FIRST AMENDMENTFIRST AMENDMENTFIRST AMENDMENTFIRST AMENDMENTFIRST AMENDMENT
I. FREEDOM OF THE PRESS
A. General Basis
State v. Shapiro, 122 N.J. Super. 409, 430-431 (Law
Div. 1973), stated: “The underlying reason for
protecting a right freely to speak or freely to print is that
the people may be informed.... The First Amendment
seeks to keep sources of information available to the
people.”
The constitutional guarantees of free press are found
in both the Federal and State constitutions:
“Congress shall make no law... abridging the
freedom of speech, or of the press.” U.S. Const., Amend.
I.
“Every person may freely speak, write and publish his
sentiments on all subjects, being responsible for the
abuse of that right. No law shall be passed to restrain or
abridge the liberty of speech or of the press.” N.J. Const.,
Art. 1, ¶ 6. B. Cases on Media Access
- U.S. Supreme Court Cases
Sheppard v. Maxwell, 384 U.S. 333 (1966), held that
the failure of the trial judge to sufficiently protect the
defendant from “massive, pervasive, and prejudicial
publicity” and disruptive influences deprived defendant
of a fair trial in violation of the due process clause of the
Fourteenth Amendment. The presence of the media
should have been limited, representatives of the news
media should not have been placed inside the bar and the
judge should have more closely regulated the presence of
the press in the courtroom. Furthermore, the judge
should have made some effort to control the release of
prejudicial matters to the press.
In Nebraska Press Ass’n v. Stuart, 427 U.S. 539
(1976), the Court held that an Order restraining the
news media from publishing information revealed at a
pretrial hearing, violated the First Amendment’s
guarantee of free speech. The protection against prior
restraint has particular force in criminal proceedings.
The protections afforded by the First Amendment carry
with them something in the nature of a fiduciary duty
requiring the person to direct some effort to protect the
rights of an accused to a fair trial by unbiased jurors.
Nevertheless, the Court would not undertake to assign
priorities between the First Amendment right of free
press and the Sixth Amendment right to an impartial
jury, inasmuch as the authors of the Bill of Rights
declined to do so. In evaluating the validity of the prior
restraint the Court examined the evidence before the trial
judge when the order was entered to determine a) the
nature and extent of pretrial news coverage; b) whether
other measures would be likely to mitigate the effect or
unrestrained pretrial publicity; and c) how effectively a
restraining order would operate to prevent the threatened
danger. The Court held that the high barriers to prior
restraint had not been overcome in this case and the order
was therefore invalid. Finally, the Court reaffirmed its
position that, although First Amendment rights are not
absolute, the barriers to prior restraint remain high and
the presumption against it continues intact.In Gannett Co. v. DePasquale, 443 U.S. 368 (1979),
the Court affirmed the state court decision upholding an
order to close a pretrial suppression hearing. The Sixth
Amendment right to public trial is personal to the
accused and, therefore, does not give the press and public
a right to access to pretrial criminal proceedings. The
order was proper where counsel for the newspaper
publisher had been given the opportunity, after the filing
of the briefs, to voice objections and where the trial judge
had balanced the rights to the press and the public
against the defendant’s rights to a fair trial and had
determined that an open proceeding would pose a
reasonable probability of prejudice to the defendants.
The Court also noted that the denial of access had not
been absolute, but only temporary. The majority, in
deciding the case on Sixth Amendment grounds, left
open the question of whether such a right of access may
be guaranteed by other provisions of the Constitution. In
a footnote the Court distinguished its earlier decision in
Nebraska Press Ass’n on the grounds that it involved a
direct prior restraint imposed by a trial judge on
members of the press, prohibiting them from
disseminating information about a criminal trial, while
in contrast, the exclusion order in the present case did not
prevent the petitioner from publishing any information
in its possession.Richmond Newspapers, Inc. v. Commonwealth of
Virginia, 448 U.S. 555 (1980), a plurality opinion,
concluded that the First Amendment implicitly
guaranteed to the public and the press the right to attend
criminal trials. The Court relied on the lengthy tradition
of open trials in this country as in England, as well as in
their functional “therapeutic” community value. Absent
an overriding interest articulated in findings by the trial
court, and the unavailability of any alternative method of
dealing with the problem, the trial of a criminal case must
be open to the public. The right of the public and press