Free Press and Fair Trial: An Alternate Paradigm for an Old Dilemma
I. Introduction
The press in the United States has been regarded as an essential force
in keeping government honest. The press, numerous observers have
held,
must serve a watchdog function, acting as surrogate for the public.
The
media must be able to observe and report on government activities so
that citizens, who often lack the time and resources to watch
government
closely, may stay informed. Law professor Vincent Blasi has
expressed
this function as the "checking value."[1] Official misconduct and
abuse
of power, according to Blasi, will be minimized when government
actions
are closely observed.
Journalists derive this Constitutional role from the First Amendment to
the U.S. Constitution, which is applied to the states through the
Fourteenth Amendment. The First Amendment states in pertinent part:
"Congress shall make no law . . . abridging the freedom of speech, or
of
the press."[2] As interpreted by state and federal courts, part of
the
First Amendment's purpose is to encourage the press's watchdog
role.[3]
An important part of the modern journalist's role is to report matters
concerning newsworthy crimes and criminal trials. Criminal trials
represent the power of government at perhaps its most awesome -- the
power to deprive a defendant of life or liberty. This power suggests
that criminal proceedings should be one arena in which the press's
ability to check governmental abuse should be uninhibited.
The government has its own responsibility in criminal proceedings under
the Constitution -- a duty to ensure criminal defendants a fair
trial
under the Sixth Amendment.[4] Like the First Amendment, the Sixth
Amendment also applies to the states through incorporation in the
Fourteenth Amendment. At times American courts have seen journalistic
reporting of material concerning defendants as threatening
defendants'
Sixth Amendment rights. In highly publicized criminal trials,
defendants have been said to have been convicted by the media rather
than by the jury.[5] On rare occasions, trial courts have issued
prior
restraints on journalists, prohibiting them from reporting certain
matters regarding criminal trials to the public. In other cases,
courts have excluded the press and public from trials and other criminal
proceedings. In both situations, courts have based their authority
to
act upon defendants' Sixth Amendment rights. These cases suggest
that
the First and the Sixth Amendments are on a sort of collision
course,
requiring judges to balance the two rights. The situation has been
described as "the right of free press versus the right of fair trial."
This paper will explore the validity of the paradigm within which free
press-fair trial cases are decided: the often unspoken assumption
that
constitutional rights can conflict. The paper first will examine
the
background of the dispute, with particular attention to key U.S.
Supreme
Court cases. Next, the paper will describe an alternate view of the
conflict, a view embraced by a small number of scholars and appellate
court judges that rejects the notion of antagonism between
constitutional rights. Finally, the paper will offer concluding
perspectives on possible effects of this alternate paradigm.
II. Two Rights in Conflict
Concern about the effects of prejudicial publicity on the rights of
criminal defendants is not new. As long ago as the 1807 trial of
Aaron
Burr, participants in the legal system have worried that widespread
publicity could have detrimental effects on trials. In the Burr case,
"defense counsel urged that jurors had been prejudiced against
Colonel
Burr by inflammatory articles carried in the Alexandria Expositor
and
other newspapers."[6]
The U.S. Supreme Court did not rule on prior restraints on the speech
of journalists until 1931, and the case did not concern prejudicial
publicity. In Near v. Minnesota an attorney accused the publisher of a
weekly magazine of publishing "malicious, scandalous and defamatory"
articles about politicians and public figures.[7] Pursuant to a
Minnesota
statute which declared any "malicious, scandalous and defamatory
newspaper, magazine or other periodical" an abatable public nuisance, a
Minnesota court enjoined the publisher from continued publications
of
the material.[8] Minnesota's highest court upheld the injunction.
