Media in the Courtroom:

Analysis of the Conflict between Freedom of the Press and Fair Trial

In Dennis v. United States, Justice Frankfurter stated that the importance of the criminal justice system lies in its ability to set “morally fastidious standards” which enables the people’s “confidence in our institution, respect for reason, and loyalty to our profession of fairness” (qtd in Helwig, 1967, p. 149). The aspect of fairness within criminal cases is apparent as the accused in a criminal case is initially presumed to be innocent. In this sense, he may not be punished unless a fair and impartial jury is convinced of this guilt beyond a reasonable doubt by evidence lawfully admitted within his trial. In addition to this, the accused is entitled to public trial without undue delay in the place where he supposedly committed the said crime. He is also provided the right to confront and cross examine his accusers and if necessary should be allowed the assistance of an attorney. At the same time, the accused is also fully protected from compulsory self-incrimination. In the process of gathering the evidence, the state must also have due regard for his right to be free of unreasonable search and seizure.

As one can see from what was stated above, the concept of a fair trial is hinged not necessarily upon law enforcement but more on the protection of the innocent. Gilbert Helwig notes, “The underlying premise of our concept of justice is that it is better for a crime to go unpunished than for an innocent man to be convicted” (1967, p.149). This is in accordance to the conception of the inhumanity of a situation wherein the accused is placed in a position wherein he is forced to wage a war against society. In this sense, the right to fair trial of the accused is in accordance to his right of reputation and the right to confidentiality.

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In conflict with this right, however, is the right of free speech. The conflict is evident if one considers the proliferation of mass media accounts of criminal trials as well as the public’s fascination for judicial proceedings. Andrew notes,

The Framers of the Constitution created both freedom of the press and the right to fair trial in the first amendments of the Constitution…Initially, both rights were cooperating rather than competing…however since the landmark case of Sheppard v. Maxwell…the courts have decided that these two interests …compete.  (1986, p.169)

The competition lies in the seeming conflict between the aforementioned rights [right of free speech, right of fair trial, right of confidentiality, and right of reputation]. In lieu of this, what follows is an analysis of the conflict arising from these rights. In what follows, I will argue that the right to free speech does not supersede the right to fair trial.

The right to free speech stands as a monument of freedom within democratic societies. It enables the right to freely and publicly criticize the institutions of the government, the conduct of public affairs as well as the freedom to criticize the actions and decision performed by the judiciary. It stands as a primary right of each individual. Kentridge notes that “in the United States, the Supreme Court has disavowed any hierarchy of constitutional rights…(however) freedom of speech and of the press is in fact a primary right in the sense that…it takes precedence over other rights or interests (1995, p.254). Despite of this, decisions made by the court also show that it is important to recognize the form of speech which is being made by an individual as he stresses his right of speech. Kentridge notes, “as can be seen in the decisions made by the court not all speech is accorded the same value: political speech carries more constitutional weight than commercial speech” (1995, p.258). Given this distinction, one must consider whether the right to free speech practiced by the media may be qualified as a political speech rather than a commercial speech. Let us consider the OJ Simpson trial for the purpose of this distinction.

In the OJ Simpson trial, the argument provided by the defense for the inclusion of cameras within the courtroom is as follows.

We would suggest that cameras be allowed in the courtroom because we believe that the evidence or lack of evidence will show that Mr. Simpson is not guilty of these crimes. And for Mr. Simpson to have a life after this case with his children will require the American public to have an understanding that his acquittal was based on evidence presented in a courtroom, not based on evidence that was in some way manipulated by lawyers…We favor the fact that when Mr. Simpson, if he is acquitted, returns to society, that the public has a true perspective on what the real state of the evidence was in his case. (qtd in Cohn & Dow, 1998, p. 4)

It is important to note that the argument provided by the defendant’s attorney for the inclusion of the camera within the courtroom in the aforementioned case appeals to a certain extent to the initial claim of the need for the accused to retain his innocence in order to prevent the inhumanity of a situation wherein the accused is placed in a position wherein he is forced to wage a war against society. This can be seen in the defendant’s claim that Mr. Simpson’s life after the trial, in case he is proven guilty, is dependent upon the public’s awareness that he was acquitted based on evidence. In this sense, the claim for the need of the broadcast of the trial may seem to stand on political grounds. It is however important to note the effects of the media broadcast to the atmosphere within the courtroom was detrimental to the case itself. David Bruck, on the defense attorney’s, said that the cameras proved to be paralyzing and enabled the increase of the tension within the courtroom itself (qtd in Cohn & Dow, 1998, p.5). In addition to this, if one would look at the OJ Simpson case, the trial made by the media itself proved to be unhelpful to the case. Krausse notes “although the trial resulted in an acquittal, the Simpson case vividly illustrates the ways in which pretrial publicity of high profile cases can endanger an accused person’s right to a fair and impartial trial” (1996, p.538).  The danger here lies in the impartiality of the media itself which tends to sway the public opinion. The impartiality here may be seen as stemming from the media’s motive for the broadcast itself. It is not so much as it enables the people’s acquisition of information regarding the proceedings within the court but the broadcast of events that ensures increase in profit.

In summary, I’ve argued that the right to free speech does not supersede the right to fair trial. The reason for this lies in the commercial form of speech which is being lobbied by the media in order to ensure their coverage of judicial proceedings.


Andrew, E. (1986). “Prosecutor and Pre-Trial Publicity: The Need for a Rule.” Journal of Legal Profession, 11, 169-186.

Cohn, M. & D. Dow. (1998). Cameras in the Courtroom: Television and the Pursuit of Justice. New York: McFarland.

Helwig, G. (1967). “Fair Trial versus Free Press: Must We Choose.” Judicature 5, 149-152.

Kentridge, S. “Freedom of Speech: Is It the Primary Right?” The International and Comparative Law Quarterly, 2, 253-270.

Krause, S. (1996). “Punishing the Press: Using Contempt of Court to Secure the Right of a Fair Trial.” Boston University Law Review, 3, 575-604.


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