First Amendment: Freedom of the Press
First Amendment: Freedom of the Press
Freedom of the press in the United States emerged against a centuries-old backdrop of official suppression. Introduction of the printing press in the fifteenth century presented a threat to established political and religious orders accustomed to controlling the stream of information. Responding to the perils they perceived in mass disseminated information, authorities strictly controlled access to print technology and imposed harsh sanctions for criticism of church or state. Although intolerance of speech challenged established centers of power carried over to the American colonies, resentment of royal policies and privileges fueled and facilitated interest in a system of press liberty. Prior to and during the American Revolution, the press played a critical role in defining and mobilizing anti-British sentiment. Widespread mob violence against pro-British publishers, however, demonstrated that appreciation of a free press was often selective rather than universal. This tension between freedom of the press and suppressive instincts outlived the colonial experience. Abolitionists were largely unheard from in the South, for instance, where they were subject to punishment if they distributed antislavery literature. Publications criticizing American participation in World War I triggered prosecutions and resulted in harsh sentences under federal espionage laws. During the 1950s, anticommunist fervor similarly daunted mass dissemination of expression advocating radical political change. Although the terms of the press clause have remained unchanged since the republic’s founding, the press itself has redefined itself dramatically. Communications technologies, such as broadcasting, cable, satellite, and networked computers, did not exist when the First Amendment was framed and ratified. A constitutional response to their emergence, however, has become a primary preoccupation of modern First Amendment review.
PRIOR RESTRAINT
Central to a system of freedom of expression is the notion that prior restraints are generally impermissible. Concern with the chilling consequences of official censorship relates back to the late seventeenth-century England. Pursuant to the English Licensing Act, printing was tightly controlled by the Crown. This enactment empowered the Crown to determine who could publish. The Act was repealed in 1694, but the legacy of prior restraint extended into the American colonies and beyond the founding of the republic. Systems of prior restraint, ranging from prohibition of antislavery literature in southern states to movie censorship boards, have operated with limited or no constitutional constraint. The notion that prior restraints generally are inconsistent with the First Amendment, however, was affirmed in Near v. Minnesota (1931). In New York Times Co. v. United States (1971), the Court established two key propositions. The first is that prior restraints have a strong presumption of unconstitutionality. The second is that government has a heavy burden of justifying any system of prior restraint. Against this backdrop, the Court in Nebraska Press Association v. Stuart (1976) examined prior restraint in the context of the judicial process. At issue specifically was the constitutionality of gag orders designed to control pretrial publicity and limit risks to a defendant’s right to a fair trial.
Nebraska Press Association v. Stuart
Citation: 427 U.S. 539.
Issue: Whether a trial judge may prohibit reporting on a criminal trial in an effort to protect the defendant against excessive and prejudicial publicity.
Year of Decision: 1976.
Outcome: The national commitment to free speech, and the aversion against prior restraints, precludes a trial court judge from imposing restraints on publication provided that adequate alternatives exist for protecting a defendant’s right to a fair trial.
Author of Opinion: Chief Justice Warren Burger.
Vote: 9-0.
Press coverage of criminal trials can result in tension between the Fifth and Fourteenth Amendments to the United States Constitution, which guarantee criminal defendants the right to due process of law including the right to a fair trial, and the First Amendment right to free speech and a free press. In some instances, media publicity regarding criminal cases can be so intrusive that it creates the potential for an unfair and prejudicial impact on a criminal trial.
Illustrating the tension between the defendant’s right to a fair trial and the media’s right to report is the United States Supreme Court’s landmark decision in Sheppard v. Maxwell, 384 U.S. 333 (1966). In Sheppard, the defendant was convicted of murdering his wife and children in a trial at which “bedlam reigned at the courthouse.” Much of the material printed or broadcast was never presented at the trial, including charges that Sheppard had purposely impeded the murder investigation, that he must be guilty since he hired a prominent criminal lawyer, that he was a perjurer, that he had sexual relations with numerous women, that his slain wife had characterized him as a “Jekyll-Hyde,” that he was “a bare-faced liar,” and that a woman convict claimed Sheppard to be the father of her illegitimate child. The Court assumed that some of this material must have reached members of the jury because the trial judge did not protect Sheppard from “inherently prejudicial publicity” and did not control disruptive influences in the courtroom. In granting Sheppard’s habeas petition, the Court concluded that no one may be convicted without “a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.”
After Sheppard, trial courts were obligated to protect a defendant’s right to due process, but there were questions about how this goal was to be achieved. In Nebraska Press Association, the trial court confronted its obligation in the context of a sensational multiple murder trial (six victims) that attracted widespread media publicity. In an effort to ensure that the defendant received a fair trial, the trial judge entered an order restraining the media from publishing or broadcasting accounts of confessions or admissions made by the defendant to either law enforcement officers or third parties, except members of the press. It also prohibited them from publishing other facts “strongly implicative” of the defendant.
