An Exploration of the Relationship Between Fair Trial and Freedom of Expression

The common law legal systems of the world are forever seeking to balance competing rights. The law is not a static entity; it changes and evolves through legislation and court decisions as the society that it seeks to regulate develops. The right to a fair trial lies at the core of what it is to have a just civilization. To be judged without bias within a legal system free from corruption and external influence is a key component of overall good governance. Likewise, the right to freedom of expression is equally important. A fair society is one in which its citizens can openly comment on the affairs of government and be free to voice their opinions without fear of state retribution.

While both these rights are necessary components of a democracy, however, when one leaves aside ideals and theory the picture becomes decidedly more muddled. At a practical level, reconciling the need for a fair trail with freedom of expression is a complicated messy endeavor. The constant struggle to weight the right of the accused or plaintiff to an unbiased hearing against the press’s right to cover the proceeding and report on public matters of interest is fraught with difficulties and often results in revaluations of current norms. It is this core concept of an unprejudiced trial within the context of media and the courts that will be examined. Though the law referenced is Canadian, the nature of this discussion is international in its scope and, therefore, a variety of international sources will be drawn upon for argument and analysis.

The weighting of the right to a fair trail against the right to freedom of expression within Canada is a precarious balancing act. When covering the courts, the media needs to be conscious of its ability to erode the underpinnings of a democratic society just as it seeks to champion that democracy through asserting freedom of expression. This contention will be explored through an examination of how the media’s focus on certain aspects of the justice system creates a misleading image of the proceedings, and also through an investigation of their role in undermining a broader faith within the justice system as a whole. Before turning to this analysis however, it is first necessary to place this debate within a broader historical and social context.

A Common Law Framework for the Right to a Fair Trial and the Right to Freedom of Expression
The principle of openness within society allows for citizens to follow, communicate and engage with the activities of their government. It follows that citizens can only be informed about the practices of government and develop knowledgeable opinions about those activities if they have information about its functions. (Law Reform Commission of Canada, p. 5) The idea that free expression concerning public affairs is central to democracy is a thread present in the writing of liberal democratic theorists since the work of John Milton in the 17th century (LRCC, p.7). A citizenry that is informed will generate better ideas and debates, which will ultimately result in societal development and innovation. Society is only healthy when opposing opinions and ideas can be aired and debated; when that ability is circumscribed, a civilization loses its capacity to pursue truths. An open society furthermore guards against government tyranny through promoting transparency on the part of the state (LRCC, p.5). The legal theorist Thomas I. Emerson extrapolates on what freedom of expression means on page three of his work The System of Freedom of Expression:

A system of freedom of expression, operating in a modern democratic society, is a complex mechanism. At its core is a group of rights assured to individual members of the society. This set of rights, which makes up our present-day concept of free expression, includes the right to form and hold beliefs and opinions on any subject, and to communicate ideas, opinions, and information through any medium – in speech, writing, music, art, or in other ways. To some extent it involves the right to remain silent. From the obverse side it includes the right to hear the views of others and to listen to their version of the facts. It encompasses the right to inquire and, to a degree, the right of access to information. As a necessary corollary it embraces the right to assemble and to form associations, that is, to combine with others in joint expression.

Within that exploration of expression lies a reference to the media. The press facilitates the free flow of information through its coverage of events. Freedom of the press is intimately connected with a society’s overarching openness; only through this type of communication can the public become aware of issues that affect it as well as gain exposure to a diversity of viewpoints (LRCC, p.9). One of the areas where media reporting is of particular importance for an open society is coverage of the courts. Jeremy Bentham expressed the necessity for press coverage of trials when he wrote: “In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice” (The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring, p. 493).

