The First Amendment Rocks!

1. Situation

When a book or piece of entertainment contains nudity or lewd sex on some level it must be for some artistic purpose. For example, if the book and or movie contained nothing but lewd sex with no social values implied the question is whether it should be allowed to be shown? Things like pornography are widely restricted but to only certain retail stores and special sections of the video store where one must be 18 or older to enter. This is likely because the government make sure that its distribution is limited unless it has a “redeeming social value.”

2. Legal background

In Memoirs v. Massachusetts case as described on http://www.law.cornell.edu/supct/html/historics/USSC_CR_0383_0413_ZS.html the appellate court originally ruled the book “John Cleland’s Memoirs of a Woman’s Pleasure” as obscene and thus not protected by the 1st and 14th amendments. This book is about a young woman not of age whose path includes time in two brothels, with constant heterosexual and homosexual encounters. However when this case was sent to the Supreme Court they used the Roth test for obscenity which was described in three parts. 1) Was that the dominant theme of the piece took a prurient interest in sex, 2) was the piece offensive by the standards relating to the description or representation of sexual matters and 3) was if the material was lacking a redeeming social value. The Supreme Court concurred with the appellate court’s decision as it pertains to the first two parts of this test but when it came to the third part they did not concur. The main reason was that the book did contain some social value in that it was in a way a love story and also that the 1st amendment says that a court cannot censor a literary work unless it promotes illegal action of some kind and which this book did not.

3. Questions for thought

1. As a result of this case and others like it why is it that porn is not considered obscene?

2. What would qualify as a book being without a redeeming social value?

3. What are some reasons that people would want to ban material like this that has a prurient interest in sex?

Facts:

In Ashcroft v. ACLU (2004), the American Civil Liberties union challenged Congress’ Child Online Protection Act (COPA). COPA was aimed at protection minors from seeing sexually explicit online materials. COPA was created as a result of the Communications Decency Act being found unconstitutional on the grounds of being overbroad and too restrictive (in Reno v. ACLU). Under COPA, adult visitors to certain Internet sites would have to enter identification to view the site (such as a credit card number or identification number). The ACLU argued that COPA unconstitutionally infringed on First Amendment rights to free speech because the government is deciding what content to restrict. A federal District Court agreed with the ACLU, stating that there were less restrictive measures to ensure the protection of minors than outlined in COPA. The Third Circuit court affirmed the District Court’s decision. The case was appealed to the Supreme Court.

Legal issue:

Does COPA violate the First Amendment?

Decision:

The Supreme Court upheld that COPA violates First Amendment speech.

Analysis:

COPA violates First Amendment speech because it could prevent adults from viewing legal forms of speech. There are less restrictive options such as blocking software or filters. Adults without children should be able to see any material they wish without identification. Concerned adults with children should use filters and turn them off when they wish to view certain content.

Questions:
Do filters work?
What’s the problem with having to enter identification to view content?
How does the Supreme Courts decision uphold First Amendment rights?

From Wall Street to Main Street, the “Occupy” movement has grown worldwide in the past month, spreading to cities large and small. People have taken over city parks and other areas to protest corporate greed, economic injustice and related issues.

Now Bowling Green, Ohio, has its own Occupy presence, an encampment in a downtown alleyway that organizers vow to operate “24/7 indefinitely,” according to an article in The BG News. The paper posted this video on YouTube:

Occupy Bowling Green has a Facebook page, a Twitter account, and no single leader, since all decisions are to be made with a 90 percent group consensus. Meetings are to be held twice daily at noon and 7 p.m.

A post on the group’s Facebook page by Errol Lam says, “Our purpose is to express solidarity with Occupy Wall Street and to come together as people who are tired of stagnant politics that ignore the 99%. This will be ongoing, change is slow, but we’ve got time on our side.”

City officials have not interfered with the protest, according to an article in the Sentinel-Tribune.

