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The First Amendment and a free people a weekly examination of civil liberties and the media in the United States and around the world. The program has produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University the host of the program is the institute's director Dr. Bernard Reuben. What are the media rights to go into courtrooms during pretrial hearings and how do they extend into the whole sixth amendment connections to the First Amendment. I'm happy to have with me to discuss this professor Charles Nesson of the Harvard Law School who is also the associate dean of that eminent educational institution. First NSN one of the key cases came up this August at the United States Supreme Court based upon a a New York case called going it versus de Pasqual. And in a roughly five to four decision the United States
Supreme Court reached certain presumptions or certain conclusions about this pretrial right of the press in a case involving murder. Or charge of murder. Could you go into the details of their their view. Well the issue was whether at a preliminary hearing in a criminal case in that case as you point out a serious criminal case the press could be excluded from the courtroom. And we should be careful to point out that the exclusion doesn't deal only with the press that means the press and the public the press seen as just some members of the public. The way this arises is that because the defendant thinks that press coverage of the proceeding may wind up leading to publicity which will make it more difficult for him to get an impartial jury when he comes to his trial he makes a motion to exclude the
press and the public. And in the cases that have presented this question quite typically the prosecution has gone along with the motion they have they don't have any opposition. So the trial judge has one party moving to exclude the public and press the other party agreeing to it. No opposition and so closes down the hearing it probably goes even beyond that as the judge is undoubtedly quite sympathetic to the objective of the defendant in getting a fair trial and ensuring that a jury will be selectable from the community without having been poisoned by adverse publicity. It's in that it's in that environment that the press feels that their rights to cover a criminal trial in some cases a very major criminal trial trial of great interest have been compromised. And it's deeper Squali turns out to be the judge who did the closing and kinetics Canet newspapers and that's why going that sues deeper squalene says you really shouldn't kept us out of that hearing.
You know in the original case there was a reporter just before the ruling was made in the New York state court representing a newspaper publishes a Rochester New York where this case took place. Among other newspapers the Rochester Times Union at that time the reporter didn't make any objection to the ruling. But to get back to the presumption let's just let me break in there for a minute it's a it's a tough thing for a reporter to stand up in court. Yes and start talking like a lawyer and they're just not used to doing it they're observers and they sit there with their pens and if somebody tells them to get out they go to their newspaper and say let's talk to our lawyer and you know the court made a point of this is if the press person actually has the courage and the wit to get up under those circumstances yes. A courtroom is a frightening place at any time. What is your view about the now discounted theory discounted by the courts as it were. You know that public means public in the old way that
public means Press. And actually they're saying something else in Decision after decision at the state and federal level that public does not necessarily mean that anybody can come into the room. What really counts is a fair trial fairness of trial that must be safeguarded above all rights of people to come into the courtroom. You put the problem very well there. There are two ways of looking at it. On one view the constitutional guarantee of the Sixth Amendment to public trial is seen by the court as strictly a defendant's right. It is the guarantee is considered to be one of the bill of rights solely for the protection of the defendant against being tried against his will in secret and it follows from that view that if the defendant doesn't care about being tried in secret indeed if he wants to be tried in secret nobody's ox is gored. That is their that view of the Sixth Amendment basically says it's not the
press's right and it's not your right or my right unless we happen to be a criminal defendant it's only the fellow who is being prosecuted who can assert that right. The other way of looking at it of course is not quite so absolute that is that we would recognize that of course the very substantial interest in having our judges conduct their official business to the extent that it's possible to do so without serious prejudice in public. And that would lead to some kind of balancing and how one gets there theoretically is still in some doubt. But this view that there is there is no basis for the press to assert a right to public trial seems to me to be as absolute on its part as some of the absolute absolutism that the press has been asserting on it in this case vs. de Pasqual the United States Supreme Court in its review of the case actually said that they do not see this is an absolute
done the press can be kept out if the right to fair trials in any way circumscribed among other things they said this they sort of made a little list of the reasons that they had for reaching this conclusion. A and I'm quoting now to safeguard the due process rights of the accused a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity and even take protective measures even when they are not strictly and inescapably necessary. B The Sixth Amendment guarantee of a public trial is for the benefit of the defendant alone. See the history of the Sixth Amendment. Public trial guarantee demonstrates no more than the existence of a common law a rule of open civil and criminal proceedings not a constitutional right of members of the general public to attend a communal trial. I gather that you Charles Nesson are pretty much in agreement with that. Or am I reading something into your mind.
