Chapter 10 The Media and the Judiciary
True/False Questions
1) Cameras are currently allowed in the U.S. Supreme Court.
Answer: False
Rationale:
Cameras are not currently allowed in the U.S. Supreme Court. The Court has consistently
resisted allowing cameras during oral arguments, citing concerns about their potential impact
on the decorum of the proceedings and the possibility of soundbites being taken out of
context.
2) Recently in People v. Bryant, the Colorado Supreme Court modified and upheld an order
prohibiting media publication of intimate information about Kobe Bryant's accuser.
Answer: True
Rationale:
In People v. Bryant, the Colorado Supreme Court did indeed modify and uphold an order
prohibiting media publication of intimate information about Kobe Bryant's accuser. This case
involved balancing the privacy rights of the accuser against the First Amendment rights of the
press.
3) A criminal defendant's Sixth Amendment rights create a presumption against open court
proceedings.
Answer: False
Rationale:
A criminal defendant's Sixth Amendment rights actually support the presumption of open
court proceedings. The Sixth Amendment guarantees the right to a public trial, which is seen
as essential for ensuring fairness, transparency, and accountability in the judicial process.
4) Under their contempt power, judges have virtually unlimited authority to punish those who
criticize judicial performance in newspapers.
Answer: False
Rationale:
Judges do not have virtually unlimited authority to punish those who criticize judicial
performance in newspapers. While judges have contempt powers to maintain order and
respect for the court, there are limitations, and criticism of judicial performance generally
falls under protected speech, subject to First Amendment scrutiny.
5) Social scientists have been able to prove that prejudicial publicity causes biased juries.
Answer: False
Rationale:
Social scientists have not been able to definitively prove that prejudicial publicity causes
biased juries. While there is evidence to suggest that media exposure can influence
perceptions, attitudes, and opinions, the extent to which it directly impacts jury bias is
complex and varies case by case.
6) Although the text of the First Amendment does not explicitly mention a public right to
attend trials, Chief Justice Burger's opinion in Richmond Newspapers v. Virginia held that
such a right is implied.
Answer: True
Rationale:
Chief Justice Burger's opinion in Richmond Newspapers v. Virginia did hold that there is an
implied right for the public to attend trials, even though it is not explicitly mentioned in the
text of the First Amendment. This case affirmed the importance of public access to judicial
proceedings.
7) Under the Dickinson rule, gag orders are presumptively valid and must be obeyed until set
aside either by the court issuing the order or by an appellate court. CNN was punished for
violating a gag order, even though the order was later ruled to be invalid.
Answer: True
Rationale:
Under the Dickinson rule, gag orders are indeed presumptively valid and must be obeyed
until set aside by the issuing court or an appellate court. In cases where a gag order is later
deemed invalid, parties may still face consequences for violating it before it was overturned.
8) While a judge may exclude the public from a trial in only rare circumstances, the press
may be routinely excluded from trial proceedings.
Answer: False
Rationale:
The press cannot be routinely excluded from trial proceedings. While judges may restrict
access to trials or certain proceedings under specific circumstances, such as to protect
sensitive information or ensure a fair trial, any restrictions on press access must be carefully
justified and narrowly tailored to serve a compelling interest.
9) The U.S. Supreme Court has upheld post-publication penalties imposed on the media for
publishing truthful information that lowers the public's opinion of the judiciary.
Answer: False
Rationale:
The U.S. Supreme Court has not upheld post-publication penalties imposed on the media for
publishing truthful information that lowers the public's opinion of the judiciary. Such
penalties would likely be considered unconstitutional under the First Amendment's protection
of freedom of the press.
10) Under the theory of Richmond Newspapers and Press-Enterprise I & II, public scrutiny of
the criminal justice process benefits the public and is unlikely to harm the defendant's right to
a fair trial. Consequently, judges rarely close criminal proceedings.
Answer: True
Rationale:
Under the theory of Richmond Newspapers and Press-Enterprise I & II, public scrutiny of the
criminal justice process is seen as beneficial and unlikely to harm the defendant's right to a
fair trial. Therefore, judges generally avoid closing criminal proceedings unless there are
compelling reasons to do so to protect the integrity of the trial.
11) In high profile cases, judges may prohibit attorneys, court personnel, and law
enforcement personnel from making public comments, such as discussing a defendant's prior
criminal record.
Answer: True
Rationale:
In high-profile cases, judges may indeed prohibit attorneys, court personnel, and law
enforcement personnel from making public comments to prevent prejudicial information
from influencing public opinion or the jury pool. This is often done to protect the defendant's
right to a fair trial.
