Everything online journalists need to protect their legal rights. This free resource culls from all Reporters Committee resources and includes exclusive content on digital media law issues.
Trial courts sometimes attempt to limit access and reporting on pretrial court matters out of a concern that the pretrial publicity will affect the defendants' right to a fair trial. These court-ordered restrictions can range from outright bans on media reporting to gag orders on the trial participants to the closing of courtroom proceedings and records.
As addressed in other sections, the specific type of restriction ordered by the court may affect its legality. But regardless of the type of restriction, to the extent that the justification for the restriction is a concern over ensuring a fair trial, appellate court decisions make clear that, although it is possible for pretrial publicity to affect a fair trial, such an outcome is unlikely, and quite rare.
“Prominence does not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance,” Supreme Court Justice Ruth Bader Ginsburg wrote in the 2010 opinion in Skilling v. United States. The Skilling case involved a challenge by Jeffrey Skilling, the former CEO of Enron, to his criminal conviction on various charges related to his actions with the company. Skilling argued that he was unable to receive a fair trial in his hometown of Houston. The high court ruled Skilling's trial had been fair, but sent the case back to a lower court for further analysis on an unrelated issue.
In ruling that Skilling received a fair trial, the Supreme Court was quick to point out that past cases showed that pretrial publicity, even if it is pervasive and adverse, does not inevitably lead to an unfair trial. Furthermore, the court said that Skilling’s case shared little in common with the few cases where a transfer of venue had been warranted, which tended to involve murder trials, small towns, published confessions of guilt, or media coverage that resulted in a “carnival atmosphere” at trial.
“[N]ews stories about Enron did not present the kind of vivid, unforgettable information we have recognized as particularly likely to produce prejudice, and Houston’s size and diversity diluted the media’s impact,” the court wrote.
The high court has emphasized that concerns about pretrial publicity can often be addressed through the jury selection process. Courts and attorneys can typically ensure that the jury panel is comprised of jurors who are not biased through this screening mechanism. "Through voir dire, cumbersome as it is in some circumstances, a court can identify those jurors whose prior knowledge of the case would disable them from rendering an impartial verdict," the Supreme Court stated in the 1986 case of Press-Enterprise v. Superior Court ("Press-Enterprise II"). The Court reiterated this point in its recent Skilling opinion, ruling that "[i]Inspection of the questionnaires and voir dire of the individuals who actually served as jurors satisfies us that, notwithstanding the flaws Skilling lists, the selection process successfully secured jurors who were largely untouched by Enron’s collapse.”