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73
Chapter 6
The Courts
Chapter Objectives
After reading Chapter 6, students should:
1. recognize the media portraits of the judicial system, judges, and attorneys
2. comprehend the concept of media trials
3. appreciate the love-hate relationship between television and the courts
4. know the judicial mechanisms available to deal with publicity
5. understand the issues associated with media strategies to maximize access to judicial
proceedings and minimize government access to media-held information
Chapter Outline
I. Media, Infotainment, and the Courts
a. For many in today’s world, mass media images are their primary source of
knowledge about law, lawyers, and the legal system
i. Judicial images found in the media are significant because:
1. they are an important source of knowledge about the judicial
system
2. courtrooms are where the significance and meaning of a wide
range of social behaviors are determined
a. The courts have recently defined, or tried to define:
i. what is or is not insane behavior
ii. proper or improper child care
iii. intrusive or acceptable government law
enforcement policies
b. Anything that influences the public image of the courts
invariably influences the courts’ ability to be a legitimizing
mechanism and to fulfill their function as definers of
acceptable social boundaries
b. The public’s perception of the courts results in expectations of how judicial
proceedings should look and play out
II. Courts, Attorneys, and Evidence
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a. Directly and indirectly, the media paint a distorted image of the courts
i. Indirectly: in law enforcement media, the courts are often alluded to as
soft on crime, easy on criminals, due process-laden institutions that
repeatedly release the obviously guilty and dangerous
1. Implies that criminals go through the court system and return to the
streets undeterred and unrehabilitated
2. The message is that the legal system is an obstacle and a frustration
to investigators trying to protect the law-abiding and searching for
the truth
ii. Directly: when shown directly, court officers are often more engaged in
fighting crime than in practicing law
1. When shown practicing law, they are usually immersed in high-
stakes dramatic trials
a. Media rendered court procedures emphasize the rare-in-
reality adversarial criminal trial as the most common
judicial proceeding
b. Less often are preliminary procedures or informal plea
bargaining shown
c. Scenes of post trial steps are even less common
2. None of the media judicial images you are likely to see represent
the reality of the judicial system
b. The dominant popular image of courtrooms was initially constructed within
Hollywood films
i. Judicial system portrayals vs. law enforcement portrayals
ii. Films feature the ever-popular crime narratives of:
1. murder
2. abuse of power
3. sex
c. Recent courtroom portraits show more nontrial, backstage aspects of practicing
law i. In the 1960s, scriptwriters and television programmers attempted to add
more realism to their shows by revealing more of the backstage behavior
and private lives of their crime-fighting lawyers
ii. The next step for television was to develop courtroom docudramas in
which real cases are turned into infotainment, reenacted, and tried in
realistic-looking courtroom scenes
iii. Spurred by the immense popularity and profits of the first O.J. Simpson
trial in the 1990s, the infotainment format has been incorporated into a
number of contemporary media court-based productions
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d. With new media increasing audience perceptions as participants in courtroom
proceedings, the social construction of the courts is rendered through:
i. trial and law films
ii. infotainment-style pseudo judicial programs
iii. heavily publicized co-opted live cases
e. All media judicial portraits emphasize:
i. rare events (trials)
ii. uncommon charges (homicide)
iii. improbable evidence (criminalistics and CSI laboratory results)
iv. unlikely interactions (dramatic adversarial confrontations)
f. Crime-Fighting Attorneys
i. Most lawyers in the media are criminal lawyers and specialize in criminal
law and they are also frequently protectors of due process and advocates
of crime control (they expend as much effort solving crimes and pursuing
criminals as they do interpreting and practicing law)
1. The crime-fighting lawyer has not always been the dominant
image
a. Example: Atticus in the class film To Kill a Mockingbird
b. Lawyers were constructed as homespun, simple yet craft
all-American jurists
c. In contrast, in the contemporary period:
2. When they are not also crime fighters, attorneys can expect to be
portrayed negatively
a. Robert and Linda Lichter found that in prime time
television programming attorneys are more likely than
police officers to be shown as greedy and nearly as likely to
be shown as corrupt
g. Female Attorneys
i. Female Attorneys vs. Police Women
1. Differences:
a. Female attorneys have enjoyed a longer tradition in the
media
b. The real-world experiences of female attorneys are more
likely to be portrayed
i. The scarcity of female lawyers
ii. The gender-based attitudes prevalent toward women
