Access to Information, Free Press/Fair Trial, Journalist Privilege and Other Issues Related to News Gathering/Dissemination

Freedom of Information and Access to Places

Although the Supreme Court of the United States has expanded a right of access to trials and other criminal proceedings (discussed later in this chapter), it seems safe to say that the First Amendment provides no general right of access except for situations where public access—often represented by journalists—has been both the rule historically and adds legitimacy to the situation. In Pell v. Procunier¹ and Saxbe v. The Washington Post,² for example, the Court specifically rejected claims that journalists have a special right to gain access to prisons and other government facilities, holding that the mass media have no greater right of access than the average citizen.

Just because the First Amendment has not been interpreted as providing a special right of access for journalists and the public, however, does not mean that the reasons for allowing access to records and places are without merit. To accomplish by statute what could not be achieved by constitutional interpretation, Congress passed the Freedom of Information Act (FOIA) in 1966,³ supplemented by the 1974 Privacy Act⁴ and the Electronic Freedom of Information Act Amendments adopted in 1996.⁵ These laws provide a qualified right of access to information maintained in the files of federal agencies. All 50 states have now followed suit with their own freedom of information (FOI) laws to provide a statutory right of access to state records.

FOI laws are not only for journalists. Knowledgeable advertising and public relations practitioners often can find valuable information, such as who got a government contract, business dealings by competitors or data about consumer behavior, from Census and other government sources obtained through the strategic use of freedom of information requests.

The federal FOIA mandates that all federal executive departments and federal regulatory agencies disclose how and from whom their records may be obtained by the public for viewing and/or photocopying. According to the Act, the term “agency” includes “[a]ny executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the government. …”⁶ The federal FOIA also applies to federal regulatory “agencies” (e.g., FTC, FDA or BATFE). Government information covered by the Act includes—but is not limited to—(a) printed records or printouts of computer files; (b) photographs, illustrations and graphs/charts; and (c) electronically recorded information including data stored in electronic databases. As the people to whom a freedom of information inquiry often is made or referred, the public relations professionals in government organizations should make themselves intimately familiar with both federal and applicable state FOI statutes.

Exemptions to the Federal FOIA

The first exemption to the requirements of disclosure in the Act is material designated by an executive order to be kept secret in the interests of national defense or foreign policy. This has proven in practice to be a rather large exception because Congress and the courts have given great deference to the executive branch in determining what is classified. The current test is simply whether disclosure could reasonably be expected to endanger national security. Not only can the government maintain a document as classified under the national security/foreign policy exemption, but it can even reclassify a document formerly in the public domain as secret after an FOIA request has been made.

The second exemption is for information that is related solely to the internal personnel rules and practices of an agency. The third is for documents already exempted by other federal statutes.

The fourth exemption to the federal FOIA is for trade secrets or commercial and financial information that are considered to be privileged or confidential. This exemption gave rise to a decision by the Supreme Court of the United States of significance to corporate public relations professionals. The Court held that the federal FOIA permits but does not require an agency to withhold documents that arguably fall within one of the exemptions.

The case of Chrysler Corp. v. Brown⁷ involved a request for information about Chrysler Corporation’s affirmative action policies. This information had been provided to the U.S. Department of Labor by Chrysler under federal statutory provisions requiring such submissions from any company with multiple contracts with the federal government. Before the information could be made public, Chrysler sought an injunction in a federal district court in Delaware to block its release. The trial court granted the injunction, but this decision was overturned by the Court on the basis that the FOIA does not provide for private action by a company to prevent disclosures. Today, acting under executive order, federal agencies routinely notify organizations if information they have supplied is to be released to the public. Organizations are permitted a 10-day period to protest such release and, if necessary, to seek injunctive relief in federal district courts to stop the information from being divulged.

