Hilbert College

 Annotated Bibliography:

Fair Trial v. Free Speech

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The American Bar Association Legal Advisory Committee on Fair Trial and Free Press. (1974) Fair Trial/Free Press Voluntary Agreements. The American Bar Association Legal Advisory Committee on Fair Trial and Free Press.

The ABA explains voluntary agreements between the bar, the bench, and the press. It both evaluates the effectiveness of these agreements on its own and guages the opinions of the public. The manual also offers advice about resolving court-media conflicts, as well as explaining its own role in the process.

The American Bar Association Legal Advisory Committee on Fair Trial and Free Press. (1969) The Rights of Fair Trial and Free Press. The American Bar Association Legal Advisory Committee on Fair Trial and Free Press.

According to the ABA Legal Advisory Committee on Fair Trial and Free Press, this manual is intended to "1)Acquaint all concerned with the intent and limitations of the ABA standards; 2) Clarify...the types of information which should be released promptly and also those types which the courts have held to be potentially prejudicial; 3) Assist bar-media committees in their joint consideration of voluntary codes of fair practice."

American Bar Association Advisory Committee on Fair Trial and Free Press. (1968) Standards Relating to Fair Trial and Free Press. Institute of Judicial Administration.

The ABA committee recommends both self-regulation of the institutions of criminal justice and an effort by these institutions to co-operate with the media. It explains its recommendations for the clarification of its original draft of standards, which is included in full.

Alexander, S. L. (1999) Covering the Courts: A Handbook for Journalists. University Press of America, Inc.

In this book, Alexander seeks to educate journalists about issues in covering trials. For example, he addresses the issues of access to courtrooms and evidence and confidentiality of sources. His aim is to make journalists aware of their rights according to the law and judicial precedents when reporting about the courts.

Avery, Donald R. (1997) "The Case of Lizzie Bordon (1893): 'Elizabeth Bordon Took an Axe.'" The Press on Trial: Crimes and Trials a Media Events. Greenwood Press.

Avery documents here the effect of the press on Lizzie Bordon, who was tried and acquitted for the murder of her parents. Although the press was able to rally support for her while she was on trial, it became her worst enemy afterwards, casting suspicion on her and reporting anything sordid in her life.

Bennett, W. Lance. "The Press Coverage of the Hinckley Case: A Case Study of a Crime News Serial." Communication and Litigation: Case Studies of Famous Trials. Southern Illinois University Press.

Bennett examines how the press has historically covered sensational trials, focusing on the Hinckley Case. He looks at the persuasive tactics of the media, as well as the role of the press in presenting the true opening statement of a trial. Bennett criticizes the press's glorification of criminals and its use of agenda-setting.

Brummett, Barry. (1990) "Mediating the Laws: Popular Trials and the Mass Media." Popular Trials. The University of Alabama Press.

According to Brummett, "the effects of media...are not fully apparent to the naive public." He asserts that television coverage of trials encourages "undesirable ways of thinking" about the criminal justice system. He seeks to make the reader uneasy about the mediation of trials through television.

Bunker, Matthew D (1997) Justice and the Media: Reconciling Fair Trials and a Free Press. Lawrence Erlbaum Associates.

Bunker examines the fair trial/free press issue from a historical, legal, and judicial standpoint. He finds that the news media are not obligated to fulfill the Sixth Amendment fair trial requirement; this responsibility belongs to the government alone. The amendment acts as a restraint on the government, not an opportunity for the government to restrain others; thus, there can be no real argument between this and the First Amendment. He suggests more concrete rules to reconcile conflicts between judges and the media, rather than abstract arguments.

Bush, Chilton R. (1970) "What We Have Learned." Free Press and Fair Trial. University of Georgia Press.

Bush finds that judges generally do not find it appropriate to release trial data or prior criminal records of defendants to the media. He also finds that about 87.5% of judges in communities that use press-bar agreements are satisfied with them, and that 50% approved of these agreements.

Campbell, Douglas S. (1994) Free Press v. Fair Trial: Supreme Court Decisions Since 1807. Praeger Publishers.

In this volume, Campbell "seeks to help non-lawyers understand the primary issues of [the conflict between the courts and the media] by taking an historical look at the attempts of the United States Supreme Court to reconcile the protections of the two, sometimes incompatible amendments found in the Bill of Rights: the First and Sixth Amendments." It presents approximately thirty major cases, along with the relevant information and summaries that go with them. Campbell asserts that, although the dissemination of information by the press can decrease the likelihood of an impartial jury, there would be no assurance that justice is being truthfully administered without the watchful eye of the press.

The Special Committee on Radio, Television, and the Administration of Justice of the Association of the Bar of the City of New York. (1967) Freedom of the Press and Fair Trial: Final Report with Recommendations. Columbia University Press.

The Special Commitee on Radio, Television, and the Administration of Justice of the Association of the Bar of the City of New York sees prejudicial publicity as an obvious danger. It charges that the media is reluctant to admit this only because of their First Amendment rights, which it claims are not in fact in jeapordy. It asserts that prejudicial publicity causes nothing but bedlam and chaos, and once everyone realizes this, the stuggle between free press and fair trial can be ended for good.

Daniel, Clifton and Paul C. Reardon. (1968) Fair Trial and Free Press. American Enterprise Institute for Public Policy Research.

