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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

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

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

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

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

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

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

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:

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

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

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

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

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

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,

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

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

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

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:

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/

Famous Court Trials

http://www.law.umkc.edu/faculty/projects/FTrials/ftrials.htm