lawyers
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iii. The social friction generated by the clashing of
traditional female social roles and their functioning
as effective attorneys
1. assumes the incompatibility of the social
roles of attorney and woman
2. Similarities:
a. Both are frequently defeminized as career women
b. Both are projected as creatures dominated by sexual
conflicts or repression
ii. Shown as:
1. young
2. white
3. single
4. childless
5. lower in position in their law firms and criminal justice agencies
6. having an unrealistic involvement in dangerous and sensational
criminal law cases (a trait they share with their male counterparts)
h. In sum, the courts and attorneys are usually unrealistically constructed in the
media
i. Even when the portrayals are based on real cases, the infotainment criteria
that drive the selection of cases culls out the usual and nonviolent case in
favor of the abnormal and predatory
1. Media trials: selected cases that become multimedia, pop culture
bonanzas, generating enormous markets, profits, and spinoffs for
news entertainment, and infotainment media
III. Media Trials (see Table 6.1)
a. Media trials have become the most important single contributor to the social
construction of the courts in America
b. Involve the social construction of select criminal justice cases that are taken up by
the media, commodified, and marketed as massive infotainment products
i. Lawrence Friedman: “The common law trial can be quite a dramatic
event. Trials are a kind of stage-play, with a definite story or plot-
usually, in fact, two stories or plots, which are in sharp contrast to each
other – and a suspenseful and exciting ending, when the jury files into the
room and announces its verdict.”
ii. Media trials have been a consistent presence in the media, crime, and
justice world
1. The first notorious mass-mediated trials in the U.S. appeared after
the establishment of the first mass media, the daily Penny Press
newspapers
a. Historic media trials
i. The 1859 John Brown anarchist case
ii. the 1875 Henry Ward Beecher adultery trial
iii. the 1893 Lizzie Borden trial for the ax murders of
her parents
iii. Media trials show no evidence of abating in the twenty-first century
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1. New media have heightened access and interest in media trials
2. An important factor behind the recent increase in the number of
media trials is that late twentieth-century news organizations faced
with harsh competition increasingly structured the news along
entertainment lines
a. Since the news came to be presented within frames,
formats, and explanations originally found solely in
entertainment programming the norm became crime news
that:
i. Was fast-paced
ii. Was dramatic
iii. Was superficial
iv. Offered simplistic explanations of crime
3. As this trend developed, criminal trials came to be covered more
intensely, and news organizations expanded their coverage from
hard factual presentations to soft human interest news,
emphasizing extralegal human interest elements
a. The process culminated in the 1990s with the total merging
of news and entertainment
b. Today the sensational, titillating, and dramatic judicial
elements define media attention
4. Contemporary media trials
a. Distinguish themselves from typical judicial news by the
massive and intensive coverage that begins either with the
discovery of the crime or the arrest of the accused
b. All aspects of the case are covered
i. Interviewees include (all of which are also
photographed and frequently raised to celebrity
status):
1. judges
2. lawyers
3. police
4. witnesses
5. jurors
6. defendants
ii. Personalities, personal relationships, physical
appearances, and idiosyncrasies are commented on
regardless of legal relevance
iii. Coverage is live whenever possible
iv. Pictures are preferred over text
v. Text is characterized by conjecture and
sensationalism
c. In their coverage of these trials, the media offer direct and
individualistic explanations of crime:
i. lust
ii. greed
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iii. immorality
iv. jealousy
v. revenge
vi. insanity
c. Media Trial Effects
i. The relationship between the media and the justice system is strained by
media trials because different considerations and values govern the means
by which each obtains knowledge and evaluates its worth
1. The criminal justice system is guided by legislative and
constitutional mandates, and the courts have the task of separating
legally relevant from irrelevant information
2. Media respond primarily to newsworthiness and entertainment
considerations
3. Each side’s considerations dictate what facts are presented as well
as when and how they are disclosed
a. Traditionally, courtroom knowledge is extracted point by
point in long story lines following legal procedures and
rules of evidence and the information is specially prepared
for a limited audience of a judge or jury
b. In contrast, media renditions are outwardly directed and
developed in accordance with entertainment values rather
than legal relevance, are brief, time- and space-limited
constructions that must make their points quickly, and they
are built around whatever film or dramatic elements are
available.
