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

Chapter 12
Access to Information, Free Press/Fair Trial, Journalist Privilege and Other Issues Related to News Gathering/Dissemination

Although the principal focus of this book is on the laws and regulations affecting commercial speech, readers should also be aware of a number of legal issues related to the news-gathering and disseminating process facing the print, broadcast and online journalists with whom they share the marketplace of ideas.

Among these issues are the arguments for and against conducting public business “in the sunshine” by allowing access to public records and meeting places, the inevitable tensions involved in protecting the freedom of journalists to fully and accurately report on the criminal and civil law processes while at the same time ensuring that those parties actually involved in a case are afforded the right to the fair and unbiased judicial proceeding that the Constitution promises and whether to grant journalists a constitutional or statutory “privilege” to withhold information from law enforcement, legislative and judicial authorities.

The reader should note that this chapter is purposely written from the perspective of the news journalist because the issues discussed most directly impact the newsgathering process. However, these issues have implications for public relations practitioners and, to a lesser extent, advertising professionals as well. These are noted in the chapter where appropriate.

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.

Lower federal and state courts have followed the Court’s lead, ruling in almost every instance that journalists have no superior access rights than those afforded the general public to enter property, gain entrance to crime scenes or be admitted to meetings. In practice, the public relations staffs of most government agencies often (and arguably should) try to accommodate the requests of journalists to gain access if their presence does not interfere significantly with the department’s operations.

What is true for access to physical places is also true for access to records and other information. With the exception of some categories of material related to criminal proceedings, particularly evidence or supporting matter introduced in open court, the courts consistently have held that the mass media have no greater right of access to records and documents than do members of the general public.

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.

The federal FOIA covers information in the possession of, and controlled by, a government agency. Disputes, sometimes leading to legal challenges, have arisen about the definitions of “possession” and “control.” If the records sought were created by agency personnel and remain within the agency that created them, both requirements likely will be satisfied. Grayer areas involve records created by outside contractors or technically no longer under the jurisdiction of the agency to which the FOI request is made.

The statute specifies that (a) all final court opinions and orders related to agency matters; (b) policy statements; and (c) interpretations of regulations, documents and records about agency actions or proposed actions that are not exempted from disclosure by the nine specific exceptions in the Act must be made available for public inspection. Even if some parts of a document might be exempted, the Act requires the government agency producing the document to make a reasonable effort to ensure that the non-exempted portions are provided to members of the public seeking the information.

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 five to the federal FOIA protects inter-agency and intraagency memoranda or letters from public disclosure. This exemption has been interpreted as protecting working papers and other documents produced as part of an agency’s ongoing decision-making process as well as the “work-product” of government attorneys normally protected as privileged communications under rules of legal civil procedure.

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.

Although procedures for requesting information vary, most FOI Acts, including the federal statute, require that (a) those requesting information submit a written request for specific records, although visiting the agency and asking the FOI officer politely to see a record sometimes works; (b) the government agency must provide the desired records within a specified time period or explain why the information is being withheld; and (c) the government normally be permitted to charge a nominal fee for compiling and photocopying documents, although the fee may be waived upon request.

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.

Those responding to freedom of information requests should note that attempts to hide information created or maintained in Web sites, e-mails or other new media technologies most likely will be futile. Court decisions to date tend to treat “documents” alike whether in new media or old when it comes to FOIA inquiries.

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.”

By now, most if not all of you probably have wanted to raise objections about the police conduct described in this hypothetical situation. You most likely have seen enough television programs about law enforcement and the judicial process to feel that courts would never allow the police to operate in this high-handed fashion and hope to make the charges stick.

Much of the evidence gathered by the police in this example likely would be inadmissible in court because the judge, in order to ensure Harry a fair trial, would employ the so-called “exclusionary rule” to keep it out. This rule of evidence, along with other rules to keep potentially prejudicial information from the jury (e.g., a prior criminal record) have been developed by courts and approved by the Supreme Court of the United States as methods to ensure that police and prosecutors, in the process of enforcing the criminal law, do not violate the rights of those charged with a crime. This means that police and prosecutors know that evidence that could be useful, and perhaps decisive, in proving the guilt of the criminally accused may be excluded from consideration by a jury unless the law enforcement officials play by the rules.

The rules work because police and prosecutors measure their success in how many bad guys are apprehended, convicted and removed as threats to society. It is doubtful that any modern-day law enforcement agency would operate the way the police did in our hypothetical scenario. But if it did, or in a more likely occurrence, if the police simply make a mistake in the enforcement process, the courts have the responsibility and the power (the “exclusionary rule”) to prevent the jury from being prejudiced by learning about the tainted evidence. Unfortunately from the perspective of the court, no such power exists to prevent potential jurors from learning about the tainted evidence by reading or hearing about it in their local and national media.

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.

See the problem? If you were selected for the jury pool in Harry’s upcoming trial, you would have been exposed to pre-trial publicity about evidence potentially prejudicial to Harry’s case that you most likely would not have learned about as a juror in the courtroom. Because of this prior knowledge, you might ask to be excused from jury duty or be challenged by one of the parties to the case. But what if almost everyone in town has been exposed to the prejudicial information? How can Harry (or Martha Stewart or Michael Vick, to name just two real-life examples) be assured of a fair and unbiased trial by his peers in these circumstances?

At the heart of the “free press/fair trial” issue is this conflict—the courts’ responsibility to ensure the criminally accused and, to a lesser degree, the people (represented by the prosecutor) the right to a fair and unbiased trial on the one hand, and the responsibility of the mass media to accurately and comprehensively report the news and to carry out this task free from unwarranted government interference, on the other.

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.

This conundrum—trial court judges charged by the Supreme Court with minimizing prejudicial publicity or risk having their cases overturned on appeal, yet being unable to effectively use the remedies for prevention suggested by the Court—led to the first great confrontation between the legal system and the press over the issue of free press/fair trial: the use of prior restraints or so-called “gag orders.”

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

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