The Cloistered Virtue: Freedom of Speech and the Administration of Justice in the Western World

By Barend Van Niekerk | Go to book overview

2
The Formal Restrictions on Legal Free Speech: The Protection of the Prestige and Standing of Legal Officers and of the Administration of Justice

If men, including judges and journalists, were angels, there would be no problems of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them.

Justice Felix Frankfurter in the Pennekamp ease 1


INTRODUCTION

Because people are not angels, there have always been attempts in most legal systems to control the relationship between the administration of justice and its potential critics and commentators by some form of formal restrictions on free speech. This chapter will take a broad and critical look at representative examples of formal speech restrictions in the legal domain pertaining to the protection of officials within the administration of justice and evaluate these restrictions on the basis of the premises discussed in the first chapter. The same approach will be followed in the third chapter as regards various formal restrictions on comments and reports on trials that are imminent or proceeding. The object will not be to furnish all the technical details of these restrictions on free speech, but only to provide their essential outline, particularly the identifiable consequences of their enforcement on the values inherent in a system of government claiming allegiance to Western democratic traditions.

One important point is that the existence and/or mode of application of formal restrictions have a fallout effect far outside the primary point of impact. The contempt law of England, for instance, has created an atmosphere of selfcensorship far beyond the scope of the probable intention of the prosecuting authorities. 2 In addition, the excessively restrictive jurisprudence of the German Ehrengerichte in matters pertaining to comments about the courts has very considerably inhibited the willingness of lawyers in Germany to speak out forthrightly on controversial matters within the administration of justice. In certain countries, the legal advisers to newspapers are often the invisible but highly influential ééminences grises who determine the reach, and often the excessive reach, of formal restrictions by their decisions to print or not to print. Inquiries into the South African prison conditions have to all intents and purposes completely stopped 3 -- and inhibition has been rendered even more total

-45-

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