In
1931, the U.S. Supreme Court declared that the Minnesota statute was an
unconstitutional prior restraint on publication. The Court noted
that
while "freedom of the press is not an absolute right . . . the main
purpose of the First Amendment is to 'prevent all such previous
restraints on publications.'"[9] The Near Court further maintained that
prior restraints are "the essence of censorship."[10]
The U.S. Supreme Court again addressed the issue of prior restraint in
1971 in Organization for a Better Austin v. Keefe .[11] The Keefe
Court
vacated an injunction which prohibited a neighborhood organization
from
seeking to "stabilize" the racial rates in the neighborhood from
disbursing pamphlets that criticized the respondent's real estate
practices. The Court stated that "any prior restraint on expression
comes to this Court with a 'heavy presumption' against its
constitutional validity."[12]
In a case also decided in 1971, New York Times v. United States ,[13] the
executive branch of the United States Government sought to enjoin
the
New York Times and the Washington Post from publicizing information
taken from a documented secret study of the United States' involvement
in the Vietnam Conflict.[14] The government petitioned a federal
district
court for a temporary restraining order to allow the government time
to
examine the documents and determine if the information contained in
them
would threaten national security. The district court refused to
enjoin
publication temporarily and the U.S. Supreme Court affirmed its
decision, finding that the government had not met its "heavy burden."[15]
Nebraska Press Association v. Stuart [16] was the first Supreme Court case
confronting the constitutional issue of the use of prior restraint
on
journalists in order to protect a defendant's right to a fair trail.
In
deciding this 1976 case, the U.S. Supreme Court legitimized the
notion
that the First Amendment's prohibition of government abridgment of
freedom of the press and the Sixth Amendment's guarantee of fair trials
in criminal trials could conflict. The court set out a balancing
test
to be used by trial judges when confronted with such conflicts. It
based its First Amendment-Sixth Amendment balancing test on principles
of prior restraint law set out in such previous cases as Near. The
Nebraska Press test requires that a court examine the evidence to
determine, first, the nature and extent of prejudicial news coverage;
second, whether any alternatives short of a prior restraint would
suffice; and, third, whether a restraining order would effectively pr
event the threatened harm.[17]
Chief Justice Burger suggested a number of alternatives that might
satisfy the second prong of the test.[18] First, a judge may utilize
the
voir dire process to weed out potential jurors with fixed opinions as
to
guilt or innocence. Also, a judge may either grant a change of
venue to
move the trial to a location where the publicity at issue is less
influential, or postpone the trial until the effect of the publicity
abates. Another alternative is to sequester the jury in order to
insulate them from outside influences of the news media. Finally, the
trial judge may give specific jury instructions that direct the jury
to
consider only the evidence set forth at trial in deciding the
issues.
Each of these alternatives to prior restraint have limitations as to
their effectiveness. For instance, voir dire questioning,
sequestration, and limiting instructions are available only after a
prospective jury panel is assembled. In many situations this process
takes place after a great deal of pretrial publicity. Also, change
of
venue or postponement of trial is effective only when pretrial
publicity
is geographically limited to the area in which the trial originally
was
to have taken place, or when publicity will cease within a
reasonable
time.[19]
The Nebraska Press majority stated that if "a threat of criminal or
civil sanctions after publication 'chills' speech, prior restraint
'freezes' it at least for a time."[20] Censoring the press (by
prohibiting
the publication of information which the press, and therefore the
public, already has) is the most problematic aspect of prior
restraints.[21]
Despite these condemnations of prior restraints upon the media, the
U.S. Supreme Court in Nebraska Press refused to prohibit them
absolutely.
In an opinion concurring in the judgment, Justice Brennan, joined by
Justices Stewart and Marshall, rejected Burger's balancing approach.
Justice Brennan advocated the categorical position "that resort to
prior
restraints on the freedom of the press is a constitutionally
impermissible method for enforcing [the right to a fair trial]."[22]
Justice Brennan argued that the use of such alternative devices as
sequestration could adequately protect defendants' Sixth Amendment
rights. Brennan pointed out that suggested exceptions to the general
rule against prior restraints in Near and New York Times v. U.S. had
centered on matters of national security, not criminal trials.
A recent opinion by the Eleventh Circuit of the U.S. Court of Appeals
has suggested that the qualified protection against prior restraint
in
criminal proceedings may be inadequate in certain circumstances.
