Courtrooms and Censorship

Definition: Venues for civil and criminal trials

Significance: In the interest of protecting defendants’ rights to fair trials, judges often issue gag orders, sequester juries, or restrict courtroom attendance and camera coverage

The First Amendment to the U.S. Constitution promises freedom of speech and press, and the Constitution’s Sixth Amendment grants to criminal defendants the right to public trials by impartial juries. Sometimes these two rights conflict. For example, if the public attending a trial loudly proclaims its views on the proceedings, insisting that the defendant is guilty, the defendant can claim that the trial was not fair. More subtle forces may also influence a public trial. To balance the rights of the defendant and the public, judges may issue orders that restrict the rights of the public to attend a court proceeding or to view it on television. In addition, judges may restrict out-of-court statements made by attorneys and, in rare circumstances, may attempt to limit information the press reports about a case. Judges also may decide that the sensational nature of a case requires that the jury be sequestered, or isolated, for the length of the trial. Thus, a judge has considerable discretion to fashion remedies ensuring a defendant’s right to a fair trial. In doing so, there is some infringement, or censorship, of the First Amendment rights of the public, the press, the jurors, attorneys, and other trial participants.

Problem and Solutions

The U.S. Supreme Court has offered guidance to judges faced with a free press-fair trial conflict. In Sheppard v. Maxwell (1966) the Supreme Court ruled that regardless of the press’s role in sensationalizing a story it is the judge’s job to control the courtroom and ensure a fair trial. Dr. Sam Sheppard was a Cleveland, Ohio, physician who was convicted of murdering his wife in 1954. There was intense media interest in the case before and during Sheppard’s trial. In overturning the doctor’s conviction, the Supreme Court found that the “carnival atmosphere” surrounding the proceedings had denied the defendant a fair trial. The Supreme Court rebuked the trial judge for failing to take action to safeguard Sheppard’s rights. “Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom,” the justices said. “But . . . courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.” The Supreme Court said the judge could have changed the location of the trial or delayed it until publicity died down. He could have thoroughly questioned potential jurors, isolated jurors during the trial, and warned jurors not to read or view news stories about the case. The judge also could have limited the type of out-of-court statements made by attorneys, witnesses, and other trial participants. Restrictions of this sort are often referred to as gag orders. Finally, regarding the press, the Supreme Court said that any judge overseeing a highly publicized case must control the use of the courtroom by journalists.

Gag Orders and the Press

While the Supreme Court was highly critical of the press’s sensational coverage of the Sheppard case, the court did not suggest press censorship as a remedy. Nevertheless, gag orders aimed at the press were not uncommon afterward. In 1975 a Nebraska judge issued an order that stopped the press from reporting about the murders of six members of the Kellie family. The order also prevented the press from reporting on public pretrial proceedings against the man charged with the crimes. The judge feared the defendant’s right to a fair trial would be compromised by the publicity. Journalists challenged the gag order and, in Nebraska Press Association v. Stuart (1976), the Supreme Court established guidelines that made it difficult for judges to gag the media. The court called censorship of speech and publication “the most serious and least tolerable infringement on First Amendment rights,” and said three conditions had to be met before a gag order against the press could be justified. The court said judges had to determine the nature and extent of pretrial news coverage, whether there were other solutions available to counteract pretrial publicity, and whether a gag order aimed at the press would, in fact, be effective in preventing prejudice against a defendant.

Access to Proceedings

Another way to curb prejudicial publicity and safeguard a defendant’s right to a fair trial is to prevent access to the courtroom. A judge can close the doors on a pretrial proceeding or trial, but only under strict conditions set by the Supreme Court. American courts are generally open to the press and public. And when there is privacy, it is likely to affect only part of a proceeding. In reviewing a Virginia judge’s order to close his courtroom for the fourth trial of a murder defendant, the Supreme Court noted in Richmond Newspapers v. Virginia (1980) that the trial judge had not considered alternatives to the closure and that he should have. The High Court said that First Amendment guarantees “prohibit government from summarily closing courtroom doors which had long been open to the public at the time that amendment was adopted.” Don R. Pember, author of Mass Media Law (1996), summarizes access to legal proceedings by noting that there is “virtually an unqualified right for any citizen, including reporters, to attend a criminal or civil trial, and there is a strong but qualified right for the press to attend most other kinds of judicial proceedings and to inspect most court documents.”

Cameras in the Courtroom

Most states allow cameras in some or all of their courts, but Pember notes that judicial or other permission is required in thirty-one states before cameras can be used. In the O. J. Simpson trial, for example, the judge had the power to remove the camera from the proceedings. Two cases illustrate the Supreme Court’s history with cameras in the courtroom. In Estes v. Texas (1965), the Court reversed the conviction of a Texas financier on grounds that television had denied him a fair trial. “The heightened public clamor resulting from radio and television coverage will inevitably result in prejudice,” the Court said. “Trial by television is, therefore, foreign to our system.” That 5-4 decision slowed state experimentation with cameras in the courtroom. By 1981, however, camera technology had improved—and so had the Court’s view on the matter. In Chandler v. Florida, an appeal of the burglary convictions of two Miami Beach police officers, the Court was unanimous in its opinion that the presence of cameras in court is not inherently prejudicial to a defendant. The Court noted that, while there is always a risk of prejudice, that prejudice has to be demonstrated to the Court’s satisfaction. In this case, the Court said the police officers had not proven that the presence of the cameras harmed jurors’ ability to render a verdict based on the evidence. The Court said states were free to experiment with cameras in court if they chose.

Bibliography

ABA Standards for Criminal Justice: Fair Trial and Free Press (3d ed. Washington, D.C.: American Bar Association, 1992) covers legal rules. Douglas S. Campbell’s Free Press v. Fair Trial: Supreme Court Decisions Since 1807 (Westport, Conn.: Praeger, 1994) gives a history of Court decisions regarding the relation of the First and Sixth amendments. Censorship, Secrecy, Access, and Obscenity, edited by Theodore R. Kupferman (Westport, Conn.: Meckler, 1990), has articles on a variety of the ramifications of the court censorship issue. Peter E. Kane’s Murder, Courts, and the Press: Issues in Free Press/Fair Trial (Carbondale: Southern Illinois University Press, 1992) discusses the sensational murder trial, which is often the source of controversial decisions regarding court censorship. Don R. Pember’s Mass Media Law (7th ed. Madison, Wis.: Brown & Benchmark, 1996) establishes a context for court censorship issues.