Justice and the Media

Reconciling Fair Trials and A Free Press

Matthew D. Bunker

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136694400
• Edition: 1
• Topic: Filología
• Subtopic: Estudios de comunicación

USE THIS FIRST PARAGRAPH ONLY FOR GENERAL CATALOGS... The First Amendment right of free speech is a fragile one. Its fragility is found no less in legal opinions than in other, less specialized forms of public discourse. Both its fragility and its sometimes surprising resiliency are reflected in this book. It provides an examination of how the U.S. Supreme Court has dealt with the problem of restrictions on media coverage of the criminal justice system, as well as how lower courts have interpreted the law created by the Supreme Court. The author explores the degree to which the Court has created a coherent body of law that protects free expression values while permitting reasonable government regulation, and examines the Supreme Court's jurisprudence concerning prior restraints, post-publication sanctions on the press, and their right of access to criminal proceedings. This is a study of the evolution of constitutional doctrine -- particularly when transported from the rarefied air of the Supreme Court to lower court judges who may not share the values of the jurists above them in the judicial hierarchy. The book's greatest strength lies in its thorough analysis and critique of how judges apply First Amendment doctrine to the complex problem of providing for both a "free press" and "fair trials." Much of the available literature on this topic focuses on legal doctrine, but with attention to the legal rules that emerge from the courts, rather than examining and critiquing the judicial techniques that produce those rules. Moreover, although a significant body of scholarship has explored Supreme Court doctrine, this work is one of the few that trace the influence of those doctrines through lower federal court decisions. The hope is to produce a reasonably accurate -- if partial -- picture of how intermediate appellate and trial courts use U.S. Supreme Court doctrine to decide First Amendment cases. Note: This book is necessarily influenced by the 'round-the-clock' press coverage of the recent O.J. Simpson trial. Although the Simpson case did not make new law, the trial and its outcome seem to be -- at this writing -- an inescapable part of how many people think about these issues. The simple truth, however, is that the Simpson case was an anomaly that has little relation to the everyday concerns of media coverage of the criminal justice system. While the venerable "parade of horribles" can be an effective strategy for the legal advocate, it is not always the ideal way to address larger concerns, particularly when fundamental rights are at stake.

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Scrutinizing the Scrutiny Structure

The First Amendment to the U.S. Constitution states, in relevant part, that “Congress shall make no law. . . abridging the freedom of speech, or of the press . . . .”¹ Yet it has become clear that, despite the claims of a few purported absolutists like Justice Hugo Black, “no law” could never truly mean “no law.” Freedom of expression is subject to numerous abridgments, not the least of which are laws regulating false advertising, libel, perjury, obscenity, and solicitation of murder. Once courts begin to draw lines that demarcate “protected speech” from “unprotected speech,” as they must, complexities and conflicts almost inevitably proliferate. In fact, judges and scholars have struggled for many years to reconcile free expression with other values that government seeks to advance.

The conflict between the First Amendment rights of the media and the interest in maintaining the integrity of the criminal justice system has been a particularly dramatic example of this struggle. The Sixth Amendment guarantee of an impartial jury, similar state constitutional provisions, and the Fourteenth Amendment’s due process clause all require that criminal defendants be tried fairly before a jury that is not prejudiced against them. These “fair trial” guarantees are often seen as inevitably colliding with the rights of the media to gather and disseminate news about the criminal justice system, particularly in high-profile cases. The O.J. Simpson murder prosecution in Los Angeles, for example, offered a stark portrait of the tension between press coverage of an international cause celebre and the attempt to provide a sober, unbiased trial. In recent years, a host of other celebrated trials—including those of the Menendez brothers, William Kennedy Smith, the police officers in the Rodney King case, and boxer Mike Tyson—have seemed to some observers to tax the ability of the justice system to provide a fair trial, in the face of pervasive and sometimes prejudicial media coverage.

FREE SPEECH AND FIRST AMENDMENT DOCTRINE

Regardless of the excess and sensationalism that sometimes characterize media coverage of criminal trials, the fundamental importance of free expression in a democracy is beyond question. For many scholars, however, the theoretical and doctrinal bases of protecting free expression have often appeared inadequate to the task. In particular, the U.S. Supreme Court’s development of a judicial approach to the protection of First Amendment freedoms has been a source of frustration to those who feel that free expression is one of the most basic and fragile rights in our constitutional system. Scholars have long lamented the fragmented state of the Supreme Court’s First Amendment jurisprudence—the overall scheme of legal doctrine the Court employs to decide free expression questions. The great First Amendment scholar Thomas Emerson expressed this frustration in the 1960s:

No one concerned with freedom of expression in the United States today can fail to be alarmed by the unsatisfactory state of First Amendment doctrine. Despite the mounting number of decisions and an ever greater volume of comment, no really adequate or comprehensive theory of the First Amendment has been enunciated, much less agreed upon.²