The
Eleventh Circuit upheld a federal district court's temporary
restraining
order prohibiting the Cable News Network from broadcasting audio
tapes
it had obtained.[23] The tape contained conversations between
deposed
Panamanian leader Manuel Noriega and his defense lawyers. Noriega was
in custody on drug-related charges after surrendering to United
States
authorities during the highly publicized and controversial military
invasion of Panama by U.S. troops. The tapes, CNN said, were made by
government personnel at the South Florida detention facility at which
Noriega was being held.
The district court issued the temporary restraining order at the
request of Noriega's attorneys.[24] The court barred broadcast of the
tapes, for as long as 10 days, until it could determine whether the
tapes might interfere with Noriega's attorney-client privileges and his
Sixth Amendment right to a fair trial. CNN refused to relinquish
the
tapes for inspection by the district court judge on First Amendment
grounds. After the 11th Circuit affirmed the temporary restraining
order, the U.S. Supreme Court refused to review the case.[25]
An important point in the CNN case is that the district court had the
opportunity to obtain the tapes from the party to whom the Sixth
Amendment duty applies D the government. Yet for reasons of
administrative convenience, and on the highly unlikely chance that CNN's
tapes were not recorded by the government, the district court did
not
seek the tapes from the government.
The CNN decision by-passed the three-prong test set out in Nebraska
Press. The CNN court's actions effectively shifted the burden,
established in Nebraska Press, away from the party seeking the prior
restraint to the news medium fighting it. The order for CNN to
relinquish D possibly permanently D the First Amendment right to publish
timely news about potential government misconduct was based solely
on
speculation that publication might interfere with a future trial.
Prior restraint against the press is not the only situation in which
the Supreme Court has upheld the notion of balancing First Amendment
and
Sixth Amendment rights. The First Amendment right of access to
trials
is a more recent addition to First Amendment jurisprudence than
prior
restraint doctrine, but the Court's opinions concerning access have
also
used the rhetoric of rights in conflict. For example, in the 1980
case
of Richmond Newspapers v. Virginia ,[26] the Court first created a
right of
access to criminal proceedings. That right, however, was subject to
"an
overriding interest articulated in findings," such as a danger to
the
defendant's fair trial rights.[27] Later cases in the Richmond line,
in
particular Press-Enterprise Co. v. Superior Court (Press-Enterprise
II),[28]
which created a First Amendment right of access to preliminary
hearings
in criminal cases in 1986, made it clear that the right of access
could
be limited to protect defendant's Sixth Amendment rights. As in the
prior restraint cases, the access cases upheld the notion of free
expression rights in conflict with fair trial rights.
The cases discussed above make it clear that courts have accepted the
argument that restrictions upon the news media can be justified by
apparent conflicts between the First and Sixth Amendments. But are
these two constitutional amendments capable of constitutional
collision?
There is judicial authority supporting the position that the
fundamental rights of First Amendment free press and Sixth Amendment
fair trial are by their terms incapable of conflicting. While this
position has not been widely accepted, it does suggest an alternative
view of free press-fair trial cases. The next section explores this
alternate doctrinal explanation of the relationship between the First
and Sixth Amendments.
III. Disputing the "Conflict" Paradigm
From the preceding section, it becomes clear that the dominant notion
in cases involving press coverage of the criminal justice system is
that
there are two fundamental rights in conflict. This is the received
view
of free press-fair trial cases: on the one hand, the cherished
rights
of free speech and press; on the other, the inviolable right of a
criminal defendant to receive a fair trial. Under the received view,
these rights are often incompatible, thus one must yield. Generally,
courts employ some sort of balancing formulation, such as strict
scrutiny or the three-part Nebraska Press test, to sort out the
conflicting interests. Some involved in the debate may dispute the
method of striking the balance, but few have questioned the underlying
notion of rights in conflict.
Perhaps the leading figure in challenging the received view that the
First Amendment and Sixth Amendment are incompatible is Justice Hans
A.
Linde of the Oregon Supreme Court. Justice Linde's 1977 speech
"Fair
Trials and Press Freedom -- Two Rights Against the State" was
published
as an article in the Willamette Law Journal that has received
relatively
little notice or citation in scholarly legal literature.[29] Yet
Justice
Linde's ideas have had a small but measurable impact in an arguably
more
important forum -- the courts.
