Friday, December 19, 2008
Giorgio Resta, Università degli Studi di Bari, Law Faculty, has published "Trying Cases in the Media: A Comparative Overview, forthcoming in Law and Contemporary Problems. Here is the abstract.
Foreigners to the United States are usually struck by the harshness of its conflicts between justice and the mass media. If it is undeniable that the tension between a sensationalist, commercially motivated press and fair-trial rights in the United States has reached a degree unmatched in the rest of the world, it would be naive to look at this matter and the problems involved as only American legal curiosities. A simple glance at the most recent books and international symposia on this topic shows that similar questions are discussed in almost every jurisdiction and cannot be automatically linked to the peculiar framework of the American legal process.
This article will offer some insights on the issue of court-related speech restraints from the point of view of comparative law. Part I will introduce the subject. Part II will provide a general analytical framework, isolating and discussing three basic models of regulation. I will argue that the leading conceptual dichotomy of free press versus fair trial, as a product of thinking in terms of the English and U.S. models, is culturally biased and reflects the typical common-law perception of the interests at stake in the relationship between justice and the media. Part III will focus on some selected Continental European experiences, usually disregarded by the mainstream literature on the subject. The principle techniques employed for restricting media freedom to cover judicial proceedings will be analyzed to show that protecting an impartial administration of justice should not be the only rationale for interferences with freedom of expression.
Download the paper from SSRN here.