Well I think you're reading something into my mind that the fact is that. That opinion has generated a sense of license in trial judges across the country to close down pretrial hearings and in some cases even close down trials. I've seen I've read a series of court decisions at the state courts which would affirm what you just said. Absolutely. That is that what the court seems to be saying is you judges run your courts to ensure fair trials and don't bother taking account of anything we might call the public's right to know. And I am completely out of sympathy with that approach. You know there's been a later court case in late November on a similar issue. Could you go into that. Well it's actually quite interesting in direct relationship to connect versus deeper Squali what happened was that the Canet newspaper chain was clearly extremely disappointed by the result in the United States Supreme Court. Canet case itself dealt with a
suppression hearing that is a motion to rule a confession in admissible at the trial. And that's a particular kind of pretrial hearing that has a very high likelihood of prejudicing the defendant. It's like the Nebraska case of a few years ago is it now. It's yes. If the if the press cover that kind of hearing they will report the contents of the confession and then if a judge says that confession shouldn't be admitted at the trial but jurors have already read it in the newspapers the defendant really is dead and buried. I mean forget about it he's hooked. And so the prejudice is is very palpable in that circumstance well the get newspaper chain went back and actually very quickly came up with another suit to test just what this Supreme Court ruling means. It arose in the context of a rape case in Westchester County in New York in which a number of children and young girls had been quite brutally
raped and a nursing student Alexander VeriFone had been arrested and was being prosecuted going through the pretrial stages. He claimed at one point that he was incompetent to stand trial. That means that he was Sophists sufficiently deranged mentally so that he couldn't understand the proceedings against him and couldn't help prepare his own defense. And it is a typical standard that you don't try somebody who is so whacked out that he doesn't understand what's happening to him. And as that hearing got underway roans lawyer said Your honor I move that we close this hearing. And in that case reporter for Annette who had been a little bit trained by this opinion actually did stand up and say Your honor I object. And that case then resulted in a lawsuit very much like the Supreme Court case that is looking at newspaper in that in this case the Westchester Rockland news against the presiding
judge. And it went to the highest court in New York State which was the very same court that had decided the connect case in the first instance and the very same judge who wrote the opinion saying you could close it in the original CAN IT case now writes an opinion from an unanimous court saying at least as a matter of New York law. You can't close down a hearing unless there is a true demonstration that the defendant is going to be prejudiced and in a confession case where the prejudice is clear. That's one thing that's why we decided that case that way. But in this case a competency hearing where the evidence is only going to go to the State of the defendant's mind and not really deal at all with whether he's guilty or he's not guilty. It's not going to make that much difference whether there is publication of it and at least in New York state our judicial proceedings shall be presumptively be open. And that strikes me as first of all very noteworthy opinion coming especially from from that
court and a very sensible one. That is one that I think judges across the country may well look to for guidance in the area I referred to the in Nebraska case it really was 1976 which had been a mass murder in Nebraska and there was a confession and a lot of these cases arise since then. I'd like to go beyond that to ask you some questions which only a lawyer who has thought deeply about this can can opinionate on. It seems to me that ever since the comprehension of star chamber proceedings and the American decision under our constitution to guarantee fair and speedy trials to have freedom of the press that whole concept that the public is entitled to certain freedoms against government as it were that the courts still remain somewhat reluctant and every once in a while show a basic conservatism which reveals a an interest different from that of the press. The press is main tool is publicity. Is it possible that that one of the
instinctive tools of the bar is secrecy and is not so much a question of the individual case as rivalries of interests which appear in different forms from time to time I think. Yes I think there are two aspects to what you say. First secrecy has clearly always been an instrument of the judiciary. The very ritualism of the court process with the black robes on the bench and the gavel and the Latin. If you close your eyes you're not in a courtroom you're in a religious institution and secrecy is the essence of the priesthood. It's a mystery. It's the authority. It's the oracle. And to an extent I think some judges think that's a very important aspect of their power. This recent book by Woodward and Armstrong on this ring the ruler of the United States and their brethren has produced
remarkable reactions from many lawyers. Just on the issue of their breach of the secrecy of the Supreme Court the United States you know lo and behold we get a look at how the Supreme Court actually does their business. The amazing thing to me is when we see how they do their business it's really very respectable and yet somehow we're so carried away with the fact that secrecy has been violated that the issue seems to shift and somehow it's as if we've discovered in the Watergate. Then secondly I think that there is no question but that the last decade or so has seen the emergence of a great hostility to the press on behalf of the judiciary the sense on the part of judges that newspapers by and large journalists by and large taken as a profession are hypocritical arrogant perfectly capable of tooting their own horn without really taking serious account of the opposing interests. Some of this is true
I doubt. I don't doubt that a lot of that may well be true. In the Constitution itself. The only direct grounding of power and again correct me if I'm stating something wrong is to the legislature but the other two branches that have been tending toward secrecy in the Adams days or in the Nixon days have been the courts and the executive branch. Constitution says the executive power shall be vested in a president and then there is general language as well. The judicial power of the United States shall be vested in a United States Supreme Court etc. etc. and other courses the Congress may create not in those exact words but there's almost no reference there as to the public right. And this was a mystery right at the start of the country remains one. Why is that. Why cannot we describe courts or describe executive power.