12) In Nebraska Press Association v. Stuart, the U.S. Supreme Court ruled that judges may
impose gag orders on press coverage criminal cases without examining the effectiveness of
techniques such as change of venue.
Answer: False
Rationale:
In Nebraska Press Association v. Stuart, the U.S. Supreme Court ruled against a gag order
issued in a highly publicized murder case, emphasizing that judges must consider alternative
measures such as change of venue before imposing restrictions on press coverage. The Court
held that gag orders must be the least restrictive means necessary to protect the defendant's
right to a fair trial.
13) Civil contempt is meant to coerce someone to do something.
Answer: True
Rationale:
Civil contempt is indeed meant to coerce someone to comply with a court order or judgment.
It is typically used as a means of enforcing compliance with court orders rather than as a
punitive measure.
14) A trial judge bans camera coverage of a trial. Nonetheless, a journalist uses a hidden
camera to surreptitiously take a photograph of the proceedings. The journalist has a First
Amendment right to disregard the judge's order.
Answer: False
Rationale:
Disregarding a trial judge's order banning camera coverage would not be protected by the
First Amendment. Courts generally uphold judges' authority to control courtroom procedures
and maintain decorum, including restrictions on camera coverage, to ensure the fairness and
integrity of the trial process.
15) Publishing the contents of an inadmissible confession is thought to be the most
prejudicial pretrial publication.
Answer: True
Rationale:
Publishing the contents of an inadmissible confession is indeed considered one of the most
prejudicial pretrial publications because it can significantly influence public opinion and
potentially taint the jury pool, even if the confession is ultimately deemed inadmissible in
court.
16) The U.S. Supreme Court has ruled that a "pattern of prejudice" in jurors may be assumed
if jurors have been exposed to any information about a trial before it begins.
Answer: False
Rationale:
The U.S. Supreme Court has not ruled that a "pattern of prejudice" in jurors may be assumed
solely based on exposure to any information about a trial before it begins. Courts typically
assess the extent and nature of exposure to determine the potential impact on juror
impartiality on a case-by-case basis.
17) Based on Richmond Newspapers, journalists have a First Amendment right to listen to
conversations between attorneys and the judge held in the judge's chambers.
Answer: False
Rationale:
Richmond Newspapers did not establish a First Amendment right for journalists to listen to
conversations between attorneys and the judge held in chambers. The case primarily
addressed the public's right of access to criminal trials and court proceedings, not private
communications between attorneys and the judge.
18) In Sheppard v. Maxwell, the U.S. Supreme Court said the trial judge should have
guaranteed Dr. Sheppard a fair trial by enjoining the press from publishing prejudicial
reports.
Answer: False
Rationale:
In Sheppard v. Maxwell, the U.S. Supreme Court did not suggest that the trial judge should
have guaranteed Dr. Sheppard a fair trial by enjoining the press from publishing prejudicial
reports. Instead, the Court criticized the trial judge for failing to adequately control
sensationalistic media coverage that may have prejudiced the jury.
19) The U.S. Supreme Court ruled in Chandler v. Florida that states may experiment with
cameras in state courtrooms.
Answer: True
Rationale:
In Chandler v. Florida, the U.S. Supreme Court ruled that states may indeed experiment with
cameras in state courtrooms, affirming the discretion of states to determine their own rules
and procedures regarding media coverage of judicial proceedings, including the use of
cameras.
20) In Gentile v. State Bar of Nevada, the U.S. Supreme Court ruled that restrictions of
attorneys' comments during trials are subject to less First Amendment scrutiny than
constraints on the expression of the press or the public.
Answer: True
Rationale:
In Gentile v. State Bar of Nevada, the U.S. Supreme Court did indeed rule that restrictions on
attorneys' comments during trials are subject to less First Amendment scrutiny than
constraints on the expression of the press or the public. The Court recognized the need to
balance attorneys' free speech rights with the fair administration of justice.
Multiple Choice Questions
1) The 1966 case in which the U.S. Supreme Court overturned a murder conviction because
the prejudicial publicity and carnival-like atmosphere in the courtroom deprived the
defendant of a fair trial.
A) Estes v. Texas
B) Chandler v. Florida
C) Sheppard v. Maxwell
D) Patton v. Yount
E) None of the above
Answer: C
Rationale:
Sheppard v. Maxwell is the correct answer because it was indeed a case where the U.S.
Supreme Court overturned a murder conviction due to the prejudicial publicity and chaotic
atmosphere surrounding the trial. The case involved Dr. Sam Sheppard, whose murder
conviction was reversed because of the extensive media coverage and failure of the trial
judge to control the sensationalism, leading to a denial of due process.
