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The Prosecutor, the Press, and Free Speech

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The Prosecutor, the Press, and Free Speech Fordham Law Review Volume 58 Issue 5 Article 1 1990 The Prosecutor, The Press, and Free Speech Scott, Jr. M. Matheson Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Scott, Jr. M. Matheson, The Prosecutor, The Press, and Free Speech, 58 Fordham L. Rev. 865 (1990). Available at: https://ir.lawnet.fordham.edu/flr/vol58/iss5/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Prosecutor, The Press, and Free Speech Cover Page Footnote Visiting Professor in the Frank Stanton Chair on the First Amendment, Joan Shorenstein Barone Center on the Press, Politics and Public Policy, John F. Kennedy School of Government, Harvard University (1989-90); Associate Professor of Law, College of Law, University of Utah. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol58/iss5/1 THE PROSECUTOR, THE PRESS, AND FREE SPEECH SCOTT M. MATHESON, JR.* TABLE OF CONTENTS Introduction ................................................... 866 I. Restrictions on Extrajudicial Lawyer Comment ............ 871 A. DisciplinaryRules .................................... 872 B. Court Rules .......................................... 877 C. JudicialRestraints .................................... 877 II. The Context of Extrajudicial Prosecutor Speech ............ 878 A. The Competing Values: Free Speech, FairTrial, and Other Concerns ....................................... 879 1. Nature of the Speech and Free Expression Values.. 879 2. Constitutional Protections for the Accused ......... 881 3. Fair and Efficient Administration of Justice ........ 882 4. Public Confidence in the Judicial Process .......... 883 5. Reputation, Privacy, and Security Interests of the Accused, Victim, and Witnesses ................... 884 B. ProsecutorRole ....................................... 885 1. Unique Advocate ................................. 885 2. Officer of the Court ............................... 886 3. Executive Branch Employee ....................... 887 4. Political Actor .................................... 888 5. Prosecutor Role and Motives ...................... 888 C. Working Relationships and ProsecutorSpeech .......... 889 1. Prosecutor and the Press .......................... 889 2. Relations with Victims, Witnesses, Law Enforcement Officials, and Defense Counsel ........ 891 D. Regulatory Context: The Role of the Court, the Audience of Primary Concern, the Timing of the Speech, and the Problems of Assessing Prejudice ....... 892 1. Role of the Trial Judge ........................... 892 2. Prospective and Actual Factfinders as the Audience of Primary Concern ............................... 893 3. The Timing of the Statements ..................... 894 4. The Problem of Determining Potential and Actual Prejudice ......................................... 896 III. Constitutional Analysis ................................... 897 * Visiting Associate Professor in the Frank Stanton Chair on the First Amendment, Joan Shorenstein Barone Center on the Press, Politics and Public Policy, John F. Ken- nedy School of Government, Harvard University (1989-90); Associate Professor of Law, College of Law, University of Utah. 866 FORDHAM LWREVIEW [Vol. 58 A. Introduction: Content Regulation of Extrajudicial Lawyer Speech ....................................... 897 B. Overbreadth and Vagueness ........................... 899 C. The Speaker, the Audience, and the Institutional Setting ............................................... 904 1. Speaker .......................................... 904 2. Audience ......................................... 906 3. Institutional Setting ............................... 909 4. Distinguishing the Prosecutor from the Press ...... 914 D. Probabilityof Harm Standard ........................ 914 E. Proving Probability of Harm .......................... 918 F. Scienter .............................................. 922 G. Timing of the Speech ................................. 924 H. Restraining Orders ................................... 925 I. JudicialReview ....................................... 929 Conclusion ..................................................... 