Well the question I'm not really qualified in some sense is to give you a deep historical answer. I mean in current terms. In current terms the way I respond is is that there are in fact legitimate needs for secrecy in the judiciary and in a sense the people who are serving those needs are not. They're not evil they are. They are actually seeing something of substance. There's no question in my mind for example that when a case is being argued to the court and then being deliberated and while they're in the process of decision it's exceedingly important that there not be advance notice of how a decision is going to come out or how the debate is going with the deliberations have to be conducted in secret or the process will be very very changed process. And so you get a sense by judges that yes we have some
real needs. It's in fact very similar to the executive privilege argument where the executive responds in that way. We are completely familiar with the abuses of secrecy and yet we see responsible people saying and I understand what they're saying. We must have some measure of secrecy in our deliberations or major decisions of state won't be made in the best possible way. And in part there's a problem of perspective from the outside. We've seen in the last 10 years the abuses of secrecy and we tend to overreact a little bit saying there shouldn't be any let's have none of it let's have everything in the open what can be the matter with openness. And I think that does take the pendulum to four and I go the same way with with the courts on the other side. I can't see any reason why a trial should be closed a trial is a public
demonstration of someone's guilt. And I as a citizen have as much interest in seeing how my fellow citizens are prosecuted as anyone that that seems to me to be a constitutional interest at least with a small c. Remember that you're talking to a political scientist whose legal training as most others is limited to administrative law or constitutional law and international law. Beyond that we're not interested we haven't even discovered torture yet. In a practical way. Keeping that in mind is this some distinction that you would make in basic terms about pretrial publicity and trial publicity is pretrial publicity. An area that involves a lot of lawyer legal maneuvering in which the courts have slight and slight hangups over such words as Discovery and other things which may be inhibited or or
deleteriously affected by published city. I don't think so I think that all the interest of that kind favors have Homosassa US Open. In fact a great many cases are disposed of before they ever get to trial. And if we closed all pretrial proceedings we wouldn't see a vast amount of what goes on in our criminal justice system. The only real interest as far as I'm concerned is the interest in protecting the defendant's right to get a fair jury. And that is a real interest. The the various alternatives that are offered to a defendant change venue for example. They don't really respond to the problem. There isn't there's nothing that says that the publicity won't be repeated or won't have reached the other venue there's nothing that then takes into account the inconvenience to the defendant of having to try his case someplace else or at a much later date. Sequester ation of jurors that is locking the jurors up and somehow insulating them doesn't respond selecting jurors who don't read newspapers.
That doesn't answer to my notions of the kind of juries I want to be doing justice I want a nice intelligent bunch of jurors sort of like myself you know that's that's my notion of the common quality of that should be represented on a jury. And so I think that there is a real interest in guarding against pollution of potential jurors but that seems to me to be the the only interest and where you can't identify that I am completely for openness of the judicial process. You know openness means that the press under the First Amendment has a right to get information about what's going on the right to be there a right to be there. Now would you extend that talking about some of the nuances of the of our contemporary life television in the courtroom and things of that sort. Would you extend that I think was this more a case in Florida State case to the right of. Of television cameras to be beaming law cases. Does
privacy extend only to information the right to make public facts. Or does or does publicity extend into the area of disseminating the image of what's going on rather than the facts. I do extend it I. I think that again what has to be somewhat cautious it's and it's a new area and there are new dangers to it. But with respect let's not break it down with respect to trials for example. In many ways a trial is the court process at its very best. That's when everything is prepared everything is studied everybody behaves. It's it's even even interesting every once in a while. And I can't see that courts are going to be hurt. If all of us see our system of justice work in the trial context. So what if somebody is accused and is and of a heinous crime
and then is declared innocent by the courts. He has been accused before so many millions of people every time he walks the streets he will be there fellow who was accused. Doesn't television and radio impart another bit of another facet to this that's very dangerous. Well I I don't think so no. I think that we crossed that barrier when we indict the defendant in that case and that's where the protections of the grand jury and the discretion of the prosecutor come in. Once he has been so publicly indicted and he that's the way it is and publicly tried the fact that the fact that his trial is disseminated more broadly doesn't seem to me to add substantially to the problem. You've effectively cross that barrier. In a sense it's it's it's a plus for him that everyone sees that he's been acquitted he's the fellow that was acquitted for that. Could you look forward to the day though that the court might require of the press additional publicity on the behalf of a person who is accused of a heinous crime
