Tipping the Scales of Justice: An Attempt to Balance the Right to a Fair Trial with the Right to Free Speech
Journal of Civil Rights and Economic Development
Tipping the Scales of Justice: An Attempt to Balance the Right to a Fair Trial with the Right to Free Speech
Megan J. Conboy
Alice R. Scott
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Freedom of speech1 and the right to a fair trial2 are
fundamental rights guaranteed by the United States Constitution.3 Ensured
by the First and Sixth Amendments, respectively, these essential
rights inevitably breed conflict.4 Increasing media coverage of
1 U.S. CONsT. amend. I. The First Amendment provides: "Congress shall make no law...
abridging the freedom of speech, or of the press .... ". Id.; see LAURENCE H. TRIBE,
AMERICAN CONsTrrUTIONAL LAw § 12-2, at 785 (2d ed. 1988) (describing freedoms guaranteed by
First Amendment as "Constitution's most majestic guarantee."). Tribe also characterizes
free speech as a basic "element of our fundamental law." Id.; see also Griswold v.
Connecticut, 381 U.S. 479, 487 (1965) ("[Flreedom of speech and of the press... are protected by the
First Amendment... [and] are among the fundamental personal rights and liberties'...."
(quoting Gitlow v. New York, 268 U.S. 652, 666 (1925))). See generally Donald E. Lively,
The FirstAmendment at Its Third Century:Reckoning with the Ravages of Time, 18 HAS
TINGS CONST. L.Q. 259, 259 (1991) (noting that freedoms of speech and of press "have been
explicit constitutional commands for ... two hundred years").
2 U.S. CONsT. amend. VI. The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence.
Id.; see, e.g., Lockhart v. Fretwell, 506 U.S. 364 (1993). The Fretwell Court noted that a long
line of cases has firmly established that "the Sixth Amendment right to counsel exists in
order to protect the fundamental right to a 'fair trial.'" Id. (quoting Strickland v.
Washington, 466 U.S. 668, 684 (1984)); see Scott C. Pugh, Note, Checkbook Journalism,FreeSpeech,
and Fair Trials, 143 U. PA. L. REv. 1739, 1746 (1995) ("The central value served by the
Sixth Amendment is fairness."); Alfredo Garcia, Clashof the Titans: The Difficult
Reconciliation of a Fair Trial in Modern American Society, CI-m-pIoN, July 1994, at 4, 5-6
("[Flairness is the preeminent value advanced by the Sixth Amendment's safeguard of a
fair trial by an impartial jury.").
3 See California First Amendment Coalition v. Lungren, No. C 95-0440-FMS, 1995 WL
482066, at *9
(N.D. Cal. Aug. 10, 1995)
(incorporating into holding well-settled principle
that state laws which infringe upon any federal constitutional right may rightfully be
rejected on basis that such laws are subject to Due Process Clause of Fourteenth
Amendment); see also Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring).
Explaining that states are subject to constitutional restraints by virtue of the Fourteenth
Amendment, Justice Brandeis stated that "all fundamental rights compromised within the
term liberty are protected by the federal Constitution from invasion by the states. The right
of free speech, [is], of course, [a] fundamental right.. . ." Id.; First Natl Bank of Boston v.
Bellotti, 435 U.S. 765, 780 (1978) ("Freedom of speech and the other freedoms encompassed
by the First Amendment always have been viewed as fundamental components of the
liberty safeguarded by the Due Process Clause.. . .") (citations omitted).
4 See generally Rideau v. Louisiana, 373 U.S. 723, 726 (1963) (broadcasting of
defendant's confession before trial led to jury prejudices and eventual reversal of defendant's
concriminal trials has exposed the conflict between these two
constitutional guarantees. 5
In an attempt to resolve the tension between the two
guarantees, the California State Legislature recently enacted a statute
prohibiting potential witnesses in criminal prosecutions from
selling their stories to the media.6 Although the law was designed
to curtail "checkbook journalism"7 and preserve the right of
criminal defendants to a fair trial,8 opponents of the statute argue
Recently, the United States District Court for the Northern
District of California struck down the statute as unduly restrictive of
free speech. 10
The statute's enactment and subsequent invalida
tion illustrates the ongoing search for ways to protect a criminal
defendant's constitutional right to a fair trial while
simultaneously safeguarding the right to free speech enjoyed
United States Constitution."
This Note analyzes the conflicting guarantees of the First and
Sixth Amendments and examines possible resolutions of the
Part One examines the underlying theories supporting the
First Amendment right of free speech and the methodology used
27, 1994, at A3 (stating that Speaker Brown proposed bill because defendants' right to fair
trial should outweigh right of witnesses to profit from their stories).
9 See, e.g., Farragher, supra note 7, at 14 ("The First Amendment doesn't talk about
Congress not making a law to abridge the freedom of the press except that freedom to pay
for people's stories.... .")(quoting Terry Francke, executive director of the California First
Amendment Coalition); Lynn Ludlow, Paying For Free Speech, S.F. EXAMINER, July 28,
1994, at A14 ("Once again the First Amendment is threatened by well-meaning legislators
who want to 'balance' its free-speech guarantee with the Sixth Amendment's promise of a
fair trial. It's not a balance. It's an unconstitutional gag law."); see also Note, California
Enacts a Ban on Receipt of Money for Information, 108 HARv. L. REV. 1214, 1214 (1995)
[hereinafter California Enacts Ban] (stating that legislation "implicates serious First
Amendment concerns"); Pugh, supra note 2, at 1758 (arguing that statute constitutes
"restriction on free expression").
10 See California First Amendment Coalition v. Lungren, No. C 95-0440-FMS, 1995 WL
482066, at *1
(N.D. Cal. Aug. 10, 1995)
; The statute was subjected to "strict scrutiny,"
which requires that a restriction on free speech must serve a compelling state interest and
be narrowly tailored to meet that interest. Id. at *5. The court granted a permanent
injunction against the statute's enforcement. Id. at *9; see also Mercy Hermida, Note, Trial by
Tabloid, 7 ST. THOMAS L. REV. 197, 213-15 (1994) (suggesting possible alternatives to
remedy constitutional conflicts created by perpetuation of checkbook journalism); California
Enacts Ban, supra note 9, at 1219 n.28 (concluding that California's checkbook journalism
statute does not properly balance First and Sixth Amendment rights and proposing
alternatives to strike this balance); Pugh, supra note 2, at 1765-80 (outlining alternative
approaches for achieving Sixth Amendment goals of California's checkbook journalism
statute while preserving media's First Amendment rights). See generally Robert S. Stephen,
Note, PrejudicialPublicity Surroundinga Criminal Trial: What a Trial Court Can Do to
Ensure a FairTrial in the Face of a "MediaCircus", 26 SuFFoLK U. L. REV. 1063, 1080-92
(1992) (analyzing how trial courts in highly publicized criminal cases are responsible for
balancing defendants' right to fair trial with media's right to report news to general public).
11 Lungren, 1995 WL 482066, at *9. The Lungren court rejected defendant's argument
that CFAC's facial challenge to the statute prevented the court from relying on
hypothetical applications of the statute as evidence. Id. at *3. The court noted precedential decisions
such as United States v. National Treasury Employees Union, 115 S. Ct. 1003, 1010 (1995)
which relied upon evidence showing how statutes impacted members of plaintiff's class in
invalidating ban on fees received by federal employees for making speeches and writing
articles. Id. It also relied upon Simon & Schuster v. New York State Crime Victims Bd., 502
U.S. 105, 121-22 (1991) which noted that a law prohibiting convicted criminals from
profiting from their crime would have affected authors such as Malcolm X, Henry Thoreau and
Martin Luther King, Jr. Id.
to determine whether a restriction on an individual's speech is
constitutionally permissible. Part Two focuses on judicial actions
that seek to curtail prejudicial trial publicity which results from
media coverage of criminal prosecutions.
Three explores allowable restrictions on speech and sets forth the
criteria for successfully restricting prejudicial speech in an
attempt to ensure a fair trial. Part Four sets forth viable
alternatives to restricting witness speech, including invoking codes
detailing the professional responsibility
of trial attorneys and
imposing "gag orders" on trial participants. This Note concludes
that, although restrictions on witness speech may foster a
defendant's ability to receive a fair trial, such restrictions may violate
the fundamental right to free speech of disinterested parties and,
therefore, are unconstitutional.
Court has promulgated a complex standard of review regarding
government restrictions on speech. 13
speech depends upon the character of the restriction. "4At the
out12 See generally CONGREssIoNAL RESEARCH SERV., THE CONSTIUTON OF THE UNITED
STATES: ANALYsIS & INTERPRETATION, S. Doc. No. 82, 92d Cong., 2d Sess., 936-938 (1973)
(discussing detailed analysis of policies underlying First Amendment). There were no
significant House or Senate debates regarding the meaning that Member's ascribed to
freedom of speech or of the press. Id. at 936 n.5.
13 See TRmE, supranote 1, § 12-1, at 785-89 (describing Supreme Court standard of
review under First Amendment); see also Thomas M. Fisher, Note, Republican Constitutional
Skepticism and CongressionalReform, 69 IND. L.J. 1215, 1223 (1993) (recognizing two
tiered review of First Amendment challenges).
14 Turner Broadcasting Sys., Inc. v. F.C.C., 114 S. Ct. 2445, 2458 (1994) (discussing
precedential Supreme Court decisions that have determined level of scrutiny based on content);
Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. 105,
125 (1991) (Kennedy, J., concurring) (concluding that content-based restrictions are subject
to strictest scrutiny); Arkansas Writers' Project v. Ragland, 481 U.S. 221, 230 (1987)
(noting different scrutiny applied to commercial speech); Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 66 (1983) (finding that Supreme Court has consistently applied
highest scrutiny to content-based restrictions); First Nat'l Bank of Boston v. Bellotti, 435
U.S. 765, 776-777 (1978) (differentiating between speech made by individuals and that
made by corporations).
set of the analysis, the distinction between content-neutral and
content-based restrictions must be addressed.
A restriction is content-neutral when the government seeks to
avoid some evil unconnected with the speech's content, and when
the restriction is merely incidental to government regulation.
Once the Court characterizes the speech as content-neutral, it
utilizes a balancing test, 7 which weighs the limitation of the
government interest the restriction
serves.18 If the Court determines that the government interest
rationally justifies the restriction, the Court must then inquire
whether a less restrictive alternative could serve the
government's purpose resulting in the validation or condemnation of the
challenged restriction. 19
A restriction is considered content-based when the government
regulation restricts speech based on the ideas or information
contained in the speech.21 Once the court decides that the
govern15 See Paul B. Stephan III, The FirstAmendment and Content Discrimination,68 VA. L.
REV. 203, 214-231 (1982) (tracking development of content-neutral/content-based
16 See TRIE, supra note 1, § 12-23, at 977-78 (discussing two ways that government
"might" abridge speech); see also Alison M. Barbarosh, Undressingthe FirstAmendment in
Public Schools: Do Uniform Dress Codes Violate Students' FirstAmendment Rights?, 28
LoY. L.A. L. REV. 1415, 1426-1427 (1995) (addressing content-neutral categorization).
