Freedom of the Press and Fair Trial Study Guide
This study guide covers key Supreme Court cases and concepts related to the First Amendment's
protection of the press, particularly in its interaction with the right to a fair trial, as well as an
overview of copyright law.
1. Freedom of Speech and Incitement
i) Key Cases & Concepts:
(a) Brandenburg v. Ohio (1969): This landmark case established a two-pronged
test for determining when the government can constitutionally prohibit speech
that advocates for the use of force or illegal action.
(b) The "Brandenburg Test": Speech can be prohibited only if it is (1) "directed at
inciting or producing imminent lawless action" and (2) "likely to incite or
produce such action."
(c) Context: Involved a Ku Klux Klan leader's speech.
(d) Significance: Greatly expanded the protection for political speech, even hate
speech, unless it meets the strict criteria for incitement.
(e) Gitlow v. New York (1925): While the provided excerpt is garbled, Gitlow is
historically significant as it incorporated the First Amendment's free speech
clause to the states via the Fourteenth Amendment's Due Process Clause. This
means states, not just the federal government, are bound by the First
Amendment.
(f) "Political Speech" vs. "Commercial Speech": Political speech, dealing with
government and public policy, receives the highest level of First Amendment
protection. Commercial and corporate speech are also protected but can be
regulated more easily by the government.
2. Reporter/Journalist/Press Privilege
i) Key Cases & Concepts:
(a) Branzburg v. Hayes (1972): This Supreme Court case addressed whether
reporters have a First Amendment privilege to refuse to testify before grand
juries about either events witnessed in newsgathering or the identities of
confidential sources.
(b) Ruling: The Court ruled that reporters do not have an absolute First
Amendment privilege to refuse to testify before grand juries.
(c) Implication: While not absolute, the decision left open the possibility for
states to provide greater protections through "shield laws" or judicial
discretion.
, (d) Shield Laws: State-specific laws that protect journalists from being compelled
to reveal their confidential sources or unpublished information in court. These
laws vary widely in their scope and strength from state to state.
(e) Subpoenas v. Search Warrants: Legal tools used to compel the production of
evidence. Subpoenas typically require a person to testify or produce
documents, while search warrants allow law enforcement to search and seize
property. The Privacy Protection Act of 1980 offers some protection against
search warrants for journalists.
(f) Big Idea 8: Summarizes that reporters do have a limited privilege against
testifying in court, which varies by jurisdiction and circumstance, as
evidenced by Branzburg v. Hayes and shield laws.
3. Media, Public Trials, and Fair Trial Rights
i) Key Cases & Concepts:
(a) Sixth Amendment: Guarantees, among other things, the right to a fair trial and
an impartial jury.
(b) Impartial Jury: A jury whose members are free from bias or preconceived
notions about the guilt or innocence of the defendant.
(c) Irvin v. Dowd (1961): This case highlighted the impact of extensive pretrial
publicity on a defendant's right to an impartial jury.
1. Facts: Leslie Irvin was heavily publicized as the "Mad Dog Killer,"
and many jurors admitted to believing him guilty before the trial.
2. Ruling: The Supreme Court reversed Irvin's conviction, finding that
the intense media coverage prevented him from receiving a fair trial.
3. Remedy: Suggested that a change of venue should have been "farther
away."
(d) Sheppard v. Maxwell (1966): A landmark case that overturned a murder
conviction due to massive and prejudicial pretrial and trial publicity,
emphasizing the judge's responsibility to protect Sixth Amendment rights.
1. Judge's Responsibilities:
2. From this case, judges learned to—
3. Restrict the release of information by the prosecution.
4. Conduct extensive voir dire (jury questioning).
5. Sequester (isolate) the jury.
6. Change venue as a last resort.
(e) Nebraska Press Association v. Stuart (1976): This case established a strong
presumption against "gag orders" (restrictive orders) that prevent the press
from reporting on a trial.