and acquitted to make sure that the public understands and information is released to the general public permitting him to regain his or her life in society as it was or nearly as it was. I don't buy the the line that's seems to be evolving with respect to court press is if you guys can get it you can print it. On the other hand we're not going to make you print anything and we're not going to stop you from printing anything that you've got it's just a question of contest over access to the information. I don't see the courts getting aggressively into telling journalists to print. And it's even further from the imagination that a journalist would exceed to such a request. I'm playing devil's advocate of course because I see this as untested areas. We do know one thing and that is that the courts in the last five or 10 years have gotten increasingly conservative on the First Amendment that in the
land vs. CBS case and in other cases there has been a chill put upon the press. I think Di Pasqua well in adversity Pasqual doesn't exactly put a chill but it's another in a series of the Burger court so-called Burger court conservatism. Could you could you uphold the theory that this court or the Burger Court has a different view of the First Amendment and the six than previous courts. Or is this just an evolutionary court. Oh I see new problems. I think the birth record is a different court. The Warren court was the Court of New York Times vs. Sullivan. It was the court that said we need to give greater range for aggressive journalism by cutting down the libel laws by creating the exceptions for public figures by ensuring that not mere truth but malicious intent has got to be present before a libel suit is going to be brought in a context like that whereas the Burger court
I think it is much more than that. The court of hostility to the press. And is there any way around that other than the slow attrition of the judges due to age. Well we're talking now about about two different things one. One is television in the courtroom. It's almost like a separate subject and the other of these various. The attacks on the press to get information that they want to keep secret. But right Herbert in the land of the second was more a source than actually television in the courtroom at least I think is mostly a stumbling block with Berger. He is very opposed to it. He doesn't even appear on television himself when he makes thinks it's a terrible idea I don't really understand why he looks very good on television when he said his best in fact. But Harding looked very good by the way in photographs once Berger goes and who knows maybe the Woodward Armstrong book will hasten it. I think the maybe some flexibility because certainly elsewhere in the judiciary there
is a much much greater openness to the idea of television cameras coming into the courtroom. The w r in the west just to rock the news case that I was telling you about before the recent case in New York was argued in front of television cameras and in fact the PBS network will broadcast the argument as well as a reprise of the decision sometime in January over over the network. Do you have any any courses at Harvard Law School or are you projecting any of that deal with the training of lawyers for the world in which they're going in which these rapid changes are taking place in courtroom procedure and in public contact. You mean courses and make up and no courses in acting courses in the first and sixth amendment. Yes the the most most. Relevant course with respect to the law school right now is actually taught by Anthony Lewis of the new who appears frequently on this series. Yes and Tony Tony deals
with the full range of First Amendment. And as they impact 60 men is it a popular course. Yes it has been very popular. Well Charles Nesson just one final word in the last minute or so how does the how to the bar how does the bar take to the new book The brother in the first rush of its publication the pre-publication. Well I can't speak for the bar overall and I don't speak. This is the Woodward and Armstrong this crowd at all but the initial reaction has been loud cries of foul of questioning the whole enterprise. Why did you fellas have to undertake the writing of this book that undercuts one of the great institutions of the country. And I suppose I guess we have to end on that note of our objects so sublime as to let the publicity fit the crime Charles Nesson associate dean and professor of Harvard Law School thank you very much for this edition. Bernard Reuben.
The First Amendment and a free people. A weekly examination of civil liberties and the media in the United States and around the world. The engineer for this broadcast was Perry Carter. And the program is produced by Greg Fitzgerald. This broadcast is produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University which are solely responsible for its content. This is the public radio cooperative.
Series
The First Amendment
Episode
Legal Developments
Producing Organization
WGBH Educational Foundation
Contributing Organization
WGBH (Boston, Massachusetts)
AAPB ID
cpb-aacip/15-1937q4nr
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Series Description
"The First Amendment is a weekly talk show hosted by Dr. Bernard Rubin, the director of the Institute for Democratic Communication at Boston University. Each episode features a conversation that examines civil liberties in the media in the 1970s. "
Description
Charles Nesson
Created Date
1979-12-14
Genres
Talk Show
Topics
Social Issues
Media type
Sound
Duration
00:29:12
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Producing Organization: WGBH Educational Foundation
Production Unit: Radio
AAPB Contributor Holdings
WGBH
Identifier: 80-0165-03-12-001 (WGBH Item ID)
Format: 1/4 inch audio tape
Generation: Master
Duration: 00:28:45
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Citations
Chicago: “The First Amendment; Legal Developments,” 1979-12-14, WGBH, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed March 28, 2024, http://americanarchive.org/catalog/cpb-aacip-15-1937q4nr.
MLA: “The First Amendment; Legal Developments.” 1979-12-14. WGBH, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. March 28, 2024. <http://americanarchive.org/catalog/cpb-aacip-15-1937q4nr>.
APA: The First Amendment; Legal Developments. Boston, MA: WGBH, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from http://americanarchive.org/catalog/cpb-aacip-15-1937q4nr