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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?

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    The police knew it was a hate crime because the suspect told the two people he spared exactly why he murdered all those people, and left them alive so they could tell the media. I think there are much better examples of the media interfering with due process than this one. – ColleenV Jun 19 '15 at 21:21
  • 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
  • Well, he did confess. Whether he is too mentally ill to be held fully accountable for his actions is a matter for the court, but there are so many other cases where innocent people's lives were destroyed by the media coverage, I still think this is not a great example. – ColleenV Jun 19 '15 at 22:05
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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.

  • 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
  • @Ws2 Who decides what speech is in the public interest? Who says because I have read something in a tabloid known for exaggeration that I can't still be fair when I listen to evidence in a trial that could put someone in prison for the rest of their life? Obviously you doubt that everything the press reports is true; Why do you assume that everyone else is unable to distinguish between evidence and rumor? – ColleenV Jun 22 '15 at 19:05
  • @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
  • @WS2 I didn't say newspapers had no impact. You missed my point which is that the alternative of government censorship is worse. I trust my fellow citizens to filter what is meaningful from the media more than I trust a bureaucracy to decide what I am allowed to hear. I recognize that every justice system is imperfect, but some cures are worse than the disease. – ColleenV Jun 23 '15 at 14:24
  • @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 5 '15 at 18:17

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