Restrictive court orders and a free press : A study of the conflict between constitutional values

Purpose of the Study. News coverage of judicial proceedings is frequently seen by judges as a deterrent to a fair and impartial trial. Consequently, judges issue restrictive (gag) orders on the press in order to prevent publicity which may hinder the defend's case. The purpose of this treatise is to discuss the history and reasoning behind the free press, fair trial conflict and to analyze and discuss the implications of the current trends in the resolution of the conflict. Procedure. In order to analyze this constitutional dilemma, the thesis begins with the origins of the restrictive orders, a study of the relevant cases and the precedents they established, the effects of publicity on a jury, and alternatives to prior restraint. The section dealing with current trends includes a comprehensive discussion of the recent Nebraska Press Association versus Stuart case, the ramifications of the decision, and the need for the preservation of a free press and a fair trial. Findings. If the values of a free press and a fair trial are to remain intact, the bench, bar, law enforcement officials, and the press must separately and jointly regulate what they do or say in each particular trial. The bench should consider all alternatives short of prior restraint, while the bar and law enforcement officials should be limited or prohibited from disseminating information that could prejudice a jury. The press should be responsible and objective in its coverage, reporting news to inform the public, not to exploit a sensational event for the sake of a "good story." Conclusions. A give and take process exists and will continue to exist between the free press of the First Amendment and the fair trial rights of the Sixth Amendment. A general rule prohibiting all prior restraint is inconceivable at this time because rare situations do arise when "a clear and present danger" to Sixth Amendment rights negates all remedies short of gag rulings. One optimal avenue of solving the conflict without infringing on the two values may be to totally prohibit the defense and prosecuting attorneys as well as law enforcement officials from discussing the arrest or trial with the press. This remedy, along with voluntary cooperation by both parties, could be the key to solving the constitutional conflict.