I.  Free Press -- Fair Trial

A.    Prejudicial Publicity
 

1.    Leslie "Mad Dog" Irvin and Sam Sheppard - convictions overturned by SCOTUS for pre-trial publicity, 1961 and 1966.
 

2.    Prior Restraint

a.     Dickinson case (1972 5th Circuit) - no gag order allowed but "duty to obey" court orders established.

b.     Nebraska Press Association v Stuart (1976) SCOTUS overturns gag order

(1)    Such orders must be supported with evidence showing they are essential to a fair trial (clear and present danger to trial)

(2)    Less drastic means should be employed whenever possible (change of venue, delay, jury instructions)

(3)    Limit sources of prejudicial information (lawyers, police, potential witnesses, etc.) 

(4)    These rules have been upheld in various ways in several cases

B.  Access to Courtroom
 

1..    Richmond Newspapers v Virginia (1980) SCOTUS says trials must be public under constitution

2.     But the Gannett v DePasquale 1979 may still allow closed preliminary hearings

3.     Access to courtrooms is qualified and, in some situations, could be abridged but must be individually decided.

4.    Government can't suppress what is said in open court

a.     TV access:  Estes v Texas 1965 chilled use of cameras in court;  Chandler v FL, 1981 the court ruled cameras were OK since no evidence of harm was presented but there is no contining first amendment right - it's the judges' call.II.

  II.  Reporter's Privilege

A.    Branzburg v Hayes (1972) - No right exists for reporter's to refuse to testify before grand jury.  In dissent Stewart argued for a 3 part test

1.    relevance. government must show probably cause to believe report has info clearly relevant

2.    alternative means.  info sought cannot be found in some other way.

3.    compelling interest. must be a compelling gov. interest in the info.

Stewart's dissent is usually applied in criminal cases.  Reporters are not usually compelled to testify in civil cases if they aren't a party to the suit

 Some states have passed shield laws for reporters - protection varies as does who is covered.
 

B.  Searches of Newsrooms

A.    Zucher v Stanford Daily (1978) - there is no special protection for newsrooms in case of lawful search warrant.
 

B.   Congress passed a Privacy Protection Act to limit newsroom searches except when:

a.     death or injury may result

b.     documents are about to be destroyed

c.     when subpoena hs been ineffective

d.     when journalist is party to a crime

  III. Access to Government Information and Meetings

1. The courts have generally ruled that the news media have no more right of access to government information, institutions, and meetings than does the public at large.
    

2. The ‘limited –access’ position of the courts forces the public and the press to depend on legislation passed by the U.S. Congress or state legislatures to provide access to government documents and activity.
    

C.    Access to Information

1.      Many government agencies provide information to the public (publications, press conferences, press releases, and interviews) BUT the agency tells only what it wants the public to know.

2.      U.S. Congress and the Freedom of Information Act (FOIA) 1966. FOIA encourages disclosure and not secrecy.

a.     FOIA applies ONLY to Federal agencies (i.e. Defense Department and FBI) and independent federal regulatory agencies (i.e. FCC and Environmental Protection Agency)

b.     FOIA does not apply to state or local government and does not apply to Congress or the courts.

c.     Law provides access to ‘records’ meaning tangible documents (i.e. photos, documents that already exists)

i.    The government does not have to create a ‘record’ in response to a request.

ii.   The FOIA permits ‘any person’ to request an agency record

iii.  The law requires the government to respond promptly to a request.

d.     Fees permitted as amended to the FOIA in 1986

i.   Types

1. finding the document

2. reviewing the document to see if it can be released.

3.  duplicating the document

ii.   Commercial users are required to pay all fees

iii.   News media, nonprofit and educational institutions only have to pay for duplicating the document.
 

4. FOIA Exemptions:
    

1.      National security- records that the release “reasonably could be expected to cause damage to the national security.” CIA and FBI withhold a wide variety of materials.

2.      Agency personnel rules and practices- covers routine matters related to the personnel rules of a government agency.

3.      Exemptions required by state law- records that are exempt from disclosure by a federal law other than the FOIA.

4.      Trade secrets- applies to confidential commercial or financial information.

5.      Privileged government communication- applies to memoranda and letters circulated within an agency or between agencies in order to protect the deliberative process essential to the democratic government.

6.      Confidential personnel and medical files- covers materials of disclosure of which “would constitute a clearly unwarranted invasion of personal privacy.” (i.e. marital status, medical problems, use of alcohol, or religious preference)

7.      Confidential law enforcement records- applies to law enforcement records the release of which would be harmful in any one of these six specific ways.

a.     interfere with law enforcement proceedings

b.     deprive a person of a fair trial

c.     invade privacy in an unwarranted manner

d.     disclose confidential sources

e.     reveal confidential enforcement plans and procedures

f.        endanger the life or safety of persons

8.      Records concerning the regulation of financial institutions- applies to documents that relate to the government’s examination and supervision of financial institutions.  (i.e. audits, financial reports, banks, investment banking firms, trust companies etc.)

9.      Oil well information- protects confidential information concerning “geological and geophysical information and data, including maps, concerning oil wells.”

 

5. If YOU want to request a record under the FOIA --

Go to page 254 in Freedom of Speech in the United States and note the steps you can take.

 

Access to Meetings

A.     The Federal “Sunshine Act’ 1976

1.   Congressionally established agencies are subject to the FOIA and their meetings are, in general, open to the public.

2.   Meetings must have prior notice so interested persons can attend

3.   Congress has also developed rules of openness for itself

i.   committee hearings

ii.  telecasting of the sessions of the House and the Senate

2. State Sunshine Laws

1.      All 50 states have passed statutes mandating that governmental agencies perform their work in the open

2.      Sunshine laws apply to all agencies supported by public funds