Petitioners—several press and broadcast associations, publishers, and individual reporters—challenged the order. The trial judge rejected the challenge, noting that, “because of the nature of the crimes charged in the complaint that there is a clear and present danger that pre-trial publicity could impinge upon the defendant’s right to a fair trial.” The judge continued the order, which specifically prohibited petitioners from reporting on five topics: (1) the existence or contents of a confession Simants had made to law enforcement officers, which had been introduced in open court at arraignment; (2) the fact or nature of statements Simants had made to other persons; (3) the contents of a note he had written the night of the crime; (4) certain aspects of the medical testimony at the preliminary hearing; and (5) the identity of the victims of the alleged sexual assault and the nature of the assault. It also prohibited reporting the exact nature of the restrictive order itself. Like the County Court’s order, this order incorporated the Nebraska Bar-Press Guidelines. Finally, the order set out a plan for attendance, seating, and courthouse traffic control during the trial.
In striking down the gag order, the United States Supreme Court began by noting that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,” especially when they involve the “communication of news and commentary on current events.” The Court emphasized that truthful reporting about judicial proceedings has been accorded special protection, especially reports on criminal proceedings, because the press is regarded as “the handmaiden of effective judicial administration, especially in the criminal” justice context. “The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.”
Despite the important public interest in prompt reporting, the Court recognized that a prior restraint might be justifiable if the “gravity of the evil” were high enough. As a result, in evaluating the Nebraska Press restrictions, the Court inquired “whether the record supports the entry of a prior restraint on publication, one of the most extraordinary remedies known to our jurisprudence.” Even though the Court expressed concern regarding the impact of “intense and pervasive pretrial publicity” on the case, the Court concluded that the trial court had other means at its disposal for protecting the defendant’s right to a fair trial. The trial court judge could have taken any of the following actions: (1) ordered a change of venue to “a place less exposed to the intense publicity”; (2) it could postpone the trial until public attention subsided; (3) it could ask searching questions of jurors designed to ensure that they are capable of fairly and impartially assessing the evidence; (4) it could clearly and emphatically instruct jurors regarding their sworn duty to decide the issues only on evidence presented in open court; and (5) the judge could sequester the jury to insulate them from the impact of pretrial publicity.
The Court also raised other questions regarding the trial court’s order. For example, the Court questioned the trial court’s ability to enforce its order, especially against media interests outside its jurisdiction. Moreover, the Court doubted that press reports would necessarily be more damaging than the alternatives. Even without media reports, rumors regarding the defendant’s guilt were likely to circulate in the community. Nebraska Press is an important decision because it reaffirms the nation’s commitment to free speech, and the general impermissibility of prior restraints. While the Court was sensitive to the important governmental interest in ensuring that criminal defendants receive fair trials, untainted by the threat of excessive and prejudicial publicity, the Court concluded that a trial court has other means, besides prior restraints, for ensuring the right to a free trial.
Mr. Chief Justice BURGER delivered the opinion of the Court.
. . . The problems presented by this case are almost as old as the Republic. Neither in the Constitution nor in contemporaneous writings do we find that the conflict between these two important rights was anticipated, yet it is inconceivable that the authors of the Constitution were unaware of the potential conflicts between the right to an unbiased jury and the guarantee of freedom of the press. The unusually able lawyers who helped write the Constitution and later drafted the Bill of Rights were familiar with the historic episode in which John Adams defended British soldiers charged with homicide for firing into a crowd of Boston demonstrators; they were intimately familiar with the clash of the adversary system and the part that passions of the populace sometimes play in influencing potential jurors. They did not address themselves directly to the situation presented by this case; their chief concern was the need for freedom of expression in the political arena and the dialogue in ideas. But they recognized that there were risks to private rights from an unfettered press. Jefferson, for example, writing from Paris in 1786 concerning press attacks on John Jay, stated:
“In truth it is afflicting that a man who has past his life in serving the public . . . should yet be liable to have his peace of mind so much disturbed by any individual who shall think proper to arraign him in a newspaper. It is however an evil for which there is no remedy. Our liberty depends on the freedom of the press, and that cannot be limited without being lost. . . .” 9 Papers of Thomas Jefferson 239 (J. Boyd ed. 1954). . . .
The Sixth Amendment in terms guarantees “trial, by an impartial jury . . .” in federal criminal prosecutions. Because “trial by jury in criminal cases is fundamental to the American scheme of justice,” the Due Process Clause of the Fourteenth Amendment guarantees the same right in state criminal prosecutions. “In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. . . . ‘A fair trial in a fair tribunal is a basic requirement of due process.’ In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as ‘indifferent as he stands unsworne.’ His verdict must be based upon the evidence developed at the trial.”