17 See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. 61, 67-77 (1981) (invalidating
ordinance that banned commercial live entertainment because of insufficient evidence to
satisfy First Amendment requirements); NAACP v. Button, 371 U.S. 415,437 (1963)
(striking down ordinance that prohibited leaflet distribution on public streets after balancing
public interest in clean streets against First Amendment liberties); Schneider v. State, 308
U.S. 147, 161 (1939) (employing rigid form of balancing).
18 See United States v. O'Brien, 391 U.S. 367, 377 (1968) (requiring that speech
regulation serve important government interest and be narrowly tailored to achieve that
interest); see also Cass R. Sunstein, The FirstAmendment in Cyberspace, 104 YALE L.J. 1757,
1771 (1995) (discussing balancing test employed in analyzing content-neutral regulations).
19 Schad, 452 U.S. at 70.
20 See, e.g., Widmar v. Vincent, 454 U.S. 263, 278 (1981) (holding that University's
content-based regulation prohibiting use of facilities by religious groups to be
unconstitutional); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 544 (1980) (holding
that New York Public Service Commission's order prohibiting appellant from using inserts
discussing controversial public issues in appellant's bills to customers to be impermissible
content-based restriction of speech); Carey v. Brown, 447 U.S. 455, 460 (1980) (holding that
Illinois statute's prohibition of peaceful picketing on public streets was an unconstitutional
content-based regulation of expressive conduct); Erznoznik v. City of Jacksonville, 422
U.S. 205, 217-218 (1975) (striking down Florida ordinance that penalized drive-in movie
theaters for exhibiting films containing nudity); Police Dep't v. Mosley, 408 U.S. 92,
ST. JOH1S JOURNAL OF LEGAL COMMENTARY
ment restriction is "content-based," the restriction is
presumptively unconstitutional.2 1
Furthermore, the constitutionality of any regulation could
depend on whether the speech is considered "high value" or "low
value." Speech considered to be of "low value" receives limited
protection, requiring that the restriction serve a sufficient state
interest.23 For example, the state may regulate, to an extent, a
citizen's right to see sexually explicit materials in theaters of ones
choosing.24 When the court finds the restricted speech to be of
102 (1972) (invalidating city ordinance that prohibited picketing except for peaceful,
laborrelated picketing in proximity of schools); Geoffrey R. Stone, Content Regulation and the
FirstAmendment, 25 WM. & MARY L. REV. 189, 189 (1983). These were all decisions of the
Burger Court that brought this content-neutral/content-based doctrine to the forefront of
modern day First Amendment analysis today. Id.
21 City of Ladue v. Gilleo, 114 S. Ct. 2038, 2047 (1994) (O'Connor, J., concurring) ("With
rare exceptions, content discrimination in regulations of the speech of private citizens on
private property or in a traditional public forum is presumptively impermissible, and this
presumption is a very strong one."); R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2542 (1992)
(asserting that content-based regulation of speech is presumptively invalid); Simon &
Schuster, Inc. v. New York Crime Victims' Bd., 502 U.S. 105, 115 (1991) (stating that
statute is presumptively unconstitutional if it imposes financial burden based on content of
speech); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983)
(presuming content-based regulations to be unconstitutional unless they pass strict scrutiny
analysis); Police Dep't v. Mosely, 408 U.S. 92, 95 (1972) (asserting that government has "no
power" to restrict expression based on content); see TRIE, supra note 1, § 12-2, at 581
(setting forth presumption of invalidity for content-based regulations). See generally Stone,
supra note 20, at 190 (recognizing different standards applied by United States Supreme
Court in analyzing content-based and content-neutral restrictions).
22 See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1948) (classifying
profanity, libel and "fighting words" as communications not safeguarded by Constitution); see also
New York v. Ferber, 458 U.S. 747, 764 (1982) (finding child pornography to be "low value");
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 761
(1976) (concluding that commercial speech is "low value"); Gertz v. Robert Welch, Inc., 418
U.S. 323, 340 (1974) (holding that false statements of fact are "low value"); Miller v.
California, 413 U.S. 15, 23 (1973) (recognizing that obscenity is "low value"); Dennis v. United
States, 341 U.S. 494, 544-546 (1951) (determining that express incitement is "low value").
23 See City of Cincinnati v. Discovery Network, 113 S. Ct. 1505, 1516 (1993) (noting that
reasonable restrictions on speech are permissible if related exclusively to time, place or
manner of dissemination of speech); see also Cynthia G. Bowman, Street Harassmentand
the Informal Ghettoizationof Women, 106 HARv. L. REV. 517, 545 (1993) (stating that "low
value" speech is subject to minimal scrutiny); Fred H. Case, The FirstAmendment and the
NationalInformation Infrastructure,46 WAKE FoREST L. REV. 1, 50 (1995) (setting forth
standard for scrutinizing "low value" speech as requiring sufficient state interest); Harry T.
Edwards & Mitchell N. Berman, Regulating Violence on Television, 89 Nw. U. L. REV. 1487,
1521 (1995) (assigning lesser standard of scrutiny to "low value" speech); Craig B.
Anderson, Comment, Political Correctnesson College Campuses:Freedom of Speech v. Doing the
Politically Correct Thing, 46 SMU L. REv. 171, 197 (1992) (recognizing that "low value"
speech has received intermediate scrutiny requiring substantial, rather than compelling,
state interest). See generally Jeffery M. Shaman, The Theory ofLow-Value Speech, 48 SMU
L. REV. 297, 329 (1995) (discussing levels of scrutiny given to restrictions on speech).
24 Young v. American Mini Theaters, 427 U.S. 50, 72-73 (1976) (holding that city's
interest in character of neighborhoods was sufficient to survive strict scrutiny).
"high value,"2 5 the restriction must serve a compelling state
interest and be narrowly tailored to achieve that end. 2 6 Political speech
falls within this category and thus
may be regulated to a lesser
extent than forms of "low value" speech.2 7
California, in holding that the statue unduly restricted
CaliforniaFirst Amendment Coalition v. Lungren,2 s
the court held that the California statute singled out and placed
an unjustified burden on expressive activity with a specific
witnesses' expressions relating to criminal activity.3 0
Concluding that the statute was content-based, the Lungren court
categorized witness speech as "high value."3 1 The court asserted that
25 See Anderson, supra note 23, at 197 (stating that all "high value" speech is deserving
of strict scrutiny); see also David Cole & William N. Eskridge, Jr., FromHand-Holdingto
Sodomy: FirstAmendment Protection of Homosexual (Expressive) Conduct, 29 HARv. C.R.
C.L. L. REv. 319, 346 (1994) (recognizing that it is high value that society places on certain
speech that justifies strict scrutiny); Edward J. Eberle, Hate Speech, Offensive Speech and
Public Disclosure in America, 29 WAKE FOREST L. REV. 1135, 1145 (1994) (demonstrating
connection between strict scrutiny and "high value" speech); Edwards & Berman, supra
note 23, at 1528 (indicating that regulations of "high value" speech receives strict scrutiny
by Supreme Court); Bradford J. Roegge, Note, Survivalof the Fittest:Hunters or Activists?
FirstAmendment Challenges to HunterHarassmentLaws, 72 U. DET. MERCY L. REV. 437,
445 (1995) (noting that almost every content-based statute or "high value" speech
regulation has been invalidated by Supreme Court).
26 See Police Dep't v. Mosley, 408 U.S. 92, 94-102 (1972) (striking down Chicago
ordinance that distinguished between permissible and impermissible picketing based on
content of ideas expressed by picketers); see also Widmar v. United States, 454 U.S. 263, 278
(1981) (invalidating university policy of excluding religious groups from university's open
27 See CAss R. SuNsTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 37 (1993)
(defining "political speech" and asserting that it is "high value" speech); see also David E.
Steinberg, Alternatives to Entanglement, 80 Ky. L.J. 691, 714 (1992) (exploring
implications of placing high value on political speech); Anderson, supra note 23, at 197 (using
political speech as example of high value speech deserving of strict scrutiny when
restricted); Jon A. Soderberg, Note, Son of Sam Laws: A Victim of the FirstAmendment?, 49
WASH. & LEE L. REV. 629, 645 (1992) (discussing Supreme Court protection of high value
political speech); cf Ashutosh Bhagwat, Of Markets andMedia: The FirstAmendment, The
New Mass Media, and the Political Components of Culture, 74 N.C. L. REv. 141, 186-187
(1995) (positing that although political speech is "high value" and deserving of highest First
Amendment protection, it has been problematic to define "political speech").
28 California First Amendment Coalition v. Lungren, No. C 95-0440-FMS, 1995 WL
48206, at *4
(N.D. Cal. Aug. 10, 1995)
(finding statute to be content-based following
Supreme Court analysis in Simon & Schuster, Inc. v. New York Crime Victims Bd., 502
U.S. 105, 115 (1991)).
29 No. C 95-0440-FMS, 1995 WL 482066
(N.D. Cal. Aug. 10, 1995)
30 Id. at *4.
31 Id. at *5.
the speech targeted by the California legislature is at the "core of
Witness speech is a matter of public concern.33 On a practical
level, it must be disseminated to the public through the media
because the press acts as a surrogate for the public at judicial
proceedings. 31 Moreover, the Lungren court determined that the
restriction amounted to a prior restraint on speech,35 an intolerable
infringement on rights protected by the
First Amendment.3 6
Based on these two fundamental principles, the court applied a
strict scrutiny analysis to evaluate the statute. 37 Because the
statute unduly infringed upon rights protected by freedom of speech3"
and freedom of press, 39 the statute did not survive this scrutiny.4"
The Doctrine of PriorRestraint in the Eyes of the Supreme
Although there is little difference between the fundamental
rights guaranteed by freedom of speech and freedom of press,a '
one important distinction is that freedom of press encompasses
the right to be free from prior restraints.42 A prior restraint is
32 Id. at *5.
33 Erwin Chemerinsky, Should Witnesses Be Allowed To Sell Their Stories Before Trial,
L.A. Tumds, Aug. 22, 1994, at A7 (stating that "public is informed when witnesses talk to
34 California First Amendment Coalition v. Lungren, No. C 95-0040-FMS, 1995 WL
480206, at *5
(N.D. Cal. Aug. 10, 1995)
36 Id. (citing Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 564 (1976)).
37 Id. at *5-7.
38 BLAciKs LAw DICTMONARY 664 (6th ed. 1990). Black defines "freedom of speech" as the
"right guaranteed by [the] First Amendment of the U.S. Constitution to express one's
thoughts and views without governmental restrictions." Id.
39 Id. "Freedom of press" has been defined as the "right to publish and distribute one's
thoughts and views without governmental restriction as guaranteed by [the] First
Amendment of the U.S. Constitution." Id.