The right to a fair trial is also a cherished element of free and just societies. For the purposes of this paper a fair trail shall be defined as “one in which the determination of the facts in the case depends solely on an evaluation of evidence lawfully tendered by the prosecution and the defense” and one in which “no weight should be given to any information about the case that is revealed outside of the courtroom and no deference..paid to opinions expressed about the case by outside commentators, however venerable they may be”(LRCC, p.19).
To place both of the these fundamental principles, the right to freedom of expression and the right to a fair trial, within a Canadian context one must turn to the Canadian Charter of Right and Freedoms. In section 2 (B) of the Charter it states that everyone is entitled to the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. These fundamental freedoms, as well as the others listed under section 2, are, however, tempered. Section 1 of the Charter states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Section 1 then allows for limits on core freedoms provided that their restriction serves the aims of a free and democratic society. Regarding media communication, these constraints are applied through laws against libel, hate propaganda and obscenity that ultimately seek to protect citizens reputations, general social harmony and dignity (LRCC, p.9). The right to a fair trail is also an underlying element of democracy that must be protected. Under section 11 (d) of the Charter it says that any individual charged with an offense has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.

Balancing these two competing tenets of good governance is difficult. The Law Reform Commission of Canada attempts to grapple with the issue stating: “It is a troubling endeavor which requires weighting the harm that results from limiting openness and freedom of expression against the harm that results from limiting any of the other significant interests at stake” (LRCC, p.19). When a person’s opportunity to receive a fair trail is limited it is easy to see the harm that results from this; that person runs the risk of being convicted and penalized for a crime they did not commit and their personal safety and liberty could be jeopardized. It is more difficult to concretely measure the harm done by restricting freedom of expression in favour of a fair trial. The harm done is abstract; the public may never access information about the proceedings, a legal lesson may be missed, corrupt conduct may go unreported and the media may become just that little bit more complacent towards media bans (LRCC, p. 19). Though the negative implications of the limitation of each right are severe, there are situations where such restrictions are necessary. With the 1994 case Dagenais v. Canadian Broadcasting Corporation, the legal landscape in Canada shifted and the right to a fair trial was no longer given priority over freedom of expression. Instead, the Supreme Court of Canada ruled that the two rights are of equal value under the Charter and must be balanced; the courts must now avoid taking a hierarchical approach to rights (Jobb, p. 78). Weighting these competing elements against one another remains complicated, however, with much at stake. The Dagenais test set down in the ruling assess the appropriateness of granting a media ban and states that “A publication ban should only be ordered when: (a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.” (Ibid, at 878). This approach has also been applied to judges’ discretionary powers to shut a courtroom from the public (Jobb, p. 80). It is within these new parameters that the arguments of this essay lie.

The Media’s Depiction of the Justice System
Court proceedings are often dull affairs for a layperson unconnected to the cases. The press is responsible for covering these proceeding for the public and what it chooses to highlight in its coverage, whether consciously or unconsciously, in an effort to connect with its audience has serious implications. When covering the courts, the media frequently focuses on certain aspects of the judicial system to the detriment of other features and this creates a false image of the proceedings that can jeopardize fair trial. The creation of this misleading picture underscores how the balance between the right to an unprejudiced trial and the right to freedom of expression is a precarious one with the press possessing the capacity to erode the underpinnings of a democratic society just as it seeks to defend that democracy through asserting freedom of expression.

The majority of the public does not attend trials; therefore the media must serve as the eyes and ears of its audience. There have been cases in the past, however, where the press abused its position as a conduit of information and manipulated public opinion, prejudicing the trials of the accused. The 1910 Harvey Crippen trial in England and the 1966 Sam Sheppard trial in the United States are two of the most famous examples of cases where the media played a role in introducing bias into court proceedings. “They were twentieth-century cases where the media became one-sided and lacked any kind of plurality in the representation of the defense. What they also had in common is that the prosecuting authorities, media and public opinion appeared to have prejudged the defendants” (Crook p.263).

