The Gag Order: Asphyxiating the First Amendment

Date01 September 1981
Published date01 September 1981
Subject MatterArticles
Southern Illinois University
ITS OWN admission one of the most difficult questions the Su-
preme Court wrestles with is the ubiquitous conflict between a &dquo;free
press&dquo; and a &dquo;fair trial&dquo; -
a conflict which the courts today still have
problems resolving (i.e., while they are beginning to readmit cameras to the
courtroom, they are allowing the exclusion of reporters from certain judicial
proceedings).’ When addressing this conflict the Court generally looked at
the time both prior to the empaneling of the jury, and during the trial itself.
Although the Court is intolerant of agents that alter the tone of court-
room decorum in a way which precludes &dquo;a sober search for the truth,&dquo; Estes
v. Texas, 381 U.S. 532, 551 (1965), and in fact on at least three occasions
reversed convictions of defendants who were victims of such poor courtroom
management, Cccrroll v. Texas, 392 U.S. 644 (1968); Estes (1965); and Marshall
v. U.S., 360 U.S. 310 (1959), this research is primarily concerned with the
pre-trial stage.
It is during this pre-trial stage that the Court performs a delicate
balancing act between free press and a fair trial. The empaneling of an
unbiased jury is vital to securing a fair trial: see Sheppard v. Maxwell, 384 U.S.
333, 362 (1966). Since most publicity describing events surrounding the
crime occurs prior to the selection of jurors, exposure to such information
may prejudice potential jurors -
a prejudice that may be impossible to
overcome if the juror is then called to serve. The nature of this prejudice
may be influenced by both the intensity and tone of the coverage (e.g., the
extent of coverage, the language in which the descriptions are framed, etc.),
and the publication of damaging claims or facts (e.g., past criminal behavior,
confessions, etc.).
The Court sees the media’s job as necessary to guard &dquo;against the mis-
carriage of justice by subjecting the police, prosecutors, and judicial proces-
ses to extensive public scrutiny and criticism.&dquo;2 Therefore, rather than dic-
tate to the media standards for the performance of their jobs, the judicial
system provides several procedural safeguards to insure that the suspect is
provided with a fair trial by unbiased jurors. These include: a change of
venue to a jurisdiction where the publicity has not been so intense; a con-
tinuance, so that the publicity and its effects will have a chance to subside; an
intensive voir dire to screen out those jurors who may have been affected by
the news accounts; and the employment of simple and explicit judicial in-
structions concerning the inappropriateness of using information not pre-
sented during the trial.
Where publicity was extensive, the Court has not responded favorably to
defendants who fail to utilize those available protections. On other occasions
the Court has contended that the implementation of these safeguards was
sufficient to protect the defendant from the impact of prejudicial pretrial
publicity (i.e., subsequently referred to as PPP). See Murphy v. Florida, 421
NOTE: This research was funded by the Law Enforcement Assistance Administration (Grant
#77N 1-99-0026). The research was conducted during 1978.
The recent issue surrounding the right of the press to attend certain judicial hearings is a
question left for another day. See Richmond Newspapers, Inc. v. Va., 100 S.Ct. 2814 (1980)
and Gannett v. DePasquale, 443 U.S. 368 (1979).
Sheppard v. Maxwell, 384 U.S. 333, 362 (1966), p. 350.

