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Unpublished Paper
Balancing the Scales: Adhuc Sub Judice li Est or Trial by Media
ExpressO (2014)
  • Casey J Cooper, Emory University

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into account the modern realities that expression has on the fair administration of justice, particularly with respect to the “clear and present danger test.” Using examples from international tribunals and other common law jurisdictions, this Article undertakes a critical analysis of the American judicial approach to balancing these rights and suggests a more dynamic form of the “time, place, and manner” test to evaluate court’s contempt power and prior restraints to punish and prevent out-of-court statements and press reports about judicial proceedings, incorporating: (1) Article 10(2) of the European Convention on Human Rights; (2) case-law and legislation from other common law jurisdictions; and (3) sub judice principles. The United States must change its approach to protect the right to a fair trial and maintain the authority and impartiality of the American courtroom: this Article suggests a possible formulation of such a statute and concludes that the United States can enact it without running afoul of the First Amendment.

  • Sub judice,
  • contempt,
  • prior restraint,
  • clear and present danger,
  • Bridges,
  • Near,
  • Nye,
  • Toledo,
  • Sunday Times,
  • First amendment,
  • media,
  • press,
  • fair trial,
  • sixth,
  • Commonwealth,
  • United Kingdom,
  • Australia,
  • Frankfurter,
  • ECHR,
  • Article 10,
  • Common Law,
  • Anglo,
  • Super injunction,
  • Trafigura,
  • Spycatcher
Publication Date
July 7, 2014
Citation Information
Casey J Cooper. "Balancing the Scales: Adhuc Sub Judice li Est or Trial by Media" ExpressO (2014)
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