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Press access to the criminal courtroom and the right to a public trial

The courtroom has long been regarded as a place that should be open to the general public. American journalists have reported on court proceedings since the early years of the county’s existence.

Perhaps the case that best epitomizes the free press-fair trial conflict is the 1976 case of Nebraska Press Association v. Stuart. A Nebraska trial judge, recognizing that a man on trial for the murder of a family of six and a sexual assault of one would face extreme bias due to the nature of his crimes, ordered a gag order on all members of the Nebraska press. The court order prohibited Nebraskan journalists from printing about the defendant’s prior confession to the crime or even anything “strongly implicative” of the accused’s possible guilt. The order also forced all news media to comply with the Nebraska Bar Association’s Bar-Press guidelines.

A Nebraska appeals court and the state supreme court both upheld the gag order, though the state supreme court narrowed its provisions. The gag order expired once the voir dire process was complete and the jury had been seated.

By the time the Nebraska Press Association’s appeal reached the U.S. Supreme Court, the trial had long been over and the defendant found guilty and sentenced to death. The U.S. Supreme Court decided to hear the case, however, because there was a high chance of a nearly identical situation arising in the future.

In a rare unanimous decision, the Supreme Court overturned the ban entirely, taking a firm stance that prior restraint is “presumptively unconstitutional,” as it had determined decades before in the landmark case of Near v. Minnesota.

Though both press freedom and the right to a fair trial are constitutionally guaranteed and are therefore fundamental and automatically incorporated in state constitutions (by Gitlow v. New York and Duncan v. Louisiana, respectively), the Constitution does not provide guidance as to which is could be considered “more” fundamental. As the court observed in Nebraska Press Association: “It is unnecessary, after nearly two centuries, to establish a priority applicable in all circumstances. Yet it is nonetheless clear that the barriers to prior restraint remain high unless we are to abandon what the Court has said for nearly a quarter of our national existence and implied throughout all of it.”

Calling prior restraint “the most serious and the least tolerable infringement on First Amendment rights,” the court concluded that protection against it should have “particular force as applied to the reporting of criminal proceedings.”

Like in Sheppard v. Maxwell, the court advised alternative measures the trial judge could have taken before going right to suppressing the press, such as a change of venue, delay in trial, extra precaution during voir dire and clear, strong jury instructions.

In 1980 the issue of constitutionality of press access to the criminal courtroom once again arose in the case of Richmond Newspapers v. Virginia. At issue was a blanket ban on press access to the trial of a defendant undergoing his fourth trial for the same offense (his other trials had been declared mistrials or remanded by appeals courts for new trials). The ban appeared to work, as the judge in the fourth trial dismissed the jury and acquitted the defendant.

However, local press appealed the ban on access to the court room, and the U.S. Supreme Court agreed to hear the case, ultimately ruling that the right to a public trial is a fundamental right that the trial judge had outright denied.

The court discussed the lengthy history of the public trial. The public trial isn’t just American or British in nature, but in fact a long Anglo-American tradition. Before the Norman conquest of England, trials were open to the public. The court also quoted written accounts of open trials as far back as 1313. Likewise, the public trial was an important part of colonial justice systems.

“As we have shown, and as was shown in … the Court’s opinion … the historical evidence demonstrate conclusively that, at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open,” wrote Chief Justice Warren Berger in the opinion for the court. “This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo-American trial.”

Berger also noted in his opinion that the public nature of a trial made it seem fair, promoted governmental transparency and prevented outraged citizens from trying to stage any kind of vigilante attack on a person accused of an especially heinous crime that might incite a community to violence.

The right to attend criminal trials is implicit in the First Amendment, and the right to a public trial is explicitly stated in the Sixth Amendment. Therefore, the court ruled the ban on press access to the criminal courtroom had been unconstitutional.

Other cases that followed widened media access to other proceedings in the criminal trial process: the 1984 case of Press-Enterprise v. Superior Court (also known as “Press Enterprise I”) cleared the way for access to criminal jury selection, and in 1986, Press-Enterprise v. Superior Court (known as “Press Enterprise II”) did the same for journalists’ access to criminal preliminary hearings. In 1984 the U.S. Supreme Court acknowledge in Waller v. Georgia that press access extends to suppression hearings.

Sometimes interests of defendants and interests of the press align. Such is the case in the concept of the right to a public trial. Said the court in Waller, “[T]he explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.”

This reflected the earlier sentiment in Richmond Newspapers v. Virginia: “[A] trial courtroom also is a public place where the people generally – and representatives of the media – have a right to be present,” the court said, “and where their presence historically has been thought to enhance the integrity and quality of what takes place.”

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