Bowling Green Public Safety Director John Fawcett said the city was taking “a hands-off” approach and will “allow them to express their beliefs.”

Wes Stiner sweeps area near tents. (Photo: J.D. Pooley/Sentinel-Tribune)

“While the city hasn’t given any formal permission to occupy Community Commons, we will allow them to stay there. We will get involved only if they do anything disorderly or would be a hazard to themselves or others.”

From a First Amendment perspective, this movement raises a lot of interesting questions:

• Freedom of Assembly: How far can protesters go in “occupying” public spaces? Do police have the right to make them leave? See this analysis by ProPublica. The New York Civil Liberties Union provides another perspective.
• Is the need to clean city parks a good enough reason to make protesters move?
• Is this “occupation” akin to civil rights sit-ins?
• Short of camping out, what other options do protesters have?
• What do you predict will happen in Bowling Green? Will there be a conflict between protesters and police? What legal restrictions could be applied?
• Freedom of Speech: What rights do people have to speak their mind about their concerns? Does “speech” in this case extend to using loudspeakers, banging drums, etc.?
• Freedom of the Press: Media coverage has grown – at one point being equal to early coverage of the Tea Party movement.
• Is the media fairly representing the movement? Or is the “liberal media” fostering the movement, as some have charged? How should the media cover this?
• Freedom of Petition: The First Amendment guarantees the right to petition for a redress of grievances. In what way does this movement make use of that freedom? (See First Amendment Center post.) Who is being petitioned here?
• Lastly, Will it Work? The New York Times asks if the movement will be effective and has several people respond in this Room for Debate piece.

Situation:

If a person is accused of something, it would be ideal for that person not to be ridiculed until they are proven guilty of what they were accused of. Otherwise, it is only a rumor that they actually did something wrong. Think about a situation where a BGSU student was accused of murder and the press was allowed to be involved in all aspects of the trial process. Rumors spread through local publications about the student’s past and thoughts from people directly involved in the trial are released so that the public is forming opinions of what the student did before the trial is over. The student’s reputation on campus is ruined regardless of whether he did the crime or was just accused of it by someone whose motives were unclear and that’s before the courts officially try his case.

Legal Background:

A petitioner’s wife was found bludgeoned to death in 1954. People became suspicious of the petitioner and he was arrested and indicted for it. With his case, Sheppard v. Maxwell, the news coverage blew up and made the case notorious. Before the trial, the media published information about his past and he was under close speculation by the public. The trial was also two weeks before an election where two people involved with the trial were candidates for judgeships, making the media even more interested in the actions involved in the trial. Reporters occupied 20 seats during the trial and more reporters moved around the room and the entire building where the trial was to cover all aspects of it. This made the jurors into celebrities basically and they started to receive letters and phone calls from the public. The trial judge made no efforts to counteract this activity although he recognized it was an issue. Habeas Corpus was filed saying Sheppard did not receive a fair trial after he was convicted. The District court granted it. The Court of Appeals reversed.

 Questions:

1. What are some things the judge should have done to protect Sheppard and counteract some of the activity of the media?

2. What are the arguments in favor and against reporters having free reign over the information involved in a trial?

3. What should the role of the press be in releasing information about trials?

Richmond Newspapers v. Virginia (1980)

To see all the details go here:

Facts of Case:

The Richmond Newspapers (Appellant), wanted to have a judicial order of a criminal trial to all of the press and the public (Virginia) overturned and said it would be a violation of the First Amendment. The First Amendment guarantees both the public and the press the right to attend criminal trials, but this right is not set in stone and may be overturned by a judge that finds an overriding interest that cannot be accomodated. 

It all started when a criminal named Stevenson was on trial and the trial was moved to have the proceeding closed to the public. The judge of the case acting based on a state statute authorized the court in his own discretion to exclude from the trial any person whose presence would influence the conduct of a fair trial, ordered the courtroom to be kept clear of all parties except the witnesses who would be testifying. Stevenson argued that he did not want any information leaked out and be published by the media and that could maybe be seen by the jurors of his case.