ii. With the ascendance of media trials, the traditional courtroom audience
became secondary to the external media audience both inside and outside
of the courtroom
1. The development of new social media has hastened the shift
a. Trials are reduced to their highlights as a physical audience
has given way to a larger virtual audience
iii. Despite their relatively small numbers, media trials are crucial in the social
construction of crime-and-justice reality
1. They serve as massive public stages that disseminate crime-and-
justice knowledge to vast audiences of ordinary citizens
a. They act as small scale examples of the social construction
process
b. As the dominant delivery medium of these trials, visual
media direct the facts that are selected, constructed, and
presented to the public
2. Involve cases that contain the same elements popular in
entertainment programming---human interest laced with:
a. Mystery
b. Sex
c. bizarre circumstances
d. famous or powerful people
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3. Examples of the commodified, co-opted judicial event:
a. Tabloid trials as public horror movie tabloid trials
b. Celebrity victim and defendant trials where the crimes are
secondary to the names of the participants
c. Murder mystery whodunit trials
d. Soap operas love triangles
4. Lawrence Friedman points out that media trials collectively
forward two contradictory misconceptions about justice:
a. That the courts comprise a meticulous system of due
process, attention to detail, and the rule of low
i. Due to the evaporation of normal discretion and
negotiation that media attention forces on
proceedings, the trials appear as rigid, formal, rule
bound judicial conflicts
ii. Paradoxically due to the speculation and discussion
of alternate explanations of events, competing legal
strategies, and multiple interpretations of evidence
that accompanies the coverage of these trials, the
courts are also shown as places where tricks, smart
lawyering, and procedural quirks can manipulate
justice and juries and where money can buy
acquittals
iii. As a final point, the media construct these trials in
ways that simplify their task of reporting,
interpreting, and explaining the proceedings
1. As in the entertainment media, recurrent
themes dominate media trial constructions,
and crime is nearly universally attributed to
individual failings rather than to social
conditions
5. The three most common types of media trials utilize narratives
taken directly from entertainment media:
a. These frames provide the news media with powerful pre-
established conceptual scaffolding to present and mold the
various aspects of a trial’s coverage
b. Abuse of power: include those cases in which the defendant
occupies a position of trust, prestige, or authority
i. Cases involving police corruption and justice
system personnel in general are especially attractive
to the media
c. The sinful rich: include cases in which socially prominent
defendants are involved in bizarre or sexually related
crimes
i. These trials have a voyeuristic appeal
ii. Examples:
1. love triangles
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2. deviant sex
3. inheritance-motivated killings among the
rich and famous
d. Evil strangers
i. Composed of two subgroups:
1. non-Americans: media trials may involve:
a. immigrants
b. blacks
c. Jews
d. socialists
e. union and labor leaders
f. anarchists
g. the poor
h. members of counterculture groups
i. members of minority religions
j. political activists
k. advocates of unpopular causes
l. foreign terrorists
2. psychotic killers: trials usually focus on
bizarre murder cases in which the defendant
is portrayed as a maddened predatory killer,
such as:
a. Lizzie Borden
b. Jeffrey Dahmer
c. John Wayne Gacy
d. Aileen Wuornos
e. Scott Peterson
f. Jodi Arias
6. Entertainment story lines provide the news media with the frames
by which to measure, choose, and mold, aspects of real trials that
will be reported and highlighted
a. The public receives the following responsibility-diverting
messages:
i. the rich are immoral in their use of sex, drugs, and
violence
ii. people in power are evil, greedy, and should not be
trusted
iii. strangers and those with different lifestyles or
values are inherently dangerous
b. In the process, the pursuit of justice is reduced to the single
minded combating of evil, sinful, predators
d. Merging Judicial News with Entertainment
i. Media trials represent the final step in a long process of merging judicial
