angles and then recorded what they could remember from each story and their emotional reaction to those stories. A week after this first meeting, the group of mock jurors returned to fill out another survey about their reactions to the pretrial publicity. The group then viewed a 30-minute videotape of an actual recorded trial proceeding and deliberated until they rendered a verdict.

Researchers found that the effect of pretrial publicity varies based on jurors’ ages. Strangely, stories with one clear anti- or pro-defendant position greatly affected mock jurors of one age group, but did not at all affect jurors of the other age group. Positive, pro-defendant pretrial news stories only affected older mock jurors’ biases, while negative, anti-defendant pretrial stories had an effect on only the younger group of mock jurors. The researchers noted that, in prior studies, negative pretrial publicity impacted mock jurors of all ages, so the finding of an effect only on the young group was surprising.

In the Discussion section, the researchers suggested a reason why negative pretrial publicity affected the young mock jurors:

It is interesting that older and younger jurors who were exposed to P-PTP [pro-defendant pretrial publicity] did not significantly differ on guilt ratings, verdicts, or emotional responses to PTP; whereas older and younger jurors exposed to N-PTP did significantly differ. These findings are consistent with Kisley et al.’s (2007) findings that responding to positive stimuli is relatively age invariant across most of the lifespan, while responding to negative stimuli gradually decreases over the lifespan. Kisley and associates suggest that the positivity effect is due to a decrease in processing of negative stimuli rather than an increase in processing of positive stimuli. Therefore, the age-related differences in the effect of PTP on verdicts may be due to older jurors’ decreased processing of negative case information (PTP) compared to younger jurors.

In a juror’s real-world experience, there are many factors that can affect the biases he brings with him to trial. Location and socioeconomic status determine whether a potential even has access to pretrial publicity – wealthier jurors have better means of purchasing televisions and paying a cable bill each month, for instance. Other factors, such as prior exposure to crime and the juror’s and defendant’s races, also shape a juror’s decision on a verdict independent of any exposure to pre- and mid-trial publicity.

The effects of publicity on juror bias as a research topic has a decent history, with studies dating to the ’80s and ’90s. Even in a field highly focused on concrete results from quantifiable data, the topic still continues to stir interest in further research.

Lack of a federal shield law and its effects on press freedom

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.

Early broadcast journalism and the trial courtroom of the ’60s

The ’50s and ’60s were a strange time for courtrooms. The emergence of broadcast journalism changed the way people got their news. In 1961, the U.S. Supreme Court marveled in Irvin v. Dowd at how the media, broadcast in particular, had changed the way the public approached a criminal trial: “In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.”

It was virtually impossible to find jurors who hadn’t heard of a particularly high-profile case. Trial judges retained power over trial participants but sometimes failed to exercise those powers, resulting in unfair trials for defendants.

In 1963, the U.S. Supreme Court determined in Rideau v. Louisiana that a Louisiana trial judge had improperly denied a defendant’s motion for a change of venue. Defendant Wilbert Rideau had kidnapped three people and killed one in his 1961 attempt to rob a bank. When he was brought in for arrest, police videotaped Rideau’s confession. Shortly after, local news stations broadcast the tape on three separate occasions, reaching about 106,000 viewers in the area. The court noted that, during his confession, Rideau did not enjoy the right to counsel, and the broadcasting of his confession led to a trial by media and “kangaroo court” proceedings that violated his right to a fair trial.

Two years later, the Supreme Court overturned a swindling charge in Estes v. Texas because of press coverage of a pretrial hearing with about a dozen cameras covering the whole courtroom. The court noted that the presence of cameras in the trial courtroom changed the atmosphere – the defendant, judge, jury and witnesses become more self-conscious and focus on the cameras staring at them rather than the facts and trial at hand.

The court called the right to a fair trial “the most fundamental of all freedoms” and ruled that proof of just the appearance of prejudice is enough to deem a trial unfair. This extended the prior rule of the defendant having to prove prejudice during trial for his appeal to be successful.

Again the court commented on the rapid technological changes the media had faced in the last few years.

“It is said that the ever-advancing techniques of public communication and the adjustment of the public to its presence may bring about a change in the effect of telecasting upon the fairness of criminal trials,” Justice Tom Clark wrote in the majority opinion. “But we are not dealing here with future developments in the field of electronics. Our judgment cannot be rested on the hypothesis of tomorrow but must take the facts as they are presented today. The judgment is therefore reversed.”

In the 1966 case of Sheppard v. Maxwell, the court again threw out a conviction because a defendant had suffered an extremely unfair trial due to media coverage and the faulty discretion of the trial judge. Dr. Sam Sheppard had been convicted in 1954 of murdering his pregnant wife. At trial, the judge was up for reelection in a few weeks and was going to run against the prosecutor of Sheppard’s case.

What followed was a mockery of the trial process: At a public inquest hearing shortly after his arrest, police officers searched Sheppard in front of a huge crowd in a gymnasium, held at that location to account for all the cameras and reporters. Later on, in the tiny courtroom where Sheppard was tried, the trial judge delegated most of the seats to members of the press, saving only the last row of seats for families of the defendant and victim. The trial judge allowed a long table to be put in front of the bar that normally separated formal court proceedings from the spectating public, and from there cameras bowed down on the defendant and the jury.

Accusations of poor character, numerous extramarital affairs and a child with one mistress lined the headlines of nearby newspapers, but the trial judge did not dismiss jurors who admitted to hearing the claims. During deliberations, jurors were allowed to make unmonitored phone calls despite being sequestered.

The Supreme Court ruled 8-1 for Sheppard and noted that the trial judge should have done more to control his courtroom, by sequestering jurors and witnesses and not allowing as many cameras, or indeed any, into the courtroom – or at least not in front of the bar, an unprecedented move.

A half-century later, Sheppard’s son Sam Reese Sheppard failed to convince a jury of his father’s innocence and lost a civil lawsuit based on wrongful imprisonment.

It is cases like these that remind media professionals the possible ramifications of overstepping bounds, sensationalizing cases and not behaving ethically.

Writes Marah Eakin of Ohio University, “[J]ournalists cannot allow themselves to be driven by their gut reaction and popular hunger for gossip – they must think through their decisions and report only what is ethical and just. Cases like the Sheppard trial allow journalists to learn from past mistakes to create a better reputation for the future.”