Legal Issue: It is whether an order excluding public and press from a criminal trial has violated their rights protected by the First Amendment.

Decision:

The decision from earlier was reversed because the right of the public and the press to attend criminal trials is guaranteed under the First Amendment of the Constituition.

Analysis: In this case the judge failed to show overriding interest for excluding the public and press making the the ruling to close the courtroom reversed. Even with all the risk of having the media getting ahold of this news and everything about the case, it is still infringing on our right under the First Amendment and the judge could not show enough to shut out the public and press in this situation. Another fact is that the right is not absolute, so that is why they tried to shut out the press, but the court didn’t see it that way after the judge didn’t show enough overriding interest.

Questions:

1. Do you agree with the media being able to be in the courtroom and not be excluded?

2. What is the significance of this case to journalists?

3. How does this case compare to

1. Facts of Case

In GANNETT CO. v. DEPASQUALE (1979), Seneca County Court Judge Daniel DePasquale granted pretrial motions to exclude the public and the press from the trial of three individuals charged with the murder of an off-duty police officer in New York. It was argued that the buildup of publicity regarding the individuals involved jeopardized their ability to receive a fair trial. At the same hearing, DePasquale also granted pretrial motions to suppress evidence and confessions by the defendants. No one present during the pretrial hearing, including Gannett reporter Carol Ritter, objected to the motions or the court’s rulings.

The following day, Ritter sent a letter asserting her right to cover the hearing. The judge reviewed the pretrial motions and said the defendant’s right to a fair trial outweighed the right of the press to cover the pretrial suppression hearing. Ritter took her case to the New York Supreme Court, where she defended it with the First, Sixth and Fourteenth Amendments of the United States Constitution.The New York Supreme Court found DePasquale’s order unlawful. On appeal to the New York Court of Appeals, however, DePasquale’s decision was upheld. The case was then taken to the U.S. Supreme Court.

2. Legal Issue

The question presented in this case is whether members of the public have an independent constitutional right to access to a pretrial judicial proceeding, even though the accused, the prosecutor and the trial judge all have agreed to the closure of that proceeding in order to assure a fair trial.

3. Decision

Ritter’s letter was reviewed and ultimately the Supreme Court decided the defendant’s right to a fair trial outweighed the right of the press to cover the pretrial suppression hearing. The closure of pretrial hearings to the media was held acceptable.

4. Analysis

The court reasoned a trial judge has the right to bar public scrutiny that might negatively influence court proceedings or jeopardize the right of due process for the accused. The court recognized media may, at times, influence public opinion, and restricted coverage in the interest of fairness and to avoid prejudicing the jury with pretrial publicity. The court argued that the right of the public to be informed about the trial and the right of the accused to receive a fair trial must be balanced; in this case, the right to a fair trial outweighed the right of the public to be informed.

A quote from The Law of Journalism and Mass Communication textbook explains the ruling:

“There can be no blinking the fact that there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system. But there is a strong societal interest in other constitutional guarantees extended to the accused as well.” — Justice Potter Stewart (pg. 433-434)

5. Questions

1. Do you agree with the ruling in this case; why or why not?

2. How do you think this case’s outcome would have differed if Gannett reporter Carol Ritter had spoken up in the courtroom and not waited to write a letter a day later?

3. What is the significance of this case for journalists?

Over the past couple years there has been intense debate over the issue of cell phones and social media being used and/or allowed in the courtroom.

Here is a link to an interesting NPR story. http://www.npr.org/templates/story/story.php?storyId=112926570

There are issues with technology in the courtrooms. Cell phones and laptops did not exist when court rules were written. So there are no particular rules allowing or forbidding these sorts of things. The decision is often left up the the individual judges to decide. Some ban all cell phone or computer use while others allow permission for instant blogging during the trial.