Reardon focuses on the abuses of free speech and the obstacles this speech presents. Clifton, on the other hand, charges that there is no proof that pre-trial publicity affects impartiality at all. He suggests that, in giving so much attention to prejudicial publicity and the rights of the individual, the legal profession neglects the rights of society as a whole.

Dardenne, Robert. (1997) "The Case of Charles Manson (1970): 'Plump, White Rabbits.'" The Press on Trial: Crimes and Trials a Media Events. Greenwood Press.

Dardenne analyzes the effects of press coverage of the Manson murders on his trial. Inequipped, he says, to deal with something so out of the mainstream, the media tended to exaggerate the details of the murders. Major publications released incriminating evidence before the trial, possibly ensuring that Manson could not get a fair trial under any circumstances.

Freedman, Warren. (1988) Press and Media Access to the Criminal Courtroom. Quorum Books.

Although Freedman accuses the press of preserving fairness in criminal trials only as a means of entertainment (which, he asserts, has taken the place of news in today's media), he recognizes the media's role as guardians of freedom nonetheless. The public has a right to know what goes on in the courtroom, Freedman says, and thus cameras and other electronic recording devices should be allowed into the courtroom.

Friendly, Alfred and Ronald L. Goldfarb. (1967) Crime and Publicity: The Impact of News on the Administration of Justice. The Twentieth Century Fund.

Friendly and Goldfarb conclude that the free press/fair trial conflict cannot be solved through simplistic solutions and will likely continue for some time. One fact that makes a solution so difficult is that the struggle is between two civil liberties, offering no easy answers for freedom supporters. They agree, however, that improvement is more than possible since the goals of both sides are similar.

Gerald, J. Edward. (1983) News of Crime: Courts and Press in Conflict. Greenwood Press.

According to Gerald, both the courts and the press play important roles in assuring justice, and both deserve respect. The two sides, however, necessarily speak from self-interest and thus are biased in some respects. Gerald attempts to cut through this bias and present a balanced view of the conflict between free speech and fair trial.

Kane, Peter E. (1986) Murder, Courts, and the Press. Southern Illinois University Press.

Kane, by reviewing five criminal cases dealing with free speech and fair trial issues, attempts to show the reader how the confrontations between the First and the Sixth Amendments play out in practice. Some judges have supported the rights of the accused, some have supported the rights of the press, and some have managed to strike a balance between the two.

Lofton, John. (1997) Justice and the Press. Beacon Press.

Lofton asserts that the struggle between the courts and the press has been going on for thousands of years. Although both sides are responsible for conflict, he charges that the press ignores the assumption of innocence and thus prejudices the rights of the accused. The law, however, is not blameless; the processes of justice themselves place the accused in a position of disadvantage.

Sanford, Bruce W. (1999) "No Contest." Covering the Courts: Free Press, Fair Trials, and Journalistic Performance. Transaction Publishers.

According to Sanford, judges skirt the First Amendment in favor of the Sixth because they have a contemptuous attitude toward the press, prefering to discuss the idea of a public trial rather than the idea of a free press. In the end, however, he charges that the media plays a valuable role in ensuring confidence in the criminal justice system.

Schmidt, Richard M. Jr. and Kevin M. Goldberg. (1999) "The Rearden Ruckus." Covering the Courts: Free Press, Fair Trials, and Journalistic Performance. Transaction Publishers.

Schmidt and Goldberg discuss the effect of the Rearden Report on the relationship between the courts and the press. Although the report failed to resolve the conflict, it started a dialogue that has continued for 30 years and has kept the two sides from splitting completely.

Siebert, Fred S. (1970) "Trial Judges' Opinions on Prejudicial Publicity." Free Press and Fair Trial. University of Georgia Press.

In this article, Siebert explains his study guaging the opinions of trial judges on advance news coverage. He finds that opinions were mixed, but about half the judges favored a press-bar code of operations.

Siebert, Fred S. (1970) "Access by Newsmen to Judicial Proceedings." Free Press and Fair Trial. University of Georgia Press.

Siebert finds that judges widely prohibit photography in courtrooms during trial proceedings, although most would allow picture-taking on courthouse grounds and in the courthouse building. Very few judges, however, would not allow reporters in the courtroom.

Thaler, Paul. (1997) "The Case of O.J. Simpson (1995): 'No Closer to Greek Tragedy Than Oedipus Hertz.'" The Press on Trial: Crimes and Trials a Media Events. Greenwood Press.

Thaler describes coverage of the Simpson case as a "media maelstrom spinning out of control." He charges the media with shoddy coverage of the trial; according to Thaler, the press did not verify information, each publication simply repeating what it heard from another. He also documents the plummeting support for cameras in the courtroom that resulted from the Simpson trial. Both Judge Ito and the lawyers, he finds, allowed the case to become out of control because they were too focused on the cameras.

Wilcox, Walter. (1970) "The Press, the Jury, and the Behavioral Sciences." Free Press and Fair Trial. University of Georgia Press.

In this article, Wilcox asks, "Do some kinds of pretrial publicity under some kinds of conditions have some kinds of influence upon some kinds of jurors with a scientifically measurable effect upon jury verdicts?" He finds that the effects of sensationalism in pretrial publicity do not survive the trial process, that the "cognitive component of pretrial publicity" does sometimes survive the process, and that the most powerful form of pretrial publicity is the report of a confession.