Can the simple exercising of speech cause harm?

In the study of constitutionally protected speech, there is much discussion on whether speech that incites violence, hate crimes, or intentional falsehoods should be protected. There is however, another category in which speech can and has been regulated that has nothing to do with its content or potential for violence.

Sometimes, the overexercise of speech itself, regardless of its nature, can elicit harm by its existence. Such is the case with the abundance of press coverage surrounding Sheppard’s trial of the case Sheppard v. Maxwell in 1966.

Following the murder of Sam Sheppard’s wife in 1954, a monthlong investigation coupled with massive amounts of negative press condemning Sheppard of the crime, Sheppard was arrested. The negative press started just three days after the murder, the day of the funeral. The press criticized the Sheppard family for lack of cooperation with the investigation and continued to negatively cover Sheppard until and following his arrest.

Accusations against Sheppard and demands for his prosecution appeared almost daily in the local press. Press was heavily involved throughout investigation, even being present at the coroner’s inquest. Additionally, the jury list with names and addresses was published in the local press, prospective jurors received numerous messages trying to persuade how they decide the case; so much press and equipment was in the courtroom that some testimony couldn’t be heard. On top of all of that, local officials didn’t monitor jurors who made several calls during deliberations without records of call content or recipient. Following a five-day deliberation, the jury found Sheppard guilty and he was sent to prison.

In the chapter Balancing Interests, Lewis reveals a “striking curiosity” that comes with the Sheppard case that speaks a lot to the importance of historical context under which the Supreme Court rules. Though this is a case I previously studied extensively, I never put together why if Sheppard was convicted in 1954, denied a petition for review by the Court in 1956, was the Court willing to not only hear the case on a petition for habeas corpus ten years later, but also rule in favor of Sheppard?

As Lewis explains, because the petition “focused on the prejudicial effect of the press behavior before and during the trial,” his guess is that the justices found it to be a compelling case following the assassination of President Kennedy and the subsequent murder of the alleged assassin, Lee Harvey Oswald. Not only was this in recent memory, Chief Justice Warren himself was also the chairman of the commission that investigated the assassination and its aftermath.

Of observations born out of the commission, Lewis writes, “the commission wrote stingingly about the behavior of the press in Dallas, among other things its overwhelming presence in police headquarters–which may have helped Jack Ruby come in and shoot Oswald.”

Though many may have felt like it was a relief for justice to be swift and to not have to endure the predicted long trial of Oswald, for someone like Chief Justice Warren, it likely felt like a puzzle that would never find its last piece.

Without the investigations and process of a trial, it was an incomplete story, one that had yet reached the constitutional threshold for guilt beyond reasonable doubt. It only then makes sense why after a decade the justices would choose to look at this case.

In the petition, his attorney argued that Sheppard was effectively tried and convicted by the news media, and a fair trial in the courtroom could not and did not occur. The Supreme Court agreed.

In their decision, they found that Sheppard’s constitutional right to a fair trial violated due to how his trial was handled and the press’ excessive role in the community and the trial in condemning Sheppard.  They believed that the negative publicity had a direct effect on the violation of his rights, even though the press does have the right for courtroom reporting.

“Due Process requires that the accused receive a trial by an impartial jury free from outside influences.” -Chief Justice Warren

In this case, though the press coverage’s content was negative and inflammatory, it wasn’t the words that ultimately caused for the Court to side in favor of  Sheppard. But rather, the unrestrained access and involvement with the case before and during the trial.

As a result, they rule that courts can limit press in the courtroom or shape proceedings to prevent jury bias by the press. Since the courtroom and courthouses are premises subject to control, they could have quelled the carnival atmosphere by limiting the press. “The presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged”

The Court said nothing of regulating the content of the reporting in Sheppard, instead focusing on how the press prevented an impartial jury to exist. They found that because modern communications is so prevalent, courts must take strong measure that the balance is never weighed against the accused.

Though you can’t prevent press from reporting courtroom happenings, “where there is reasonable likelihood that prejudicial news prior to trial will prevent a fair trial” the judge should either continue case until the threat dies down, or transfer the case to another county not permeated with publicity. 

Sometimes too much speech stands in the way of constitutional protections, rather than protect them.

 

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