In general, camera phones and smart phones are a huge problem in the courtrooms. For instance, there have been cases in gang related trials were people would take pictures of the jury members and use them to intimidate them to vote a particular way. As a juror, they are supposed to hear what both sides have to say and then make a decision. But what if they google the defendant and find out something that will make their decision biased. There are dozens more problems involving these types of issues which has led to judges banning all sorts of phones and laptops from courtrooms. These decisions are most of the time to the dismay of newspapers and reporters. Is it a big deal for a reporter to tweet updates from the courtroom? What about if the reporter has some sort of bias and their updates are perceived to be leaning a particular way?

1. Do you think cell phones and computers should be allowed in the courtroom?

2. Do you think that the use technology is distracting, which is one of the arguments against it?

3. How useless or how advantageous is the ability to instantly blog live or tweet from inside a courtroom?

1. Facts of the Case

In Globe Newspaper Co. v. Superior Court a judge ordered the exclusion of the press and the public during the trial of a defendant accused of the rape of three minors. There was a Massachusetts statute that provided a precedence of exclusion for cases involving minors and sex crimes. The trial ended with the defendant being acquitted, and records were then open to the press and public, but The Globe Newspaper challenged the exclusion to the state supreme court.

2. Legal Issue

The Superior Court was looking at whether the statute of exclusion of the press and public during trials involving minors and certain sex crimes violated the First Amendment.

3. Decision

The Court ruled that the state statute of exclusion was unconstitutional and that it violated the first amendment.

4. Analysis

The court explained that while criminal
court cases are generally open to the public and the press, there are
exclusions to this. However, they explained these exclusions are only if the
closure of the trial is in the interest of the state. Exclusion of an open
court cannot be an attempt to protect a sex victim from further trauma or
embarrassment, or to encourage other victims to come forward. The court also
pointed out that the press has access to the all court testimony after the
trial has ended, so the exclusion doesn’t prevent the press from having the
access to the information and therefore is unnecessary.

5. Questions?

1 .Do you agree with the courts findings?

2. Do you think the press should be
excluded from trials involving minors and sexual crimes?

How would you defend your stance to the
question above?

3. Do you think minors have the right to a
public trial as adult citizens do, or should there be an exception when
involving minors?

HYPOTHETICAL SITUATION

Suppose there was a man accused of killing his wife but really was innocent. However, the media covered the trial and dug up negative things from this man’s past that swayed everyone to believe that he really was guilty. At the end of the trial, this innocent man was found guilty from being denied the right to a fair trial because of how the press made a big spectacle out of his trial. Can or does this hypothetical situation happen in courts today?

LEGAL BACKGROUND

Well, this is what the judge in the case Gannett Co. v. DePasquale did not want to happen. Judge Daniel DePasquale granted pretrial motions to exclude the public and the press

from the trial of three individuals charged with the murder of an off-duty police officer. Gannett reporter, Carol Ritter later objected to this and the judge reviewed it and s

aid the defendant’s right to a fair trial outweighed the right of the press to cover the pretrial suppression hearing.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=443&invol=368

QUESTIONS

1.Why do you think that Judge DePasquale wanted to exclude the press and the public?

2.No one objected to this motion right away. Gannett reporter, Carol Ritter, later objected. Why do you think no one spoke up at first?

3.Do you really think that the press can be held responsible for jeopardizing a defendant’s right to a fair trial?

