A serious debate is developing over whether the traditional freedom of the press does damage to the recently emphasized rights of the accused. Since the First Amendment of the Constitution guarantees the right of Free press explicitly, and since the Sixth Amendment requires that an accused be given a speedy trial by an impartial jury, many consider the issue of "free press vs. fair trial" a serious contradiction in the U.S. Constitution.
The fact is, however, that underlying this debate lies a very far-reaching assumption which has not been clarified. Those who have lined up on either side of the controversy have emphasized the social or moral importance of one of the constitutional provisions over and above the other, hoping that this approach would win them the required constitutional revisions (by limiting the right of the press), or the retention of the status quo (at the acknowledged expense of the accused, however). What is rarely, if ever, realized in this controversy is that it is not the Constitution which embodies a contradiction but the claim that "given a free press, a fair and impartial jury is impossible." Before I explore in just what way this claim embodies a contradiction, let us see how it happens that it has been taken seriously by so many.
Newspapers being what they are, on the occasion of a crime they will explore whatever is newsworthy about the crime, the suspects, etc. Very often information will be offered by newspapers which would not necessarily be admissible in a court of law, as for instance the criminal record of a person who is accused of a crime. Given this sort of information in the press (and other news media), it is assumed there could not be anyone who would be fair and impartial for purposes of serving on the jury. Since the newspapers print their news before a jury is selected, and since most people in the areas read the newspapers (or come in contact with other news sources), by the time jury selection rolls around "the minds of the prospective jurors will be conditioned to pass judgment in certain ways." (This claim about the influence of the press secured Dr. Sam Sheppard his new trial and, eventually, his freedom.)
What is assumed in all this? It is simply that people are incapable of confining their judgments to what is relevant in the situation of a courtroom. In effect, then, the whole controversy of "free press vs. fair trial" is based on the premise that "if a member of a jury knows anything about the accused which has not been admitted into evidence, he cannot, pass judgment over the guilt or innocence of the accused in accordance with the law." This strikes at the very heart of the claim that man has the capacity to be objective.
In ordinary life, we tend to take it for granted that there are prejudiced people to whom it is a waste of time to present facts and arguments, and that there are those however, who are willing and able to listen to a set of facts and base their judgment on this, exclusively. This is what gives us our general confidence in our jury system. We hold, implicitly, that when a number of carefully selected people are asked to judge certain facts in accordance with a set of standards—that is, the law—these people will, through diligence and conscientiousness, apply themselves to this task and accomplish what is expected of them. The controversy I am considering denies this common understanding. It holds that if people are confronted with facts which may lead to certain conclusions, they will not be able to disassociate themselves from these conclusions and facts when so asked, and that they will not be able to pass judgment upon a (legally) relevant set of facts without prejudice. Notice that this is not a claim about what people often fail to do but should do; it is a claim about what people cannot accomplish by their very natures. So the claim itself goes far beyond the issue of fair trials. It is an indictment of man's ability to rid himself of prejudices, false beliefs, irrelevancies in given situations. The very possibility of objectivity in all matters, including the matter of judging a man accused of a crime as guilty or innocent, is at stake in this controversy.
With the Constitution as it stands, it is assumed that despite free access to information, prospective jurors will be capable, if willing, to confine their judgments to the case and setting (the trial) at hand. The newly sparked controversy denies this possibility; but it does more than that: it denies that any human being is capable of offering objective judgments on anything once he has been exposed to facts which may be related (or may seem to be related) to the situation about which judgment is required.
And here is where the claim indicting human judgment and objectivity runs into serious difficulties. The claim itself, or so its proponents would like to maintain, is objective, unprejudiced, pure, etc. But how can it be? If all human judgments, ranging from those made by jurors to those made by all others, are necessarily fettered by irrelevant facts, prejudices, etc., would the judgment which arrived at this conclusion also be so fettered? And if it is a hampered, disturbed, prejudiced judgment, why should we accept it at all? Is it not the aim of this indictment of the human capacity to make objective judgments to show that such judgments are unreliable precisely because they could not be objective? But if so, then the indictment itself is unreliable and cannot be accepted as valid. So the basis of the whole controversy is dissolved since it rests on a contradiction. If the indictment is valid, then it is invalid; only if it is invalid could it hope to be valid. Thus the indictment cannot be supported at all.
The controversy about "free press vs. fair trial" is sham. It rests on a mistake or misrepresentation of facts. Let us hope that those who could act on such mistakes will not be moved to act on this one.
Let me now add that there is something which should be of concern to those who are interested in maximum justice within the criminal law. This concerns the appropriateness of police and court authorities to supply newspapermen with information not related to the crime in question. Is it right for clerks to release the information on the accused which concerns the accused's record of previous arrests? Should other personal data be at the disposal of the public? Should legal authorities supply reports with any kind of information pertaining to a crime?
These questions require lengthy answers. But they do not pertain to questions of "Free Press vs. Fair Trial." A newspaperman should be allowed to print anything he can get his hands on. Whether a police or court official should be able to release any information to newsmen which happens to be in his trust is an entirely different question. It relates to that other touchy problem of "Open vs. Closed Public Files."
This article originally appeared in print under the headline "Free Press vs. Fair Trial".