news and entertainment—a process that today results in multimedia
products and extensive commercial exploitation
1. The Internet:
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a. Has extended this process
b. Provides detailed information about these cases to a much
greater degree than previously available
c. Provides a vehicle for the public to become active trial
participants in dedicated trial chat rooms
i. Example: voting on the verdict
2. Along with extensive interest, the money to be made from a
popular long-running media trial is enormous
a. Media trials allow the news media to attract and market to
large audiences while maintaining their preferred image as
objective and neutral
b. A trial is a natural stage for presenting drama and comes
supplied with tax-supported sets, lead and secondary
characters, extras, and dialogue
c. Media trials provide the media with ready-made
entertainment-style themes that supply fodder for
entertainment vehicles in the form of:
i. movie scripts
ii. episodes for weekly crime and law dramas
iii. content for infotainment talk shows, books, and
other commercial spinoffs
ii. The social impact and importance of media trials comes form the massive
attention they receive and the public debate they engender
iii. These trials are significant because they influence the public’s attitudes
and views regarding crime, justice, and society for years
iv. Following a media trial, a coverage effect influences the processing and
disposition of similarly charged but unpublicized cases (coverage echo)
1. Examples:
a. After a notorious case of child rape, the prosecutor may
refuse to bargain, for a time, with those charged with sex
offenses involving children
b. After a series of highly publicized drug arrests, the
prosecutor may refuse to engage in reduction of charges
from sales to possession
e. Live Television in Courtrooms
i. When media trials began to be televised in the 1960s, heightened concern
arose over their effects
1. In the Estes case in 1965 (which resulted in banning television
cameras in courtrooms), Chief Justice Earl Warren stated: “Should
the television industry become an integral part of our system of
criminal justice, it would not be unnatural for the public to attribute
the shortcomings of the industry to the trial process itself”
ii. The basic issue is whether attorneys, judges, and other participants react to
the presence of television cameras by altering their courtroom behavior
1. The fear is that participants will change the way they testify, argue,
and construct their cases to fit the needs of an electronic visual
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media and that attorneys will audition for a massive external
audience rather than litigate to a small courtroom audience
iii. Live television coverage of judicial proceedings represents the most
intrusive media interaction with the judicial system
iv. The judiciary has long been skeptical about visual coverage of trials
1. Recognition of photography’s unique potential for disruption
originated with Bruno Hauptmann’s trial for the kidnapping and
murder of Charles Lindbergh’s baby son in the 1930s
a. The American Bar Association issued a new canon in 1937:
The taking of photographs in the courtroom, during
sessions of the court or recesses between sessions, and the
broadcasting of court proceedings are calculated to detract
from the essential dignity of the proceedings, degrade the
court and create misconceptions in the mind of the public
and should not be permitted
b. The recommended ban on photography in the courtroom
was widely adopted and was extended in 1952 to include
television cameras as well
v. Despite the extension of the ABA rules, the first trial to receive television
coverage took place in 1953 in Oklahoma City (the first to receive live
coverage in 1955 was in Waco, Texas)
vi. The Supreme Court first reviewed the question of television access to
courtrooms in Estes v. Texas in 1965
1. The court reversed Estes’ conviction, ruling that television was
unavoidably disruptive and should have been banned
2. In the Estes aftermath, most states severely limited television’s
access to their courts, and many simply banned all TV coverage
a. However, encouraged by the development of less obtrusive
television equipment, various states continued to
experiment with televised proceedings
3. In 1981, the Court rejected many of the assumptions about
television it had forwarded sixteen years earlier, after Chandler v.