U.S. 794 (1975); Beck v. Washington, 369 U.S. 541 ( 1962); Stroble v. California,
343 U.S. 181 (1951). In addition, the Court has not been receptive to the
argument that publicized facts which can nevertheless be introduced as evi-
dence, or are otherwise related to the trial (i.e., the defendant’s name, and
the nature of the charges against him) have a prejudicial effect solely at-
tributable to the publicity. See Dobbert v. Florida, 432 U.S. 282, 303 (1977).
However, the Court has often reaffirmed its position of reversing con-
victions when the trial judge fails to meet his responsibilities. In Irvin v.
Dowd, 366 U.S. 717, 726 (1961), the Court vacated the conviction and death
sentence of a defendant who was tried by &dquo;... a wave of public passion....&dquo;
In Rideau v. Louisiana, 363 U.S. 723, 726 (1963) the Court held that the
highly emotional confession which had been broadcast for three days prior
to the trial was so pervasive that any subsequent court proceedings
&dquo;... could be but a hollow formality.&dquo; Perhaps the Court’s strongest state-
ment in support of the defendant’s right to a jury unbiased by PPP (i.e.,
prejudicial pre-trial publicity) came in Sheppard: &dquo;Given the pervasiveness of
modern communications and the difficulty of effacing prejudicial publicity
from the minds of jurors, the trial courts must take strong measures to
ensure that the balance is never weighed against the accused....&dquo;3
Judges who were skeptical about the effectiveness of conventional pro-
tective measures took the Court up on its Sheppard demand for &dquo;strong
measures to ensure the balance is never weighed against the accused.&dquo; This
strong measure was operationalized as a court order prohibiting the press
from divulging specific information that the trial judge believed might un-
duly influence potential jurors. This strong measure adopted the label of a
Gag Order. Between Sheppard (1966) and 1975, some 174 of these orders
were issued.4 The nature of these orders seems to violate a longstanding
protection for the press from prior restraint. See N.Y. Times Co. v. U.S., 403
U.S. 713 (1971); Organization,for a Better Austin v. Keefe, 402 U.S. 415 (1971);
Near v. Minn., 283 U.S. 697 (1931). With Gag Orders the issue shifted from
one of the media’s infringement on the defendant’s rights, to the court’s
infringing on the media’s rights. Given its frequent use, it was soon clear that
guidelines were needed to govern the issuance of these orders.
The debate over the Gag Order came to a head in Nebraska Press Associa-
tion v. Stuart, 427 U.S. 539 (1976). The intent of Judge Stuart’s Gag Order
was to preclude jurors’ access to evidence which may be inadmissible in
court. This order was applicable only until a jury was empaneled.
The Court found two problems with the order. First some of its prohi-
bitions were aimed at evidence already presented during a judicial hearing.
The Court already protects truthful reporting. See Oklahoma Publishing Co. v.
District Court, 430 U.S. 308 (1977); Cox Broadcasting Corp. v. Cohn, 420 U.S.
367, 374 (1947). Secondly, although the Court agreed that the trial judge
was correct in expecting &dquo;intense and pervasive pre-trial publicity,&dquo; it still
found &dquo;little in the record that goes to another aspect of our task, determin-
ing whether measures short of an order restraining all publication would
have insured the defendant a fair trial.&dquo;5 Since the Court already established
that prior restraint comes with a heavy presumption against its constitution-
ality, the Court suggested that &dquo;reasonable minds can have few doubts about
the gravity of the evil pre-trial publicity can work, but the probability that it
would do so here was not demonstrated with the degree of certainty our
3 Ibid., p. 362.
4Jack Landau, "Fair Trial and Free Press: A Due Process Proposal," American Bar Association
Journal 62 (1976): 55-60.
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), p. 563.

cases on prior restraint require.&dquo;6 In Stuart the Court concluded that the Gag
Order would be tolerated only when it can be demonstrated that the weaker
measures would be ineffective, and when the Gag Order itself would prevent
the threatened danger.
There is a fundamental empirical question which remains largely unad-
dressed by the Supreme Court decisions summarized above. Does PPP affect
potential jurors in the way it is commonly thought, or does group interaction
in a jury setting mitigate its impact? If the effect is minimal, then the need
for a Gag Order becomes moot. Even Justice Frankfurter expressed a con-
cern over testing this question early in the Court’s consideration of this
problem. &dquo;Science with all of its advances has not given us instruments for
determining when the impact of such newspaper exploitation has spent it-
self, or whether the powerful impression bound to be made by such inflam-
ing articles ... can be dissipated in the mind of the average juror....&dquo;’ This
research is a modest attempt in the direction of addressing the empirical
question. The findings suggest that there is little effect from low-level PPP,
and that perhaps the threat from pre-trial publicity may be significantly
exaggerated. However, first we must place the effect of PPP in a theoretical
context u~hich explains the Court’s intuitively appealing expectation for
PPP’s impact.
For purposes of this research PPP is assumed to be an &dquo;irrelevant fac-
tor,&dquo; and consideration of &dquo;irrelevant factors&dquo; by jurors is one of the most
perplexing problems facing judicial practitioners. Irrelevant information can
be conceptualized in two ways. First, as &dquo;Inadmissible Evidence&dquo; it consists of
those items which some jurors consider relevant to their decision, but for a
j variety of legal reasons should not be a factor in...

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