In the overwhelming majority of criminal trials, pretrial publicity presents few unmanageable threats to this important right. But when the case is a “sensational” one tensions develop between the right of the accused to trial by an impartial jury and the rights guaranteed others by the First Amendment. The relevant decisions of this Court, even if not dispositive, are instructive by way of background. . . .
The First Amendment provides that “Congress shall make no law . . . abridging the freedom . . . of the press,” and it is “no longer open to doubt that the liberty of the press and of speech, is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action.” The Court has interpreted these guarantees to afford special protection against orders that prohibit the publication or broadcast of particular information or commentary orders that impose a “previous” or “prior” restraint on speech. None of our decided cases on prior restraint involved restrictive orders entered to protect a defendant’s right to a fair and impartial jury, but the opinions on prior restraint have a common thread relevant to this case. . . .
Our analysis ends as it began, with a confrontation between prior restraint imposed to protect one vital constitutional guarantee and the explicit command of another that the freedom to speak and publish shall not be abridged. We reaffirm that the guarantees of freedom of expression are not an absolute prohibition under all circumstances, but the barriers to prior restraint remain high and the presumption against its use continues intact. We hold that, with respect to the order entered in this case prohibiting reporting or commentary on judicial proceedings held in public, the barriers have not been overcome; to the extent that this order restrained publication of such material, it is clearly invalid. To the extent that it prohibited publication based on information gained from other sources, we conclude that the heavy burden imposed as a condition to securing a prior restraint was not met and the judgment of the Nebraska Supreme Court is therefore
Reversed.
Bibliography
Bernabe-Riefkohl, Alberto. “Another Attempt to Solve the Prior Restraint Mystery: Applying the Nebraska Press Standard to Media Disclosure Attorney-Client Communications.” Cardozo Arts & Entertainment Law Journal 18 (2000): 307.
Freedman, Warren. Press and Media Access to the Criminal Courtroom. New York: Quorum, 1988.
Weaver, Russell L., Leslie W. Abramson, John M. Burkoff, and Catherine Hancock. Principles of Criminal Procedure. St. Paul, MN: Thomson/West, 2004, 359–69.
Weaver, Russell L., and Donald E. Lively. Understanding the First Amendment. Newark, NJ: LexisNexis, 2012, 225–29.
THE NEWSGATHERING FUNCTION
Although protecting freedom of the press, the First Amendment provides nothing in the way of a definition for “the press.” The modern press consists of much more than the print media that existed at the time of the First Amendment’s framing. An understanding of its boundaries is important, therefore, for purposes of determining the scope of the press clause.
The Supreme Court, despite the definitional void, has made no concerted effort to fill it. During the 1970s, some members of the Court engaged in a debate over the nature of the press. Justice Potter Stewart, for instance, argued that the press consists largely of organized media that provide the public with access to information necessary for informed self-government. Given this important proxy function, he would have protected the press not just in its publishing but in its newsgathering role.
Over the years, the Supreme Court largely has rejected this premise. In Branzburg v. Hayes (1972), for instance, it rejected the notion of a First Amendment privilege that would protect journalists from revealing confidential sources or testifying to a grand jury. Likewise, in Zurcher v. Stanford Daily (1979), the Court spurned arguments that the press’s unique role immunizes it from otherwise legitimate police searches and seizures.
The notion that the press has no special standing under the First Amendment was reaffirmed in Globe Newspaper Co. v. Superior Court (1982). Although acknowledging that court proceedings typically are open and the press may cover them, the Court in Globe emphasized that the press had no greater right of access than the public.
Zurcher v. Stanford Daily
Citation: 436 U.S. 547.
Issue: Whether the search of a newsroom for criminal evidence violated the Fourth Amendment.
Year of Decision: 1978.
Outcome: The First Amendment is no barrier to an otherwise valid search for criminal evidence.
Author of Opinion: Justice Byron White.
Vote: 5-3.
Freedom of speech and freedom of the press are set forth explicitly and separately in the First Amendment. For some constitutional experts, separation of the speech and press clauses means that the provisions have independent significance. Whether this differentiation was intended or real has been a continuing topic of debate. Although not officially resolved, case law largely has been consistent with the notion that the press clause adds no further meaning to the speech clause.
Freedom of expression sometimes has been referred to as occupying a “preferred position” in relationship to other constitutional provisions. Exponents of this proposition have maintained that liberty of expression is more important than any constitutional interest that may be in competition with it. Some, such as Justices William Douglas and Hugo Black, maintained that freedom of expression is of such significance that it cannot be abridged for any reason. The Supreme Court has resisted an understanding of the First Amendment in absolute terms, either in its relationship with other constitutional provisions or other policy interests that the Court may view as overriding.
