Media Law 8

Gag orders on trial participants generally are upheld if

(1) narrowly drawn and (2) supported by evidence that unfettered speech poses a substantial likelihood of jeopardizing a fair trial and (3) by careful consideration of alternatives. Narrowly drawn restraining orders end as soon as the threat to the trial process passes.145 A different test applies to gag orders on the media.

The courts prohibited all trial participants, court personnel and others associated with trial attorneys from disclosing to the public any information or opinion that might prejudice the trial, including

(1) prior criminal record, (2) defendants' statements, (3) defendants' results or refusal to participate in examinations, (4) identity or credibility of witnesses, (5) possibility of plea deals, (6) opinions of guilt or (7) predictions of outcomes.

International Law India's Supreme Court Allows (Security) Cameras in Courts

A 2017 initiative of the Supreme Court of India was to install closed-circuit TV cameras in 24 courts across the country They were intended to increase security, not public access to trials. The original order said the cameras would be installed to monitor the courts, the judges' chambers and "such important locations of the court complexes." NEED permission from courts involved to access recordings because of disclosure clause under India's Right to Information Act The order followed a petition from a man seeking to record the trial of his "matrimonial dispute to ensure a fair trial" and years of government pressure to record the courts to increase transparency. In 2017, India's Department of Justice said cameras would keep an eye on trial participants' conduct and provide electronic records of proceedings. The high court had resisted audio-video recordings and said "wider consultation" was needed to ensure that cameras did not imperil fair trials.

Restraining order

A court order forbidding an individual or group of individuals from doing a specified act until a hearing can be conducted

Experience and logic test

A doctrine that evaluates both the history of openness and the role it plays in ensuring the credibility of a judicial process to determine whether it is presumptively open. Points of law open court

Real World Law Your Data Are Not Safe From Government (Sp)Eyes

A long legal battle between the U.S. Department of Justice and Apple over access to the iPhone used by one of the shooters in a terrorist attack ended when the DOJ paid hackers to break into Apple's encrypted system. A DOJ official said the break-in was appropriate "on both national security and on law enforcement grounds because of the potential use (of encryption) by terrorists and other national security concerns" to thwart government law enforcement.ix In another case, the FBI subpoenaed and gagged Open Whisper Systems to obtain access to information in iPhones protected by the software developer's encryption system, Signal, which is used by many people in the media.x Major media and tech industry players joined a lawsuit by Microsoft that said bans on discussion of governmental snooping into customers' information violated the First Amendment.xi Microsoft said the government had subpoenaed its customer data 5,600 times in 18 months, with almost half of the requests accompanied by gag orders. Most of the gags never expire.

Gag orders

A nonlegal term used to describe court restraining orders that prohibit publication or discussion of specific materials.

Summons

A notice asking an individual to appear at a court. Potential jurors recieve such a summons.

Points of Law The Reporter's Privilege Test

A reporter's privilege to withhold information likely does not exist if the government can demonstrate all of the following: Possession: Probable cause to believe that the reporter has information clearly connected to a specific violation of law No Alternatives: That the information sought cannot be obtained by alternative means less destructive of First Amendment values Relevance: That there is a compelling and overriding interest in the information

Making Jurors Anonymous

A tradition of openly identifying members of juries reaches back to colonial days Two federal appellate courts have held that the public has a First Amendment right to timely access to juror names in a criminal proceeding, but only the Tenth Circuit Court of Appeals has failed to approve the use of anonymous juries. Some courts refuse to release the names and identities of jurors in high-profile cases or in cases where jurors may legitimately be concerned for their personal safety

Overseeing the Courts Journalist's Privilege

A type of "privileged relationship" Attorney-client, doctor-patient, spouse, etc. Journalists argue reporter-source should be a privileged relationship as well For integrity of newsgathering process

Sheppard v. Maxwell

After suffering a trial court conviction of second-degree murder for the bludgeoning death of his pregnant wife, Samuel Sheppard challenged the verdict as the product of an unfair trial. Sheppard, who maintained his innocence of the crime, alleged that the trial judge failed to protect him from the massive, widespread, and prejudicial publicity that attended his prosecution. On appeal from an Ohio district court ruling supporting his claim, the Sixth Circuit Court of Appeals reversed. When Sheppard appealed again, the Supreme Court granted certiorari.