Justice Linde's comments, before the Rocky Mountain-Pacific Northwest
Regional Seminar on Freedom and Ethics of the Press, recounted the
standard litany of free press-fair trial cases such as Sheppard v.
Maxwell[30] and Nebraska Press Association v. Stuart .[31] But the
fallacy that
Justice Linde saw underlying such cases was the idea that
constitutional
rights -- rights of individuals against the government -- can
conflict.
Justice Linde's explanation of this fallacy is that its proponents
have
overlooked the fact that constitutional rights run against
government,
not against other individuals. A bill of rights is a list of
conduct
government cannot perform on its citizens, but does not limit
conduct
between private citizens:
For what is a constitutional right? It is a claim that runs against
the
government -- usually not a claim that the government do something
for you or me, but that it refrain from doing something to us. The
constitution prescribes how government is to behave and how not.
The constitution does not make rules for private persons, unless they
act on behalf or in lieu of a government. Only a government can
violate a constitutional command. If one of us claims a right against
another person or institution, for instance a newspaper, it may be a
right under some law, but it is not a constitutional right.[32]
The fallacy of a free press-fair trial conflict, Linde maintained, is
that it takes two rights that accrue to individuals -- the First
Amendment right of free speech and free press and the Sixth Amendment
right to a fair trial -- and trades them off against each other.
There
is no question that the Sixth Amendment requires government to
provide a
fair trial. The point raised by Linde is that private actors, such
as
the news media, are not under a similar obligation by the terms of
the
Sixth Amendment. Nor, according to Linde, can government require
the
press to assist it in meeting its obligations under the Sixth
Amendment.
As a result, constitutional rights do not create rights or remedies
against private parties acting solely for themselves and not on behalf
of government. In the criminal justice setting, constitutional
rights
do not allow one party -- a defendant -- to assert a right to limit
the
conduct of another party -- the media. The notion of a conflict
between
fair trial and free press rights, according to Linde, "lets the
state
turn two constitutional limitations on its powers into a classic
example
of 'let's you and him fight.' It asks defendants and reporters to
trade
off their rights between themselves or let a court do it for them.
But
this is not constitutional law."[33]
Although Linde's view has not received wide discussion in First
Amendment scholarship, a similar position has been taken by a widely
respected constitutional scholar, Professor Laurence H. Tribe. Tribe,
in an extended discussion of the Nebraska Press case, raised the
point
that, while free speech and fair trials are both important rights,
"the
danger of pretrial publicity need not force such a choice. If our
system of criminal justice is functioning properly, government is
prohibited from trying an accused in a prejudicial atmosphere; if
pretrial publicity prevents the impaneling of an impartial jury, the
defendant is entitled by the sixth amendment to a dismissal of the
charges against him."[34] Professor Tribe's formulation, while somewhat
ambiguous, suggests Linde's view to the extent that it insists that
government is the actor charged with a duty under the Sixth Amendment.
If government cannot perform its responsibility, i.e., provide a
fair
trial, then it simply cannot try the accused.
Tribe noted in the next passage that "the key conflict is therefore not
between a defendant's sixth amendment rights and a publisher's first
amendment rights: the interests advanced to justify suppression of
prejudicial news are largely the state's interests -- in putting guilty
criminals in jail and maintaining confidence in the fairness of the
judicial system."[35] While Professor Tribe's view of the import of
this
fact is not entirely clear, one possible implication is that the
state's
interests, as opposed to the defendant's fair trial rights, do not
rise
to constitutional dimensions. Free press-fair trial case law and
commentary are full of the notion that the First Amendment rights of the
press can be trumped in the criminal justice setting because they
are
being balanced against the constitutional rights of the accused. If,
as
Professor Tribe suggested, the rights being balanced against those
of
the press are not constitutional rights, but merely vague government
"interests," it becomes much more difficult to justify infringement of
speech.
Although only a few cases have employed the Linde view in deciding a
free press issue, these largely unheralded cases are of importance
because of the unorthodox First Amendment jurisprudence they represent.