One recurring theme, however, at least since the late 1930s, has been the notion that government must demonstrate some significant competing interest to limit certain types of speech. Judges using this approach to judicial review seek to balance the value of free expression against the need to implement other societal interests. Depending on the type of speech in question, the balancing test may require the competing interest achieve a given level of significance, whether “compelling,” “substantial,” or “important,” or a variety of other descriptive terms, before the competing interest can override the strong interest in freedom of expression. Because judges using this type of review process claim to carefully analyze the strength of the need for government regulation of speech, this form of judicial review is often referred to as heightened scrutiny. Heightened scrutiny, which embraces a number of different standards of review, is a more searching form of judicial review than the Court uses in, for example, cases involving economic regulation. In such cases, in which no fundamental rights such as free expression are involved, the Court upholds legislation provided it has a “rational basis.” In other words, the Court defers to the wisdom of the legislative body unless the legislation is manifestly unreasonable. Such deference is generally not the Court’s modus operandi when First Amendment interests are at stake.

Constitutional scholars frequently trace the heightened scrutiny approach to First Amendment speech issues to the famous “footnote four” in Justice Harlan Fiske Stone’s 1938 opinion in U.S. v. Carotene Products.³ In that case, Stone declared that “[t]here may be a narrower scope for the operation of the presumption of constitutionality when the legislation appears on its face to be within a specific prohibition of the Constitution.”⁴ Although the footnote addressed other constitutional issues as well, its implication for the specific guarantees of the Bill of Rights, in particular the First Amendment, became clear in decisions that followed. The Court reasoned that the text of the Constitution authorized judges to engage in a searching form of judicial review when government sought to restrict textual rights such as the First Amendment speech and press clauses. When such rights were infringed, the mere rationality of legislative enactments would not guarantee deferential treatment by the courts.

The seed planted by Justice Stone blossomed in the development of the so-called “strict scrutiny test.” Under strict scrutiny, sometimes called the compelling state interest test, First Amendment interests are upheld unless the governmental interest in regulation is compelling and that interest is achieved in the least restrictive manner. Strict scrutiny, at least in the years when Earl Warren was chief justice, most frequently upheld freedom of expression against opposing governmental interests. One commentator has said that the Warren Court used strict scrutiny as “an almost automatic tool for overturning legislation.”⁵

In 1968, the Court began using a less protective test for determining the constitutionality of government attempts to limit expression. In United States v. O’Brien,⁶ the Court constructed a lower level of scrutiny for evaluating laws governing conduct that included both “speech” and “nonspeech” elements. The O’Brien test stated that a regulation that only “incidentally” regulates speech (i.e., is not primarily aimed at suppressing speech) passes constitutional muster if it furthers an “important or substantial” governmental interest, is within the constitutional power of government, and “if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”⁷ Variations on the O’Brien test have since come to be applied in a number of media contexts.

Communication law scholars have paid inadequate attention to the doctrines of heightened scrutiny, particularly as those doctrines are interpreted by lower courts. This book is intended to examine heightened scrutiny as applied to government restrictions on the media. The heightened scrutiny approach appears in numerous areas of media law, but the present study focuses on constitutional analysis of restrictions on press coverage of the criminal justice system. The book is not intended as a complete review or analysis of the “free press–fair trial” problem, something a number of works have done with great skill. Although it explores various aspects of that enduring problem to provide context, this work is first and foremost a study in the evolution of constitutional jurisprudence. The book attempts to explore how First Amendment doctrine created by the U.S. Supreme Court is interpreted and applied by lower federal courts. Federal courts were chosen because trial-level decisions are reported with much greater frequency than those in state courts. In the process, the book critiques both the doctrinal structures created by the Supreme Court and the ways in which those structures are transformed as they are applied by lower courts. The book also seeks to suggest an alternative to the Supreme Court’s current jurisprudence in this area.

This study examines both U.S. Supreme Court and lower federal court cases from the beginning of modern Supreme Court jurisprudence in the respective substantive areas under consideration. For example, Nebraska Press Assn v. Stuart,⁸ decided in 1976, was the seminal case on prior restraints on the press in criminal cases. For prior restraint doctrine, the year of that decision will be the beginning point for study of both Supreme Court and lower court use of heightened scrutiny. Similarly, the Supreme Court’s 1980 decision in Richmond Newspapers, Inc. v. Virginia⁹ was the beginning of its articulation of a First Amendment right to attend criminal trials. Therefore, that case is the beginning point in examination of access to proceedings.

The book’s emphasis, as noted earlier, is on the scrutiny doctrines developed by the Supreme Court and their subsequent application in lower court opinions. Federal district court decisions, which are not always reported in the Federal Reporter system, are examined as illustrative of the application of heightened scrutiny, rather than as an exhaustive reporting of all cases. The book’s treatment is limited to cases in which government regulation has some impact, or at least potential impact, on media coverage of the criminal justice system. Cases related to cameras in the courtroom are excluded because those cases have generally not been treated as raising significant First Amendment questions. In addition, cases dealing with access to documents, rather than physical access to proceedings by the press, are excluded for two reasons. First, the ability of the press to be present in the courtroom and to report proceedings without inhibition could be argued to provide most of the necessary safeguards to allow public scrutiny of the process. Second, the volume of access cases related to documents would have expanded this study beyond a manageable level. As a result, the study focuses on cases dealing with prior restrictions on publication, postpublication punishment of the press, and access to court proceedings.