Privacy Protection Act

After the Stanford Daily newsroom search case, Congress passed the Privacy Protection Act of 1980 that significantly limits both state and federal agencies' use of search warrants against public communicators.

Cameras in State Courts

Allowed in some courtrooms some of the time in all 50 states States limit number and location of cameras Florida permits camera coverage of virtually all cases Massachusetts permits journalists to record as long as it can't cause a "likelihood of harm" South Dakota allows broadcast coverage of trials with consent of the judge and all parties, except for recording of jurors or proceedings when the jury is excluded Illinois limits broadcasting of court proceedings to "the extent authorized by order of the Supreme Court" and prohibits broadcasting or recording of any compelled witness testimony. States from Alabama to Utah limit camera coverage of trials based on the type of case or the ages of the witnesses. In nine states, judges may limit the number and location of cameras, prohibit recording of jurors or vulnerable witnesses or require pooled cameras. In another six states, including Delaware and Illinois, courts are virtually closed to cameras. To ensure they do not violate court rules, those wishing to record court proceedings must be familiar with the details of the laws in the states where they report.

How to get out of a subpoenas

Although individuals who receive subpoenas are expected to comply, recipients may move to quash the subpoena. When journalists are subpoenaed to testify about confidential information, they may use either a state reporter's privilege or state shield laws in efforts to quash the subpoena.

Relocating the Trial

Although the Sixth Amendment protects a criminal defendant's right to a trial in the location where the crime occurred, either the prosecution or the defense may request a change of venue, or location. If media coverage creates a substantial likelihood of harming a fair trial, judges may order an expensive change of venue, but they rarely do.

Penalizing Failure to Disclose

As professional collectors of news and information, journalists may be more likely than most to have information of importance to a court.165 If reporters refuse to testify and disclose information sought under subpoena, judges may use their power of contempt to punish them.

Branzburg v. Hayes (1972)

Branzburg consolidated four cases. Two involved Paul Branzburg's sources on illegal drug use reported in The (Louisville) Courier-Journal. Two were related to sources within the Black Panthers contacted in separate reporting by TV reporter Paul Pappas and New York Times reporter Earl Caldwell. All three refused to testify before grand juries and were cited with contempt. Refused to name sources or appear in court IMPORTANT: Freedom of press does not create a constitutional privilege protecting reporters from having to testify in grand jury proceedings about the identity of news sources or information received in confidence. Ruled against journalists (5-4) No privilege for journalists according to Court Juries are "entitled to every man's evidence," Concurring opinion, "limited nature" of ruling Should evaluate case by case Journalists have to testify for ongoing criminal investigations. Branzburg's three factors (possession, alternatives and relevance)

Breaking Confidentiality Promises

Cohen v. Cowles Media Co. (1991) Cohen gives info on condition of anonymity Willing to talk to Media if they would not use his name. The people published his name. Cohen lost his job due to his name in publication, he sued. Cohen won Court ruled First Amendment does not protect journalists when they breach confidentiality Reporters not happy Watch interviews outside of courthouse (Link provided on Moodle)

Gannett Co. v. DePasquale (1979)

Concerning the admissibility of evidence, the defendants argued that adverse publicity had jeopardized their ability to receive a fair trial. Two subjects charged with murder, robbery and grand larceny, requested that the public be excluded from a pretiral hearing. Concerning the admissibility of evidence, the defendants argued that adverse publicity had jeopardized their ability to receive a fair trial; two newspapers that were owned by the brand Gannett took this to court. The judge sided with the two subjects.Judge said it was to minimize the prejudicial pretrial publicity.