40 California First Amendment Coalition v. Lungren, No. C 95-0440-FMS, 1995 WL
482066, at *9
(N.D. Cal. Aug. 10, 1995)
41 See David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455, 456
(1983) (noting that freedom of press and freedom of speech have often been used
interchangeably); Randall P. Bezanson, The New Free Press Guarantee,63 VA. L. Rv. 731, 740
(1977) (acknowledging that press receives distinct freedom under First Amendment);
Melville Nimmer, Introduction-IsFreedom of the Press a Redundancy: What Does It Add to
Freedom of Speech?, 26 HASTINGs L.J. 639, 647-658 (1975) (discussing distinction between
freedom of press and freedom of speech); Potter Stewart, 'Or of the Press", 26 HASTINGS L.J.
631, 632 (1977) (recognizing difference in interests protected by freedom of speech and of
press). But see David Lange, The Speech andPress Clauses, 23 UCLA L. REV. 77, 115-116
(1975) (finding no distinction between these rights).
42 See New York Times, Co. v. Sullivan, 376 U.S. 254, 270 (1964) (recognizing that
debate on public issues should be encouraged by press); Grosjean v. American Press Co., 297
U.S. 233, 250 (1936) (espousing value of press in shedding light on public issues); Near v.
"any scheme which gives public officials the power to deny use of a
forum in advance of its actual expression."43 This is a related, but
separate, consideration to the classification of the content of the
and the requisite
constitutional scrutiny. 44
restraints, whether content-neutral or content-based, have almost
always been deemed to be void as against the liberties enjoyed by
free speech.4 5 The underlying rationale of the prohibition on prior
restraints is to prevent the government from placing restrictions
on speech before utterance or publication.4 6 The Supreme Court
has stated that a major purpose of the First Amendment is to
prevent pre-publication restraints.4 7 Prior restraints are more
hazardous to the ideal of free speech than the imposition of
punishment subsequent to publication. 48 A prior restraint mutes speech
preemptively and, therefore, the speech never becomes part of the
Minnesota, 283 U.S. 691, 713 (1931) (stating that freedom of press clause was created to
prevent prior restraints and censorship); see also LEONARD LEVY, TiE EMERGENCE OF A
FREE PREss 272-273 (1988) (noting importance of freedom of press in prohibiting prior
43 BLAcK's LAw DICTIONARY 1194 (6th ed. 1990).
44 Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516, 2524 (1994) (making
distinction between prior restraint and content analysis of speech regulation); Alexander v.
United States, 113 S. Ct. 2766, 2779 (1993) (recognizing relationship between prior
restraints on speech and restrictions based on content); Greer v. Spock, 424 U.S. 828, 866
(1976) (noting permissive prior restraints based on time, place, and manner
45 See New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (stating that
presumption of unconstitutionality attaches to any prior restraint) (citing Bantam Books, Inc.
v. Sullivan, 372 U.S. 58, 70 (1963))); see also TRIBE, supranote 1, § 12-34, at 1040
(asserting that prior restraint doctrine has been used to invalidate variety of restrictions on
speech); James Gray Pope, Laborand the Constitution:From Abolition to
Deindustrialization, 65 TEX. L. REV. 1071, 1116 (1987) (noting presumption against prior restraints on
picketing regardless of whether restriction is content-based).
4 Patterson v. Colorado, 205 U.S. 454, 462 (1907) (discussing prior restraints on
publications); see Nichelle Frelix, Turner Broadcasting v. FCC: Modern
CommunicationsDevelopment and the Evolving FirstAmendment, 16 WrrTrIER L. REV. 685, 703 (1995)
(discussing doctrine of prior restraint as being prohibition on publication before act of speech has
taken place); Steve Helle, PriorRestraint By the Backdoor:ConditionalRights, 39 VILL. L.
REV. 817, 829 (1994) (asserting that doctrine prevents government from achieving security
through suppression of prose); Douglas J. Fryer, Note, Bearingthe Burden of Strict
Scrutiny In the Wake of Simon & Schuster, Inc. v. Members of the New York Crime Victims'
Boarc&A ConstitutionalAnalysis of Michigan's "Son of Sam" Law, 70 U. DET. MERCY L.
REV. 191, 202 (1992) (describing doctrine as "seeking to enjoin government from imposing a
restraint on a publication before it is published"); Kate Mishkin, Note, Ward v. Rock
Against Racism: Reasonable RegulationsandState SponsoredSound, 10 PACE L. REV. 633,
639 (1990) (reciting historical roots of prior restraint doctrine in 16th century English
47 Near v. Minnesota, 283 U.S. 691, 713 (1931) (pondering whether concept of restraint
of publication is consistent with what was historically perceived and guaranteed).
48 See JoiHN E. NowAK AND RONALD D. ROTUNDA, CONsTrruTIONAL LAw, supra note 48,
§ 16.16, at 992-93 (addressing distinction between prior restraints and subsequent
punishment of speech).
"marketplace of ideas."4 9 Consequently, prior restraints are
presumptively unconstitutional and, generally, have been
invalidated.50 The press has almost absolute immunity from
cation restraints. 1
No matter what the underlying rationale, the First Amendment
guarantee of freedom of speech and of the press commands
nearabsolute protection.52 Any regulation of speech involving the press
must overcome a presumption of invalidity, placing a burden on
49 See TRIBE, supra note 1, § 12-1, at 785-789. Tribe discusses theories of free speech:
the marketplace of ideas theory; the self-governance theory; and the self-fulfillment theory.
ALEXANDER MELEJHO-N, FREE SPEECH AND ITS RELATION TO SELF-GovERNMENT 15-16
(1948) [hereinafter FREE SPEECH AND SELF-GovERNMENT]. The self-governance theory is
based on the idea that the Constitution delegated the control of common actions to "the
people." Id. Applying this theory to the First Amendment, free speech is necessary to
promote decision making by the masses. Id.; JOHN MILTON, Areopagitica,A Speech for the
Liberty of Unlicensed Printing To the Parliamentof England (1644) in MILTON's PROSE
WRrr1NGS 145 (J.M. Dent & Sons Ltd. ed., 1958). The marketplace-of-ideas rationale is
premised upon the belief that 'truth" can be determined only through a free and open
discussion of competing ideas. Id.; JOHN E. NOwAK AND RONALD D. ROTUNDA, CONSTITUTIONAL
LAw, § 16.6, at 991-993 (5th ed. 1995). Such discourse, which increases the likelihood of
discovering the "truth" is necessarily facilitated by the right to free speech. Id.; THOMAS
EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 7 (1970). This theory posits that free
expression fosters the individual's ability to effectively participate in society. Id.; Martin H.
Redish, The Value of Free Speech, 130 U. PA. L. REv. 591, 593 (1982). The self-fulfillment
rationale derives its strength from the proposition that individual contribution to public
debate will result in individual self-fulfillment. Id.; see also Rankin v. McPherson, 483 U.S.
378, 386 (1987) (providing near absolute protection for public employees speaking on
matters of public concern); Brandenberg v. Ohio, 395 U.S. 444, 447 (1969) (citing principle that
free speech and free press do not permit government to prohibit use of force or violence
unless amounting to imminent lawless action thus allowing such expressions near absolute
protection); Griswold v. Connecticut, 381 U.S. 479, 483 (1965) (allowing near absolute
protection for privacy laws under First Amendment); New York Times Co. v. Sullivan, 376
U.S. 254, 266 (1964) (concluding that full protection is permitted under First Amendment
for expression by newspaper qualified only by lawful procurement of information); cf.
Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991) (concluding that allowing near
absolute protection for practice of libel would ill serve values of First Amendment).
50 See Near v. Minnesota, 283 U.S. 697, 702 (1931) (striking down statute that allowed
for injunctions against publication of "malicious, scandalous and defamatory
newspaper[s]"); see alsoNew York Times Co., 403 U.S. at 714 (refusing to grant injunction against
newspaper that sought to publish classified government study); Redish, supra note 48, at
51 New York Times Co., 403 U.S. at 713-714 (establishing that press has almost absolute
immunity from pre-publication restraints).
52 McDaniel v. Paty, 435 U.S. 618, 627 n.7 (1978) (noting danger in allowing absolute
protection under First Amendment); Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 777 (1976) (offering that false statements do not
receive absolute protection under First Amendment); see also David A. Logan, Of "Sloppy
Journalism," "CorporateTyranny," and Mea Culpas: The Curious Case of Moldea v. New
York Times, 37 WM. & MARY L. REv. 161, 167 (1995) (recognizing near-absolute protection
afforded journalists); Karen Rhodes, Note, Open CourtProceedings and Privacy Law:
ReExamining the Bases Forthe Privilege,74 TEx. L. REv. 881, 891 (1996) (describing strength
of First Amendment protection in courtroom proceedings).
the government to prove that the restriction
scrutiny under the Constitution.
will survive strict
THE SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL
The Sixth Amendment to the United States Constitution
guarantees the right of a criminal defendant to a public trial.54 This
fundamental right is commonly referred to as a defendant's right
to a fair trial because it is believed that a trial conducted in a
public forum is protected from abuses otherwise hidden. 5
Additionally, the Sixth Amendment's guarantee of a public trial has been
interpreted to include the right of the public to be informed
regarding criminal proceedings.5 6 In fact, public scrutiny of the
judicial process has been favored as an effective check on the judicial
system. 57 Although public scrutiny may produce social benefits,
53 Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 582
(1983) (applying strict scrutiny to restriction on freedom of press); Saxbe v. Washington
Post Co., 417 U.S. 843, 863 (1974) (Powell, J., dissenting) (considering heavy governmental
burden justifying ban on prisoner-press interviews); see also Gregory S. Asciolla, Note,
Leathers v. Medlock: Differential Taxation of the Press Survives Under the
FirstAmendment, 41 CATH. U. L. REV. 507, 508 (1992) (noting established Supreme Court strict
scrutiny standard in regulating press with burden of persuasion on government).
54 See U.S. CONST. amend. VI (stating that criminal defendants "shall enjoy the right to
a speedy and public trial, by an impartial jury. .).
55 See Murphy v. Florida, 421 U.S. 794, 799-800 (1975) (stating constitutional fairness
dictates trial by "unpartial, indifferent juror[s]") (quoting Irvin v. Dowd, 366 U.S. 717, 722
(1961)); see also Estes v. Texas, 381 U.S. 532, 538-39 (1965) (noting that purpose of Sixth
Amendment requirement of public trial is to ensure that defendant will be dealt with fairly,
not condemned unjustly); In re Murchison, 349 U.S. 133, 136 (1955) ("A fair trial in a fair
tribunal is a basic requirement of due process."); ALFREDO GARCIA, THE SIcrH AMENDMENT
IN MODERN AMERICAN JURISPRUDENCE 208-22 (1992) (discussing Sixth Amendment
jurisprudence); Pugh, supra note 2, at 1745-50 (noting Sixth Amendment function is to ensure
56 See Craig v. Harney, 331 U.S. 367, 374 (1947) ("What transpires in a courtroom is
public property."); see also Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 603 (1982)
(upholding press and public's constitutional right of access to criminal trials); Estes, 381
U.S. at 541 (indicating that public has right to information concerning courtroom
proceedings). But see In re Oliver, 333 U.S. 257, 271 (1948) (stating that right to public trial was
granted to accused primarily as safeguard against unjust prosecution and any other
benefits conferred were incidental). The Court, in Oliver, also stated that "the guarantee has
always been recognized as a safeguard against any attempt to employ our courts as
instruments of persecution." Id. The Oliver Court, however, goes on to recognize that a public
trial is an effective tool to guard against judicial abuses. Id.