Exemption six, which protects personnel, medical and other similar government files containing information of a normally private nature about specific individuals, has produced much controversy and litigation. For example, a federal appellate court sided with an agency decision to deny FOIA disclosure to requests for information about the citizenship status of foreign nationals. Another federal court, on the other hand, allowed The New York Times access to the last seconds of recorded conversations among the seven crew members of the space shuttle Challenger before the space craft exploded, killing all aboard.⁸

Exemption seven has also seen its share of litigation and controversy. With the continuing emphasis on the reporting of crime news by American news media, the exemption created by the federal FOIA for records or other documents compiled for law enforcement purposes frequently is challenged when law enforcement officials decline to provide journalists with information about criminals or criminal investigations. Government agencies wishing to classify information related to law enforcement must demonstrate either that disclosure could reasonably be expected to interfere with enforcement procedures or deprive a person of a right to a fair trial. Also, exemption seven often affords protection for information constituting an unwarranted invasion of privacy, identifying a confidential source, revealing law enforcement techniques or endangering the life or physical safety of an individual.

The eighth exemption, permitting classification of information related to the examination, operation or condition of a financial institution, and exemption nine, concerning documentation of geological and geophysical investigations, have produced little litigation.

State FOI laws typically parallel their federal counterpart, complete with exemptions for law enforcement documents, confidential business data and individual privacy interests. Although a comprehensive discussion of these state statutes is beyond the scope of this text, those interested in learning more about a state’s FOIA are advised to access the Web site of the individual state’s press association for the wording of and advice about how to employ the Act.

Open Meeting Laws

All states have passed statutes mandating open meetings of public bodies such as city commissions, state regulatory agencies, school boards and so forth. Most of these so-called “sunshine laws” also provide for closed-door sessions when officials are discussing such things as legal matters, property acquisition and individual personnel issues, although no official business may be finalized or final votes taken behind closed doors. Access to federal government agency meetings is provided by the “Government in the Sunshine Act” of 1977⁹ that provides rights and exemptions similar to state laws.

Notification of public meetings must be posted to give enough time for the public to attend. Although emergency meetings are allowed, the emergency must be genuine. “Informal” meetings, such as cocktail parties, backyard barbecues or early-morning breakfasts (where lawmakers “just happen” to get together), tend to be treated as public meetings by open-meeting statutes and are therefore subject to the same requirements as regular meetings.

Freedom of Information and Access to Places in a Digital, New-Media Age: Emerging Issues

Cases involving challenges to government actions denying requests for information or access to meetings or locations continue to clog the court dockets at both the federal and state levels. Whether it involves recent issues like the scope of disclosure of documents filed with a court or media access to state-supported college and secondary school sporting events, apparently the efforts of those in public office or employed by a government agency to prevent disclosure of public information or limit access by the public to public events or places are never ending.

It is the belief of the authors that wise and prudent public relations professionals practicing in government offices might do well to keep in mind the motto stated in the United States Department of Defense’s public affairs policy, “maximum disclosure, minimum delay”¹⁰ when it comes to FOI or sunshine requests by the public, and especially the media, if they wish actually to accomplish good relations with the public. They also should to continue to educate those who head such government agencies and offices about FOI requirements.

Free Press/Fair Trail Issues

Imagine you recently asked one of your friends, a part-time reporter for a local daily newspaper in your area, to give you a ride to get your car at the repair shop. She agreed, but added, “I hope you don’t mind if we make just one brief stop while I meet with a man at a restaurant—it’s on our way.” The reporter explained she hoped to obtain information from the source— local mobster Harry “The Mule” Smith—to be used as the basis for a story about illegal drug dealing.

Assume that authorities subsequently acquired enough information from undercover police investigations to focus on Harry as being a likely kingpin in drug trafficking in your city and obtained an arrest warrant to detain him. City police found Harry walking down the street, handcuffed him, threw him into a squad car, took him downtown and booked him. Nobody read him his rights (the so-called Miranda¹¹ warning), nobody offered to allow a phone call to an attorney, in fact, nobody got to see Harry for three days because the police kept him locked in the basement of the jail, seated in a straight-backed chair with the light from a 500-watt bulb shining in his eyes while teams of brawny police officers constantly interrogated him.