Impartial Jury

Cornerstone of jury system

Estes v. Texas (1965)

Court overturned the conviction based on cameras being present. Lots of reporters. Had to impose lots of rules for. Courts ruled that the reporters jeopardizes the jury's opinion of the case Court rules broadcast coverage automatically altered juror perceptions No right to record in the courtroom because it alters the jurors opinion. [Cornerstone of jury system Sheppard v. Maxwell (1966) \ Sheppard said that his wife was killed by a hairy drifter. He had many affairs and everyone wanted a front row seat at his trial because of the scandal around tha case The courts were worried about the media circus but recognized that it is the public's right to know Press coverage may coexist, but significant coverage creates a prejudicial trial → Balance Need to have some kind of check

Protecting Juveniles

Courts generally limit access to legal proceedings involving juveniles to advance the government's substantial interest in reducing trauma that might impede rehabilitation and healing of juvenile victims, defendants and witnesses.

Riverside Press Enterprise test

Determine if hearing presumed open. Questions need to answer This type of hearing traditionally been open? Will opening this hearing play a positive role in the functioning of the judicial process? Not presumed open if BOTH answers "no"

Access to Courts and Court Records (Presuming the Openness of Trials)

Experience and logic test

Broadcasting and Recording Court Proceedings

First Amendment provides a right of access to courts, openness is not absolute

Points of Law Whom Shield Laws Protect

Foundational definitions in state shield laws determine the breadth and application of the law. For example, West Virginia's law includes the following: "Reporter" means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person's livelihood, or a supervisor or employer of that person in that capacity: Provided that a student reporter at an accredited educational institution who meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood, meets the definition of reporter for purposes of this section. On its face, this law applies only to individuals who disseminate news for a living (including freelancers whose major income comes from news) and those working in and with campus media.

Globe Newspaper Co. v. Superior Court

Globe Newspaper Co. v. Superior Court for Norfolk COunty, the supreme court struck down a Virginia law that closed courtrooms during all testimony of any minor who was a sexual assault victim

Contempt of Court

If a journalist does not help they could be found contempt of court Civil Contempt Compels individual to do what's required to benefit the complainant Criminal Contempt Preserves court's authority, punish disobedience

Protect your privacy

If presented with a search warrant: Contact a lawyer Record the events You are required to allow the search, not aid it If no warrant & can I see your phone? NO! Overseeing the courts (Part 2)

Delaying the Trail

In 2016, the U.S. Supreme Court ruled that the Sixth Amendment right to a speedy trial does not require speedy sentencing.129 The case involved a man who waited in jail for more than 14 months for sentencing. He appealed his sentence of seven years in prison, arguing that the sentencing delay was unconstitutional. The Supreme Court disagreed. Its short, unanimous ruling said the "heart" of the Sixth Amendment is the desire to protect the "presumption of innocence and therefore loses force upon conviction."

People v. Owens

In 2018, the Colorado Supreme Court affirmed a separate court order refusing to release witness identification and other information related to the defendants' challenge to their death-penalty sentences. Some of the witnesses were in a witness protection program. Without employing the two-part experience and logic test established in Press-Enterprise, the state supreme court held in People v. Owens that neither the state constitution nor the First Amendment guaranteed the defendants or news organization access to sealed records in the capital murder case.

What is a journalist?

In Louisiana Reporter is defined broadly as "any person regularly engaged in the business of collecting, writing or editing news for publication through a news media." La. R.S. 45:1451. "No reporter shall be compelled to disclose in any administrative, judicial or legislative proceeding or anywhere else the identity of any informant or any source of information obtained by him from another person while acting as a reporter." La. R.S. 45:1452

Points of Law The Press-Enterprise Test for Court Closure

In Press-Enterprise (II) v. Superior Court of California,xiv the U.S. Supreme Court established that an individual seeking to close open court records or proceedings, including pretrial hearings, must provide specific, on-the-record findings that there is a "substantial probability" that openness will jeopardize the defendant's right to a fair trial and convincing evidence that closure is "essential" to preserve the trial's fairness.