2) The cases in which convictions have been overturned because of pretrial publicity
illustrate that
A) courts find that large headlines are the most prejudicial publicity.
B) a "pattern of prejudice" in jurors may be assumed if jurors have been exposed to any
information about the trial before it begins.
C) the responsibility to preserve a fair trial rests primarily with the press
D) B and C
E) None of the above.
Answer: E
Rationale:
None of the above options accurately reflect the rationale behind the overturning of
convictions due to pretrial publicity. The correct understanding is that each case involving
pretrial publicity is unique, and courts consider various factors to determine whether the
defendant received a fair trial. Therefore, there isn't a one-size-fits-all approach or assumption
about what constitutes prejudicial publicity.
3) In Irvin v. Dowd, the U.S. Supreme Court said that a criminal conviction might be
overturned when
A) there is a "pattern of deep and bitter prejudice" throughout the community.
B) ninety percent of the prospective jurors suspected the defendant was guilty.
C) the majority of the local media editorialize against the conduct of the trial judge.
D) A and B
E) None of the above.
Answer: D
Rationale:
Options A and B are correct because they reflect the criteria outlined in the Irvin v. Dowd
case. The Supreme Court ruled that if there is a pervasive pattern of community prejudice or
if a vast majority of prospective jurors have a preconceived belief in the defendant's guilt, it
could lead to overturning a conviction due to the denial of a fair trial.
4) The First Amendment "right of access" in Richmond Newspapers provides the press and
public
A) may use cameras in federal courts.
B) may attend federal legislative proceedings.
C) may access federal records.
D) may access criminal trials.
E) None of the above.
Answer: D
Rationale:
The right of access outlined in Richmond Newspapers specifically pertains to criminal trials,
allowing the press and public access to such proceedings. This decision affirmed the public's
right to attend criminal trials under the First Amendment.
5) In Sheppard v. Maxwell, the U.S. Supreme Court ruled the trial judge should have
guaranteed Dr. Sheppard a fair trial by
A) controlling the press in the courtroom.
B) changing the venue of the trial if necessary.
C) imposing restraining orders preventing the press from publishing information about the
case.
D) A and B
E) All of the above.
Answer: D
Rationale:
Options A and B are correct because in Sheppard v. Maxwell, the Supreme Court held that
the trial judge failed to ensure a fair trial for Dr. Sheppard by not adequately controlling the
press and by not considering a change of venue to mitigate the prejudicial publicity
surrounding the case.
6) The U.S. Supreme Court
A) requires state courts to allow the presence of cameras during criminal trials.
B) permits state courts to allow the presence of cameras during criminal trials.
C) requires federal courts to allow the presence of cameras during trials.
D) requires Congress to allow cameras in legislative proceedings.
E) None of the above
Answer: B
Rationale:
The correct answer is B because the U.S. Supreme Court permits state courts to decide
whether to allow the presence of cameras during criminal trials. There is no blanket
requirement or prohibition imposed by the Supreme Court regarding the presence of cameras
in state courts.
7) Cameras are generally permitted
A) in all federal courts.
B) in trial courts of most states.
C) only in state appellate courts.
D) A and C
E) None of the above.
Answer: B
Rationale:
The correct answer is B because cameras are generally permitted in the trial courts of most
states. Federal courts have more restrictive policies, and not all federal courts allow cameras.
State appellate courts may also vary in their policies regarding camera presence.
8) The 1976 case in which the U.S. Supreme Court ruled that prior restraints on the news
media are a presumptively unconstitutional means of protecting a fair trial.
A) Nebraska Press Association v. Stuart
B) Cox Broadcasting v. Cohn
C) Seattle Times v. Rhinehart
D) Landmark Communications v. Virginia
E) None of the above
Answer: A
Rationale:
Nebraska Press Association v. Stuart is the correct answer because in this case, the U.S.
Supreme Court held that prior restraints on the news media, such as gag orders or restraining
orders, are presumptively unconstitutional under the First Amendment, particularly when
used to protect a fair trial.
9) The U.S. Supreme Court rulings in Bridges, Times-Mirror, and Pennekamp
A) virtually eliminate the use of contempt citations to punish publications or broadcasts
criticizing court proceedings.
B) permit judges to prohibit the use of cameras in courtrooms.
C) allow judges to hold proceedings in secret.
D) A and B
E) None of the above.
Answer: A
Rationale:
Option A is correct because the rulings in Bridges, Times-Mirror, and Pennekamp
significantly limited the use of contempt citations to punish publications or broadcasts
criticizing court proceedings, thereby protecting freedom of the press and speech.
