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

By Barend Van Niekerk | Go to book overview

3
Trial Publicity Restrictions

There has long been and there still is in this country a strong and generally held feeling that trial by newspaper is wrong and should be prevented. . . . What I think is regarded as most objectionable is that a newspaper or television programme should seek to persuade the public, by discussing the issues and evidence in a case before the court, whether civil or criminal, that one side is right and the other wrong.

Lord Reid in the Sunday Times thalidomide case l


INTRODUCTION

The formal and informal limitation of various forms of publicity relating to court trials that are either pending or in progress -- referred to henceforth simply as trial publicity -- relates to the other major cluster of restrictions, prohibitions, or inhibitions operative in the West relating to the administration of justice. Whereas the principle of free speech in relation to the protection of the honor or reputation of the personalities of the administration of justice -- or of the administration itself -- has largely been accepted either as well-nigh total in the United States, and at least as desirable in principle elsewhere, free speech in relation to trial publicity remains a disputed topic even in the United States and most European countries and an almost impregnable no-go zone in the balance of the English-speaking world. Unlike the situation regarding free speech in relation to the scandalization of the courts, there has been no dearth of fundamental debate on the topic of trial publicity. However, not even a theoretical consensus has been achieved. Whereas the potential theoretical benefits of free speech in relation to the personalities and institutions of the justice machinery are almost universally accepted in democratic societies, there is considerable academic or theoretical support for an absolute or quasiabsolute legal prohibition on trial publicity. In a number of countries, the legal problems are simply ignored and left to the media to regulate on an informal basis, if at all.

Although the problem of the legal regulation of trial publicity historically had little to do with the role of the media -- especially the press -- it has in this century become very closely interlinked with the influence and the role of the modern mass media in democratic societies. 2 Especially in recent times, the role of the most pervasive forms of the media -- television and the mass circulation press (and especially those sections specializing in sensationalism) -- has become exceptionally important within the ambit of what has become known as the free

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