853 The Courts & the Media Bench Book Honorable Tijani R. Cole∗ I. The Judges Dilemma II. Beginning the high profile case III. Change of Venue A. Applicable Cases Rideau v. Louisiania Irvin v. Dowd IV. Gag orders on the press during pretrial proceedings A. Can a court issue a gag order on the press during pretrial proceedings? B. Analysis and standard applied by the court 1. Applicable Cases Sheppard v. Maxwell Nebraska Press Ass’n v. Stuart Richmond v. Virginia Press-Enterprise Co. v. Superior Court of California (Press-Enterprise I) Press-Enterprise Co. v. Superior Court of California (Press-Enterprise II) Gannett Co. Inc. v. DePasquale State ex rel Miami Herald Pub. Co. v. McIntosh Star Journal Pub. Co. v. County Court Arkansas Democrat-Gazette v. Zimmerman V. Gag orders on the press during on-going trials A. Can a court issue a gag order on the press during the trial proceedings? 1. Applicable Cases Oklahoma Pub. Co. v. District Court of Oklahoma Sheppard v. Maxwell ∗ The Honorable Tijani R. Cole is a District Court Magistrate for the 20th Judicial District of Colorado. This work represents partial fulfillment of his Judges Masters Degree from the National Judicial College, Reno Nevada. He was assisted by law clerks, Chris King, Jennifer Gannon, Ashley Ratliff.854 NEW ENGLAND LAW REVIEW [Vol. 35:4 B. Can a court place a gag order on litigants, attorneys, and court staff during a trial? 1. Applicable Case Gentile v. Nevada C. Can a court place a gag order on official records? 1. Applicable Cases Cox Broadcasting Corp. v. Cohen Proctor & Gamble Co. v. Bankers Trust Co. Lewis v. Mudge VI. Closure of Courtroom A. Under what circumstances may a state court close a court-room to the media and\or the public? 1. Rules governing expanded media coverage B. Under what circumstances may a judge exclude a particu-lar person? C. Applicable Cases Waller v. Georgia Press-Enterprise Co. v. Superior Court Ayala v. Speckard United States v. Osborn VII. Cameras in the Courtroom A. Does the press have a First Amendment right to cameras in the courtroom? Applicable Case 1. Applicable Cases Estes v. Texas VIII. Juror privacy A. Applicable Cases Gannett Co. Inc. v. State In re Newsday v. Sise United States v. Edward XI. Minors or victim privacy A. What actions may a court take to safeguard the privacy of minors and/or victims during courtroom proceedings? 1. Statutory Provisions 2. Applicable Case United States v. Jacobson X. Civil trials A. Applicable Cases NBC v. Superior Court of L.A. County Appendix: News Media Checklist for Communications with Judges Judge’s Checklist for News Media Interviews Sample Form Sample Decorum Orders Bibliography2001] MEDIA BENCH BOOK 855 I. JUDGES’ DILEMMA A fundamental purpose of the justice system is to have a fair and reliable way to seek out the truth, with the goal that justice will be done. So too, a key purpose of the news media is to provide accurate information to the pub-lic, so as to assist in the process of representative self government.1 The constitutional right to a fair trial and, the sometimes conflicting, right to freedom of the press pose several challenging problems: How much of a court proceeding should be deemed public information? At what point does seating a fair and impartial jury override the press’ right to report information? How can courts seat fair and impartial jurors in a population that has been inundated with sensationalized media coverage? These questions are just a few of the difficult issues that face the courts when dealing with the media. During a trial, there are constitutional and procedural safeguards that govern what information a jury or trier of fact may consider. These rules prohibit prejudicial or otherwise inappropriate information from being entered into evidence. The problem for judges is what to do during the pre-trial stages of the proceedings. American con-stitutional law does not provide safeguards in terms of what information is disseminated by the media. Douglas Campbell in his book, Free Press v. Fair Trial,2 points out that access to the courts can be a double-edged sword. Campbell asserts that one edge cuts to the notion of citizen access to the media. Almost every-one agrees that the citizens in the community should have access to infor-mation about court proceedings. This notion is only tangentially related to the conflict between a fair trial and a free press. The other edge is more central, and that is the media’s access to the courts. Here the philosophical boundaries are more blurred. For most judges, the solution to this dilemma is relatively simple. Deny media ac-cess to potentially prejudicial information, thereby, protecting all of the litigant’s rights to a fair trial. Campbell notes that the media cannot pub-lish information it does not have and prejudice potential jurors. Indeed, Campbell argues that denying the media information does not violate the strictest meaning of the First Amendment—at least according to Blackstone, and the United States Supreme Court in Near v. Minne-sota.3 In that case the trial court and the Minnesota Supreme Court ruled that prohibiting the press from publishing malicious and slanderous in-formation did not constitute prior censorship. The Minnesota Supreme Court believed that the statute did not prevent the media from disseminat- 1. Kenneth Starr in National Judicial College, NJC ALUMNI MAGAZINE vol. XV no. 3. 2. See DOUGLAS S. CAMPBELL, FREE PRESS V. FAIR TRIAL (1994). 3. 283 U.S. 697 (1931).856 NEW ENGLAND LAW REVIEW [Vol. 35:4 ing whatever information they possessed as long as it was done in a lawful manner. The U.S. Supreme Court disagreed. Chief Justice Hughes writing for the majority stated that: To prohibit the intent to excite those unfavorable sentiments against those who administer the government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them is equiva-lent to a prohibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it by free animadversions on their characters and conduct. . . . For