10) In a sensational case attracting great attention, the presiding judge decides to gag the
attorneys, court personnel, and law enforcement officials. A defense attorney violates this gag
by disclosing information to a journalist; the journalist publishes this information without
identifying the attorney.
A) Under Landmark Communications, the judge may not sanction the reporter for publishing
truthful information obtained from a source subject to a gag order.
B) If the judge discovers the identity of the attorney who violated the gag order, a contempt
citation may be issued against the attorney.
C) The judge may retaliate against the reporter by closing the remaining court proceedings.
D) The judge may use the reporter's action as the basis for a prior restraint against press
coverage of the trial.
E) A and B
Answer: E
Rationale:
Options A and B are correct because, under Landmark Communications, the judge cannot
sanction the reporter for publishing truthful information obtained from a source under a gag
order. However, if the attorney's identity is discovered, the judge may issue a contempt
citation against them for violating the gag order.
Essay Questions
1) Lil' Willie, a world famous rapper, is arrested for the murder of his girlfriend, Florescent.
The arrest generates massive pretrial publicity, including comments from the police that the
gun used to shoot Florescent was found in the trunk of Lil' Willie's Bentley. The press also
reports that Lil' Willie confessed to the police. Lil' Willie's lawyer, however, moves to
suppress the confession and the gun, claiming that the confession is inadmissible because the
police did not properly advise Lil' Willie of his Miranda rights and the gun is inadmissible
because the police did not have a warrant to search Lil' Willie's car. Also, Lil' Willie's lawyer
asks the judge to issue a gag order restraining the press from further reporting about the case.
Apply the relevant test to determine if the request for the restraining order should be granted.
Discuss alternatives to the gag order.
Answer: In Nebraska Press Association v. Stuart (1976), the U.S. Supreme Court reiterated
its hostility towards prior restraints aimed at the press. The Court stated that anyone wishing
to restrain the media would have the "heavy burden" of demonstrating that a fair trial would
not be possible without a prior restraint. The Court articulated a three-part test requiring that a
judge analyze the following factors: 1) the nature and extent of pretrial publicity; 2) whether
other measures would likely mitigate the effects of the pretrial publicity; and 3) the
effectiveness of a restrictive order in diminishing the effect of prejudicial publicity. Applying
this test in Nebraska Press Ass'n, the Court indicated that it was exceedingly difficult to prove
that prejudicial publicity would lead to a prejudiced jury, alternative measures were more
likely to abate the effects of publicity, and prior restraints are unlikely to be successful.
Applying the Nebraska Press Ass'n test to Lil' Willie's case, there is no question that reports
of incriminating evidence and a confession are among the most prejudicial types of pretrial
information. However, the Court in Nebraska Press Ass'n stated that the possibility of
prejudice was not sufficient to meet the clear and present danger standard. The Court
indicated that it would be almost impossible to prove that pretrial publicity would inevitably
lead to a prejudiced jury. Even where prejudicial publicity is extensive, the availability of
alternative measures to counteract this publicity undercuts the need for a prior restraint.
Judges may employ a variety of measures to counteract the effects of prejudicial publicity.
First, and perhaps most important for this case, the judge may gag the police and attorneys
from making out-of-court statements about the case. Such gags are constitutional, as shown
in Gentile v. Nevada State Bar. Since the police have been releasing information about Lil'
Willie, a gag order directed at them is an effective means of cutting off additional prejudicial
publicity. Secondly, the judge may employ a change of venue. Although Lil' Willie is world
famous, the publicity is likely to be most intensive in the community where the crime was
committed. As shown in the case of Timothy McVeigh, national coverage may differ from
local coverage and a change of venue is an effective means of ensuring a fair jury. Third,
potential jurors may be subjected to an intensive voir dire to examine their awareness of the
case and the impact of the publicity on their attitude toward Lil' Willie. Once the jury has
been selected, the judge can insulate the jurors by instructing them to avoid press coverage of
the trial, or in an extreme case the jury may be sequestered. The fact that a case attracts great
attention does not mean that a fair and impartial jury cannot be empanelled.
Finally, the Nebraska Press Ass'n test requires that judges examine the effectiveness of a
prior restraint. The request for a prior restraint comes after the press has reported Lil' Willie's
confession and the presence of the murder weapon in his car. In essence, the most damaging
information has already been disclosed publicly. A restraint will not undo the damage that
has already occurred; future disclosures may not be as damaging as the revelations about the
gun and confession.
In summary, prior restraints against the press are presumptively unconstitutional. In this case,
the availability of alternatives and the ineffectiveness of a prior restraint mandate that the
judge deny this request.
