The Gag Order: Asphyxiating the First Amendment

Abstract

Y ITS OWN admission one of the most difficult questions the Supreme Court wrestles with is the ubiquitous conflict between a "free press" and a "fair trial" a conflict which the courts today still have problems resolving (i.e., while they are beginning to readmit cameras to the courtroom, they are allowing the exclusion of reporters from certain judicial proceedings).1 When addressing this conflict the Court generally looked at the time both prior to the empaneling of the jury, and during the trial itself. Although the Court is intolerant of agents that alter the tone of courtroom decorum in a way which precludes "a sober search for the truth," Estes v. Texas, 381 U.S. 532, 551 (1965), and in fact on at least three occasions reversed convictions of defendants who were victims of such poor courtroom management, Carroll v. Texas, 392 U.S. 644 (1968); Estes (1965); and Marshall v. U.S., 360 U.S. 310 (1959), this research is primarily concerned with the pre-trial stage. It is during this pre-trial stage that the Court performs a delicate balancing act between free press and a fair trial. The empaneling of an unbiased jury is vital to securing a fair trial: see Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). Since most publicity describing events surrounding the crime occurs prior to the selection of jurors, exposure to such information may prejudice potential jurors a prejudice that may be impossible to overcome if the juror is then called to serve. The nature of this prejudice may be influenced by both the intensity and tone of the coverage (e.g., the extent of coverage, the language in which the descriptions are framed, etc.), and the publication of damaging claims or facts (e.g., past criminal behavior, confessions, etc.). The Court sees the media's job as necessary to guard "against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism."2 Therefore, rather than dictate to the media standards for the performance of their jobs, the judicial system provides several procedural safeguards to insure that the suspect is provided with a fair trial by unbiased jurors. These include: a change of venue to a jurisdiction where the publicity has not been so intense; a continuance, so that the publicity and its effects will have a chance to subside; an intensive voir dire to screen out those jurors who may have been affected by the news accounts; and the employment of simple and explicit judicial instructions concerning the inappropriateness of using information not presented during the trial. Where publicity was extensive, the Court has not responded favorably to defendants who fail to utilize those available protections. On other occasions the Court has contended that the implementation of these safeguards was sufficient to protect the defendant from the impact of prejudicial pretrial publicity (i.e., subsequently referred to as PPP). See Murphy v. Florida, 421