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I have watched the media circus surrounding the arrest of a 21-year-old male on suspicion of having murdered nine people in Charleston.

Vast amounts of information are spewing forth from the news media, some of which will undoubtedly be true, some of which will have been entirely made up by newspapers to sell copy, and the rest of which will be somewhere in between.

How is it possible without rules of contempt to ensure that due process is unfettered? How can a jury be impaneled that has not already read so much about the case that they have preconceived ideas as to guilt or innocence?

In the early stages of the search police officials declared it was a hate crime. How exactly did they know this? And couldn't its widespread circulation affect the outcome of the case?

jimsug
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WS2
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  • The title and the body ask slightly different questions. – HDE 226868 Jun 19 '15 at 21:35
  • @HDE226868 I agree and apologise for that. For that reason I will amend the title. – WS2 Jun 19 '15 at 21:47
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    @ColleenV During the course of today I have heard such a cacophony of damaging information against the accused, that I just wonder if there can be a man or woman in America who has not already decided that he is guilty. Were he brought before a British, (or I suspect Australian court) in these circumstances his defence team would begin by asking for the case to be set aside on the basis that he could not possibly receive a fair trial. And it would be given serious consideration by the judge. – WS2 Jun 19 '15 at 21:57
  • @WS2 I had no idea there was even a case going on. And I'm a man in America. Then again, since I was born into the internet, the last time I actually flipped on a television and watched a news broadcast was nearly a decade ago. – Parthian Shot Jun 19 '15 at 23:50
  • @ParthianShot The main strategy is to put oblivious folks like you on the jury and change venue for matters that have only local notoriety. – ohwilleke Jan 06 '17 at 00:40

1 Answers1

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The United States gives the accused the right to a fair trial. However, it also gives exceptionally strong protection to the media (and to people in general) to speak on matters of public concern; there are very, very few cases where a US government (federal, state, or local) can legally order someone not to publish something (as opposed to letting it be published and then issuing sanctions). The rule of thumb for content-based restrictions on speech is that they must be the least restrictive way of achieving a compelling government interest.

For trials, there are other ways to achieve a fair trial without restricting the press. One of the most preferred ways to do it is to use the voir dire process, in which jurors can be rejected for prejudice. Courts can also move the trial to a new location; they can grant motions from the defense to delay the trial while things cool down; they can sequester the jurors (meaning that the jurors are kept in a central place and prevented from talking to anyone else or reading anything about the case); if none of these are done, a conviction can potentially be reversed on appeal. US courts will, wherever possible, modify the trial to mitigate the damage done by the press, rather than restrict the press to mitigate the damage to the trial.

For a review of a few different approaches to this in different jurisdictions, you might want to look at this law journal article.

feetwet
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cpast
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  • A free press is essential to the airing of matters of public interest. However as the recent scandal in the UK concerning the hacking of phones of celebrities, the bereaved etc shows, the public interest is not always the same thing as that which interests the public. Tabloid newspapers sell very well with headlines about who is sleeping with whom. But are they necessarily matters of public interest? In the same way expressions of mob anger at the time of an arrest interests the public, but is it not perhaps contrary to the interests of justice? – WS2 Jun 20 '15 at 13:06
  • @ColleenV If you seriously believe that newspapers can play no part in the way judicial decisions are made I would urge you to study the details of the Hillsborough disaster in which 96 Liverpool football fans lost their lives in 1989. The dominant narrative about the causes of the incident, as confirmed by judicial proceedings are now seen to have been propagated by a biased tabloid news industry. If it can happen on that scale involving 96 people, what chance would one individual stand against the might of the press. – WS2 Jun 23 '15 at 10:29
  • @ColleenV But faced with a potential conflict between a totally free press, and the need to ensure that an accused receives a fair trial, there is no doubt which takes priority in my mind. There cannot be anything more fundamental to democracy and the rule of law than the sanctity of judicial process. – WS2 Jul 05 '15 at 18:17
  • @WS2 But you are taking things to a preposterous extreme, assuming there is literally no way to achieve a fair trial other than censorship. There are many ways to deal with it. See this very answer. – cpast Jul 05 '15 at 18:38
  • @cpast There are clearly some things you don't understand. Sub judice rules do not amount to censorship. All that they mean is that the press cannot discuss the evidential detail until the case is heard in court. Once it is heard in court the press can and do report whatever they like. An editor who attempts to report when the case is sub judice is said to be in contempt of court. He or she can be summoned by the judge and, unless he purges his contempt can in rare situations be jailed until he does so. Sub judice laws have existed in Britain since the 1920s (Continued) – WS2 Jul 06 '15 at 18:24
  • @WS2 "The press cannot report X until we say so and can potentially be jailed for doing so" is censorship. Censorship isn't an unmitigated evil (laws against disclosing nuclear launch codes are also censorship), but sub judice is absolutely censorship. The US has a strong tradition of an essentially unrestricted press; since those rules are not generally needed to ensure a fair trial, they are unacceptable in the US. – cpast Jul 06 '15 at 18:36
  • (B Fwd) and exist in most English-speaking jurisdictions. There is no political pressure coming from anywhere in the UK, either from politicians or the press, for these rules to be changed. They are accepted as an important safeguard against cases being determined by a lynch-mob, who put all manner of lies and untruth into the public domain. – WS2 Jul 06 '15 at 18:49
  • @cpast And (especially in the South) the lynch-mob continues to rule! – WS2 Jul 06 '15 at 18:50
  • @WS2 That's good for other countries. Not sure how it's relevant in the US, which is not a different English-speaking country. I'm not sure what you're talking about with lynch-mobs deciding court cases; we've established that you do not actually know how US courts handle this or what effect US media has on US juries. – cpast Jul 06 '15 at 18:50
  • The preference, in the US, is to solve this problem through jury sequestration. The court does have the contempt power, I'm not sure where you get the impression that it does not. It can't wield it against crappy reporting, but it can and will use it to punish jury tampering. Cameras are not always permitted in courtrooms. – daffy Jul 25 '15 at 21:09
  • @daffy Was that a reply to me, or to WS2? – cpast Jul 25 '15 at 21:40
  • @cpast that was in reply to WS2, sorry. – daffy Jul 25 '15 at 22:07