57 See Globe Newspaper Co., 457 U.S. at 606 (recognizing value of public access to
criminal proceedings for judicial process, government and society); see also Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980) (stating open criminal trials produce
opportunity for understanding judicial system); Nebraska Press Ass'n v. Stuart, 427 U.S. 539,
587 (1976) (Brennan, J., concurring) (suggesting secrecy breeds ignorance and distrust of
judicial system while unfettered reporting improves system itself); Sheppard v. Maxwell,
384 U.S. 333, 350 (1966) ("The press does not simply publish information about trials but
guards against the miscarriage of justice by subjecting the police, prosecutors and judicial
processes to extensive public scrutiny and criticism.").
the question of how broadly "public" should be defined remains
In addition to being construed as the right of a defendant to
have his case heard in a public forum, the Sixth Amendment
allows members of the public to remain informed through media
coverage of courtroom activities.5 9 The Supreme Court, however,
has held that while a defendant has no constitutional right to a
secret trial, ° the presence of the media is not mandated by the
Constitution. 6 As a result of varying levels of publicity, there are
numerous ways to satisfy the Sixth Amendment requirement of a
public trial. Generally, as long as the public is allowed to attend,
the trial is considered to be in compliance with the Sixth
Amendment, regardless of whether the public is interested in
Although it is clear that the Framers were aware of the
potential ramifications of trials conducted in the public eye,63 they could
58 See Richmond Newspapers, 448 U.S. at 581 n.18 (refusing to define all circumstances
under which criminal trial may be closed while stating that judge may impose reasonable
restrictions on public access to trial).
59 See id. at 578 (finding presence of media and people in courtroom has been thought to
enhance integrity and quality of proceedings); Nebraska Press, 427 U.S. at 568
(acknowledging precedent that press is not proscribed from courtroom reporting); Sheppard v.
Maxwell, 384 U.S. 333, 362-63 (1966) ("Of course, there is nothing that proscribes the press
from reporting events that transpire in the courtroom."); Estes v. Texas, 381 U.S. 532,
53839 (1965) (stating that journalists are free to report what they witness while present in
courtroom); Craig v. Harney, 331 U.S. 367, 374 (1947) ("Those who see and hear what
transpired can report it with impunity. There is no special prerequisite of the judiciary which
enables it, as distinguished from other institutions of democratic government, to suppress,
edit, or censor events which transpire in proceedings before it.").
60 See Richmond Newspapers, 448 U.S. at 591 (Brennan, J., concurring) (noting
"universal rule" against secret trials); Estes, 381 U.S. at 539 ("History has proven that secret
tribunals were effective instruments of oppression."); In re Oliver, 333 U.S. 257, 270-273 (1948);
see also Phoenix Newspapers v. Jennings, 490 P.2d. 563, 565 (Ariz. 1971) (holding that
defendant has no right to secret trial and cannot prevent people from freely discussing and
printing what transpired in open court).
61 Nixon v. Warner Communications, Inc., 435 U.S. 589, 610 (1978) (holding Sixth
Amendment does not require trial to be broadcast to public live or on tape, rather, public
trial occurs when public given opportunity to attend trial); see also Cembrook v. Sterling
Drug, 231 Cal. App. 2d 52, 60 (1964) ("As long as the doors of a courtroom are open, so that
a reasonable proportion of the public is allowed to attend, the right to a public trial is
satisfied."); In re Post-Newsweek Stations, 370 So. 2d 764, 774 (Fla. 1979) (allowing that
First and Sixth Amendments do not mandate that electronic media cover proceedings).
62 See generally TRME, supra note 1, § 12-11, at 860 (stating that risk that trial will be
prejudiced by publicity is slight because only handful of criminal cases reach juries and
most cases receive little or no publicity).
63 See United States v. Burr, 25 F. Cas. 49, 52 (1807) (discussing impossibility of
obtaining totally impartial jury for trials resulting from English rebellions of 1715 and 1745;
advocating bending rule against partial juries due to necessity); see also Nebraska Press
Ass'n v. Stuart, 427 U.S. 539, 547 (1976) (noting proposition that Framers of Constitution
were ignorant of "potential conflicts between right to an unbiased jury and the guarantee of
not have envisioned the type of media coverage that would
pervade the justice system 200 years later, bringing trial publicity
beyond the community surrounding the courthouse.6 4 Today, as
publicity surrounding certain trials increases, courts struggle to
with the constitutional guarantee
of a public tribunal 65
without infringing upon an accused's right to an impartial jury.66
The United States Supreme Court traditionally has recognized
that adverse publicity
may potentially jeopardize
ability to receive a fair trial. 7 The constitutional guarantees of
of speech 68
press,6 9 however,
Court's ability to limit prejudicial trial publicity.70 To safeguard a
freedom of the press" was inconceivable); Reynolds v. United States, 98 U.S. 145, 1555-56
(1878) (noting that newspaper reporting causes burden to be on trial court to determine
when asked whether opinion of juror raises to level of partiality). See generally GARciA,
supra note 55, at 205 (discussing difficult reconciliation of First and Sixth Amendments).
64 See, e.g., Nebraska Press, 427 U.S. at 548 (noting advances in communication and
ubiquitousness of press have hindered right to fair trial).
65 See Richmond Newspapers v. Virginia, 448 U.S. 555, 581 (1980) (finding implicit
constitutional guarantee of openness of court proceedings to public absent overriding factors);
see also Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606-07 (1982) (noting state
denial of access to criminal trials in order to prevent disclosure of sensitive information
must pass strict scrutiny); Nebraska Press, 427 U.S. at 570 (noting "settled principle" that
nothing prevents press from reporting courtroom proceedings (citing Sheppard v. Maxwell,
384 U.S. 333 (1966))).
66 See Irvin v. Dowd, 366 U.S. 717, 728 (1961) (vacating conviction and death sentence
because change of venue to nearby county which experienced as much adverse publicity as
original county was not sufficient to render defendant "trial atmosphere undisturbed by so
huge a wave of public passion . . . "); see also Nebraska Press, 427 U.S. at 554-55 (noting
jury's ability to decide trials fairly is affected by publicity which is shaped largely by
attorneys, police and officials); Sheppard v. Maxwell, 384 U.S. 333, 362 (1966) (holding that trial
court must utilize "strong measures" to control prejudicial publicity and supply accused
with fair trial); Estes v. Texas, 381 U.S. 532, 552 (1965) (holding televising of defendant's
"highly sensational" criminal trial denied defendant due process); Rideau v. Louisiana, 373
U.S. 723, 725 (1963) (holding denial of change of venue after defendant's filmed confession
was televised denied defendant due process).
67 See Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (indicating adverse publicity
endangers right to fair trial (citing Sheppard, 384 U.S. at 363)); Estes, 381 U.S. at 544
(noting principle that reversal may be warranted even when no specific prejudice is shown
because circumstances are inherently suspect as result of use of television in and
surrounding courtroom); Irvin, 366 U.S. at 728 (reversing murder conviction because pervasive
media coverage influenced jury into believing in defendant's guilt prematurely); Marshall v.
United States, 360 U.S. 310, 313 (1959) (reversing conviction and granting new trial
because jury was exposed to prejudicial information printed in newspapers even though not
admissible in court).
68 See discussion supra part I (addressing First Amendment concerns).
69 See Sheppard, 384 U.S. at 350 (notwithstanding sensationalism, press should have
"free hand"); see also Craig v. Harney, 331 U.S. 367, 374-77 (1947) (allowing reports
concerning what was seen and heard at trial); Bridges v. California, 314 U.S. 252, 265 (1941)
(stating intention of Framers was to give to press broadest freedom tolerable by orderly
70 See generally New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (stating
that prior restraint on publication contains presumption of unconstitutionality); Near v.
Minnesota, 283 U.S. 691, 713 (1931) (stating that freedom of press was intended to prevent
criminal defendant's right to a fair trial, the Court has stated that
trial courts must take "strong measures" to prevent a "media
Closure of Proceedings
Closure of courtroom proceedings to the public is one
controversial way trial judges attempt to maintain order in and
surrounding the courtroom.72 There is, however, a strong presumption of
public access to criminal proceedings.7 3 Consequently, any closure
of courtroom proceedings raises questions of constitutionality and
invokes strict scrutiny analysis.
When attempting to pass strict scrutiny, if the compelling
governmental interest asserted is the right to a fair trial, closure is
only appropriate when three criteria are met. First, there must
be a "substantial probability" that publicity would compromise a
censorship and prior restraints); TRIBE, supra note 1, § 12-34, at 1040 (discussing use of
prior restraint doctrine to invalidate speech restrictions).
71 Sheppard v. Maxwell, 384 U.S. 333, 362 (1966) ("Given the pervasiveness of modern
communications and the difficulty of effacing prejudicial publicity from the minds of the
jurors, the trial courts must take strong measures to ensure that the balance is never
weighed against the accused."); Press-Enterprises Co. v. Superior Ct., 478 U.S. 1, 15 (1986)
(stating that voir dire is viable alternative to closing proceedings to public); Patton v.
Yount, 467 U.S. 1025, 1032 (1984) (finding that delay of trial eradicated effect of prejudicial
publicity); Rideau v. Louisiana, 373 U.S. 723, 726 (1963) (holding that due process required
defendant's request for change of venue be honored, in light of prejudicial pre-trial
publicity); Irvin v. Dowd, 366 U.S. 717, 728 (1961) (overturning murder conviction where
defendant's right to receive fair trial was prejudiced by extensive pre-trial media activity); People
v. Manson, 61 Cal. App. 3d 102, 174 (1976) (finding prejudice overcome by extensive voir
dire and sequestration ofjury), cert. denied, 430 U.S. 986 (1977); Stephen, supranote 10, at
1085-86; Pugh, supra note 2, at n.25 (describing change of venire as enlarging, replacing or
importing juror panel to avoid prejudice) (citation omitted); see also BLAci's LAw
DICToNARY 678 (6th ed. 1990). A "gag order" is defined as a court order directing, among others,
reporters, not to report on court proceedings. Id. See generally Rene L. Todd, A
PriorRestraint By Any Other Name: The Judicial Response to Media Challenges of Gag Orders
Aimed at Trial Participants,88 MICH. L. REV. 1171, 1172 (1990) (describing court use of
72 See Press-Enterprises,478 U.S. at 14 (holding that state must show "substantial
probability" that right to fair trial will otherwise be prejudiced by publicity and that
reasonable alternatives to closure would not prevent prejudice); Globe Newspaper Co. v.
Superior Ct., 457 U.S. 596, 606-07 (1982) (holding that in order to justify closure state must
show compelling governmental interest and that closure order is narrowly tailored to meet
that interest); Newman v. Graddick, 696 F.2d 796, 803-04 (11th Cir. 1983) (holding that
court must articulate reasons for closure and hold hearing giving opponents of closure
chance to be heard); Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 118 (Fla.