Harry finally cracked under the strain and confessed, not only to drug dealing but to the murder of two rival mobsters. He told police that they could find the evidence they needed, including a still-smoking revolver with bullets matching those found in one of the victims, a blood-stained knife covered with Harry’s fingerprints and a diary in Harry’s handwriting revealing how he planned his foul deeds, all buried under the old oak tree in his backyard. The police rushed to Harry’s house and, sure enough, dug up all the evidence Harry said would be there. Police Chief O’Malley, at the urging of his public relations counsel, then stepped forward at a specially called press conference and announced to the world that Harry had been caught, confessed to the crimes, the police had uncovered all of the evidence and that “obviously we have caught the bum that did it. He’s guilty as sin.”

Remember the press conference conducted by the police chief in our scenario? He not only spoke in detail about the evidence, but conclusively stated the guilt of the accused. The newspapers and television stations serving the area would be sure to report this as news—it might even be the lead story. Assume that on returning to your residence at the end of the day, you picked up your mail but then put it aside to get a snack before dinner while watching an evening local television news show. The program leads with a full report of the details of the police chief’s press conference. Now, having been exposed to news about Harry’s confession, police discovery of murder weapons and the police chief’s conclusions about Harry’s guilt, you open your mail and discover that you have been chosen for jury duty.

Free Press/Fair Trial: The Courts Get Involved

For much of the nation’s history, this conflict was only theoretical. The media disseminated what they wanted and if the rights of the criminally accused were diminished, it was just too bad. But as concerns about protection of civil liberties increased during the 1950s, courts became more and more worried about the prejudicial publicity problem. Things came to a head with the Supreme Court’s decision in Sheppard v. Maxwell.¹² Dr. Sheppard, an osteopathic surgeon, was charged with murder in the slaying of his wife. Sheppard claimed an intruder had invaded their home, knocked him unconscious and killed Mrs. Sheppard, but police soon made Sheppard their number one suspect.

In what today would likely be called a “media circus,” the newspapers covering the case employed sensational headlines suggesting his guilt, officials made public statements of a similar nature prior to trial and the news media were given almost free rein inside and outside the courtroom during the trial. Found guilty and sent to prison, Sheppard pursued the appeal of his conviction all the way to the Supreme Court. In a landmark decision, the Court overturned Sheppard’s conviction and ordered a new trial on the basis that the trial judge failed to “fulfill his duty to protect [Sheppard] from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom.”¹³

Many of the Court’s suggestions for trial courts to use as remedies for alleviating potential bias are familiar to most readers today. These include (a) a delay of trial or other proceedings; (b) change of venue; (c) maintaining order inside the courtroom; (d) intensive screening of potential jurors to root out bias; (e) instructions to the jury to avoid reading or viewing the news media while the case proceeds; and, in more extreme cases, (f) sequestering the jury for the length of the trial. With these tools at a judge’s disposal, once the jury pool is chosen arguably there should be little reason to worry about prejudicial publicity reaching the jury unless the judge fails to do his or her duty. Unfortunately, the remedies that are most effective in minimizing bias require the judge to have control over the jury members. These measures are largely ineffective in preventing pre-trial prejudicial publicity from reaching potential jurors.

Use of Prior Restraint to Ensure Fair Trials

Charged by the Supreme Court with the responsibility for mitigating the effects of prejudicial pre-trial publicity, but lacking effective means to carry out this responsibility, beginning in the late 1960s a few trial courts began to experiment with restraining orders directed at the press. These orders, placed on news media representatives in the early stages of a criminal case, usually allowed the press to be present at pre-trial hearings or other proceedings and to obtain information from law enforcement officials but mandated that the press not publicize certain kinds of potentially prejudicial information. Journalists violating such orders ran the substantial risk of being found in contempt of court and made to pay fines and/or spend time in jail.

The effectiveness of these court orders, quickly dubbed “gag rules” by the news media, made their use attractive to other judges and the number of courts across the country employing these court orders in some form quickly snowballed. Because these court orders also undeniably were examples of government agencies employing prior restraint (as discussed in Chapter 1, the most constitutionally suspect method of government abridgement of speech), it was only a matter of time before a challenge to their use arrived at the door of the Supreme Court.

