A newsrack, a judge, and the First Amendment

Published May 2019

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications
Last week, during jury selection for trial of Timothy Jones, who is accused of killing his five children in Lexington County and dumping their bodies in Alabama in 2014, presiding judge Eugene Griffith Jr. ordered the removal of a Lexington County Chronicle dispensing machine in front of the courthouse. The judge’s order raises the question of how far courts may go to ensure that a criminal defendant gets a fair trial.
In the Jones case, defense lawyers alleged that headlines visible in the dispensing machine, including “Mass slayer’s trial opens,” and “Mass Murder Trial May Start Monday,” would bias jurors as they entered and left the courthouse. When the second headline appeared, one of Jones’ lawyers rotated the newspaper box so the headline was not visible.
While Griffith Jr. denied the requests by Jones’ lawyers to move the trial outside of Lexington County, after the second headline he ordered the newsrack to be removed. The newspaper removed the machine later that day.
Concerns over news coverage influencing jurors have a long history in the courts, dating at least as far back as the effort in 1807 to find jurors who had not formed an opinion in the treason trial of former Vice President Arron Burr. The issue raises an essential dilemma in the courts: the First Amendment right of the public and the press to observe and report on court proceedings, and the Sixth Amendment right of criminal defendants to both a public trial and an unbiased jury.
Judges in criminal trials have used various strategies to avoid juror bias, ranging from sequestering jurors (now extremely rare because of cost and inconvenience) to instructing jurors to avoid media (and social media) coverage and discussion of the case. Some judges have gone further, trying to close courtroom proceedings to prevent certain evidence from becoming public, or attempting to limit press coverage of a trial.
But open trials and media coverage of them are considered fundamental protections of freedom, which allow public scrutiny of what the courts, as well as prosecutors, lawyers, judges and jurors, are doing. Openness is also a means to ensure that witnesses testify truthfully, since they can be held accountable if the public is aware they made untrue statements.
The United States Supreme Court has held that the closing of courtrooms and restrictions on coverage can be imposed only under certain circumstances. In a 1984 decision, the U.S. Supreme Court held that courts may be closed to the public and press only when the interest to be protected by closure is clearly articulated; the interest overrides the interest in openness; there is no reasonable alternative to closure; and the closure is only as much as necessary to protect the interest. And in a 1976 case, the Court held that a court could issue an order limiting media coverage of a trial only when there has been intense and pervasive publicity about the case; there is no alternative measure to mitigate the effects of that publicity; and the restrictive order will in fact effectively prevent such publicity from reaching jurors.
In short, the U.S. Supreme Court has held that courts may be closed and media coverage restricted only under limited circumstances, when there are no other alternatives. The South Carolina Supreme Court has issuedsimilar rulings.
Meanwhile, the U.S. Supreme Court and lower courts have also held that local governments may restrict the placement of newspaper vending machines based on concerns such as public safety and aesthetics, but not they may not prohibit newsracks entirely or impose restrictions on the basis of content, or arbitrarily.
In 2001, a North Carolina judge initially ordered that display windows of newsracks outside the Rockingham County courthouse be covered to keep jurors in the murder trial from seeing headlines regarding the case. The judge rescinded the order to cover the display windows after the newspaper argued that the order violated the First Amendment, but ordered that the vending machines be moved to other courthouse entrances through the duration of the trial.
Judges and criminal defense lawyers are justified in being concerned about media coverage influencing jurors in high-profile cases. But they should not use this concern to close courtrooms, restrict coverage or limit distribution of newspapers without an extremely compelling reason to do so. The Sixth Amendment includes important rights to protect criminal defendants. But the First Amendment rights to open courts and coverage of court proceedings are also important protections for criminal defendants, and the public generally. 
Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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