1988) (stating that closure will be justified when Constitution, laws, and statutes allow it).
73 See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980) (declaring
AngloAmerican tradition of public trials indispensable); In re Oliver, 333 U.S. 257, 266 (1948)
(affirming that right to public trial is rooted in our nation's heritage).
74 Globe Newspaper Co., 457 U.S. at 606-07 ("But the circumstances under which the
press and public can be barred from a criminal trial are limited; the state's justification in
denying access must be a weighty one.").
fair trial.7 5 Second, closure must be proven to prevent such a
Finally, it must be shown that reasonable alternatives
would not adequately prevent the prejudicial publicity.7 7
Contempt of Court
Another tool trial judges may use to exercise control over
prejudicial trial publicity is the contempt proceeding.78 However, only
published material that results in a substantial, serious and
imminently dangerous evil to the fair administration of justice is
punishable by contempt of court. 79 In order to regulate trial
publicity in this manner, there must be a likelihood of prejudice to
defendant's trial, not merely a possibility of prejudice. 0 This
requirement protects freedom of public comment when there is no
clear danger of unfair prejudice to the criminal defendant. 8 '
It appears that the contempt remedy is an ineffective method of
preventing prejudicial publicity for at least two reasons. First,
contempt is a tool that can be used only after publication, at which
point a defendant's right to a fair trial may already have been
adversely impacted.8 2 Second, adjudication of contempt can only be
75 See Press-Enterprises,478 U.S. at 14 (setting forth these special circumstances that
are prerequisites to closing hearing to public); Richmond Newspapers, 448 U.S. at 581
(holding that where trial court made no findings to support closure, made no inquiry into
alternatives, and made no recognition of public right to attend, closure was not
76 Press-Enterprises v. Superior Ct., 478 U.S. 1, 14 (1986).
78 See In re Murchison, 349 U.S. 133, 139 (1955) (holding that accused may not be
charged and tried summarily); In re Oliver, 333 U.S. at 274-75 (holding that judge must
observe contemptuous conduct in order to punish); Craig v. Harney, 331 U.S. 367, 378
(1947) (finding publication of jury verdict before sentencing did not constitute contempt);
Pennekamp v. Florida, 328 U.S. 331, 335 (1946) (holding that contempt determination by
state court will be given respect but not final authority); Bridges v. California, 314 U.S.
252, 253 (1941) (holding contempt proceeding to constitutional scrutiny); Hughes v.
Territory, 85 P. 1058, 1060 (Ariz. 1906) (holding that truth or falsity is immaterial in contempt
79 Bridges, 314 U.S. at 263 (declaring that due to liberty granted free speech and press,
in order to punish utterance for contempt substantive evil must be "extremely serious and
the degree of imminence extremely high").
80 Id.; see also Craig,331 U.S. at 376 ("The vehemence of the language used is not alone
the measure of the power to punish for contempt. The fires which it kindles must constitute
an imminent, not merely a likely, threat to the administration ofjustice. The danger must
not be remote or even probable; it must immediately imperil.").
81 Pennekamp, 328 U.S. at 347 (reversing contempt convictions because danger to fair
administration of justice not shown). "Freedom of discussion should be given the widest
range compatible with the essential requirement of the fair and orderly administration of
82 See Near v. Minnesota, 283 U.S. 697, 716 (1931) (noting unconstitutionality of
prepublication restraints except in "exceptional circumstances"); see also New York Times Co.
used under very serious circumstances.8 3 Therefore, only very few
prejudicial publications will be punishable by contempt.
CONFLICT BETWEEN Two FUINDAMENTAL GUARANTEES
Generally, the constitutional guarantees of a free press and a
fair trial advance the common goal of an effective judiciary.8 4
Upholding the media's First Amendment freedoms, however, may
interfere with a defendant's Sixth Amendment right to a fair and
impartial jury.8 5 The Supreme Court has held that when these
two constitutional rights conflict, neither right is more deserving
of constitutional protection.8 6 Therefore, trial courts are faced
daily with the difficult task of preserving a criminal defendant's
right to a fair trial while safeguarding the constitutional mandate
of a public tribunal.
v. United States, 403 U.S. 713, 730 (1971) (Brennan, J., concurring) (declaring that in order
to have allowable prior restraint, there must be inevitable, direct and immediate danger).
83 See generally TimE,, supra note 1, § 12-11, at 856-60 (discussing use of contempt
power by trial court in attempt to maintain defendant's right to fair trial).
84 See Press-Enterprises Co. v. Superior Ct., 464 U.S. 501, 508 (1984) (reiterating that
open proceedings bolster "basic fairness" of trial and give citizens "confidence in the
system"); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982) (observing that
allowing public to have access to criminal proceedings "heighten[ed] public respect for the
judicial process"); Sheppard v. Maxwell, 384 U.S. 333, 350 (1966) (referring to press as
"handmaiden of effective judicial administration, especially in the criminal field"); In re
Oliver, 333 U.S. 257, 270 (1948) (stating that fact that trial is subject to review by public
opinion effectively restrains potential judicial abuses).
85 See Rideau v. Louisiana, 373 U.S. 723, 726 (1963) (reversing defendant's conviction
due to pre-trial broadcast of defendant's confession which prejudiced jury); Irvin v. Dowd,
366 U.S. 717, 727 (1961) (reversing state conviction due to prejudicial pre-trial publicity
that amounted to admitted bias of 8 of 12 members ofjury); see also Pugh, supra note 2, at
60-61 (noting that extensive publication of information could make it impossible to have
impartial jury); Stephen, supra note 10, at 1078-79 (expressing need for increased judicial
control of trials).
86 Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 561 (1976). Justice Burger stated that
"[tihe authors of the Bill of Rights did not undertake to assign priorities as between the
First Amendment and Sixth Amendment rights, ranking one as superior to the other." Id.
Justice Brennan stated in his concurrence that choosing one of the rights over the other one
is not only troublesome but also a choice that need not be made. Id. at 611-12; see, e.g.,
Bridges v. California, 314 U.S. 252, 260 (1941) (addressing difficulty in prioritizing
constitutional rights); see alsoNebraska Press,427 U.S. at 611-12 (Brennan, J., concurring)
(noting trouble in making choice between these guarantees and asserting that choice need not
87 See Press-EnterprisesCo., 478 U.S. at 14 (holding that there must be "substantial
probability" that fair trial will be prejudiced by publicity); Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 581 (1980) (holding that criminal trial must be public unless state
has overriding interest in closure); Nebraska Press, 427 U.S. at 565 (noting that not all
pretrial publicity, even if widespread, leads automatically to unfair trial); Murphy v.
Florida, 421 U.S. 794, 803 (1975) (holding that defendant received fair trial, even in face of
media publicity); Times-Picayne Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1307
(1974) (recognizing difficulty of reconciling First Amendment rights with defendant's right
to impartial jury); Estes v. Texas, 381 U.S. 532, 539 (1965) (recognizing press function of
sonable solutions. 90
Unfortunately, there is no single solution to the problem
confronting courts regarding how to balance effectively conflicting
rights within the framework of the Constitution."8 Although
publicity generated by a trial may sometimes lead to a prejudiced jury
pool, it is constitutionally impermissible, absent a compelling
governmental interest, to restrict both individual speech and media
publication of information.8 9 As a result, state legislatures, and
ultimately trial judges, are left to their own devices to fashion
The CaliforniaStatute and New York's 'Son of Sam' Law
1. The California Statute and Lungren
Responding to the effects of a media circus surrounding the
events of the O.J. Simpson murder trial,91 the California
Legislature enacted a statute prohibiting potential witnesses in a
criminal proceeding from selling their stories to the media. 92 The
purawakening public interest, exposing corruption and informing citizens of public events
while cautioning that press role must be subject to fair judicial process); Irvin v. Dowd, 366
U.S. 717, 728 (1961) (requiring that defendant be tried in forum "undisturbed by so huge a
wave of public passion").
8s See generallyNebraskaPress, 427 U.S. at 561 ("But if the authors ofthese guarantees,
fully aware of the potential conflicts between them, were unwilling or unable to resolve the
issue by assigning to one priority over the other, it is not for us to re-write the Constitution
by undertaking what they declined to do."); Bridges v. California, 314 U.S. 252, 260 (1941)
(stating that both First and Sixth Amendment guarantees are fundamental and it would be
"trying task to choose between the two."); GxciA, supra note 55, at 206 ("The Supreme
Court has emphatically asserted that no hierarchy of values inheres in the safeguards
enumerated in the Bill of Rights.").
89 See TnmE, supra note 1, § 12-3, at 798-99 (discussing use of "most exacting scrutiny"
on content-based regulations); see also Perry Educ. Ass'n v. Perry Local Educators' Ass'n,
460 U.S. 37, 45 (1983) (noting prohibition on government from regulating communicative
activities in public forums absent regulation that is narrowly tailored to meet compelling
state interest); Widmare v. Vincent, 454 U.S. 263, 276 (1981) (prohibiting religious speech
in public forum does not pass strict scrutiny).
90 See Sheppard v. Maxwell, 384 U.S. 333, 362 (1966) (declaring that trial courts must
take "strong measures" to ensure mass communications do not endanger rights of accused).
See generallyPress-Enterprises v. Superior Ct., 478 U.S. 1, 15 (1986) (utilizing voir dire as
alternative to closing proceeding to public); Patton v. Yount, 467 U.S. 1025, 1032 (1984)
(delaying trial effective way to ebb tide of prejudicial publicity); Rideau v. Louisiana, 373
U.S. 723, 726 (1963) (issuing change of venue in hopes of reducing trial publicity).
91 See Michael Fleeman, Defense to Grill L.A Detective: Jurors Return After Sideshow
With Maid, THE PHoENIX GAZETTE, Mar. 8, 1995, at A8 (referring to treatment given to
Rosa Lopez as applied to subsequent witnesses who may sell their stories to media); Rosa
Lopez to Return to Stand at O.J.Simpson Trial (NBC television broadcast, Feb. 28, 1995)
(noting potentially damaging testimony of Rosa Lopez).
92 CAL. PENAL CODE § 132.5 (West Supp. 1995); see Checkbook Law 'Unconstitutional',
VANcOUVER SUN, Aug. 9, 1995, at A10 (reporting on invalidation of statute); Death of a Bad
Law-The Legislatures Criminalizationof Checkbook Journalism is Discarded When a
Federal Judge Calls it Unconstitutional,SAN FR.cisco EXAMNER, Aug. 11, 1995, at A18
(describing California legislature's attempt to curb checkbook journalism); Bob Egelko,
poses of the statute were to uphold a criminal defendant's right to
a fair trial, to ensure the people's right to due process of law, and
to preserve the integrity of the judicial process.93 Under this new
law, a potential witness in a criminal proceeding is prohibited
from receiving any compensation for information as a result of
witnessing the underlying criminality.9 4
In Lungren, the California First Amendment Coalition (the
"Coalition") challenged the validity of the statute on the ground that
it violated the First Amendment. 95 In considering the validity of
the statute, the district court agreed with the Coalition that the
restriction was content-based because it was directed at speech
with a particular content, i.e., speech about an alleged crime.96
The court applied strict scrutiny and determined that the
legislation did not serve a compelling state interest nor was it narrowly
tailored. 97 Additionally, the court found the statute overbroad
because it forbade a potential witness from accepting compensation
from a media source for even cab fare,98 which arguably may be
related to the reporting of the crime. 99 The court held that
prohibiting a potential witness from disclosing crime-related information
places an indirect restriction on the media. 100 Thus, after
Lungren, questions remain regarding how to meet California's noble
O.J.Simpson Trial:Judge Annuls Ban on PayingNews Sources, S. D. UNION & Tam., Aug.