The Court’s interpretation of the press clause has reflected a similar reluctance to give it special force. Arguments that the press clause has relevance above and beyond the speech clause are based upon the media’s special role in informing the public. A leading advocate of this position was Justice Potter Stewart. He maintained that the speech clause protected individuals, but the press clause gives “protection to an institution.” As Justice Stewart saw it, the gathering of news was essential to the public’s interest in being well-informed. Given the close relationship between the role of the press and the imperative of informed self-government, he urged protection not only for the process of publishing but newsgathering itself. When the Court held that the First Amendment did not shield reporters from having to reveal confidential sources to a grand jury, in Branzburg v. Hayes (1972), Justice Stewart predictably dissented.
Although his rationale has not been officially repudiated, the Court generally has been guided by the competing reasoning of Chief Justice Warren Burger in First National Bank of Boston v. Bellotti (1978). In this decision, Chief Justice Burger could find no difference “between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches.” This understanding, that the media do not have special status through the press clause, was the basis for the Court’s ruling on the claim that a police search of a newsroom violated the First Amendment. The search aimed to locate and seize photographs taken by a campus newspaper photographer, who had shot pictures of a demonstration at Stanford University. The newspaper had run a story detailing a clash between protesters and police. Following normal procedures, law enforcement officials obtained a warrant to search for photographs that would enable them to identify demonstrators. Justice Byron White, writing for a majority, found that the case implicated both the First Amendment and Fourth Amendment (which guarantees against “unreasonable searches and seizures”). The key question was whether First Amendment interests outweighed Fourth Amendment concerns.
The Court’s answer was that the search of a newsroom was governed exclusively by the Fourth Amendment. Although indicating that the First Amendment was not a factor in this context, the Court noted that procedures for an otherwise constitutional search and seizure must be adhered to “with ‘scrupulous exactitude’” in a newsroom search. As in any search context, a warrant allowing police to rummage through records, documents, and papers would violate the Fourth Amendment. The Court restated the well-established principle that search warrants should “leave as little as possible to the discretion or whim of the officer in the field.” It also referenced the historical struggle between “Crown and press,” and what it regarded as the framers’ consequent awareness of the need to safeguard against official intrusion with the editorial process.
Justice Lewis Powell concurred with the majority. He was similarly influenced by the lack of historical evidence that the “Framers had believed that the press was entitled to a special procedure.” Justice Powell suggested, however, that a judicial officer issuing a warrant to search a newsroom should be mindful “of the independent values protected by the First Amendment.”
In a dissenting opinion, Justice Stewart was more specific with respect to what those factors should be. As he saw it, police searches of newspapers manifestly burdened freedom of the press. Among the burdens was the interference with editorial processes (newsgathering, writing, and publishing) during the search itself. More significant, from Justice Stewart’s perspective, was the possibility that confidential information or sources might be revealed. A search provides the opportunity for police to read “each and every documental until they have found the one named in the warrant.” Without more than the standard Fourth Amendment protection, however, the end result was “a diminishing flow of potentially important information to the public.” Such an outcome, as Justice Stewart viewed it, was inimical to First Amendment interests.
Justice Stewart also thought it relevant that there were no emergency circumstances requiring immediate investigative action or evidence of criminal activity by the newspaper. Minus such exigencies, he believed that the evidence should have been obtained by less intrusive means. Specifically, Justice Stewart maintained that the appropriate methodology would have been a subpoena duces tecum that required the newspaper to produce the photographs by a specific date. This procedure would not have disrupted editorial operations or entailed the risk of chilling information sources.
Justice Stewart’s reasoning did not carry the day for constitutional purposes. It nonetheless was reflected in a legislative response to the decision. Two years after the ruling, Congress passed the Privacy Protection Act of 1980. This enactment bars newsroom searches except when there is probable cause that the evidence sought is in the possession of a person who committed a crime or it is necessary to prevent death or serious bodily harm. Minus such conditions, law enforcement officers must obtain evidence by means of a subpoena duces tecum. Among the grounds for challenging such a process is that it is unconstitutional or the evidence sought is confidential. The aftermath of Zurcher is a classic illustration of how the political process sometimes accounts for constitutional values that the Court itself has denied.
Mr. Justice WHITE delivered the opinion of the Court.
. . . As the Fourth Amendment has been construed and applied by this Court, “when the State’s reason to believe incriminating evidence will be found becomes sufficiently great, the invasion of privacy becomes justified and a warrant to search and seize will issue.” [Earlier] we indicated that in applying the “probable cause” standard “by which a particular decision to search is tested against the constitutional mandate of reasonableness,” it is necessary “to focus upon the governmental interest which allegedly justifies official intrusion” and that in criminal investigations a warrant to search for recoverable items is reasonable “only when there is ‘probable cause’ to believe that they will be uncovered in a particular dwelling.” Search warrants are not directed at persons; they authorize the search of “place[s]” and the seizure of “things,” and as a constitutional matter they need not even name the person from whom the things will be seized. . . .