Closing Courts

In Press-Enterprise I and II, the U.S. Supreme Court said, "The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise II established that general privacy concerns alone do not justify closing a courtroom or voir dire.

Protecting Sexual Assault Victims

In cases of sexual assault, all the states and the District of Columbia have a rape shield law to protect the alleged victim from questions that might prejudice jurors against the victim. Except for Mississippi, every state has a statute excluding evidence of the complaining witness's past sexual activity. Some states also shield the victim's identity and other personal information

For-cause challenge

In the context of jury selection, the ability of attorneys to remove a potential juror for a reason the law finds sufficient, as opposed to a peremptory challenge.

Advancing the Flow of News

In the years following Sheppard v. Maxwell, state media, bar associations and members of the judiciary developed agreements to guide reporting on the courts. The so-called bench/bar/press guidelines aimed to limit prejudicial media coverage by restricting both the content and the tone of trial coverage. They balanced the media and public interest in information against the courts' concerns about privacy and fairness.

Points of Law Contempt of Court

Judges have broad, discretionary power to cite individuals with contempt of court for failure to obey a court order or any misconduct that interferes with the court. This power is limited by some state laws and the First Amendment.xii Civil contempt citations may compel an individual to do something, such as name a source or turn over notes. Civil contempt sometimes is called "indirect contempt" because the instigating event generally occurs outside the direct supervision of the judge. Criminal contempt is conduct in or near the court that obstructs court proceedings. Because it generally interferes directly with court proceedings, it sometimes is called "direct contempt." Under the First Amendment, judges may issue contempt citations against negative news coverage only if the comments intimidate jurors or undermine the fairness of the trial. Individuals given lengthy jail terms for contempt have a right to a jury trial.xiii

Instructing the Jury

Judges issue instructions or warnings, to jurors to tell them to avoid potential prejudice. Typical instructions tell jurors not to view news coverage and not to discuss the case among themselves or with others prior to jury deliberations.

Limiting Speech Outside of Court

Judges tend to believe that when government and court officials—police and attorneys, for example—publicly discuss ongoing trials, their speech influences jurors' perceptions of witnesses' guilt or innocence. In Sheppard, the Supreme Court encouraged judges to use restraining orders, or gag orders, to prevent trial participants from discussing potentially prejudicial information outside the courtroom.

Admonitions

Judges' instructions to jurors warning them to avoid potentially prejudicial communications.

Requiring Evidence

Many argue that the First Amendment's recognition of the value of newsgathering should protect journalists from forced disclosure of information in court. This rationale holds that a requirement to testify infringes the First Amendment guarantee of freedom of the press, which provides a reporter's privilege not to divulge confidential information.

Points of Law What Is Fair Coverage of Criminal Trials?

Media standards of professional and ethical performance as well as bench/bar/press guidelines establish fair reporting standards on criminal proceedings. Most guidelines say that only an overwhelming justification should lead media to report the existence or content of a confession; statements or opinions of guilt or innocence; the results of lab tests; statements or opinions on the credibility of witnesses, the evidence or the investigative process or personnel; or other information reasonably likely to affect the trial verdict.

Points of Law Closing Media Mouths: The Nebraska Press Association Standard

Nebraska Press Association v. Stuart established that a judge must justify gags imposed on the media with convincing evidence that disclosure of the information would present a substantial threat to a fair trial, there is no effective alternative to a gag on the press, the gag will effectively eliminate the danger to the fair trial and the gag is narrowly tailored to restrict only the information that must be kept secret.