8, 1995, at A3 (outlining effect of California statute).
93 California First Amendment Coalition v. Lungren, No. C 95-0440-FMS, 1995 WL
482066, at *2 n.4
(N.D. Cal. Aug. 10, 1995)
(citing to legislative findings of CAL. PENAL
CODE § 132.5).
94 CAL. PENAL CODE § 132.5(a) (West Supp. 1995).
95 Lungren, 1995 WL 482066, at *1 (1966).
96 Id. at *4.
97 Id. at *5-8. The court looked to each enumerated state interest when applying this
strict scrutiny test to determine whether the interest was sufficiently compelling and, if so,
whether the statute was narrowly tailored to meet such state interests. Id. In addition, the
court found that there were several alternatives already in place that would serve the same
end. Id. The court pointed to remedies available in cases of perjury, subordination of
perjury, bribing of witnesses, witness competency requirements, the process of
cross-examination and jury instructions that are accessible under the current judicial system that would
also met these ends without restricting speech. Id. at *6; see id. at *9. The court held that
the regulation "is neither necessary nor narrowly tailored to serve a compelling state
interest." Id. at *9; see also United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
The Court engendered the strict scrutiny standard. Id.
98 California First Amendment Coalition v. Lungren, No. C95-0440-FMS, 1995 WL
482066, at *8
(N.D. Cal. Aug. 10, 1995)
(listing seemingly de minimis expenses that would
qualify persons for punishment under statute).
99 Id. (detailing statute's unjust effect on media).
100 Id. at *3 (recognizing that Coalition's challenge was based on actual effect statute has
on its members' First Amendment rights).
goals without infringing upon constitutional protections of speech
and the press. 1 1
2. Attempts by Other Jurisdictions
Freedom of the press' 012 has been threatened in other
jurisdictions through statutory measures that, when challenged, were
deemed void as inconsistent with the First Amendment. 10 3 These
jurisdictions have attempted to regulate media publications by
imposing restrictions that appear to abridge speech
incidentally. 10 4 Minnesota attempted one such restriction by imposing a
tax on paper and ink used in newspaper production.' 0 5 The
Supreme Court struck down the tax holding that it placed an
undue financial burden on interests of the media protected by the
First Amendment and that the government's interest was not
Subsequent to the invalidation of the Minnesota tax, the Court
was faced with a challenge to the imposition of another state tax
on the media. 10 7 In Arkansas Writers' Project, Inc. v. Ragland,10
members of the press challenged an Arkansas statute that
allegedly taxed certain media publications based on content.1 0 9 After
determining that the statute was content-based, the Court applied
a strict scrutiny analysis and held the statute unconstitutional.'"
The Court found that this kind of selective taxation placed a
burden on the freedoms enjoyed by the press similar to that of the
These restrictions did not withstand First Amendment
challenges because they unduly discriminated against the press. 1 2 It
is submitted that New York has formulated a statute that will
survive a strict scrutiny analysis if challenged on First
New York's "Son of Sam" Law, Past and Present
New York's "Son of Sam" law, 1 3 enacted in 1977 and revised in
1992, attempts to remedy a system of justice that allows for
criminals to be unjustly enriched.1 4 In both its original and
revised forms, the law prohibits convicted criminals from profiting
from a crime before the victims are compensated." 5 Under the
original statute, monies payable to the criminal that were
obtained through expressions relating to the crime, such as book
advances or profits from sales, movie rights, or an interview fee,
were placed in escrow and made available to satisfy civil
judgments brought by the victims of the crime." 6 In Simon &
111 Id. (discussing similarities and differences between Arkansas Writers' Project and
112 Arkansas Writer's Project,481 U.S. at 227 (establishing that discriminatorily taxing
press violates First Amendment); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U.S. 575, 585 (1983) (asserting that government may not single out press for
113 N.Y. Exac. LAw § 632-a(2) (a) (McKinney 1995); see Mark Schorr, (book review)
Confessions of Son of Sam, LA Tudxs, Oct. 13, 1985, at 16. "David Berkowitz, the 'Son of Sam,'
killed six young people and crippled two others during the yearlong shooting spree that
ended with his capture in August, 1977. [He] terrorized New Yorkers with his .44-caliber
revolver by attacking couples in parked cars." Id.; see also Laura Landro, Who Can Profit
From a Criminal'sStory? CourtCases to Test Limit of New Laws, WALL ST. J., Oct. 31, 1985
(explaining that New York "Son of Sam" statute was enacted after convicted murderer
David Berkowitz, known as Son of Sam killer, entered into book contract).
114 Simon & Schuster, Inc. v. New York Crime Victims' Bd., 502 U.S. 105, 108 (1991)
(recognizing purpose of New York's "Son of Sam" law).
115 See Kelly Franks, Note, "Son of Sam"Laws After Simon & Schuster, Inc. v. New York
Crime Victims' Board: Free Speech Versus Victims' Rights, 14 HASTINGS CoMm/ENT L.J.
595, 611-14 (1992) (discussing measures taken to constitutionalize New York's "Son of
116 N.Y. ExEc. LAw § 632-a (McKinney 1982). This statute provides in relevant part:
1. Every person, firm, corporation, partnership, association or other legal entity
contracting with any person or the representative or assignee of any person, accused or
convicted of a crime, by way of a movie, book, magazine article, tape recording,
phonograph record, radio or television presentation, live entertainment of any kind, or from
the expression of such accused or convicted person's thoughts, feelings, opinions or
emotions regarding such a crime, shall submit a copy of such contract to the board and
pay over to the board any monies which would otherwise, by terms of such contract, be
owing to the person so accused or convicted or his representatives. The board shall
deposit such monies in an escrow account for the benefit of and payable to any victim
Schuster, Inc. v. New York Crime Victims' Board,117 the United
States Supreme Court ruled that the "Son of Sam" law violated
the First Amendment because it placed a financial burden on
expressions based on their content. 118 The Court determined that
the statute was content-based because it could "effectively drive
certain ideas or viewpoints out of the marketplace."" 9 Although
the statute did not impose an outright ban on the convicts'
speech, 120 the Court acknowledged that restricting the profits
derived from this type of speech is a "financial disincentive."' 2 ' In
invalidating the statute, the Court held that where a statute
places a financial burden on speech because of its content, it is
presumed unconstitutional.122 The Court noted that allowing
economic restrictions on speech would result in an effective
government method of suppressing such speech. 123 Moreover, the Court
found that, as originally worded, the statute was overinclusive.1 24
First, it applied to works by persons merely accused of criminal
activity, in addition to those convicted of a crime. 125 Second, the
restriction applied to profits from works that merely mentioned
the crime, even where such mention was not the focal point of the
expression. 126 In the end, the Court held that New York's statute
was not narrowly tailored to advance the State's compelling
interest in ensuring victims just compensation from the fruits of
crime. 12 7
or the legal representative of any victim of crimes committed by: (i) such convicted
person; or (ii) by such accused person, but only if such accused person is eventually
convicted of the crime and provided that such victim, within five years of the date of
the establishment of such escrow account, brings a civil action in a court of competent
jurisdiction and recovers a money judgement for damages against such person or his
In the aftermath of Simon & Schuster, New York amended the
"Son of Sam" statute to comport with the strict standards
enumerated by the Court.12 s By narrowly tailoring the content-based
proYork has saved its statute from
Under the current New York law, a convict may publish without
restriction, provided that the primary subject matter of the work
is not the crime for which the author was convicted. 13 0 The
statute, as revised, is an example of an allowable restriction on
It is adequately tailored to meet the state interests
without unduly restricting the First Amendment rights of a
criminal.132 If challenged, it appears that the statute will likely
withstand a strict scrutiny analysis.
Can the California Statute Be Saved?
Although it may be argued that the successful reformation of
the New York "Son of Sam" law indicates that the California
statute could undergo a similar metamorphosis, there are
fundamental differences that diminish the probability of such a result. 133
Concerns of unduly hampering the free speech rights of an
with historical presumptions against prior
restraints, create a seemingly insurmountable burden for the
N.Y. ExEc. LAW § 632-a (McKinney 1995). The legislature no longer requires the
monies to be placed in escrow, as the statute originally required, but calls for immediate
notification of the victims that such profits have been realized. Id. § 632-a(2) (b). In
addition, the amended statute applies only to the "convicted" not the "accused." Id. § 632-a(1)
(b). Most importantly, the legislature re-tailored the definition of the term "profits from the
crime" to include "any property" obtained through the commission of a crime as potential
compensation for victims. Id. Previously, the statute required that the profits derived from
the crime were limited to compensation from expression of the crime, like a movie or book
deal. Id. § 632-a(1). Id.; see Franks, supranote 115, at 618. Although the statute is still
content-based after the above-mentioned changes, as applied to expressions of the crime, it
is less overinclusive. Id.
129 See N.Y. ExEc. LAw § 632-a, 1(b) (McKinney 1995) (amending statute to be narrowly
tailored). It is submitted that, in redrafting the statute, the legislature did little more than
provide a codification of remedies already available under New York law.
130 See Children ofBedford, Inc. v. Petromelis, 77 N.Y.2d 713, 726, 573 N.E.2d 541,
547Exception to Antitrust Liabilityor IllegalPer Se?, 28 U.C. DAvis L. REv.1273, 1289 (1995)
(noting allowable restrictions on speech such as obscene, commercial, and expressive
132 California First Amendment Coalition v. Lungren, No. C 95-0440-FMS, 1995 WL
482066, at *9
(N.D. Cal. Aug. 10, 1995)
133 See CAL. PENAL CODE § 132.5 (West Supp. 1995); N.Y. ExEc. LAw § 632-a (McKinney
fornia legislature.1 3 4 Even if the statute is revised to be "narrowly
tailored," it must be shown that the governmental interests are
sufficiently compelling so as to outweigh the incidental impact on
free speech. 13 5 According to Lungren, not only did the California
statute place an undue financial burden on potential witnesses, 13 6
but the state interests served by the statute13 7 were not
compelling. 138 The Lungren court noted other methods to attain these
goals, such as witness competency requirements 3 9 and the
prospect of cross-examination. 14 0 These methods, however, only
indirectly address the true concerns of the California
legislaturepreventing the unfair prejudice that stems from witnesses selling
their stories to the media.' 4 1
As currently drafted, the statute is not narrowly tailored. 14 2
Furthermore, the legislation burdens speech relating to criminal
proceedings that may never occur.' 43 Even if the statute in
Lungren was found to be content-neutral,14 4 the availability of
alternatives to satisfy the state's asserted interests would have
invalidated the statute. 14 5 In particular, the provisions under California
law addressing perjury would uphold the state's interests in
promoting truth and justice in the courtroom.' 46 The Court is likely to
hesitate before allowing a restriction that may lead to a "slippery
slope," restricting more and more speech, thus blurring an
otherwise clear line of near absolute protection of speech under the
First Amendment.147 It is well-settled that the First Amendment
prohibits the government from freely regulating speech because of
its message, ideas, subject matter, or content and, therefore, the
California statute cannot survive.