For example, in CBS v. U.S. Dist. Ct. for C.D. of California,[36]
the U.S.
Court of Appeals for the Ninth Circuit in 1983 struck down a
temporary
restraining order enjoining CBS from broadcasting government
surveillance tapes from the celebrated drug trial of John DeLorean. In
the opinion for the court, one member of the three-judge panel
applied
traditional free press-fair trial jurisprudence by applying the
three-part Nebraska Press test to strike down the prior restraint. The
opinion stated that despite "enormously incessant and continually
increasing publicity" there was an insufficient showing that an
impartial jury could not be seated to try DeLorean.[37]
In a concurring opinion, however, Judge Alfred Goodwin took the view
that the Sixth Amendment, as a restraint on government, could never
support a prior restraint on the press. The Sixth Amendment is a
command directed at the state, Judge Goodwin reasoned, and does not
empower government to invade the liberties of its citizens, including
those of free speech and press. Under this view, there could not be
any
conflict to be "balanced" by the use of the Nebraska Press test.
"The
Sixth Amendment tells the government that it cannot deprive
individuals
of their liberty without a fair trial, and by judicial decision that
guarantee has come to mean that the government may not perform
governmental acts that deprive a person of a fair trial," Judge Goodwin
wrote, citing Justice Linde's 1977 article.[38] Judge Goodwin's
reasoning
received a second vote on the three-judge panel when Judge Reinhardt
indicated his "complete agreement" with Judge Goodwin's opinion.[39]
This
vote created the only known federal appellate court decision in
which a
majority of the court accepted the Linde view of the free press-fair
trial issue.
The Ninth Circuit affirmed the unconstitutionality of another prior
restraint in 1989 in Hunt v. NBC.[40] Hunt sought to restrain an NBC
docudrama, "Billionaire Boys Club," in which he was depicted as planning
and committing a murder for which he was yet to be tried. While
finding
the prior restraint unconstitutional, the Hunt court declined to
adopt
Judge Goodwin's position in his CBS concurrence that the Sixth
Amendment
could not authorize a restraint on a private actor. Acknowledging
that
Judge Reinhardt's agreement with Judge Goodwin "may constitute a
majority vote on that issue" in CBS,[41] the Hunt court nevertheless chose
not to address the issue because it already had determined that the
trial court's decision to deny the restraint was not an abuse of
discretion. Although somewhat cryptic, the Ninth Circuit panel seemed
to take the position that because the district court reached the
correct
result under Nebraska Press, the more controversial rationale
contained
in Judge Goodwin's CBS concurrence need not be considered.
Presumably,
this reasoning follows the traditional judicial reluctance to decide
any
more than necessary to resolve the case at hand.
The only state case in which the Linde view has received a majority
appears to be Oregonian Publishing Co. v. O'Leary, a 1987 Oregon
Supreme
Court case decided not on federal constitutional grounds, but based
upon
a provision of the Oregon Constitution.[42] In O'Leary, Oregonian
Publishing, publisher of The Oregonian, sought to overturn a trial
judge's order excluding a reporter and the public from part of the
proceedings during a murder trial. During the trial, a witness
refused
to testify because the testimony would be self-incriminating; the
trial
judge closed the proceeding to consider the issue. A state statute
allowed the judge to hold a "summary hearing" as to particular witness
testimony outside the presence of the jury and the public. The
Oregon
Supreme Court struck down the statute as violative of Article 1,
section
10 of the Oregon Constitution, which stated in pertinent part that
"No
court shall be secret, but justice shall be administered openly. . .
."