Before closing a courtroom, judges must determine that facts demonstrate all of the following:

Openness poses a substantial threat to a fair proceeding. No alternative exists that would effectively eliminate the threat to fairness. Closure will effectively eliminate the threat. Closure will be narrowly tailored to protect maximum public access to the judicial process.

Continuance

Postponement of a trial to a later time.

Journalist's Privilege Test

Privilege does not exist if gov't: 1. Probable cause to believe reporter has info connected to specific violation of law Ex: If they think a journalist knows about a big drug deal 2. No alternatives Ex: police should try to find other ways to get other info 3. Relevance - compelling, overriding interest

Using Newer Technologies in the Courts

Real World Law Managing New Media in Courts A Media Law Resource Center model policy for electronic media in the court system makes the following recommendations: People in courtrooms may use electronic devices to silently take notes and/or transmit texts without prior authorization from the presiding judge. A judge may prohibit or restrict use of electronic devices if they pose any threat to safety or security or compromise the integrity of the proceeding. Use of electronic devices by reporters, bloggers and other court observers to post online commentary during the proceedings is presumptively permitted so long as it meets the above conditions.

Judging Impartially

Sometimes the fairness of the judge is cast into doubt. In Sheppard, the U.S. Supreme Court said the fact that both the judge and the prosecutor were running for election during the trial posed the potential for prejudice.156 The Supreme Court also has ruled that the Constitution requires judges to disqualify or recuse themselves from hearing a case when a risk of prejudice exists because "a person with a personal stake [in the case outcome

In Defense of Journalism

Sources rely on confidentiality Journalists would argue potential chilling effect Take this very seriously Josh Wolf Case Study Josh Wolf, Journalist, refused to turn over videotapes of 2005 protest, Police wanted the footage to get identification of people who damaged police car. He went to jail for 226 days and after posting the videos on his blog he was released.

Sixth Amendment

Speedy public trial 6th amendment Right to impartial jury is paramount

Shield Laws

State laws that protect journalists from being found in contempt of court for refusing to reveal sources No shield laws would have protected Josh Wolf No federal shield law Protects journalists from being forced to reveal sources 49 states Varying degrees of protection

Real World Law Does Publicity Bias Jurors?

Studies do not support the claim that pretrial publicity regularly alters the outcome of a trial.v Pretrial publicity affects verdicts only when jurors are exposed to heavy pretrial publicity, evidence in court does not point convincingly to a clear verdict, information provided by the media seems more convincing or reliable than the evidence in court, the media consistently lean toward one verdict and all the remedies available to the court fail at the same time.

What's a subpoena?

Subpoena Orders a person who may have evidence relevant to legal proceeding to either testify or produce specified evidence If you know there is a witness out there who could help your case prove that you are not guilty then they can not decline to testify Have to go to court if you have a subpoena

Following Sheppard v. Maxwell

The Sheppard ruling was applauded for its protection of defendants' rights and criticized for prompting judges to limit the openness of judicial proceedings. Judges apply the measures suggested by the Supreme Court in Sheppard to prevent or correct prejudice in the jury by establishing where and how the jury is chosen, as well as where and when the trial takes place, and by limiting the amount of speech freedom jury members and other trial participants have during the trial.

International Law Canada Says Stop Trampling on Reporters' Rights

The Supreme Court of Canada urged judges to use caution when forcing journalists to reveal sources. In a ruling in a libel lawsuit brought against a Globe and Mail reporter, the court said: If relevant information is available by other means without requiring a journalist to break confidentiality, then they should do that. This should cause less fishing expeditions (for info) and limit any unnecessary interference with the work of the media.

Chandler v. Florida

The U.S. Supreme Court said the right of access to public trials does not include presumptive access for cameras. The Court noted that electronic coverage affects the trial process and participants in unpredictable ways. Although the Court no longer presumed cameras would be inherently prejudicial, it said individual states should determine whether to permit cameras in courtrooms; it said print coverage sufficiently protects the public interest in open trials. The U.S. Supreme Court does not permit still or video cameras during its oral arguments.

