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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.”

OpenCourt shuts down operations in Quincy District Court

This is somewhat old news, but OpenCourt, a pilot cameras in the courtroom project based out of Quincy District Court, has shut down its operations in the courthouse because the funding from the 2010 Knight News Challenge grant has run out.

I previously covered OpenCourt’s beginnings and some of its legal challenges, but at the time of that post, the project’s executive director, John Davidow, told me that the Quincy part of the project was merely on hiatus, and that he hoped it would expand into other courtrooms. He mentioned he and other OpenCourt staffers were working on other projects under the OpenCourt umbrella, tracking certain kinds of cases, for instance. Davidow told Robert Ambrogi, a lawyer who writes the LawSites blog, that, in conjunction with the Cyberlaw Clinic at Harvard University’s Berkman Center for Internet and Society, he will write a report about the OpenCourt Quincy experiment that will later be published in the National Law Review.

Through the course of researching OpenCourt, I managed to dig up a lot about Commonwealth v. Barnes, a 2011 case that revolved around OpenCourt’s ability to post recorded footage to its online archives. Though the project is pulling out of Quincy District Court, OpenCourt’s legacy will last in the Barnes case, which legitimizes Rule 1:19 and the ability of an independent journalistic organization to publish however it wants footage of judicial proceedings in open court it had permission to record.

Specifically in the Barnes case, the District Attorney’s office and a group of public defenders filed petitions with the SJC requesting redaction of the name of a minor kidnapping victim in one case and the full video recordings of a defendant’s arraignment and later hearing on a motion in a second case. Counsel for OpenCourt’s opponents argued that OpenCourt operated only with Quincy District Court’s permission, and that its operation was so tied to the courthouse that videotapes constituted court documents, not documents belonging to a separate journalistic entity, and therefore, requesting redaction could not constitute prior restraint.

The SJC ruled 5-0 for OpenCourt (two justices on the judiciary-media committee recused themselves). The court declared OpenCourt an independent journalistic organization that deserved all the First Amendment protections normal news organizations enjoy. The SJC explicitly declared that the any court banning OpenCourt from publishing proceedings conducted in open court constituted prior restraint. Furthermore, wrote Justice Brotsford for the court, “Once a proceeding is recorded, the ability of the judge or an appellate court to control what media organizations do with the recording is highly constrained.  Thus, even if an appellate court should conclude that there was an abuse of discretion in permitting the proceeding to be recorded, there can be no restraint on publication of the recording unless the court also determines that such a restraint is necessary to protect a compelling governmental interest and is the least restrictive reasonable method to do so.”

The court allowed OpenCourt to continue its operations given that the SJC’s judiciary-media committee would develop guidelines for the project that OpenCourt would abide by in the future. Later on, OpenCourt decided to wait two business days before posting video recordings of proceedings to have time to redact names of minors and sexual assault victims and to allow anyone to request a video not be published. Even after the footage has been posted, OpenCourt would take it down if someone flagged the video and explained the issue.

The project’s legacy as a pilot cameras in the court project that pushed the boundaries of the newly updated Rule 1:19 and survived two separate legal challenges that made it to the state’s highest court will survive as an example of Massachusetts’s openness to technology use in the courtroom. To Davidow, the greatest impact of OpenCourt was its ability to test the limits of Rule 1:19 while the changes to the rule were implemented.

“The new Rule 1:19 … was rewritten almost on a parallel track while Open Court was going. It allowed for a non-mainstream videographer in the courtroom. It talks about a number of the issues that came up. It also talked about what would be required of someone who did come in and cover the courts,” Davidow said to me in February. “We pushed that it would be a very low bar to get into the courts, almost like the registration of a new piece of software. So we offered a real-world example of what could be when 1:19 was rewritten … and then further clarif[ied] what rights the media had in terms of prior restraint.”

Jeff Hermes, the director of the Digital Media Law Project, a part of Harvard’s Berkman Center (as is the Cyberlaw Clinic Davidow is producing his report about OpenCourt with), agrees with Davidow’s assessment. In an interview earlier this week, he said that OpenCourt accomplished what it set out to do in the fixed period of time it ran.