Florida
a. The most significant assumption it rejected was that
televising a criminal trial without the defendant’s consent is
an inherent denial of due process
b. Also emphasized:
i. the modernization of the medium
ii. the lack of evidence of a psychological impact from
televised coverage on trial participants
iii. an increase in the public acceptance of television as
a fact of everyday life
c. Reasons for this reversal developed in the years between
Estes and Chandler
i. The courts were being viewed as part of the cause
of a steadily increasing crime rate; in this negative
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atmosphere, televising trials began to look like a
possible counterweight to negative public
perceptions
1. It was increasingly felt that cameras would
show:
a. impartial justice
b. fair procedure
c. conviction of the guilty
d. imposition of fair sentences
ii. The courts saw televised trials as a means of
presenting controlled, formal front-stage events to
the public while protecting their backstage
assembly-line processes from exposure
vii. By the 1980s:
1. the courts felt that a broadly expanded audience of external
spectators was a good thing that would have an uplifting impact on
the negative image of the courts
2. judges came to accept the courtroom presence of news media and
became more comfortable with the measures necessary to control
media behavior during trials
3. as predatory criminality became the dominant social construction
of crime and began to influence criminal justice policy, the
constitutional importance given to defendants’ rights diminished in
favor of general social interests and increased support for mass
media
viii. As of 2005 all 50 states allow some type of coverage at either the appellate
or trial level or both
1. The Chandler decision emerged as a broad victory for the
electronic media and the assumption of media access to judicial
proceedings
2. Courtroom cameras are today a growing international phenomena
3. Their use in the United States continues to expand within states,
appellate courts, and the federal court system
ix. The effects of cameras on those outside the courtroom is still worrisome
1. Public disturbances and full-scale riots have been triggered by
court decisions in highly publicized cases
2. Other unresolved issues include:
a. a chilling effect on victims reporting crimes, particularly
victims of rape
b. witnesses seeking to avoid embarrassing coverage being
reluctant to testify
c. heightening the public’s fear of crime
d. distorting the public’s beliefs about the workings of the
judicial system
e. encouraging copycat crimes
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f. publicly pillorying defendants who are eventually found
innocent
3. Currently the evolution of the media and the judiciary’s unsteady
relationship with clashes to be expected:
a. As the media seek access to previously backstage judicial
proceedings
b. As media technology makes recording and marketing easier
4. Currently has three areas of concern and unresolved conflict:
a. the effect of pretrial publicity
b. the appropriate judicial mechanisms to be used by the
courts when they are faced with intense media attention
c. access by both sides to information held by the other
IV. Pretrial Publicity, Judicial Controls, and Access
a. Pretrial Publicity
i. In 1807 Aaron Burr’s attorney claimed that jurors could not properly
decide his client’s case because of prejudicial newspaper articles
1. From this initial point of contention, the media and courts have
continued to joust over pretrial publicity
a. However, the media and the judicial system react to
criminal events in much the same manner
i. Both concentrate on constructing a particular
version of reality to be presented to a specific
audience
1. Jurors
2. Viewers
3. Readers
4. Web surfers
b. Each jealously guards its information while attempting to
discover what the other one knows (particularly during the
investigative and pretrial period of a case)
ii. Publicity before and during a trial may so affect a community and its
courts that a fair trial becomes impossible and due process protections
such as the presumption of innocence are destroyed and
1. Exposure has been associated with greater likelihood by jurors:
a. to discuss the coverage in deliberations
b. to be influenced in their recollections of case-specific facts
c. to be influenced in their emotional reactions to evidence
and testimony
2. The media especially create problems when they publish
information that is inadmissible in the courtroom and construct a
community atmosphere in which finding and impaneling impartial
jurors is not possible
iii. Prejudicial publicity can take two forms
1. Factual information that bears on the guilt of a defendant
a. Includes:
i. allusions to confessions
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ii. performances on polygraph or other inadmissible
tests
iii. past criminal records and convictions
2. Emotional information without evidentiary relevance
a. Includes stories:
i. that question the credibility of witnesses or present
personal feelings
ii. about the defendant’s character (he hates children
and dogs)
iii. about associates (she hangs around with known
syndicate gunmen)
iv. about personality (he’s a mean-spirited, bad-
tempered degenerate)
v. that inflame the general public (someone has to be
punished for this!)
