Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Chapter Overview
Chapter 8: Overseeing the Courts
Chapter 8 focuses on the laws affecting journalists’ attempts to access sessions and records of the
judicial branch. It also addresses the fundamental tension between the First Amendment rights of
freedom of speech and of the press, and the Sixth Amendment right of fair and open public trials.
The fair trial/free press debate presents fundamental concerns about newsgathering as well as
publication, and the chapter deals with the use of reporters themselves as sources, the ethical and
legal obligation to protect confidential sources, and the extent and limits of judicial powers to
punish disobedience or disruption of its proceedings. This includes whether journalists may be
compelled to share information in their possession and the effects press coverage has on criminal
investigations and trials and on the ability of society to prosecute criminals successfully and
fairly. As such, it offers another illustration of the Court’s continuing struggle to balance
competing rights.
Voluntary bench/bar/ press guidelines suggest limits to the content of media coverage of ongoing
law enforcement investigations and trials.
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
The U.S. Supreme Court ruled that judges must withdraw from proceedings when there is
substantial likelihood of a risk of bias. State laws designed to protect the appearance of judicial
impartiality by prohibiting judges from taking public stands on issues that may come before them
in court are unconstitutional. The Sixth Amendment guarantee of a speedy trial does not extend
to speedy sentencing.
Both the First Amendment and the common law rights of access court records are less extensive
than the right of access to criminal trials. In Nixon v. Warner Communications, the Supreme
Court held that courts are not required to make all records in the possession public. Courts may
and do withhold materials that are available through other avenues and/or that are not presented
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
in open court. However, the Press-Enterprise cases established that transcripts of court
proceedings released after the fact are not sufficient to ensure public confidence. Generally, court
rules and policies and state laws (sometimes) determine access to court records not presented in
open courtrooms. Thirty years ago, before most people became more comfortable with the ease
of electronic access, the Supreme Court’s decision in Department of Justice v. Reporters
Committee for Freedom of the Press suggested that readily searchable electronic records posed a
heightened threat to privacy and other interests that might justify limits on electronic access.
Nonetheless, electronic access to both state and federal court records eases gathering of these
materials.
Both civil and criminal contempt citations force trial participants to comply with court orders.
On occasion, judges will delay or relocate a trial to overcome impediments to fairness, including
excessive and prejudicial media coverage. These remedies are rare because they are expensive
and interfere with the right to a speedy trial. Limits on identifying jury members are
controversial and should pass the Press-Enterprise test.
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Due to the increased sensitivity of juvenile defendants, victims and witnesses, juvenile
proceedings do not have the same degree of openness as trials involving adults. Many juvenile
proceedings are presumptively closed, while others may be closed with a less stringent showing
of need. State laws vary greatly in their approach to the openness of juvenile proceedings. Many
states passed rape shield laws to respond to similar concerns about open sexual assault
proceedings, even when they involve adults. National security concerns also increase the
likelihood of closed proceedings, and a preponderance of the proceedings and records of the
special courts that hear Foreign Intelligence Surveillance Act cases involving alleged terrorism
are sealed.
However, judges have the power to force individuals to provide evidence essential to the legal
proceeding. Subpoenas that order reporters to appear in court and testify (even to the identities of
confidential sources) are legal. Properly issued search warrants of reporters and newsrooms also
are legal under the First Amendment, the Supreme Court held in Zurcher v. Stanford Daily.
Somewhat similar to a subpoena that compels compliance, a search warrant authorizes law
enforcement agents to look for materials on a specific site. However, whereas subpoenas do not
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
demand immediate compliance, search warrants do. To blunt the effects of the Court’s ruling in
Zurcher, Congress passed the Privacy Protection Act. The act restrains the scope and authority of
law enforcements to search newsrooms. As more generally, national security concerns may
override legal protections.
When reporters refuse to comply with a subpoena, they may be charged with contempt (criminal
or civil) of court and sentenced to jail. Reporters may challenge subpoenas in court on First
Amendment grounds or under federal criminal and civil rules. The three-part Branzburg test
often determines whether the privilege stands. If the subpoena is not quashed, reporters must
comply. Failure to comply may result in jail and fines. Recent studies suggest that state court
contempt citations against reporters are increasing with some newsgatherers spending lengthy
stretches in jail.
Trial observers may challenge the closure of court sessions but should get an objection on the
court’s record at the time of the closure order.
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
Outline
I. Access to Courts and Court Records
a. Presuming the Openness of Trials
b. Broadcasting and Recording Court Proceedings
c. Using Newer Technologies in the Courts
d. Accessing Court Records
e. Electronic Access to Court Records
II. Advancing Fairness in Trials
a. Following Sheppard
i. Selecting Jurors
ii. Instructing the Jury
iii. Sequestering the Jury
iv. Relocating the Trial
v. Delaying the Trial
vi. Making Juries Anonymous
vii. Limiting Speech Outside the Court
b. Impartial Judges
III. Balancing Interests
a. Requiring Evidence
b. Penalizing Failure to Comply
c. Protecting Juveniles
d. Protecting Sexual Assault Victims
e. Protecting State Secrets and National Security
f. Closing Courts
Instructor Resource
Trager, The Law of Journalism and Mass Communication 6e
CQ Press, 2018
IV. Advancing the Flow of News
a. Guiding Media Coverage of Courts
b. Protecting Confidential Information
c. Providing a Limited Privilege
d. Applying Shield Laws
e. Clarifying What Shield Laws Cover
f. Finding Other Protections
i. The Privacy Protection Act
ii. Facing National Security Claims
g. Challenging Court Closures