1. Ruling: Gag orders are a form of "prior restraint" and are almost
always unconstitutional. They are only allowed if there is clear
This study guide covers key Supreme Court cases and concepts related to the First Amendment's
protection of the press, particularly in its interaction with the right to a fair trial, as well as an
overview of copyright law.
1. Freedom of Speech and Incitement
i) Key Cases & Concepts:
(a) Brandenburg v. Ohio (1969): This landmark case established a two-pronged
test for determining when the government can constitutionally prohibit speech
that advocates for the use of force or illegal action.
(b) The "Brandenburg Test": Speech can be prohibited only if it is (1) "directed at
inciting or producing imminent lawless action" and (2) "likely to incite or
produce such action."
(c) Context: Involved a Ku Klux Klan leader's speech.
(d) Significance: Greatly expanded the protection for political speech, even hate
speech, unless it meets the strict criteria for incitement.
(e) Gitlow v. New York (1925): While the provided excerpt is garbled, Gitlow is
historically significant as it incorporated the First Amendment's free speech
clause to the states via the Fourteenth Amendment's Due Process Clause. This
means states, not just the federal government, are bound by the First
Amendment.
(f) "Political Speech" vs. "Commercial Speech": Political speech, dealing with
government and public policy, receives the highest level of First Amendment
protection. Commercial and corporate speech are also protected but can be
regulated more easily by the government.
2. Reporter/Journalist/Press Privilege
i) Key Cases & Concepts:
(a) Branzburg v. Hayes (1972): This Supreme Court case addressed whether
reporters have a First Amendment privilege to refuse to testify before grand
juries about either events witnessed in newsgathering or the identities of
confidential sources.
(b) Ruling: The Court ruled that reporters do not have an absolute First
Amendment privilege to refuse to testify before grand juries.
(c) Implication: While not absolute, the decision left open the possibility for
states to provide greater protections through "shield laws" or judicial
discretion.
, (d) Shield Laws: State-specific laws that protect journalists from being compelled
to reveal their confidential sources or unpublished information in court. These
laws vary widely in their scope and strength from state to state.
(e) Subpoenas v. Search Warrants: Legal tools used to compel the production of
evidence. Subpoenas typically require a person to testify or produce
documents, while search warrants allow law enforcement to search and seize
property. The Privacy Protection Act of 1980 offers some protection against
search warrants for journalists.
(f) Big Idea 8: Summarizes that reporters do have a limited privilege against
testifying in court, which varies by jurisdiction and circumstance, as
evidenced by Branzburg v. Hayes and shield laws.
3. Media, Public Trials, and Fair Trial Rights
i) Key Cases & Concepts:
(a) Sixth Amendment: Guarantees, among other things, the right to a fair trial and
an impartial jury.
(b) Impartial Jury: A jury whose members are free from bias or preconceived
notions about the guilt or innocence of the defendant.
(c) Irvin v. Dowd (1961): This case highlighted the impact of extensive pretrial
publicity on a defendant's right to an impartial jury.
1. Facts: Leslie Irvin was heavily publicized as the "Mad Dog Killer,"
and many jurors admitted to believing him guilty before the trial.
2. Ruling: The Supreme Court reversed Irvin's conviction, finding that
the intense media coverage prevented him from receiving a fair trial.
3. Remedy: Suggested that a change of venue should have been "farther
away."
(d) Sheppard v. Maxwell (1966): A landmark case that overturned a murder
conviction due to massive and prejudicial pretrial and trial publicity,
emphasizing the judge's responsibility to protect Sixth Amendment rights.
1. Judge's Responsibilities:
2. From this case, judges learned to—
3. Restrict the release of information by the prosecution.
4. Conduct extensive voir dire (jury questioning).
5. Sequester (isolate) the jury.
6. Change venue as a last resort.
(e) Nebraska Press Association v. Stuart (1976): This case established a strong
presumption against "gag orders" (restrictive orders) that prevent the press
from reporting on a trial.
1. Ruling: Gag orders are a form of "prior restraint" and are almost
always unconstitutional. They are only allowed if there is clear
