NCJ Number
52056
Journal
HARVARD CIVIL RIGHTS - CIVIL LIBERTIES LAW REVIEW Volume: 10 Issue: 3 Dated: (SUMMER 1975) Pages: 608-652
Date Published
1975
Length
45 pages
Annotation
THIS INDEPTH EXAMINATION OF POSSIBLE CONFLICTS BETWEEN THE FIRST AMENDMENT FREE PRESS RIGHT AND SIXTH AMENDMENT RIGHT TO A FAIR TRIAL ATTEMPTS TO ESTABLISH GUIDELINES FOR ISSUING GAG ORDERS IN CRIMINAL TRIALS.
Abstract
THE ANALYSIS COVERS THE HISTORIC IMPORTANCE OF A FREE PRESS TO A FAIR TRIAL AND THE ROLE THE PRESS OFTEN PLAYS IN ENSURING DUE PROCESS. THE FREE PRESS-FAIR TRIAL CONTROVERSY IS NOT SEEN AS A CONFLICT BETWEEN THE FIRST AND SIXTH AMENDMENTS. INSTEAD, IT IS SEEN AS THE REACTION OF COURTS TO THE IRRESPONSIBLE ACTIONS OF A FEW MEMBERS OF THE PRESS. THE HISTORY OF VOLUNTARY COOPERATION WITH THE COURTS IN CRIMINAL TRIALS IS REVIEWED. THE CASE OF SHEPPARD VERSUS MAXWELL, IN WHICH THE U.S. SUPREME COURT REVERSED A MURDER TRIAL CONVICTION DUE TO PRETRIAL PUBLICITY, IS ANALYZED. RELATED JUDICIAL DECISIONS ARE EXAMINED. THE HISTORY OF THE MOVE TOWARD GAG ORDERS IS TRACED. IT IS CONCLUDED THAT WHILE GAG ORDERS MAY BE JUSTIFIED IN CERTAIN CASES, SAFEGUARDS MUST BE FOLLOWED TO ENSURE THAT THE FIRST AMENDMENT IS NEITHER NEEDLESSLY NOR INAPPROPRIATELY VIOLATED. BEFORE A GAG ORDER IS ISSUED THE DANGER OF INTERFERENCE WITH A FAIR TRIAL MUST BE IMMINENT, THE GAG ORDER MUST BE THE LEAST RESTRICTIVE TO ENSURE FAIR TRIAL, THE COURT MUST CAREFULLY BALANCE COMPETING INTERESTS, AND ALL DUE PROCESS SAFEGUARDS MUST BE APPLIED. THE EXTENSIVE FOOTNOTES CITE COURT CASES AND OTHER REFERENCES. (GLR)