Cases such as Crippen’s and Sheppard’s, however, are rare and such blatant bias on the part of the press is not a regular occurrence. What is much more frequent though, is imbalance in what the media decides to cover regarding court cases. “The media focuses on sensational crimes such as those of a sexual or violent nature, rather than the more mundane property crimes which affect many more people” (Wood, p.58). All too often the media concentrates on startling cases that are brought to the public’s attention and deemed worthy of reporting precisely because they are atypical (Wood, p.42). Media attention is also not distributed evenly across the small number of cases that do capture the public’s attention and receive the bulk of news coverage; a select few receive disproportionate attention (Bruschke, p.5), with one current example of this being the Russell Williams case. This over-representation of the sensational and under-representation of the mundane, means that the public receives a skewed impression of crime and the justice system.
The public’s false impression of court cases has the potential for serious repercussions when it comes to jury selection. While the views of the public do not necessarily reflect what they encounter in the press, the media does play a role in shaping public opinion of the courts, as it is where most people gain their information on the subject (Wood, p.51). Lawyer Edward Greenspan commented on the issue of media influence over jury members at a panel discussion held by the Ontario Press Council in 1984:

Far too often bystanders in the mob and in the market place, even today, influence the outcome of individual cases. Jurors are influenced by publication in the media of highly damaging information which under the rules of our judicial system should never reach the minds of the jurors. This problem, this trial by media, threatens the very basis upon which our judicial system operates because it brings into the courtroom the rumors and passions of the market place.

Since those comments were made, there has been substantial research conducted into the influence of pretrial publicity. The results, however, have been inconclusive. Some studies, such as Studebaker and Penrod in 2007, have found that: “it appears that the effects of pretrial publicity can find their way into the courtroom, can survive the jury selection process, can survive the presentation of trial evidence, can endure the limiting effects of judicial instructions, and cannot only persevere through deliberations, but may actually intensify” (Bruschke, p.7). Equal numbers of studies, however, have reached the opposite conclusion and there is good reason to believe that methodologies that rely on “predeliberated questioning of mock jurors” can produce results that exaggerate the effects of this type of publicity (Bruschke, p.17). Pretrial publicity is a concern with regards to protecting unbiased court proceedings and particularly in reference to jury trials, but current research suggests that, while not ruled out entirely, the threat of such media attention may have been overstated.

Despite the investigation into pretrial publicity being inconclusive, however, the media’s general tendency to highlight sensationalist cases while ignoring mundane quotidian ones presents the public with a misguided picture of the courts that can threaten an unbiased trail by jury and, in doing so, conveys the difficult nature of the balance between fair trial and freedom of expression.

Fostering Faith in the Judicial System and the Role of the Media
Public trust in, and support of, the legal system are core principle of healthy democracies, yet, in part as a result of press reporting, people often do not feel connected to and fairly represented within their system of legal governance. The media’s coverage of the courts plays a role in undermining the public’s broader faith in the overall justice system. This loss of confidence illustrates how the press possesses the capacity to erode the foundations of a democratic society through infringing on the right to an unbiased trial just as it seeks to defend that democracy through asserting freedom of expression.
There is a disconnect between the public and the judicial system. Multiple research studies have demonstrated that citizens have inaccurate perceptions of their legal systems (Wood, p.50). Considerable research has indicated that judges are viewed with skepticism and with the belief that they are aloof from a shared common reality of the public (Wood, p.54). The public also generally feels that sentences imposed by the courts are too lenient for the crimes committed and in a 2004 study by Hough and Roberts the courts were found to be the “least favourably judged” component of the criminal justice system (Wood, p.50). A 2001 Canadian study by St. Amand and Zamble found that the public “underestimates the severity of the sentences that are handed down by the courts” (Wood, p.50).

