Last month Daniel Aaronson tried a very high profiled case in Broward County, Florida. The facts were certainly not a defense attorney’s dream. But what made the case even more difficult to try was the media attention.
As First Amendment attorneys and criminal defense attorneys, we continually have two of our strongest beliefs pitted against each other. That being the First Amendment and freedom of the press and the Fifth and Fourteenth Amendments Due Process rights for those who are criminally accused. Sometimes these competing interests leave those of us who do believe in a free press and the right of an accused to get a fair trial in a quandary as to which should supersede which.
From the First Amendment standpoint, how can there be anything more important than the right of the public to know? How can there be anything more important than our system of justice being made public for all to see instead of the times when justice was dispensed behind close doors and therefore was justice really dispensed.
From the other side, comes the ardent belief that nothing is more important in this country than the right of the accused to get a fair trial. From this standpoint, the right of the public to know can only take a backseat to the right that the accused be given his fair day in court and one not jaded by media exposure.
To us, however, the most important aspect of this debate is that both of these rights need to co-exist together because in essence they protect the same things. How can a person expect a fair trial, if these trials are done in secrecy without media attention and exposure? On the other hand, what good is media exposure and the revealing of a process if in fact the process is not one that is fair and lacking due process? The answer is they must exist together.
Certainly there are times when the First Amendment yields to due process concerns. In those limited situations, courts do hold “in camera” proceedings (out of the sight of the public). On the converse, there are also the times when media exposure has the tendency to inhibit or retard the ability of the defendant to get a fair trial but the First Amendment concerns still must prevail and allow the public the right to know. In these situations, gag orders, requests to the media not to show facial depictions, even orders from the court that media not talk to the attorneys involved, can at times protect and insure those due process rights.
The bottom line of all this is that as long as we cherish the First Amendment and as long as we cherish a person’s right to get a fair trial, these two competing principles of the law will in fact compete. As a First Amendment attorney we would not say that a defendant’s due process rights should take a backseat to the public’s right to know. And as criminal defense attorneys we would not say that the defendant’s right to a fair trial supersedes that public’s right to know.
Rather, there needs to be that balancing between those competing interests. Sometimes these balancings work well and sometimes they do not. But, the only way to handle these problems is on a case by case basis. Any rule that would favor the First Amendment over the defendant’s right to a fair trial or the converse in and of itself is legally flawed.
These two competing interests must be allowed to compete. Without these competing interests, two of the most fundamental interests that we have in this country, our country would not be the same. The media still needs to realize that they are part of a larger process. That they are part of a comprehensive set of laws and rules that all have as their goal keeping this country and making this country the freest and fairest country on earth.