“I think it was a tremendous success,” Hermes said. “It very clearly brought to the front tensions between the different parties in the court in terms of the creation of a video recording which would be in the hands of the press or in the hands of others that would not be subject to court orders barring publication of information.”

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.”

Camera use in federal courtrooms

The media’s use of technology has evolved since the ‘60s, but on the federal level, courts have struggled to keep up with the rapidly changing industry. The courts are naturally more slow-moving than the media, whose success hinges on having the latest information as soon as possible. Even today, the use of cameras in federal criminal courtrooms of all levels is strictly prohibited, except in the Second and Ninth Circuit Appeals courts and in rare pilot programs the federal system has implemented, once in the ‘90s, and once again for  a three-year trial period starting in 2011 in 14 federal district courts.

I’ve previously explored the U.S. Supreme Court’s extreme hesitancy to allow use of cameras during the ‘60s, but one particular case deserves reexamination from that post.

In the 1965 case of Estes v. Texas, the court threw out a conviction because a trial judge had allowed about a dozen reporters to videotape a pretrial hearing. The U.S. Supreme Court played up the self-consciousness cameras can create for everyone involved – lawyers, judges and witnesses posturing to the camera, trying their best to impress rather than to get at the truth. At that point in time, 48 state courts and the federal courts had banned camera use in courtrooms.

The use of cameras in the criminal courtroom is an inherent denial of due process, the court said:

The television camera is a powerful weapon. Intentionally or inadvertently it can destroy an accused and his case in the eyes of the public … We have already examined the ways in which public sentiment can affect the trial participants. To the extent that television shapes that sentiment, it can strip the accused of a fair trial.

The court refused to consider the possibility of a future where camera usage did not automatically render a judicial proceeding inherently unfair. Instead, the court wrote, “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.”

But in the next decades that followed, camera technology rapidly improved and even American ownership of televisions increased dramatically.

This set the scene for the 1981 U.S.  Supreme Court decision Chandler v. Florida. A criminally convicted defendant challenged a Florida state law that allowed camera usage in criminal courtrooms, charging that camera use had resulted in an unfair trial.

Upon decision, the Supreme Court declined to directly overturn Estes, concluding that it “did not announce a constitutional rule that all photographic or broadcast coverage of criminal trials is inherently a denial of due process.” But in practice, the court did in fact overturn the spirit of the Estes decision. The court also declined to establish a First Amendment right to use cameras in a criminal courtroom. Instead, the court rooted its decision in the concept of federalism, that federal government and state governments are both sovereign. Painting the decision as a states’ rights issue instead of a First Amendment issued, the court said:

It is not necessary either to ignore or to discount the potential danger to the fairness of a trial in a particular case in order to conclude that Florida may permit the electronic media to cover trials in its state courts. Dangers lurk in this, as in most experiments, but unless we were to conclude that television coverage under all conditions is prohibited by the Constitution, the states must be free to experiment. We are not empowered by the Constitution to oversee or harness state procedural experimentation; only when the state action infringes fundamental guarantees are we authorized to intervene.

Currently every state in the U.S. allows some use of cameras in courtrooms. Mississippi and South Dakota, the last holdouts, changed their camera use policies in 2001. Currently the federal courts allow the public access to audio recordings, and all the 14 district courts (for example, the Northern District of California) have archived copies of some videotaped judicial proceedings accessible online. The federal Cameras in Courts project will last up to 2014, which the Federal Judicial Center will conduct a study of that will determine the fate of camera usage in federal courtrooms in the future.

OpenCourt scores for press freedom

It was a balmy August day in 2012, and members of OpenCourt awaited the start of a Massachusetts Supreme Judicial Court hearing that would determine the organization’s ability to expand live streamed video coverage of judicial proceedings in Quincy District Court. But more than just OpenCourt’s ability to expand was at stake; if the SJC ruled to allow OpenCourt to expand its live streaming of judicial proceedings, it could be a major win for press freedom in Massachusetts.