iv. Both trial and appellate courts have focused on jurors as the key to
determining the fairness of a trial
1. “An impartial juror is one free from the dominant influence of
knowledge acquired outside the courtroom, free from strong and
deep impressions which close the mind”
2. Jurors can be exposed to extensive media content regarding a case
and still be considered impartial
3. If a jury is deemed impartial and uninfluenced by media coverage,
then the proceedings are usually considered fair
v. Paralleling the issue of pretrial publicity is the concern that trial publicity
will result in unwarranted harm to a defendant
1. Left unaddressed are cases in which a defendant is found innocent
of criminal charges but has his or her reputation permanently
ruined by publicity
2. The concern is that live television coverage incites such negative
feelings against defendants that, even if they are later acquitted, the
feelings are irreversible (legally innocent but socially guilty)
a. Media coverage confounds the concepts of legal guilt (is
the defendant legally responsible for the crime?) and
factual guilt (did the defendant actually commit the
criminal behavior?)
3. If defendants who have been found innocent are subsequently still
punished by losing their career or reputation because of publicity,
then the criminal justice system loses legitimacy with those who
identify with these defendants
b. Judicial Mechanisms to Deal with Pretrial Publicity
i. Two strategies:
1. Proactive strategy: seeks to limit the availability of potentially
prejudicial material to the media
a. Proactive mechanisms (See Box. 6.2): include
i. Closure
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ii. Restrictive orders
iii. Protective orders
b. If a court deems information to be prejudicial, it acts to
restrict either media access to the information or, if the
material is already in the media’s possession, restricts the
publication of the information
c. This approach directly clashes with the First Amendment
protection of freedom of the press and has been vigorously
resisted by the media
i. It has also not been the favored strategy of the
appellate courts, as shown in test cases in which the
Supreme Court has been more likely to uphold
appeals by the media where a proactive strategy had
been used
2. Reactive strategy: seeks to limit the effects of the material on the
proceeding after it has been disseminated to the public by the
media
a. Reactive mechanisms (See Box 6.3): include
i. Voir dire
ii. Continuance
iii. Change of venue
iv. Sequestration
v. Jury instructions
b. Generally preferred over closure, restrictive orders, and
protective orders because they do not directly limit the
activities of the media and thus do not directly undermine
the First Amendment
i. Rest on the premise on that even if most of the
public may be influenced and biased by media
information, an unbiased jury can still be assembled
and an unbiased trial conducted
c. Appeals by the media have been less successful when the
courts employ a reactive strategy, allowing the news media
access and publication but attempting to compensate for
negative effects from the resulting publicity
i. Case law and legislation provide little direction
concerning the appropriate use of these reactive
mechanisms, and little empirical research is
available regarding their relative effectiveness
ii. Although each mechanism has recognized strengths
and weaknesses, its application is based on
unproved but commonly accepted assumptions
concerning its effectiveness and appropriate use
1. Given the pervasiveness and intrusiveness of
the media, these after-the-fact attempts to
compensate are often costly and disruptive,
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and, most important, of questionable
effectiveness in massively covered trials
3. Proactive mechanisms are more effective but they:
a. tend to close off the judicial system
b. run counter to the society-wide, media-driven trend to open
social institutions
c. preclude any positive social effects that might be generated
from media coverage
d. continue to lag in popularity
e. are reserved for the rare and unusual case
f. are usually challenged when used
ii. Regardless of which strategy judges employ, to enforce their decisions
trial judges rely on contempt-of-court rulings to deter and punish those
ignoring their orders regarding media publicity
1. Works best with local criminal justice system personnel, as they
have to consider future dealings with the court
2. As a last resort, a mistrial can be declared and a retrial ordered if
jurors are exposed to or admit to being influenced by prejudicial
news once a trial has begun
a. A retrial can be thought of as the ultimate reactive judicial
remedy for media publicity
b. Represents an expensive failure of the judicial system
c. Does not prevent the recurrence of renewed massive
coverage
iii. In addition to pretrial publicity and strategies to deal with the media,
access to files, records, notes, photos, and databases have raised concerns