Regulating Attorney Speech: Invoking Rules of Professional
In an attempt to prevent extrajudicial statements that may
prejudice a defendant's right to a fair trial, the American Bar
Association has adopted regulations that restrict the right of
attorneys to speak publicly about pending litigation. 14 ABA Model
Rule 3.6 has been adopted in various forms by many states.' 49
147 See generally Nadine Strossen, Regulating Racist Speech on Campus:A Modest
Proposal?, 1990 DUKE L.J. 484, 537-39 (describing free speech exceptions as "slide down the
proverbial 'slippery slope'").
148 See MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.6 (1994). Model Rule 3.6(a)
A lawyer who is participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that a reasonable person would
expect to be disseminated by means of public communication if the lawyer knows or
reasonably should know that it will have a substantiallikelihood of materiallyprejudicing
an adjudicative proceeding in the matter.
Id. (emphasis added). Subsection (b) provides a number of different categories upon
which an attorney may communicate about such as information in public record and
general information about the claim, offense or defense involved. Id. In addition, a
1994 amendment to Model Rule 3.6 provides that an attorney may make an
extrajudicial statement that is not otherwise allowed to rebut public statements that unduly
prejudice her client. These rebuttals are limited to include only what is "necessary to
mitigate the recent adverse publicity." Id. at (c); see also Robert E. Drechsel, An
Alternative View of Media-Judiciary Relations: What the Non-Legal Evidence Suggests
about the FairTrial-FreePressIssue, 18 HOFsTRA L. REv. 1 (1989) (analyzing
mediajudiciary relations from social scientific perspective regarding fair trial-free press
issues); Kelly A. Hardy, Orderin the Courtroom,Silence on the
CourthouseSteps:Attorneys Muzzled by EthicalDisciplinaryRules, 22 SETON HALL L. REv. 1401, 1402 (1992)
(contrasting harmful impact of speech limitations with negligible evidence speech
affects juries and proposing alternative methods of protecting fair trials without
inhibiting expression); H. Morley Swingle, Warning:PretrialPublicityMay Be Hazardousto
Your Bar License, 50 J. OF Mo. B. 335, 335 (1994) (discussing Missouri's adoption of
ABA MODEL CODE OF PROFESSIONAL RESPONSIBILITY regarding extrajudicial
statements of attorneys). See generally SUSANNE RosCHWALB & RICHARD A. STACK,
LrrIGATION PUBLIC RELATIONS: COURTING PUBLIC OPmNON 40-41 (1995) (examining
behindthe-scenes litigation public relations).
149 See, e.g., NEW YORK CODE OF PROFESSIONAL RESPONSIBILITY DR 7-107 (substantially
adopting ABA Model Rule 3.6); see Swingle, supranote 148, at 335 n.5 (stating that
approximately 32 states have adopted ABA's MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.6);
see also Gentile v. State Bar, 501 U.S. 1030, 1068 n.1-3 (1991) (discussing states adoption of
ABA Model Rules).
These restrictions, however, have raised questions concerning
attorneys' First Amendment rights. 150
The ABA proposed regulation of attorney speech has been
criticized because restrictions on attorney comment are subject to a
lesser standard of constitutional review than are restrictions on
the speech of non-attorneys.' 5 ' Furthermore, critics of the
regulations argue that placing restrictions on attorney speech is
unnecessary because there are reasonable alternatives to such
restrictions. 15 2
Court split over whether to apply strict
scrutiny or a lesser standard of review
when analyzing the
regula150 See In re Sawyer, 360 U.S. 622, 631 (1959) (stating that attorney is free to criticize
law); see also Gentile, 501 U.S. at 1031 (holding that "substantial likelihood of material
prejudice" test satisfied First Amendment); Standing Comm. on Discipline v. Yagman, 55
F.3d 1430, 1430 (9th Cir. 1995) (applying "reasonable attorney" standard rather than
subjective malice standard); Chicago Council of Law. v. Bauer, 522 F.2d 242, 249 (7th Cir.
1975) (finding "reasonable likelihood" test too broad to restrict First Amendment rights of
attorney and positing that standard should be whether there is "serious and imminent
threat "to administration of justice); In re Hinds, 449 A.2d 483, 494-95 (N.J. 1982)
(adopting "reasonable likelihood" standard); Markfield v. Bar Ass'n, 49 A.D.2d 516, 517, 370
N.Y.S.2d 82, 85 (1st Dep't 1975) (holding that attorney speech may only be restricted if
proven that extrajudicial statements present "clear and present danger" to administration
151 See Gentile, 501 U.S. at 1069 (detailing petitioner-attorney's argument that First
Amendment requires imposition of "clear and present danger" of"actual prejudice or
imminent threat" standard when restricting attorney speech, not merely 'substantial likelihood
of materially prejudice" test); see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 570
(1976) (asserting that restrictions on press' free expression must be subject to strict
scrutiny); Pennekamp v. Florida, 328 U.S. 331, 335 (1946) (citing need to examine statements
in issue and circumstances under which they were made to determine whether or not they
represented threat of"clear and present danger"); Bridges v. California, 314 U.S. 252, 263
(1941) (stating for clear and present danger to be found, "substantive evil must be
extremely serious and the degree of imminence extremely high before utterances can be
punished"); Schenck v. United States, 249 U.S. 47, 52 (1919) (establishing clear and present
danger test). "The question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent." Id. See generally
Hardy, supra note 148, at 1440 (indicating trial participation does not render attorney's
extrajudicial comments more censurable, but, in light of importance of governmental
scrutiny, effective criticism of abuse must inform lay person as well as professional).
152 See Press-Enterprises v. Superior Ct., 478 U.S. 1. 15 (1986) (using voir dire as tool to
combat prejudicial trial publicity); Patton v. Yount, 467 U.S. 1025, 1032 (1984) (using delay
of trial to lessen prejudicial effect of pre-trial publicity); Rideau v. Louisiana, 373 U.S. 723,
726 (1963) (granting change of venue in order to avoid prejudicial publicity); see also
Hardy, supra note 148, at 1450-55 (arguing several alternatives combat pretrial publicity
and preserve jury impartiality more effectively than disciplinary rules); Pugh, supra note 2,
at n. 25 (describing change of venire as viable option in fight against prejudicial pre-trial
153 Compare Chicago Council, 522 F.2d at 248 (finding proper standard to be "serious
and imminent threat of interference with fair administration of justice."), and Markfield,
370 N.Y.S.2d at 84-85 (restricting disciplinary rule to situations when extrajudicial
statements presented clear and present danger to administration ofjustice), with Hirschkop v.
Snead, 594 F.2d 356, 370 (4th Cir. 1979) (establishing "reasonable likelihood" of prejudice
In Gentile v. State Bar1,5 4 the Supreme Court reviewed the
application of Nevada Supreme Court Rule 177 which, like ABA
Model Rule 3.6, prohibited an attorney participating in an
on-going litigation from making an out-of-court statement that would
have a "substantial likelihood of materially prejudicing" the
proceeding. 155 The Court held that the less-exacting standard of
"substantial likelihood of material prejudice" is a constitutionally
permissible level of review to apply to attorney comment.1 5 6 This
lessexacting standard represents the view that attorney speech may
potentially seem more authoritative because of their special skills
and increased access to privileged trial information as officers of
the court. 15 7
The Gentile Court further held that the Nevada rule was
impermissibly vague. 158 In response to the Court's finding of vagueness,
the ABA amended it's parallel rule, Model Rule 3.6, in 1994.159 By
setting forth certain statements on which an attorney may
comment without violating her ethical responsibilities, 6 ° the ABA
clarified the ethical duty of the attorney while maintaining the
restrictions on extrajudicial statements of attorneys. 61' Although
restricting attorney speech on pending litigation is, arguably, a
conto fair administration ofjustice test), and In re Hinds, 449 A.2d at 494-95 (adopting
reasonable likelihood standard).
154 501 U.S. 1030 (1991).
155 See Gentile, 501 U.S. at 1033.
156 Id. at 1075 (agreeing with majority of states that "substantial likelihood of material
prejudice" standard constitutes constitutionally permissible balance between First
Amendment rights of attorneys in pending cases and states' interest in fair trials).
157 Id. at 1074 (stating attorneys may be subjected to restrictions that ordinary citizens
may not); In re Hinds, 449 A.2d 483, 483, 496 (N.J. 1982) (resulting from attorney's unique
access to information, attorney statements "are likely to be considered knowledgeable,
reliable and true").
158 See Gentile, 501 U.S. at 1051 (stating that Nevada Supreme Court Rule 177 was
vague, creating "a trap for the wary as well as the unwary.").
159 See MODEL RULES OF PROFESSIONAL CoNDucT Rule 3.6 (1994).
160 See id. at (b).
161 See id. at cmt.5 (1994) (listing certain subjects likely to materially prejudice trial).
tent-based restriction,162 it is allowable
arbitrarily or entirely limit an attorney.1"6
Restricting the speech of attorneys privy to a criminal
proceedings is one plausible way to promote a defendant's Sixth
Amendment right to a fair trial.16 4 Although, an attorney enjoys the
same First Amendment freedom of speech as does a layperson, an
attorney's speech may be restricted because she is held to a higher
by professional responsibility. 165
seems likely that restricting attorney speech will reduce
prejudicial trial publicity, thereby reducing the likelihood that jurors will
be tainted by out-of-court statements made by an attorney privy to
because it does
Imposition of "Gag Orders"
In addition to regulating attorneys' comments, a trial judge may
attempt to reduce prejudicial publicity by imposing a "gag order"
on trial participants. 6 6 Essentially, in order to constitutional
162 See, e.g., City of Ladue v. Gilleo, 114 S. Ct. 2038, 2047 (1994) (O'Connor, J.,
concurring) ("With rare exceptions, content discrimination in regulations of the speech of private
citizens on private property or in a traditional public forum is impermissible, and this
presumption is a very strong one"); Widmar v. Vincent, 454 U.S. 263, 278 (1981) (prohibiting
use of University's facilities by religious group held to be content-based discrimination and,
therefore, unconstitutional); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S.
530, 544 (1980) (declaring order prohibiting use of inserts in appellant's bills to customers
to be unconstitutional because content-based).
163 See Gentile v. State Bar, 501 U.S. 1030, 1073 (1991) (noting that restraint on
attorney speech has narrow objectives because it only applies to those statements that will have
substantial likelihood of materially prejudicing proceeding, it is neutral as to point of view
and merely delays comment until after trial).