The net of the matter is that “[s]earches and seizures, in a technical sense, are independent of, rather than ancillary to, arrest and arraignment.” The Model Code provides that the warrant application “shall describe with particularity the individuals or places to be searched and the individuals or things to be seized, and shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending to show that such individuals or things are or will be in the places, or the things are or will be in possession of the individuals, to be searched.” There is no suggestion that the occupant of the place to be searched must himself be implicated in misconduct.
Against this background, it is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of crime and is subject to arrest. And if those considered free of criminal involvement may nevertheless be searched or inspected under civil statutes, it is difficult to understand why the Fourth Amendment would prevent entry onto their property to recover evidence of a crime not committed by them but by others. As we understand the structure and language of the Fourth Amendment and our cases expounding it, valid warrants to search property may be issued when it is satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises. The Fourth Amendment has itself struck the balance between privacy and public need, and there is no occasion or justification for a court to revise the Amendment and strike a new balance by denying the search warrant in the circumstances present here and by insisting that the investigation proceed by subpoena duces tecum, whether on the theory that the latter is a less intrusive alternative or otherwise.
This is not to question that “reasonableness” is the overriding test of compliance with the Fourth Amendment or to assert that searches, however or whenever executed, may never be unreasonable if supported by a warrant issued on probable cause and properly identifying the place to be searched and the property to be seized. We do hold, however, that the courts may not, in the name of Fourth Amendment reasonableness, prohibit the States from issuing warrants to search for evidence simply because the owner or possessor of the place to be searched is not then reasonably suspected of criminal involvement. . . .
We accordingly reject the reasons given by the District Court and adopted by the Court of Appeals for holding the search for photographs at the Stanford Daily to have been unreasonable within the meaning of the Fourth Amendment and in violation of the First Amendment. Nor has anything else presented here persuaded us that the Amendments forbade this search. It follows that the judgment of the Court of Appeals is reversed.
Mr. Justice STEWART, with whom Mr. Justice MARSHALL joins, dissenting.
Believing that the search by the police of the offices of the Stanford Daily infringed the First and Fourteenth Amendments’ guarantee of a free press, I respectfully dissent.
It seems to me self-evident that police searches of newspaper offices burden the freedom of the press. The most immediate and obvious First Amendment injury caused by such a visitation by the police is physical disruption of the operation of the newspaper. Policemen occupying a newsroom and searching it thoroughly for what may be an extended period of time will inevitably interrupt its normal operations, and thus impair or even temporarily prevent the processes of newsgathering, writing, editing, and publishing. By contrast, a subpoena would afford the newspaper itself an opportunity to locate whatever material might be requested and produce it.
But there is another and more serious burden on a free press imposed by an unannounced police search of a newspaper office: the possibility of disclosure of information received from confidential sources, or of the identity of the sources themselves. Protection of those sources is necessary to ensure that the press can fulfill its constitutionally designated function of informing the public, because important information can often be obtained only by an assurance that the source will not be revealed. And the Court has recognized that “ ‘without some protection for seeking out the news, freedom of the press could be eviscerated.’ ”
Today the Court does not question the existence of this constitutional protection, but says only that it is not “convinced . . . that confidential sources will disappear and that the press will suppress news because of fears of warranted searches.” This facile conclusion seems to me to ignore common experience. It requires no blind leap of faith to understand that a person who gives information to a journalist only on condition that his identity will not be revealed will be less likely to give that information if he knows that, despite the journalist’s assurance his identity may in fact be disclosed. And it cannot be denied that confidential information may be exposed to the eyes of police officers who execute a search warrant by rummaging through the files, cabinets, desks, and wastebaskets of a newsroom. Since the indisputable effect of such searches will thus be to prevent a newsman from being able to promise confidentiality to his potential sources, it seems obvious to me that a journalist’s access to information, and thus the public’s will thereby be impaired.
A search warrant allows police officers to ransack the files of a newspaper, reading each and every document until they have found the one named in the warrant, while a subpoena would permit the newspaper itself to produce only the specific documents requested. A search, unlike a subpoena, will therefore lead to the needless exposure of confidential information completely unrelated to the purpose of the investigation. The knowledge that police officers can make an unannounced raid on a newsroom is thus bound to have a deterrent effect on the availability of confidential news sources. The end result, wholly inimical to the First Amendment, will be a diminishing flow of potentially important information to the public.
One need not rely on mere intuition to reach this conclusion. The record in this case includes affidavits not only from members of the staff of the Stanford Daily but also from many professional journalists and editors, attesting to precisely such personal experience. Despite the Court’s rejection of this uncontroverted evidence, I believe it clearly establishes that unannounced police searches of newspaper offices will significantly burden the constitutionally protected function of the press to gather news and report it to the public.