1. Issues here take two forms:
a. those related to the media desiring access to government
controlled and collected information
b. those related to government agencies gaining access to
media collected and controlled information
c. Media Access to Government Information
i. In a significant number of instances, a government agency has possession
of information that the media deems newsworthy
1. The first national response to obtaining information held by the
government was the federal Freedom of Information Act, adopted
in 1966
a. This act opened up numerous government files to the media
and the public
2. A later associated law was the Government in Sunshine Act,
passed in 1976
a. Prohibits closed government meetings that concern public
policy
ii. The federal Privacy Act of 1974 counterbalances laws targeted at access
1. Passed due to concerns over privacy and misuse of information
collected by government regarding individuals
88
2. Recently others have entered the fray and conflict over the
distribution of government files and documents has taken a global
turn
a. Internet- based hackers
b. Bloggers
c. other online entities such as Wikileaks (see Box 6.5)
3. Information required to be disclosed under the Freedom of
Information Act cannot be withheld under the auspices of the
Privacy Act, but the boundary between the two acts has always
been blurred
iii. Further muddying the water, while expanding government access to
privately held information the effects of the Patriot Act of 2001 and the
Homeland Security Act of 2002 on media access to government-held
information are not yet clear
iv. The lower courts, agency personnel, and the media operate without clear
rules in determining when privacy supersedes public interests, and
decisions are rendered on a case-by-case basis
1. To date the overall effect of this legislation has been more
symbolic than significant, and today the media’s access to
government-held files and information varies significantly by
jurisdiction
d. Reporters’ Privilege and Shield Laws
i. On the opposite side of the knowledge control issue, the media sometimes
possess information that the courts or law enforcement officials want but
that reporters do not want to provide
1. Controversy generally revolves around journalists’ claims to the
right of a privileged conversation
a. Journalists argue that they should be protected from having
to divulge information or identify their sources
b. Journalists argue that to fulfill their constitutional function
as watchdogs of government activities and to guarantee
their access to information, their news sources must be
similarly protected
c. Opponents to the extension of privileged protection to
media sources have argued that the media should have no
more protections or privileges than the average citizen,
whose duty to provide testimony in criminal matters has
been regularly affirmed
ii. The media has also lobbied for shield laws: legislative protection from
forced divulgence
1. The first reporters’ shield law was passed in Baltimore, Maryland,
in 1896
2. Currently 40 states and the District of Columbia offer shield law
protections
a. Most qualify the protection afforded reporters and provide
a judicial test to be applied to assess whether the media’s
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information is relevant and whether it can be obtained from
other sources
3. Problems with shield laws
a. Often the degree to which reporters are shielded depends
not on what a state’s laws say but on a judge’s attitude
toward the press
b. They operate only within each state, and contemporary
news organizations are national and international in scope
iii. A recent issue regarding journalists and courts concerns how journalists
should be defined by the courts and thus covered by reporter’s privileges
1. The emergence of on-line bloggers has raised the question of
whether they qualify as journalists and are entitled to the same
legal protections as mainstream media reporters
a. It can be difficult to define who is a ‘journalist’ in the new
media era where anyone can publish their opinions,
thoughts, and reports is an unanswered question
b. The courts have begun to address this question and in initial
state appeals court decisions have stated that simply being a
blogger does not qualify an individual for shield law
protection
c. A blogger must look and act like a traditional journalist to
expect to be shielded like a news journalist:
i. First, an affiliation with traditional news media
should exist
ii. Second, a blogger must prove intent to disseminate
collected information to the general public
iii. Third, information must be obtained in the course of
professional newsgathering activity
iv. Currently, the media are seldom asked to provide information
1. When judges and law enforcement personnel do request
information, reporters can usually be forced to divulge it—
especially if:
a. the information can be shown to be central to a case
b. the information is unavailable from other sources