Guiding Media Coverage of Courts

The U.S. Supreme Court's landmark decision in Nebraska Press Association called press gags an extraordinary remedy that is presumptively unconstitutional

Selecting Jurors

The clerk of court selects names at random from a list, such as adult licensed drivers or registered voters, in the county where the trial will be held. The location of the pool of jurors is called the venire. Each potential juror receives a summons to appear in court.

Sequestration

The isolation of jurors to avoid prejudice from publicity in a sensational trial.

Voir Dire

The judge and/or attorneys for both sides question members of the jury pool. The process allows either side to pose a for-cause challenge to a potential juror if the individual's responses suggest a prejudice relevant to the case.

Accessing Court Records

The public right to access court records is grounded in common law and the U.S. and state constitutions. Decisions to close, or seal, court records generally are subject to the same constitutional limits as court closure. They are strongly disfavored and must pass the stringent Press-Enterprise experience and logic test.

Richmond Newspapers, Inc. v. Virginia

The supreme Court held that the Sizth Amendment right to a public trial does not belong to the defendant alone. The Court said criminal trials are presumptively open and the First Amendment prohibits their closure without a full exploration of alternatives.

Open Courts

To close, judge must prove ALL are true: Openness poses substantial threat to fair proceedings No alternatives exist that would eliminate that threat to fairness Closed in a narrowly tailored way eliminate the threat, but still protect public access to judicial process

Prejudicial Publicity

To overturn a criminal conviction: Actual and identifiable juror bias (could say out loud that they are biased) resulting from prejudicial publicity OR Such persuasive publicity that bias can be presumed

Remedies to Prejudicial Publicity

To prevent juror bias: 1. Continuance - delay until publicity subsides 2. Change of venue - move locations (or venue) 3. Jury voir dire - extra questioning 4. Sequestration - isolate jury from the public 5. Admonition - instructions to jury to ignore 6. Order new trial - in case jury contaminated (rare)

Impanel

To select and seat a jury

Cameras in Federal Courts

U.S. Supreme Court No cameras U.S. Circuit Courts At judges' discretion; closed off from criminal proceedings by Federal Rule of Criminal Procedure U.S. District Courts Cameras in some proceedings in the second and ninth trial courts

Types of Closed Cases

Varies by state, but generally: Juveniles Domestic violence Sexual assault

Press-Enterprise newspaper in California settled the application of the experience and logic test to determine when the constitutional presumption of openness applies

When they "have historically been open to the press and general public" (the proceedings traditionally has been open) And "public access plays a significant positive role in the functioning of the particular process in question (openness advances the goals and functioning of the proceeding itself)

Privacy Protection Act (1980)

Zurcher v. Stanford Daily (1978) Student newspaper searched by police Police Officers search the Stanford Daily because they had pictures of a violent clash between protestors and police. They did this to be able to identify the protester The police raided everywhere in the building. Stanford Daily were mad and filed suit. They lost Huge step in protecting journalists and their sources Privacy Protection Act: Places restrictions on use of search warrants against news organizations Few exceptions (imminent harm, national security, child pornography, etc.)

Sequestering the Jury

rarely, a judge will sequester, or isolate, a jury during a trial and prohibit jurors from having unsupervised contact with anyone outside of court. Sequestration may protect trial fairness, but it may alter juror attitudes and the outcome of the trial.

According to the U.S. Supreme Court's rulings in two Press-Enterprise newspaper cases, court proceedings are presumptively open if experience and logic dictate openness. Accordingly, court processes are presumed to be open if

the proceeding traditionally has been open, and openness advances the goals and functioning of the proceeding itself.

To close a court you must

to close a open hearing you must show that (1) the openness has a "substantial probability" of significantly threatening the fair trial process and (2) closure is a last resort "essential" to preserving fair trial rights.