Bibliography
LaFave, Wayne R., Jerold H. Israel, and Nancy J. King. Criminal Procedure. St. Paul, MN: Thomson/West, 2004.
Levy, Leonard W. Emergence of a Free Press. New York: Oxford University Press, 1985.
Globe Newspaper Co. v. Superior Court
Citation: 457 U.S. 596.
Issue: Whether closure of trial under state law, when testimony is provided by the victim of an alleged sex offense, violates the First Amendment.
Year of Decision: 1982.
Outcome: A mandatory closure rule abridges the First Amendment; denial of public access is permissible only when supported by a compelling government interest and when the law is narrowly tailored to account for that concern.
Author of Opinion: Justice William Brennan.
Vote: 6-3.
Speech essential for informed self-government historically has been given the highest value under the First Amendment. Consistent with this premise, the Supreme Court has been particularly protective of political speech. State and federal legislation, in the form of freedom of information and open meeting laws, reflects this imperative. Central also to a free flow of politically relevant speech is access to government proceedings and information. Like other First Amendment interests, such access is not absolutely guaranteed. Even when having a constitutional basis, it may be outweighed by competing interests that are found to be more compelling under the circumstances. Norms of open proceedings or access to information thus may give way, for instance, in light of national security concerns, law enforcement interests, privacy considerations, or other countervailing factors.
Generally speaking, the judiciary historically has been the least accessible branch of government. Through most of the twentieth century, strict limits were placed upon media coverage of judicial proceedings. Even today, cameras are barred from federal courts except for designated ceremonial events. Gag orders were commonly used to manage the risk of prejudicial publicity, until the Court restricted their use in Nebraska Press Association v. Stuart (1976). Equally strong as a remedy is the closure of proceedings to press and public. Controlling the flow of information through these strict measures typically aims to preserve the right of a fair trial, and thus requires a balancing of competing constitutional concerns. Specifically at odds with the First Amendment in these contexts is the guarantee of a fair trial incident to due process and the right to a public trial.
In Gannett, Inc. v. DePasquale (1979), the Court referenced the Sixth Amendment guarantee of a public trial in support of a trial court’s order to close a pretrial hearing. This decision reflected an understanding that the right was personal to the defendant and could not be claimed by the press or public. Noting that the Court provided transcripts of the proceeding after the risk of prejudicial publicity had abated, the Court determined that the impact upon any First Amendment interest was inconsequential. The Gannett decision was written in rather imprecise terms and thus raised concern that the rule for closing pretrial proceedings might extend to actual trials. Many critics urged a narrow reading of it and hoped the Court would find an opportunity to limit and clarify its reach.
The Court responded to this concern the following term. In Richmond Newspapers, Inc. v. Virginia (1980), it determined that a right for the public and press to attend and cover trials was grounded in the First Amendment. By doing so, it extended the First Amendment beyond the protection of expression itself to the securing of access to a critical government process. Noting that trials had a tradition of being open, and that closed proceedings carried inherent risks of abuse, the Court limited the power of judges to operate beyond public view. Although the result was supported by a strong majority, the Court split on a supporting rationale. Two years later, in Globe Newspaper Co. v. Superior Court, the Court settled on a premise that has provided a long-term guide for review.
At issue in the Globe Newspaper case was a state law authorizing closed proceedings when a minor was called to testify as a sex offense victim. As the Court saw it, the enactment’s goal of protecting sex offense victims from embarrassment or injury was laudable. So too was the objective of encouraging them to testify in criminal proceedings. The statute’s mandatory nature, however, made it constitutionally problematic. In particular, it excessively discounted the public’s and press’s interest in attendance. The Court was sensitive to the possibility that victims of child sex abuse may be harmed further if called upon to testify in open court. It also was alert to the reality, however, that factors such as age, maturity, family preferences, and the nature of the crime may cut against closure. The Court thus concluded that decisions on closure in such circumstances should be made not on a wholesale basis but pursuant to standards that drove resolution on a case-by-case basis.
Justice William Brennan, Jr., who wrote the majority opinion, announced the premise that the First Amendment protects not only expressive freedom but interests that facilitate this liberty. Pursuant to this understanding, the right to attend a criminal trial was crucial to the “free discussion of public affairs.” The Court’s recognition of a First Amendment right of access was grounded in two key premises. First, criminal trials historically (and even before the Constitution) have been open to the press and public. In support of this observation, the Court noted its inability “to find a single instance of a criminal trial conducted in camera in any federal, state, or municipal court during the history of this country.” Beyond the historical significance of this reality was what the Court identified as “the favorable judgment of experience.” The Court’s second point was that open trials represented an important safeguard of quality and integrity. The ability of the press and public to access trials, in the Court’s view, “fosters an appearance of fairness, thereby heightening public respect for the judicial process.” Open proceedings also constitute an important “check upon the judicial process.”