930 The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.' The Attorney General assures me that our case [against General Ma- nuel Noriega] is strong, our resolve is firm and our legal representa- tions are sound.2 INTRODUCTION The scenes are familiar. A United States Attorney calls a press confer- ence to announce the indictment in a high-profile prosecution. A re- porter calls or stops by the district attorney's office, obtains "off the record" information from a lawyer about an upcoming trial, and pub- lishes it. A prosecutor gives an interview on the courthouse steps during a criminal jury trial. Such scenes, though familiar, are not the norm for criminal prosecu- tions-most charges prosecuted in state and federal courts receive 3 neither public comment from prosecutors nor press interest or coverage. 1. Patterson v. Colorado, 205 U.S. 454, 462 (1907) (Holmes, J.). 2. Transcript ofBush News Conference on Noriega and Panama,N.Y. Times, Jan. 6, 1990, at 10, col. 1. 3. See A. Friendly & R. Goldfarb, Crime and Publicity 55-72 (1967); R. Graber, Crime News and the Public 40, table 2.9 (1980) (finding Chicago Tribune reported only .65 of 1 percent of crimes in Chicago); Antunes & Hurley, The Representation of Crimi- nalEvents in Houston's Two DailyNewspapers, 54 Journ. Q. 756 (1977) (Houston dailies published stories on no more than .75 of I percent of crimes reported to police); Cohen, A Comparison of Crime Coverage in the Detroit and Atlanta Newspapers, 52 Joum. Q. 726 (1975) (Detroit newspapers covered 1.9 percent and Atlanta papers 3.19 percent of re- ported crimes); Frasca, Estimating the Occurrenceof Trials Prejudicedby PressCoverage, 72 Judicature 162, 165 (Oct.-Nov. 1988) (estimating 7 percent of all felony cases resulting in arrest are reported by metropolitan newspapers). Judge J. Skelley Wright once esti- 1990] PROSECUTIONAND THE PRESS Enough charges do receive such attention, however, to raise questions about the constitutional rights of free speech and fair trial, the integrity of the judicial process, the interaction between lawyers and journalists, and the professional obligations of attorneys. Some of those questions concern extrajudicial public comment from prosecutors about pending criminal cases, a phenomenon that appears to be on the rise 4 There is no definitive Supreme Court precedent concern- ing the scope of first amendment protection for such speech, though the Court said in 1966 that "[c]ollaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy 5 of disciplinary measures." Lawyer speech is strictly regulated in the courtroom. Rules of proce- dure and evidence and the need to preserve some degree of order and decorum strictly limit what lawyers and other trial participants can say, especially in the presence of the jury. For example, the prosecutor is barred from expressing a personal opinion on the guilt of the accused,7 from referring to evidence that may be relevant but has not been admit- ted because it is unduly prejudicial (prior criminal record) or was ob- tained improperly (coerced confession), or from alluding to plea bargain mated that less than one percent of all criminal cases receive publicity. See Wright, Fair Trial-FreePress, 38 F.R.D. 435, 436 (1966). 4. See Association of the Bar of the City of New York, Report of the Ad Hoe Com- mittee on Pretrial Publicity 3 (1987) [hereinafter Ad Hoe Report on Publicity]. 5. Sheppard v. Maxwell, 384 U.S. 333, 363 (1966). The Court recently denied certi- orari in a Tennessee case which concerned the discipline of a prosecutor for public state- ments about two of his cases. See Zimmerman v. Board of Professional Responsibility, 764 S.W.2d 757 (Tenn.), cert. denied, 109 S. Ct. 3160 (1989). Justice Rehnquist, acting as Circuit Justice, expressed some views on this issue in KPNX Broadcasting Co. v. Arizona Superior Court, 459 U.S. 1302 (1982). Press appli- cants requested a stay of an Arizona trial court's order restricting criminal trial partici- pants, including counsel, from speaking with the press. The judge appointed a court employee as a press liaison. Denying the application, Justice Rehnquist wrote that the language in Sheppard,see supra text accompanying note 3, "goes far towards sustaining the action of the trial court." KPNXBroadcasting,459 U.S. at 1306. "The mere poten- tial for confusion if unregulated communication between trial participants and the press at a heavily covered trial were permitted is enough to warrant a measure such as the trial judge took in this case." Id. at 1307. 6. "[C]ourts of justice are universally acknowledged to be vested ... with power to impose silence, respect and decorum in their presence,... and as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution." Anderson v. Dunn,
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