Key Terms
1) Gag order
Answer: A judicial restraining order designed to protect the fairness of a criminal trial. Gag
orders can restrain trial participants (attorneys, law enforcement personnel, court personnel)
or the press. Gag orders aimed at participants are presumptively constitutional; in Gentile v.
State Bar of Nevada, the U.S. Supreme Court stated that the speech of lawyers may be
restricted more than that of the press and public because lawyers have special access to
information about judicial proceedings. The same rationale would apply to law enforcement
officials. In contrast, gag orders against the press are presumptively unconstitutional. In
Nebraska Press Association v. Stuart, the U.S. Supreme Court ruled that gag orders against
the press would rarely be found to be constitutional. Before issuing a gag order to the press, a
judge would have to consider the following: 1) the nature and extent of pretrial news
coverage, 2) whether other measures would likely mitigate the effects of unrestrained pretrial
publicity, and 3) the effectiveness of a gag order in diminishing the effect of prejudicial
publicity. In light of Nebraska Press Association, judges are likely to conclude that one of the
best methods of stemming prejudicial publicity is a gag on the participants, the source of the
most prejudicial information.
2) Contempt
Answer: American judges inherited from England the power to punish anyone who disobeys
a judicial order or acts in a way to interfere with the judicial process. A single judge decides
what kind of conduct justifies a contempt citation, accuses the person, determines that
person's guilt, and assesses the punishment. The judicial power to summarily cite for
contempt of court is an unusual concentration of authority in our system of government. The
contempt power ensures judicial authority and order in the court. It gives judges the
enforcement power necessary to protect the constitutional rights of persons under the
jurisdiction of the courts. Anyone who disobeys a judge, including a journalist, may be faced
with a contempt citation. Even if an appeals court later decides that a contempt order was
unconstitutional, it may well uphold the fine or jail term imposed by the trial judge. The
appellate courts do not want to encourage doubts about judicial authority in the courtroom.
There are two types of contempt, civil and criminal. A civil contempt is coercive; it is applied
to get someone to do something, such as forcing a reporter to reveal a confidential source.
Criminal contempt punishes disrespect for the court, such as an obstruction of court
proceedings or verbal abuse of the judge.
3) Change of Venue
Answer: Moving a trial from one geographical location to another to counter the effects of
prejudicial publicity. The success of changing venue depends on the nature and extent of the
news coverage about a case. Frequently, if the crime is notorious enough to trigger extensive
publicity, it may be difficult to move the trial far enough away to find unaffected jurors.
Nonetheless, national coverage of an event may differ from local coverage where the event
takes place, suggesting that a change of venue may result in greater impartiality among
potential jurors. For example, in the trial of Timothy McVeigh, the trial was moved from
Oklahoma City, site of the bombing of a federal building, to Denver. The judge noted the
national coverage focused on factual matters, while the local coverage focused on potentially
more prejudicial personal matters, such as individual stories of grief and recovery. Even
though no area of the country was unfamiliar with the bombing, the judge believed that a
more impartial jury would be found outside Oklahoma City.
4) Voir Dire
Answer: The examination of prospective jurors to determine if they are qualified to sit on a
jury. Potential jurors are asked questions designed to detect bias. They might be asked
whether they know the defendant, any of the witnesses, or the attorneys. In cases involving
prejudicial publicity, they usually will be asked about their exposure to prejudicial
information and its impact on their attitude toward the defendant's guilt or innocence. In
theory, the purpose of voir dire is to find persons able to judge a defendant only on the basis
of information presented in the courtroom. In practice, each lawyer looks for jurors who
might lean toward his or her client. In federal courts, the judge asks the questions. In state
courts, the opposing attorneys usually ask the questions during voir dire. In Mu'Min v.
Virginia, the U.S. Supreme Court ruled that it was constitutionally sufficient for a judge to
ask prospective jurors whether they could decide guilt on the basis of courtroom testimony,
without asking them specifically what they knew about the case. Judges may ask more
precise questions if they choose, but the Sixth Amendment does not require them to.
5) Sequestration
Answer: Physically isolating the jurors during a trial. A judge can order that the jurors be
isolated under guard. They usually are housed together at a hotel at government expense and
are generally not allowed to see friends or family or to see news stories about the case.
Sequestration prevents jurors from hearing others, such as television commentators, evaluate
the evidence or predict the outcome of the trial. Although sequestration cannot be used until a
jury is chosen, it effectively keeps jurors from obtaining information from outside the
courtroom during a trial. Sequestration is very expensive and it seriously disrupts the lives of
jurors, particularly during long trials.
Test Bank for The Law of Public Communication
Kent R. Middleton, William E. Lee
9780205484683