Ignorance concerning the realities within the legal system may stem from how the media reports on the courts. The press often gives substantial coverage to the victims of crime who are often unhappy with the punishment handed down for their loss (Jobb, p.85,99). This coverage frequently comes at the expense of the subtleties of the judgment: “when an offender is sentenced, media accounts rarely focus on the substance of the judge’s decision- the principles of sentencing, the penalties imposed for similar crimes the evidence of guilt, and the prospects for rehabilitating the offender…The sentence imposed is no longer the story; the focus has become what people are saying about the sentence” (Jobb, p.99). Furthermore, the complexities of cases are often lost in press coverage and experts who speak in inaccessible jargon do not always have their words made accessible to the public (Wood, p.42-3). The media exercises power over the public through its role as a gatekeeper for what cases the public learns about. The Dean Jobb Canadian textbook on media law for journalists reflects on this:

Of the hundreds of thousands of criminal cases that pass through Canada’s courts each year, only a fraction attract media attention. These cases will be singled out because they involve serious allegations, prominent defendants, or shocking acts of violence. Others may be published because they test the fairness of the courts or establish important legal principles. In short, the public learns about cases that the media think are notable and newsworthy and important.

The press’s decision of what affairs are newsworthy can have serious implications that can weaken faith in a fair trial. Miscarriages of justice and cases that seem to be poorly handled for whatever reason also frequently receive a lot of media attention and this can undermine the confidence of other victims of similar crimes. For example in the case of victims of rape, such victims, upon leaning that other rape survivors have experienced hostility or disbelief at the hands of the criminal justice system, may decide to not report their experience out of fear of re-victimization at the hands of the legal system (Wood, p.53-4). For a fair trail to be possible the public must believe in the overall judicial system and have faith in its ability to produce an unprejudiced trial. When citizens are ignorant of, or hold misconceptions about, the legal system as a whole, they can no longer trust in an automatic just trial and the capacity for such a proceeding is undermined through this lack of public confidence.

Ideally, open courts are supposed to be beneficial and complementary to the right to a fair trial. Media coverage provides safeguards against unjust conduct or unfair proceedings against a plaintiff or accused and minimizes the risk of judicial abuse of power (LRCC, p.16). It also further discourages witnesses from giving false testimony through the threat of exposure before the public (LRCC, p.16).

These are all desirable qualities that do contribute to unprejudiced court proceedings, however, they cannot erase the harm done to the principle of an unbiased trail that the media also causes through its contribution to the disconnect between the public’s perceptions of the legal system and the reality. This ignorance and distrust on the part of the public towards the courts is, at least in part, a result of poor media coverage and is therefore demonstrative of the press’s contribution to undermining the public’s overarching confidence in the justice system. This loss of faith conveys how the press can erode the basis of a democratic society in infringing on the right to a fair trial just as it seeks to defend that very entity through asserting freedom of expression.

Works Cited

Bunker Matthew, Justice and the Media, New Jersey, Lawrence Erlbaum Associates, Publishers,1997

Bruschke Jon, Loges William, Free Press vs. Fair Trial, New Jersey Lawrence Erlbaum Associates, Publishers, 2004

Canadian Bar Association- Ontario, Constitutional Freedom of Expression and the Media: Testing the Limits, Toronto, The Canadian Bar Association, 1994

Crook Tim, Comparative Media Law and Ethics, New York, Routledge, 2010

Emerson Thomas, The System of Freedom of Expression, New York, Random House, 1970

Jobb Dean, Media Law for Canadian Journalists, Toronto, Emond Montgomery Publications Limited, 2006

Human Rights in the Investigation and Prosecution of Crime, Colvin Madeleine, Cooper Jonathan: editors, Oxford, Oxford University Press, 2009

Law Reform Commission of Canada, Public and Media Access to the Criminal Process: Working Paper 56, Montreal, Law Reform Commission of Canada, 1987

Macalister David, McKenna Paul, Schmalleger Frank, Canadian Criminal Justice Today, Toronto, Pearson, 2004

Martin Wayne, Popular Punitivism – The Role of the Courts in the Development of Criminal Justice Policies, Australia, The Australian and New Zealand Journal of Criminology- Vol. 43 number 1, 2010

Ontario Press Council, Trial by Media, Ottawa, Ontario Press Council, 1984

Public Opinion and Criminal Justice, Wood Jane, Gannon Theresa: editors, United Kingdom, Willam Publishing, 2009

The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring, Vol. 9, New York, Russell & Russell, 1969

Department of Justice (

Subject Author Replies Views Last Message
No Comments