164 See Gentile, 501 U.S. at 1074 (noting that attorney comment is likely to be perceived
as more authoritative because of attorney access to information); Roscoe C. Howard, Jr.,
The Media, Attorneys, And FairCriminal Trials, 4 KA. J.L. & PuB. POLY 61, 70 (1995)
(concluding that criminal attorneys should refrain from commenting to media during
ongoing trial in order to deter prejudicial trial publicity); see also Philip Hager, Crackdown on
Commentary: Is the Solution to Out-of-Court Comment Worse than the Problem?, 15 CAL.
LAw.35, 36-37 (1995) (quoting State Senator and attorney Quentin L. Kopp as saying that
rule restricting attorney comment will inevitably prevent prejudicial comment by
165 See Gentile, 501 U.S. at 1071.
Of course, a lawyer is a person and he too has a constitutional freedom of utterance
and may exercise it to castigate courts and the administration of justice. But a lawyer
actively participating in a trial, particularly an emotionally charged criminal
prosecution, is not merely a person and not even merely a lawyer.... He is an intimate and
trusted and essential part of the machinery of justice, an 'officer of the court' in the
most compelling sense.
Id. (quoting In re Sawyer, 360 U.S. 622, 666, 668 (1959) (Frankfurter, J., dissenting)).
166 See Sheryl A. Bjork, IndirectGag Orders and the Doctrine of PriorRestraint, 44 U.
MLAim L. Rxv. 165, 167 (1989) (noting primary purpose of gag order is to guarantee
integrity of jury system). See generally BLAcK's LAw DIc'roNAaY 678 (6th ed. 1990) (defining
"gag order" as "an order by the court, in a trial with a great deal of notoriety, directed to
challenge, a gag order must meet the standard set forth by the
Supreme Court in Nebraska Press Association v. Stuart.167
Nebraska Press established that a trial judge must examine the
extent of possible prejudicial publicity, 168 explore reasonable
alternatives to the restriction of speech,' 69 and determine the potential
effectiveness of a restraining order in the context of the particular
case. 1 70 An order prohibiting trial participants from commenting
on pending litigation does not violate freedom of the press,' 7 1 as
long as the order is not aimed directly at the press 72 and there is
a "clear and present danger" to the fair administration of
justice. 173 Therefore, a properly applied gag order can effectively
limit the speech of trial participants and, perhaps, increase a
deattorneys and witnesses, to not discuss the case with reporters - such order being felt
necessary to assure the defendant of a fair trial."); 75 AM. Jun. 2D Trial § 203 (1991) (noting
that trial judge may proscribe out-of-court statements of lawyers, parties to proceeding,
witnesses or court officials [herein "trial participants"]).
167 427 U.S. 539, 562 (1976). The Court applied a "tripartite" test "to determine whether,
as Learned Hand put it, 'the gravity of the 'evil', discounted by its improbability, justifies
such invasion of free speech as is necessary to avoid the danger." Id. (quoting United States
v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950). See generally Bjork, supra note 166, at 172-73.
The Nebraska PressCourt's "tripartite" test consisted of the following factors: (1) "The
nature and extent of pre-trial news coverage"; (2) The availability of less restrictive
alternatives; and (3) The effectiveness of the disputed restraining order. Id. at 173.
168 Nebraska Press,427 U.S. at 562 (establishing need for judge to determine nature and
extent of trial publicity).
169 Id. at 563-65 (finding no evidence in record to indicate alternatives to gag order
would fail to protect right to fair trial).
170 Id. at 565-67 (examining likelihood of effective restraint).
171 See Sigma Delta Chi v. Martin, 431 F. Supp. 1182, 1182 (D.S.C. 1977) (stating
journalists' First Amendment rights are not directly violated); see also In re Dow Jones & Co.,
842 F.2d 603, 608-09 (2d Cir. 1988) (indirect gag order not prior restraint of media's First
Amendment liberties); Radio & Television News Ass'n v. United States Dist. Ct., 781 F.2d
1443, 1445 (9th Cir. 1986) (finding media's right to interview trial participants outside
scope of First Amendment); Florida Freedom Newspapers, Inc. v. McCrary, 520 So. 2d 32,
35-36 (Fla. 1988) (holding that prohibition on comment of state attorney's office and
sheriffs department not prior restraint on publication or broadcast).
172 See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 568-69 (1976) (holding gag order
aimed at press to be unconstitutional prior restraint). See generally Bjork, supra note 166,
at 171-72 (discussing demise of direct gag orders against press).
173 In re New York Times Co. v. Regan, 878 F.2d 67, 68 (2d Cir. 1989) (holding absent
fendant's right to fair trial by preventing potentially prejudicial
The sometimes conflicting guarantees of the First and the Sixth
Amendment to the United States Constitution safeguard the
individual's right to free speech, the right of the press to publish
without prior restraint and the right of the accused to a public and fair
trial. These fundamental freedoms limit the ability of the
government to censor the dissemination of ideas into the "marketplace."
As evidenced by the Lungren decision, it is constitutionally
impermissible to restrict the speech of potential witnesses in a criminal
prosecution absent a statute which is narrowly tailored to meet a
compelling governmental interest. Potential witnesses are not
convicts. They have not forfeited any of their constitutional rights
through the commission of illegal acts. Further, most witnesses
are not officers of the court who have a professional responsibility
to remain silent in order to protect an accused's Sixth Amendment
rights. Although California's most recent attempt to foster a
defendant's ability to receive a fair trial does not pass constitutional
muster, it is plausible, and perhaps necessary, to place
restrictions on the First Amendment freedoms of some in order to protect
the Sixth Amendment right of the accused. Specifically,
restrictions on the speech of attorneys involved in criminal proceedings
are constitutionally desirable limits on the amount of prejudicial
publicity surrounding trials. In addition, courts should employ
the "strong measures" available to them, such as the closure of
proceedings to the public, the contempt power of a trial judge, and
the use of gag orders, in an concentrated effort to guarantee a fair
trial. Although restrictions on witness speech may improve a
criminal defendant's opportunity to receive a fair trial, it is
constitutionally impermissible to restrict the right of witnesses in
criminal prosecutions to sell their stories to the media. In the end,
perhaps the Lungren decision should not be viewed as a failure, but
rather as a reaffirmance of the critical importance of the rights
guaranteed by both the First and Sixth Amendments.
Megan J. Conboy and Alice R. Scott
1. 101 Id. The California statute was challenged by an organization dedicated to protecting
freedom of press rights. Id. at *1. In addition to the threat of impinging on the media's
rights, freedom of speech rights were also at issue . Id. at *5. 102 BLAcK's LAw DIcTioNARY 664 (6th ed. 1990 ). Freedom of press has been defined as
striction ... ." Id. 103 Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 , 233 ( 1987 ) (concluding that
Amendment); Minneapolis Star & Tribune Co . v. Minnesota Comm'r of Revenue , 460 U.S.
575 , 592 ( 1983 ) (holding that Minnesota legislature infringed upon right of press protected
by First Amendment) . 104 See Arkansas Writers' Project ,481 U.S. at 228 ( recognizing that generally applicable
economic regulations on press do not raise constitutional issues ); Minneapolis Star , 460
U.S. at 581 (positing that government can permissibly enact economic regulations on news-
papers if generally applied, not selectively) . 105 MinneapolisStar , 460 U.S. at 577 ( outlining applicable state tax scheme ). 106 MinneapolisStar ,460 U.S. at 592-93 ( holding that Minnesota offered insufficient jus-
tification for imposing tax on media) . 107 Arkansas Writers' Project , 481 U.S. at 223 ( revisiting similar issue as Minneapolis
Star & Tribune Co . v. Minnesota Comm'r of Revenue , 460 U.S. 575 , 578 ( 1983 )). 108 481 U.S. 221 ( 1987 ). 109 Id. at 229 (finding that restricting expression based on content runs counter to First
Amendment principles) . 110 Id. at 230 (laying down strict scrutiny standard) . 117 502 U.S. 105 ( 1991 ). 118 Simon & Schuster, 502 U.S. at 115 ( asserting that statutes that place financial bur-
den on speaker are presumptively unconstitutional) . 119 Id. at 115 (citing Leathers v . Medlock , 499 U.S. 439 , 447 ( 1991 ) (discussing threat to
suppression of expression of viewpoints)) . 120 N.Y. ExEc. LAw § 632 -a(2) (a) (McKinney 1995 ) (designating only profit-making ven-
tures as prohibited activity) . 121 Simon & Schuster , 502 U.S. at 116 ( stating that statute "plainly imposes" financial
burden on speech) . 122 Simon & Schuster v. New York Crime Victim's Bd., 502 U.S. 105 , 115 ( 1991 ) (citing
the case of Leathers v . Medlock , 499 U.S. 439 , 447 ( 1991 )). 123 Id. at 115 . 124 Id. at 121 (stating that "Son of Sam law is significantly overinclusive" ). 125 N.Y. ExEc. LAw § 632 - a ( 10 ) (b) (McKinney 1982 ). 126 Simon & Schuster, 502 U.S at 121 ( discussing well-known authors and their works
that would have been subjected to New York statute ). 127 Simon & Schuster v. New York Crime Victims Bd., 502 U.S. 105 , 122 ( 1991 ).
48 , 570 N.Y.S.2d 453 , 458 - 59 ( 1991 ) (discussing effect of " Son of Sam" law) . 131 See Jennifer L. Dauer , Comment, PoliticalBoycotts:ProtectedBy the PoliticalAction
134 See Near v. Minnesota , 283 U.S. 691 , 713 ( 1931 ) (discussing presumptive unconstitu-
tionality of prior restraints) . 185 Simon & Schuster, Inc. v. New York Crime Victims' Bd., 502 U.S. 105 , 118 ( 1991 )
see also Minneapolis Star & Tribune Co . v. Minnesota Comm'r of Revenue , 460 U.S. 575 ,
591- 92 ( 1983 ) (recognizing deficiency in Minnesota statute as not being narrowly tailored ). 136 Lungren , No. C 95-0440-FMS, 1995 WL 482066, at *4 ( 1966 ). 137 California First Amendment Coalition v. Lungren, No. C 95-0440-FMS, 1995 WL
482026 ( 1991 ). 138 Id. at *6 (enumerating state's interests in enacting its checkbook journalism statute
while deeming them insufficient) . 139 CAL. PENAL CODE § 138 (West 1995 ). 140 CAL. Evm. CODE § 761 (West 1995 ). 141 Lungren, 1995 WL 482066, at *6. The court listed current provisions in California's
recognized. Id. 142 California First Amendment Coalition v. Lungren, No. C 95-0440-FMS, 1995 WL
482026, at *9 (illustrating overly restrictive power of California statute ). 143 CAL. PENAL CODE § 132 .5 ( West Supp . 1995 ). 144 See United States v . O'Brien , 391 U.S. 367 , 377 ( 1968 ) (discussing Court made stan-
dard for scrutinizing content-neutral regulations ). 145 See Lungren , 1995 WL 482066, at *6 -7 (enumerating many viable alternatives to
restricting speech) . 146 See CAL . PENAL CODE §118 (West 1995 ) and CAL . PENAL CODE §127 (West 1995 ).