The Oregon Supreme Court discussed a number of arguments on behalf of
the constitutionality of the statute, but said the principal
rationale
used by the intermediate appellate court in upholding the statute
was a
"balancing of the command of section 10 against the witness's
'secrecy'
interest in not disclosing incriminating information."[43] Citing
Justice
Linde's article, the state high court rejected such a balance: "The
government cannot avoid a constitutional command by 'balancing' it
against another of its obligations."[44] The state could not, the court
wrote, close the courtroom in order to meet its obligation to preserve
the witness's secrecy interest or constitutional right against
self-incrimination. "Both obligations must be satisfied," the court
wrote, "and if both cannot be satisfied, the government must act so as
not to create the conflict. Either the hearing must be open or the
government must acquiesce in the witness's refusal to testify."[45]
While O'Leary is not a classic free press-fair trial case, the Oregon
Supreme Court clearly adopted Justice Linde's position that
constitutional rights are commands directed to government that may not
be traded off against each other. O'Leary is symmetrical with free
press-fair trial cases in that two rights were set off against each
other: one belonging to the press and public (open courts) and the
other
belonging to a potential accused (the secrecy or self-incrimination
interest). The O'Leary court, rather than choosing one to the
exclusion
of the other, insisted that each right be given full expression.
The Linde view also has been cited in a dissenting opinion by a justice
of the Washington Supreme Court. In Federated Publications v.
Kurtz,[46] a
majority of the Washington high court approved a lower court's
closure
of a pretrial suppression hearing in a high-profile murder case.
The
suppression hearing was held to determine whether certain statements
made by the defendant, as well as his past convictions and other
matters, could be admitted into evidence during the trial. The danger
of publicizing such hearings is that evidence that may be ruled
inadmissible nevertheless ultimately may reach the ears of potential
jurors through the press. When the defense and prosecuting attorneys
moved to close the courtroom, the trial judge closed the proceeding.
Federated Publications, publisher of a local newspaper, then sought
to
open the closed transcript and to enjoin the judge from similar
closures
in the future.
The Washington Supreme Court decided the case on state constitutional
grounds. The Kurtz majority used the familiar rhetoric of
conflicting
rights: "In order for a trial court to determine if a given case is
one
whose circumstances justify closure of a judicial proceeding, the
court
needs workable standards that allow it to balance between the
public's
right of access and the accused's rights to a fair trial including
an
impartial jury."[47] The majority ultimately adopted the balancing
test
from Justice Powell's concurring opinion in the 1979 case of Gannett
Co.
v. DePasquale[48] and upheld closure after an extensive analysis of
the
balance. One concurring opinion in Kurtz rejected Powell's standard,
which was based upon a "likelihood" of prejudice, in favor of a more
rigorous "substantial probability" of prejudice standard.
In dissent, Justice Dolliver rejected the very notion of balancing
constitutional rights. "The majority and the concurrence begin with an
erroneous premise: that constitutional rights conflict. They thus
reach
an erroneous result: that a balance can and should be struck."[49]
Citing
Justice Linde's law review article, the dissent argued that
constitutional rights should not be arranged hierarchically, with one
right trumping another. "To allow the State through one of its
branches
-- here the judiciary -- to act as a coat holder while individuals
fight
to assert their constitutional rights -- not against the State but
against each other -- is a perversion of the whole notion of
constitutional protection for the individual," Justice Dolliver wrote.[50]
Justice Dolliver argued that the state was the entity charged with
providing a fair trial -- and it must do so, or it may not try the
defendant at all. While recognizing the widespread use of balancing
formulations to sort out the perceived conflict, the dissent called
upon
the court's majority to reexamine the issue, "particularly since, as
I
have indicated, it is contrary to correct constitutional
analysis."[51]
Justice Dolliver wrote that he was optimistic that, despite the
difficulties encountered in high-profile cases, both the public's right
of access and the accused right to a fair trial could be
accommodated.
One way, the dissent suggested, was voluntary bench-bar-press
guidelines
that could allow the media to assert fully its own rights while,
without
legal coercion, respecting the rights of the defendant. The dissent
made it plain that not only did constitutional principles require full
access, but such principles were in the best interests of all
concerned:
"Not only do I believe this approach has constitutional validity, it is
also good public policy. In a democratic society, the final
responsibility for assuring the system works lies not with the courts,
but with the people."[52]
Another state supreme court justice adopted the view that
constitutional rights cannot conflict in State ex rel Herald Mail
Co. v.