2. The media’s efforts have made obtaining their information more
costly, time consuming, and difficult, and that sense they have
successfully increased control of their knowledge
a. The media are now also more open to inspection and more
often pressed for access and information from
nongovernmental sources such as:
i. citizen groups
ii. lobby groups
V. The Courts as Twenty-First-Century Entertainment
a. There is a media-driven social trend toward greater openness of public institutions
i. Two social institutions playing critical roles in this trend:
1. the criminal justice system
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a. The courts, as central players in these struggles, are
pressured by the media, especially social media, to open
their institutions to scrutiny
2. the media
a. The media have also felt the pressure to open their
institutions, processes, and files and have suffered through
their own exposés of backstage activities
ii. For better or worse, the courts and media are tightly coupled in the twenty-
first century, and both internal courthouse and external media audiences
dance to an infotainment tune
iii. In the process of defending or prosecuting, lawyers construct reality; they
reach into the popular culture for images and symbols
1. The popular characters and plot lines serve as the building blocks
for courtroom social reality construction by evoking what
“everybody knows” about the world
2. Prosecuting attorneys invoke the mystery narrative to deliver an
evidence based story to jurors while defense attorneys counter with
a beleaguered hero narrative to construct their client as the
innocent victim of state power
iv. Today, one is much more likely to see visual representations in
courtrooms, such as:
1. videos
2. computer-based animations
3. reenactments
v. Infotainment has worked its way into court proceedings
1. In their utilization of narratives, the courts provide a perfect small-
scale model of the social construction process
a. For the internal judicial audience, two constructions of
reality are created by competing claims makers who use
factual and interpretative claims (evidence and
explanations) and submit them to an audience (judges and
jurors) that chooses and validates one or the other (guilty or
not guilty verdicts
b. The media have tapped into this internal judicial social
construction process and transformed the judicial system
into a massive public infotainment machine
i. Attorneys, judges, defendants, witnesses, and
victims sometimes protest, but more often they
embrace their celebrity status and the chance to play
a leading role
ii. The judiciary functions as a combination studio and
production company where the most popular and
gripping crime-and-justice dramas are cast and
marketed
vi. The impact of new social media on the judicial system and the media trial
production process is multiple:
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1. In a positive effect, new media have raised low visibility events
and lower appellate courts to higher public visibility
2. In a negative effect, they have increased the difficulty of insulating
jurors, witnesses, and other participants from outside information
and influences
3. Lastly, they have increased the general challenge of conducting
high profile trials by:
a. increasing the pressure for continuous and live reporting
b. more often turning local trials into national judicial events
c. creating greater demand for trial access from bloggers
d. generating more demand for wi-fi capable courtrooms
vii. All these developments can be understood as a broad social reconstruction
of the courts by the media simultaneously carried on within entertainment,
news, and infotainment media
1. The notable transformation of attorneys from lawyers to crime
fighters in the entertainment media is one indicator of the wider
social ideological transition from left to right and the shift of the
courts from a closed judicial system to an open source of public
entertainment
2. Today, the courts struggle to construct public images that better
align with their traditional social reality (the courts as fair,
impartial institutions that determine truth and dispense justice
based on the rule of law)
a. To what extent new media will further degrade this
historical construction remains to be determined
b. For the near future, it appears that the judicial system will
be seen more as a source of entertainment than a source of
justice
Chapter Key Terms
media trials [5] prejudicial publicity [17]
abuse of power [10] proactive mechanisms [18]
sinful rich media trials [10] reactive mechanisms [18]
evil strangers [10] privileged conversation [24]
Helpful and Interesting Internet Sites
The following sites are interesting sources for this chapter. Please review them before
recommending them to your students.
Crime Library Resources
http://www.crimelibrary.com/
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Famous Court Trials
http://www.law.umkc.edu/faculty/projects/FTrials/ftrials.htm