The purpose of this book is to explore the techniques of judicial review the Court has developed in a significant body of case law in which the free expression rights of the media have been deemed to be in conflict with some other interest government seeks to advance. The actual mechanics of the scrutiny structure the Court uses in such cases is interesting for a number of reasons. First, the structure seems to suggest that there is some solid jurisprudential basis for making decisions once the judge has identified the respective interests in conflict. Second, it suggests that similar cases will be treated similarly. Third, it professes to hold the government to rigorous standards of proof of the necessity of its regulation when free expression rights are threatened. Fourth, the Court regards its scrutiny structure as giving guidance to lower courts that will assist them in deciding cases in which First Amendment issues are raised.

This study also examines the levels of scrutiny the Court has applied to restrictions on media coverage of the criminal justice system. This area of law was chosen for a number of reasons. The criminal justice system is a domain in which government exercises significant power over the lives of its citizens, and thus arguably requires close observation. The conflict between the press and the courts has generated a significant body of case law, as well as scholarly and public concern. This class of cases, at the federal level, was sufficiently narrow for a study of this type.

This study explores the extent to which the scrutiny structure forms a coherent body of law that protects free expression values while permitting reasonable government regulation. It examines the levels of scrutiny the Court has created as they apply to prior restraint and postpublication sanctions on the press, as well as the right of access to criminal proceedings. The study explores the way in which the Court and lower federal courts have used the doctrines to limit or enhance the ability of the media to provide information to the public on functioning of the criminal justice system. The scrutiny structure is examined to determine whether it adequately guides judicial action.

THEORETICAL PERSPECTIVES

The scrutiny structure in First Amendment law is closely realted to the notion of important societal interests served by free expression. Numerous scholars have explored the theoretical justifications of the First Amendment free speech and press clauses. Although different scholars have classified these justifications in somewhat different ways, a number of rationales for free expression are consistently cited. Among the theoretical explanations for the high value that society has placed on free expression are the following: individual autonomy, diversity, self-government, and checking abuses of official power.¹⁰

The individual autonomy rationale explains free expression as not directed exclusively toward some pragmatic or instrumental end, but as “valuable in and of itself because it figures prominently in our vague notions of what it means to be human.”¹¹ Under this rationale, freedom of thought and expression create conditions conducive to self-realization, and are valuable as ends in themselves, rather than as means to some other social end.¹² This rationale is tied to broader conceptions of liberal political theory, which assert that individuals should be treated as rational beings with the ability to grow and develop along lines that they—not the state—choose. As Justice Jackson stated in the 1943 flag salute case, West Virginia Board of Education v. Barnette: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . .”¹³

The autonomy rationale, in some versions, qualifies as an instrumental theory in that it seeks to promote growth and human development. Legal scholar Kent Greenawalt suggested that,

despite the burden of anxiety that often accompanies serious personal choice, many people can work out for themselves a style of life that is more fulfilling than what they could achieve by simply conforming to standards set by others. Both the valuation of autonomy for its own sake and the belief that it contributes to other satisfactions are aspects of traditional liberal theory.¹⁴

Another theoretical justification for free expression is the perceived need for a diversity of viewpoints to be freely communicated. The diversity rationale is often expressed by Justice Holmes’ marketplace of ideas metaphor. This metaphor equates free and open discussion of ideas with the free market for goods and services. Presumably, all citizens are free to offer their views and try to convince other members of society of their validity. Thus, the diversity rationale encourages new and innovative ideas, whether in government policy, science, or the arts. It also serves a safety valve function by allowing those disaffected with the society to express their dissatisfaction through speech, rather than more violent means. Free speech thus contributes to social stability by allowing an outlet for dissent.

The diversity rationale received one of its most famous formulations in John Stuart Mill’s essay, “On the Liberty of Thought and Discussion” in “On Liberty.”¹⁵ Mill suggested three reasons that free discussion should be unrestrained and even unpopular ideas allowed into public discussion. First, suppression of speech could prevent true ideas from coming to light, thus stifling social progress. Mill’s argument suggests that human fallibility may make it difficult to determine in advance which ideas are true or false, and he argues that the safest course is to avoid the authoritarian imposition of particular ideas. Second, even if the unpopular idea is not true, Mill argued that the idea may be partially true, and thus provides a needed supplement to the received or popular view in ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Preface
• 1 Scrutinizing the Scrutiny Structure
• 2 The Supreme Court and First Amendment Scrutiny
• 3 Courts and Prejudicial Publicity
• 4 Prior Restraints
• 5 Postpublication Sanctions
• 6 Access to Proceedings
• 7 Defects in the System
• 8 A Proposal for a Categorical Solution
• Author Index
• Subject Index