The Court, although invalidating the state law, did not altogether preclude the possibility of closed trials. It limited closure, however, to instances when the government presented such a remedy that was a “narrowly tailored” means of accounting for “a compelling governmental interest.” Press and public might be excluded from a trial, therefore, when the state can show that the child would experience real injury if required to testify in open court.
Although setting a clear standard for the closure of trials, the Globe Newspaper decision gave no clear indication of whether it applied to other types of judicial proceedings. The scope of the ruling was particularly important, in light of the high volume of criminal cases that are resolved prior to trial. In Press Enterprise Co. v. Superior Court (1986), the Court expanded First Amendment access rights to preliminary hearings. Consistent with the Globe Newspaper premise, it noted the historical and unbroken preference for open proceedings. It also characterized the Gannett decision as a departure from this norm and emphasized that access to criminal proceedings was not restricted to any particular phase or event. Connecting its decision with overarching First Amendment values, the Court embraced the proposition that open proceedings ensure that the “constitutionally protected discussion of governmental affairs is an informed one.”
Justice BRENNAN delivered the opinion of the Court.
. . . The Court’s recent decision in Richmond Newspapers firmly established for the first time that the press and general public have a constitutional right of access to criminal trials. Although there was no opinion of the Court in that case, seven Justices recognized that this right of access is embodied in the First Amendment, and applied to the States through the Fourteenth Amendment.
Of course, this right of access to criminal trials is not explicitly mentioned in terms in the First Amendment. But we have long eschewed any “narrow, literal conception” of the Amendment’s terms, for the Framers were concerned with broad principles, and wrote against a background of shared values and practices. The First Amendment is thus broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights. Underlying the First Amendment right of access to criminal trials is the common understanding that “a major purpose of that Amendment was to protect the free discussion of governmental affairs.” By offering such protection, the First Amendment serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government. Thus to the extent that the First Amendment embraces a right of access to criminal trials, it is to ensure that this constitutionally protected “discussion of governmental affairs” is an informed one. . . .
The state interests asserted to support [the law], though articulated in various ways, are reducible to two: the protection of minor victims of sex crimes from further trauma and embarrassment; and the encouragement of such victims to come forward and testify in a truthful and credible manner. We consider these interests in turn.
We agree with appellee that the first interest—safeguarding the physical and psychological well-being of a minor—is a compelling one. But as compelling as that interest is, it does not justify a mandatory closure rule, for it is clear that the circumstances of the particular case may affect the significance of the interest. A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives. [The law], in contrast, requires closure even if the victim does not seek the exclusion of the press and general public, and would not suffer injury by their presence. In the case before us, for example, the names of the minor victims were already in the public record, and the record indicates that the victims may have been willing to testify despite the presence of the press. If the trial court had been permitted to exercise its discretion, closure might well have been deemed unnecessary. In short, [the law] cannot be viewed as a narrowly tailored means of accommodating the State’s asserted interest: That interest could be served just as well by requiring the trial court to determine on a case-by-case basis whether the State’s legitimate concern for the well-being of the minor victim necessitates closure. Such an approach ensures that the constitutional right of the press and public to gain access to criminal trials will not be restricted except where necessary to protect the State’s interest.
Nor can [the law] be justified on the basis of the Commonwealth’s second asserted interest—the encouragement of minor victims of sex crimes to come forward and provide accurate testimony. The Commonwealth has offered no empirical support for the claim that the rule of automatic closure contained in [the law] will lead to an increase in the number of minor sex victims coming forward and cooperating with state authorities. Not only is the claim speculative in empirical terms, but it is also open to serious question as a matter of logic and common sense. Although [the law] bars the press and general public from the courtroom during the testimony of minor sex victims, the press is not denied access to the transcript, court personnel, or any other possible source that could provide an account of the minor victim’s testimony. Thus [the law] cannot prevent the press from publicizing the substance of a minor victim’s testimony, as well as his or her identity. If the Commonwealth’s interest in encouraging minor victims to come forward depends on keeping such matters secret, [the law] hardly advances that interest in an effective manner. And even if [the law] effectively advanced the State’s interest, it is doubtful that the interest would be sufficient to overcome the constitutional attack, for that same interest could be relied on to support an array of mandatory closure rules designed to encourage victims to come forward: Surely it cannot be suggested that minor victims of sex crimes are the only crime victims who, because of publicity attendant to criminal trials, are reluctant to come forward and testify. The State’s argument based on this interest therefore proves too much, and runs contrary to the very foundation of the right of access recognized in Richmond Newspapers: namely, “that a presumption of openness inheres in the very nature of a criminal trial under our system of justice.”