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The Norfolk District Attorney (DA) and the Committee for Public Counsel Services (CPCS) had petitioned the SJC to temporarily halt OpenCourt’s expansion into a second room at Quincy District Court pending formation and SJC approval of broadcasting guidelines. The DA argued that OpenCourt’s interim broadcasting guidelines did not offer enough protection to minors and sexual assault and domestic violence victims, while the CPCS feared violations of their clients’ constitutional rights.

So when Justice Margot Botsford issued a memorandum and judgment five days after the Aug. 9 hearing that denied the DA’s and CPCS’s petitions, OpenCourt Executive Director John Davidow felt gratified.

“The idea that prior restraint, that the state could have editorial control over something that had not yet been published, was deeply disturbing, as a member of the media,” Davidow said in a Feb. 11, 2013 interview. “We [at OpenCourt] were pleased, but mostly pleased because we felt like this was a real case of finding the proper balance between the First and Sixth Amendment.”

Though Davidow would’ve preferred to mediate issues out of court, he said the legal challenge actually benefitted OpenCourt.

“Had the district attorney’s office and other folks not objected and we had to prove our case before the SJC and make it clear that what’s public in court is public and the public should have access to it if it is recorded, we never would’ve had that opportunity” to prove the importance of public access, Davidow said. “In many ways it was helpful to get the clarity that came with these suits filed by the district attorney … it made us sharpen our understanding of the issues around it.”

OpenCourt, a pilot project in Quincy District Court for use of cameras in the courtroom under SJC Rule 1:19 run through Boston NPR channel WBUR, started merely as an idea at a media judiciary committee meeting Davidow participated in sometime in fall 2009. As interest in the idea grew, Davidow extensively researched use of cameras in courtrooms around the country, taking time to speak with many judiciary and media law organizations and judicial officers. Davidow submitted a proposal for the project, then named “Order in the Court 2.0,” to the Knight Foundation’s News Challenge as one of 2,364 hopeful applicants. In June 2010, the Knight Foundation announced OpenCourt as one of its News Challenge winners that year. Following approval from the SJC, OpenCourt went live in Quincy District Court on May 2, 2011.

“I think that there were all sorts of concerns initially, that we were going to give up people’s identities, lawyers and prosecutors would act differently because the cameras were on, judges may not accept pleas that they normally would, and … people not willing to come forward because there were cameras in the courtroom,” Davidow said. “All those things never really truly materialized.”

The main issue OpenCourt encountered in its early days was what to do with archival footage. Almost immediately, people challenged OpenCourt on the archives issue, Davidow said, so OpenCourt temporarily shut down access to its archives until it came up with a policy addressing the concerns. It is now OpenCourt’s practice to not post archival footage until two business days have passed so that anyone can express any issues with the posting of the footage. Even after the footage has been posted, OpenCourt will take it down if someone flags the video and explains the issue. Access to archival footage is free to anyone with Internet access who registers with the site.

Currently the project is on a brief hiatus as OpenCourt Producer Val Wang stepped down earlier this month. OpenCourt will resume live streaming in March. For now project members are focusing on another project that follows specific kinds of cases, Davidow said. He also hopes to expand the project, and it wouldn’t surprise him if one day the official court record is video, not audio, recordings.

“There’s a lot of interest from the courts themselves on how to deal with this,” he said. “The courts want to be more transparent. We got our strongest support from the judicial branch. I think there’s this sense of inevitability that Open Court is just somewhat ahead of the curve of where the courts are inevitably going to go.”

Davidow said he is proud of OpenCourt’s vision and what it has done to make the courts more accessible to the general public.

“The founders in this country wanted justice to be done in public,” he said. “You think of the movie ‘To Kill a Mockingbird,’ where the entire town is piled into that courthouse to watch that trial. That’s what the founders imagined. For a long time, the media was there, and they were that bridge to what was going on in the courts as people got more and more removed from it.

“And then, given the realities of where the media is and other technologies, the public became more and more distanced from this major branch of our government … So [OpenCourt] was one small step in bringing the courts forward, leveraging the technology that exists and is continuing to evolve.”

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.

Gag orders on trial participants and indirect limitation of press freedom

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.”