Hamilton.[53] While not citing Justice Linde's article, Justice
McGraw's
concurrence in Hamilton suggests the same unwillingness to sacrifice
press and public rights in criminal trials in the name of the Sixth
Amendment. In Hamilton, the West Virginia Supreme Court considered a
closed pretrial hearing in a murder case. The court's majority
balanced
the state constitutional right of public access to proceedings with
the
defendant's right to a fair trial. The majority ruled that the
hearing
in question should have been open, but stopped short of an absolute
rule
of openness, treating the issue as one involving case-by-case
balancing
of competing rights.
Justice McGraw's concurring opinion, on the other hand, decried the
majority's view that the two rights must conflict. The courts must
provide fair trials, Justice McGraw argued, but not at the expense of
other constitutional rights. Moreover, courts had numerous
techniques
to protect both rights fully. "The majestic literature of common
law
jurisprudence bears windy witness to the flexibility of judicial
device
and to the boundless promise of judicial ingenuity," Justice McGraw
wrote. "Our Bill of Rights does not anticipate superior and inferior
classes of rights and it is improperly, even unlawfully presumptuous
for
us to suggest that the abridgment of one is necessary to the
preservation of another."[54]
IV. Discussion
The theory advanced by Justice Linde is a novel one. Yet as this paper
demonstrates, the "no conflict" paradigm has had some influence,
although admittedly garnering few majority votes. Moreover, while not
without its problems, the Linde view makes a great deal of sense
from a
constitutional theory perspective. The notion that government can
take
one provision from the Bill of Rights, a series of restraints on
government power, and use that provision to limit other individual
rights seems to embrace a fundamental inconsistency.
The practical issue of how defendants could be assured of fair trials
and impartial juries if restraints upon the press were prohibited
absolutely presents difficulties, however. Clearly, great judicial
ingenuity might be required to provide both rights their full
expression. In the prior restraint context, U.S. Supreme Court Justice
William Brennan wrote in Nebraska Press that too many tools are
available to trial judges to ensure defendants' Sixth Amendment rights
without damaging First Amendment principles.[55] Apparently that
has proved
to be the case because, up until the 1990 Noriega case, no prior
restraints against the press in federal criminal cases had been allowed
to stand since the 1976 decision in Nebraska Press. During that
fourteen-year period, no outcry had arisen that the inability to
restrain the press was prejudicing trials. The U.S. Court of Appeals
for the Fourth Circuit has pointed out that prejudicial publicity
does
not necessarily translate to prejudiced juries. In In re Charlotte
Observer,[56] the Fourth Circuit cited such highly publicized cases as
those
involving the Watergate defendants and John DeLorean in which juries
"were satisfactorily disclosed to have been unaffected (indeed, in
some
instances blissfully unaware of or untouched) by that
publicity."[57] To
that list one might add the state trial of the police officers
involved
in the Rodney King incident. It is at least arguable that such
traditional devices as change of venue, sequestration, and voir dire can
adequately protect fair trial rights in the absence of direct
restraints
on the press. In the years between Nebraska Press and Noriega, the
Linde theory operated de facto in prior restraint law, even if courts
were ostensibly engaging in a balancing analysis.
Aside from prior restraints, judicial ingenuity might be taxed to
implement the Linde theory in cases involving access to proceedings.
However, examples of novel alternatives to closure do exist. For
example, in U.S. v. Jacobson,[58] a federal court utilized a number of
innovations to maintain an open trial in the case of a male fertility
doctor charged with inseminating patients with his own sperm. The
court
had to balance the privacy rights of the parents and the possible
psychological harm to the patients' children with the First Amendment
right of access. Rather than close the proceeding, the court
employed
such devices as the use of pseudonyms during the testimony of the
patients and redaction of the patients' names from court records. These
techniques protected the privacy interests at stake while
maintaining an
open proceeding, demonstrating a flexibility and willingness to seek
novel solutions that may be lacking when judges have the doctrinal
authority to simply balance First Amendment rights away.
Nonetheless, there are no easy answers in situations in which rights
genuinely seem irreconcilable. The uncompromising Linde approach
might,
if it attained wider acceptance, create more problems than it
solved.