The case that presented the Court with the opportunity to speak about the legitimacy of the use of such restraints was Nebraska Press Association v. Stuart,¹⁴ an appeal of a decision by the Nebraska Supreme Court. The sensational facts of the case included the murder of all six members of a family living in the small town of Sutherland, Nebraska (population 850). Police almost immediately suspected Erwin Simants, who turned himself in to authorities the next day. Because mass murder was not a common occurrence in Nebraska, the case garnered widespread attention from both regional and national print and broadcast media.

After three days of constant media attention, both Simants’ attorney and the county prosecutor asked a county court judge to issue an order prohibiting the media from divulging “news which would make difficult, if not impossible, the impaneling of an impartial jury and tend to prevent a fair trial.”¹⁵ The judge granted the motion that “prohibited everyone in attendance from ‘releasing or authorizing the release for public dissemination in any form or manner whatsoever any testimony given or evidence adduced. …’ ”¹⁶

After a preliminary hearing, Simants was bound over for trial to the state district court presided over by Judge Hugh Stuart. Various journalist organizations, including the Nebraska Press Association representing the state’s newspapers, as well as individual newspapers and broadcast stations asked Judge Stuart to lift the restraining order issued by the county court.

Finding that there was “a clear and present danger that pre-trial publicity could impinge upon the defendant’s right to a fair trial,”¹⁷ the judge refused the request to lift the restraint on publication but modified the county court’s original order to reflect the Nebraska Bar-Press Guidelines. These guidelines for disseminating information had been adopted earlier by print and broadcast media associations in cooperation with various law enforcement personnel and judicial officers. The Nebraska Bar-Press Guidelines, like those that had been adopted by many other states, suggested that in criminal cases it would be inappropriate to report information about a suspect’s confession or other admissions, the results of physical tests that might be inadmissible in court (e.g., a lie-detector test), opinions by officials about guilt or innocence and other statements that might inflame or influence potential jurors to which the actual jury members hearing the case might not be exposed.

Although the Nebraska Press Association had participated in the drafting of these guidelines, it, along with other news media representatives, appealed to the Nebraska Supreme Court asking that the restraining order be overturned on the premise that making voluntary guidelines mandatory violated free speech/press rights. When the Nebraska high court refused, the press association took its appeal to the Supreme Court of the United States.

Characterizing the “problems presented by this case [as] almost as old as the Republic,”¹⁸ Chief Justice Burger, writing for the majority (all nine justices agreed on the outcome), traced problems of prejudicial publicity surrounding criminal proceedings back to the trial of Aaron Burr for treason in 1807. The Chief Justice noted that even back then, Chief Justice Marshall had expressed concern about the problems in selecting an unbiased jury and he observed that the “speed of communication and the pervasiveness of the modern news media have exacerbated these problems.”¹⁹ Nonetheless, the Court concluded that such sensational cases “are relatively rare, and we have held in other cases that trials have been fair in spite of widespread publicity.”²⁰

Observing the existence of a number of other measures to minimize the effects of prejudicial publicity including changing the venue (location) of the trial, delaying the proceedings, interrogating potential jurors to determine bias, instructing jurors as to how they should view the evidence in a case, restraining participants in the case (e.g., lawyers, defendants, witnesses) from discussing it with the news media, regulating the activities of the media in the courtroom and sequestering the jury, the Court overturned the ruling by the Nebraska Supreme Court and struck down the restraining order on First Amendment grounds.

In so holding, however, the Court did not rule out the limited use of judicial restraining orders in future cases. Instead, the Court created a three-part test for determining the constitutionality of such restraints of the media. First, said the Court, the judge issuing a restraining order directed against the press must be able to show a clear record of “intense and pervasive”²¹ news coverage that demonstrates prejudicial pre-trial publicity has occurred, is likely to continue and that such “publicity might impair the defendant’s right to a fair trial.”²²