The issues arising out of conflicts between a fair trial (guaranteed by the Sixth Amendment) and a free press (guaranteed by the First Amendment) are myriad, but one issue is primary and two others are extremely important. (See the end of this introduction for the texts of the First, Fifth, Sixth, and Fourteenth Amendments.)
Primary is the problem of assembling an impartial jury. In essence, this issue centers on the difficulty of finding prospective jurors who are not prejudiced unconstitutionally for or against a defendant because they were exposed to extrajudicial information from the media. While it is virtually certain that during a trial jurors will be exposed to information prejudicial to a defendant, it is also true that special safeguards regulate the introduction of testimony and evidence in a court of law. American constitutional law contains no such safeguards governing what extrajudicial information the media may disseminate about defendants. Consequently, jurists justly are concerned about unregulated publicity that may unfairly (and so unconstitutionally) prejudice prospective jurors before a trial begins.
Although the possibility exists that pretrial publicity could unconstitutionally prejudice prospective jurors to favor a defendant, in practice this is rare. The Court, however, did face at least two appeals on this basis. Convicted of polygamy, George Reynolds appealed the dismissal of prospective jurors who were also polygamists ( Reynolds v. U.S. [ 1878]), and Mima Queen, who lost her suit to win freedom from slavery, appealed the dismissal of a prospective juror who said he detested slavery ( Mima Queen v. Hepburn [ 1813]). Moreover, in 1992 a man charged with sending obscene letters asked a judge that his jury be made up of only nymphomaniacs and atheists because only these jurors would be free from unconstitutional prejudice against him. His request was denied.
Two other issues relevant to the conflict between a fair trial and a free press are extremely important: access and due process. Access is a doubleedged sword. One edge cuts to the notion of citizen access to the media. This notion is only tangentially related to the conflict between a fair trial and