Yet as Justice Hugo L. Black noted, "free press and fair trials are
two
of the most cherished policies of our civilization, and it would be
a
trying task to choose between them."[59] For the few courts and
jurists
that have accepted the Linde view, no such choice is necessary.
[1] Vinc
ent Blasi, The Checking Value in First Amendment Theory, 1977 A.B.A. Res.
J.
521.
[2] U.S. Const., Amendment I.
[3] Although
this paper uses the traditional terminology of "free press," it should be
noted that the U.S. Supreme Court has generally not i
nterpreted the press clause of the
First Amendment to offer any greater
rights to the press than those already given to
all c
itizens by the speech clause. In other words, the two rights are largely
coextensive. E.g., Houchins v. KQED, 438 U.S. 1 (197
8).
[4] U.S. Const., Amend. VI.
[5] Eileen F. Tanielain, Note, Battle o
f Privileges: First Amendment vs. Sixth
Amendment, 10
Loy. Ent. L.J. 215 (1990).
[6] Report of the Committee on the Operation
of the Jury System on the "Free Press-Fair
Trial" Issue, 45 F.R.D. 391,
394, n.2 (1968).
[7] 283 U.S. 697 (1931).
[8] 1925 Minn. Laws 285.
[9] 283 U.S. at 723 (citing Patterson v. Colorado ex rel. Attorney Gener
al, 205 U.S.
454, 462 (1907).
[10] Id. at 713.
[11]
402 U.S. 415 (1971).
[12] Id. at 419.
[13] 403 U.S. 713 (1971).
[14]
Id. at 714.
[15] Id. at 714.
[16] 427 U.S. 539 (1976).
[17] Id. at 56
2.
[18] Id. at 563-64.
[19] Levine v. United States, 764 F.2d 590, 600
(9th Cir. 1985), cert denied, 476 U.S.
1158 (1986).
[
20] Id. at 559.
[21] In re Dow Jones & Co., Inc., 842 F.2d 603 (2nd Cir.
1988), cert. denied sub nom.,
Dow Jones & Co., Inc. v
. Simon, 488 U.S. 946 (1988).
[22] 427 U.S. at 572.
[23] U.S. v. Norieg
a, 917 F.2d 1543 (11th Cir. 1990).
[24] U.S. v. Noriega, 752 F.Supp. 103
2 (S.D. Fla. 1990).
[25] Cable News Network v. Noriega, 111 S.Ct. 451 (1
990).
[26] 448 U.S. 555 (1980).
[27] Id. at 581.
[28] 478 U.S. 1 (1986
).
[29] 13 Willamette L.J. 211 (1977).
[30] 384 U.S. 333 (1966).
[31]
427 U.S. 539 (1976).
[32] 13 Willamette L.J. at 217.
[33] Id. at 218.
[34] Laurence H. Tribe, American Constitutional Law (Second Edition) (M
ineola, NY:
Foundation Press 1988) at 857 n. 3.
[35]
Id.
[36] 729 F.2d 1174 (9th Cir. 1983).
[37] Id. at 1179.
[38] Id. at
1184 (Goodwin, J., concurring).
[39] Id. at 1184 (Reinhardt, J., concur
ring).
[40] 872 F.2d 289 (9th Cir. 1989).
[41] Id. at 296.
[42] 736 P.
2d 173 (Or. 1987).
[43] Id. at 178.
[44] Id. at 178.
[45] Id. at 178.
[46] 94 Wash. 2d 51, 615 P.2d 440 (1980).
[47] 615 P.2d at 445.
[48] 4
43 U.S. 368 (1979).
[49] 615 P.2d at 449.
[50] Id. at 449.
[51] Id. at
450.
[52] Id. at 450.
[53] 267 S.E. 2d 544 (W.Va. 1980).
[54] Id. at
552.
[55] Nebraska Press Association v. Stuart, 427 U.S. 539, 612 (1975)
(Brennan, J.,
concurring).
[56] 882 F.2d 850 (4th Ci
r. 1989)
[57] 882 F.2d at 855 (citations omitted).
[58] 785 F.Supp. 563
(E.D. Va. 1991).
[59] Bridges v. California, 314 U.S. 252, 260 (1941).
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