For the foregoing reasons, we hold that [the law], as construed by the Massachusetts Supreme Judicial Court, violates the First Amendment to the Constitution.
Chief Justice BURGER, with whom Justice REHNQUIST joins, dissenting.
Historically our society has gone to great lengths to protect minors charged with crime, particularly by prohibiting the release of the names of offenders, barring the press and public from juvenile proceedings, and sealing the records of those proceedings. Yet today the Court holds unconstitutional a state statute designed to protect not the accused, but the minor victims of sex crimes. In doing so, it advances a disturbing paradox. Although states are permitted, for example, to mandate the closure of all proceedings in order to protect a 17-year-old charged with rape, they are not permitted to require the closing of part of criminal proceedings in order to protect an innocent child who has been raped or otherwise sexually abused.
The Court has tried to make its holding a narrow one by not disturbing the authority of state legislatures to enact more narrowly drawn statutes giving trial judges the discretion to exclude the public and the press from the courtroom during the minor victim’s testimony. I also do not read the Court’s opinion as foreclosing a state statute which mandates closure except in cases where the victim agrees to testify in open court.1 But the Court’s decision is nevertheless a gross invasion of state authority and a state’s duty to protect its citizens—in this case minor victims of crime. I cannot agree with the Court’s expansive interpretation of our decision in Richmond Newspapers, Inc. v. Virginia, or its cavalier rejection of the serious interests supporting Massachusetts’ mandatory closure rule. Accordingly, I dissent. . . .
Bibliography
LaFave, Wayne R., and Jerold H. Israel. Criminal Procedure. St. Paul, MN: Thomson/West, 2004.
Lively, Donald E., Allen S. Hammond IV, Blake D. Morant, and Russell L. Weaver. Communications Law. Cincinnati, OH: Anderson Publishing Co., 1997.
MEDIUM-SPECIFIC STANDARDS
The First Amendment was framed at a time when mass communication consisted of the published word. Since then, numerous new technologies have evolved and presented challenges to how the First Amendment should be understood. For any new medium, the threshold question has been whether it falls within the purview of the First Amendment. When initially confronted with this question in Mutual Film Co. v. Burstyn (1915), the Supreme Court determined that motion pictures were more in the nature of “spectacle” and “entertainment” and thus did not fit within the boundaries of freedom of press.
By the middle of the twentieth century, when broadcasting had emerged as a significant medium, the Court’s thinking had evolved and its view of the First Amendment had become more expansive. Although the new media that grew and developed over the course of the twentieth century achieved First Amendment status, the Court established different standards of review and thus varying levels of protection for each of them. This resulting model of medium specific analysis begins with the premise that each medium presents unique problems that require a customized definition and application of the First Amendment. As Justice Robert Jackson put it, in Kovacs v. Cooper (1949), “[t]he moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street orator have differing natures, abuses, and dangers. Each . . . is a law unto itself.” Consistent with this analytical method, the Court in Miami Herald Publishing Co. v. Tornillo (1974) established that print media have the highest level of First Amendment protection. Broadcasting, as the Court found in Federal Communications Commission v. Pacifica Foundation (1978), has the least First Amendment protection despite being the nation’s dominant medium.
Within these constitutional extremes, and often with analogies to print or broadcasting, the Court has attempted to fix the appropriate level of security for other media. During the final decades of the twentieth century, cable television emerged as a significant medium. The Court has recognized that cablecasters are protected by the First Amendment. In Turner Broadcasting System, Inc. v. Federal Communications Commission (1994), it determined that federal rules requiring them to carry the signals of local broadcasters were content-neutral rather than content-based (and thus subject to a less rigorous standard of review).
Efforts to extend the Pacifica ruling to other media have been unsuccessful, as evidenced by the Court’s decision in Sable Communications of California, Inc. v. Federal Communications Commission (1989). This decision struck down a federal law that would have prohibited access to pornography through telephone dial-up services. A similar outcome was achieved in Reno v. American Civil Liberties Union (1997), when the Court determined that a federal law prohibiting indecent and patently offensive material on the Internet violated the First Amendment. The Court in New York v. Ferber (1982), as discussed previously, determined that child pornography could be criminalized even though it did not rise to the level of obscenity. In Ashcroft v. Free Speech Coalition (2002), however, the Court determined that Congress could not ban virtual child pornography.
Miami Herald Publishing Co. v. Tornillo
Citation: 418 U.S. 241.
Issue: Whether a state law giving political candidates a right to reply to an editorial violates the First Amendment.
Year of Decision: 1974.
Outcome: The right of access provision abridged the publisher’s editorial freedom.
Author of Opinion: Chief Justice Warren Burger.
Vote: 9-0.