11th Feb 2014
The Constitution protects the right of individuals to speak their minds and of the press to publish what it sees fit. These rights are critical to a democratic society, and must be vigorously protected. However, at times the right of free expression competes with an accused person’s Constitutional right to a fair trial. “Fairness” goes beyond the familiar concept of a presumption of innocence. It recognizes that the government, which is responsible for prosecuting people accused of crimes, is vastly more powerful and has far greater resources than the accused. To protect individuals from abuses of such power the government must satisfy a significant burden of proof. An accused cannot be deprived of their liberty based on speculation or the personal biases of testifying witnesses; the government must produce evidence that meets legal standards for reliability, and an accused person cannot be compelled to testify or make statements that could be used against them.
The potential impact of sensational media reporting on a trial is well documented. In 1966 the United States Supreme Court overturned the conviction of Dr. Sam Shephard, who was convicted of the brutal murder of his wife, because of sensational and prejudicial news coverage of the case which turned the trial into a media circus. The Court’s rationale for reversing Shephard’s conviction was not novel or unusual. Indeed, the”trial by media” premise of the hit musical Chicago was based on two notorious murder cases from the 1920’s. The Supreme Court found when analyzing the media frenzy surrounding the Shephard case that the public (including judges and potential jury members) cannot ignore everything they’ve read or heard about and rely strictly on evidence that meets legal standards in making their decision. Human nature being what it is, at some point no amount of cautionary admonitions by judges to a jury to ignore what they heard before the trial, avoid the internet, not read newspaper accounts, etc. are effective to neutralize the taint of biased reporting and one-sided publicity campaigns.
Modern journalism seeks to avoid such results by adhering to professional standards of objectivity and practices including careful fact-checking, goals admittedly not always reached. Of course, such standards of objectivity and neutrality do not apply to the expressions of opinion by individual readers. Opinions, by definition, are not “facts” but can be based on speculation and personal bias. Nevertheless, each of us has a Constitutional right to express our views about anything, regardless of our lack of personal knowledge, the absence of reliable evidence or reliance on rumor and innuendo. Indeed, the right of free expression underlies the vigorous public debate necessary to a free society, which the Constitution seeks to promote.
Although everyone has a Constitutional right to express their opinion, the right of free speech and a free press does not protect anyone from the legal consequences of certain types of speech. For example, one does not have the right to falsely yell “fire!” in a crowded theater where it may prompt a dangerous stampede, and one does not have a right to incite another to commit a violent act. False statements, both verbal and in writing, may result in civil liability for slander or libel and a substantial judgment can be imposed for hurt reputations and feelings. One may be required to withdraw advertising that exploits another’s private life, or may have to share profits derived from endorsements used without permission. The law protects trademarks, brand names and similar property interests by imposing harsh penalties for passing off a product or brand as affiliated with a more successful product or brand. In other words, the Constitution allows each of us to express our views, even where such expression is wrongful. Thus, the Constitution does not protect speech that deprives someone of their right to a fair and impartial trial, thus imperiling their liberty, through publication of false statements, biased speculation and half-truths in the name of journalistic freedom.
In an earlier era, the opinions of members of the public could be shared beyond an individual’s immediate circle through letters to newspaper editors, publication of books or other similar means. It was uncommon for the average person’s individual views about a subject to become widely publicized throughout the country, or internationally. Rarely could a single person publicize their views to millions of people instantaneously. Today, however, the growing use of social media by the public to communicate and obtain information has changed the way opinions impact society, including an accused’s right to a fair trial. Anyone who posts their opinions on dozens of popular sites is suddenly a “pundit”, a Sanskrit word meaning a “learned person” but which now refers to anyone who offers their opinions to mass media, ie, a “talking head”.
When disputes are publically aired on social media by nameless, faceless persons with little accurate information and an obvious bias, the legal issues, reliability and significance of the evidence (at least, the evidence the commentators have heard about) ceases to have meaning; the public discourse becomes the dispute. The case is no longer about what really happened, but about the tension between the opposing camps’ perceptions, reactions, emotions and opinions. Objectivity and reflection give way to contempt, derision and provocation. Everyone involved has (strong) opinions about what should happen and to whom, about who should be believed or disbelieved, disgraced or exonerated, jailed or freed, convicted or acquitted, receive compensation or pay it. Social media actively promotes and encourages unrestricted spewing– with no adverse consequences to the author for inaccuracies, biases and even outright fabrications.
While the anonymous commentators on social media speak without accountability, the accused responds only at their peril, risking a waiver of their Constitutional right to remain silent. In such circumstances, the public “debate” is no longer the vigorous discourse the Constitution seeks to protect, but a barrage of disparaging comments by one side in a sort of ad hoc publicity campaign to effectively “poison the well” that has unintended consequences affecting the ability of the judicial system to deal with the case as the law intends: by a jury of the accused’s peers, who are members of the public with no stake in the outcome, no pre-conceived biases, and who are thus capable of being objective and dispassionate in weighing evidence that is relevant, reliable and has been subjected to scrutiny by cross-examination at trial.
The legal system recognizes the pitfalls of excessive notoriety and provides some limited and sometimes flawed ways to deal with the problem. Potential jury members are routinely questioned about their knowledge of a case and familiarity with the participants during jury selection. If publicity makes it difficult or impossible to find an untainted jury, the case may be transferred to a distant county or court where the events were not widely reported (a scenario made increasingly unlikely by social media). In rare situations a case may be dismissed because it is impossible to obtain a fair and impartial result at trial anywhere. In other cases a conviction may be overturned on appeal, as in the Shephard case.
The irony in such cases, of course, is that a possible unintended consequence of amateur publicity campaigns intended to convict a person in the court of public opinion is that they are counterproductive. It is this possibility that underlies professional journalism standards regarding the reporting of sensitive information that may compromise a case, or factual allegations based on evidence of dubious significance or reliability. Those in professional media are similarly deterred from exposing themselves to liability for defamation by reporting disparaging and potentially injurious claims about someone that have not been independently verified as accurate, no matter how vigorously the original source insists the information is true.
Technology has advanced so rapidly that the courts have yet to decide what to do about the conduct of amateur cyber-pundits. However there is no question that the courts will focus on the competing Constitutional rights of accused persons’ right to a fair trial, and the right of free speech to decide how the law will deal with “trial by social media”. Until they do, responsible people need to exercise self restraint rather than contributing to the noise.