Zurcher v. Stanford Daily (1978)

1. Facts of Case

On April 9, 1971 there was a demonstration outside the Stanford University hospital, and after protesters’ apprehended the hospital’s administrative offices since the afternoon of April 8, 1971 law enforcement was finally called. The demonstrators did not want to leave peacefully, barricaded themselves within the hospital and when law enforcement arrived the protestors attempted to resist them by using violence. All nine police officers that entered Stanford University Hospital that day were injured by the protesters. Not all assaulters were able to be identified at the time by the police. Two days later, the student ran newspaper, the Stanford Daily published articles and photographs of the incident, proving staff member of the paper was taking photographs where the incident of violence against the police officers occurred. Following this issue’s release the District Attorney’s office obtained a warrant from the Santa Clara County Municipal Court for a search of the Stanford Daily’s negatives, film, and pictures of the event that took place on April 9^th, in hopes of identifying the individuals who assaulted the police. The Stanford Daily’s office was searched by police, yet some rooms and drawers were locked for confidential material. The law enforcement left with nothing.

In May, the some Stanford Daily staff members brought a civil suit against the police officers who conducted the search, and all those in charge of issuing and carrying out the warrant of the Daily’s search. This was in the United States District Court for the Northern District of California, claiming the Stanford Daily’s office had deprived them of the state law of rights guaranteed to them by the First, Fourth, and Fourteenth Amendment of the U.S. Constitution. The District Court made a denial of the plaintiff’s request for a ruling, but granted a summary judgment. The court agreed that there was probable cause to believe there was indeed relevant evidence located in the Stanford Daily’s office. However, it held that the Fourth and Fourteenth Amendment’s issuing of a warrant for the photographs were not in the possession. The sworn affidavit, for the staff members’ to produce the photographs and other materials would be impractical. The failure to honor the subpoena would not alone justify the warrant. The search would only have been constitutionally permissible in only rare circumstances, where there is a clear reason to believe that important materials will be destroyed from the premises and a restraining order would be worthless. The court ruled that the preconditions for a valid warrant in this case were not met; meaning the search of the Stanford Daily’s office was illegal.

This decision was appealed by Zurcher, and The Appellate Court found that there is no apparent basis in the language of the Fourth Amendment. In addition, commanding the necessities for a valid arrest would mean that there is probable cause to believe that the third party is concerned in the crime. This was previously ruled in the case Camara v. Municipal Court and See v. Seattle. The Court of Appeals for the Sixth Circuit articulated the accurate view and of the Fourth Amendment when, contrary to the decisions of the Court of Appeals and the District Court in  the U.S. Supreme Court Zurcher v. Stanford Daily (1978). The Supreme Court reversed lower courts’ previous rulings, finding the warrant and search of the Daily’s office lawful.

2. Legal Issue

How should the Fourth Amendment be interpreted and applied to a “third party” search, where state authorities have probable cause to believe that evidence of crime is located on identified property, but do not at the time have probable cause to believe that the owner or possessor of the property is himself/ herself concerned in the crime that has taking place or has previously occurred?

3. Decision

The Supreme Court ruled in favor of Zuchner, ruling that the third-party occupant, whether suspect in association with a criminal case or not, the State’s interest is enforcing the criminal law and recovering the evidence remains the same.

4. Analysis

Zurcher v. Stanford Daily ruled in favor of Zurcher, feeling the State’s/ public interest in enforcing criminal law by recovering evidence from a third party is indeed lawful. Yet, for the media in protection of the First Amendment rights, the court looked to two cases, Stanford v. Texas and Roaden v. Kentucky. Stanford v. Texas ruled that the seizure and search reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material. The court found that neither the Fourth Amendment nor the cases requiring consideration of First Amendment values in issuing search warrants. They also ruled that concerning the media, a warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. By being Properly administered, the preconditions for a warrant, being probable cause, with respect to the place to be searched and the things to be seized and acting with reason. This should be sufficient protection against the harms that are threatened by warrants for searching newspaper offices.

5. Questions

1. As a Journalist, what is the significance of this case to you?

2. In what ways does Zurcher v. Stanford Daily differ from Tinker v. Des Moines Independent Community School District?

3. Concerning the First, Fourth and Fourteenth Amendment, do you find the lower court’s rulings in favor of the Stanford Daily more fitting for the case than the Supreme Court’s Ruling?