Document Type

Book Chapter

Publication Date



All legal systems worthy of credit have a commitment to achieving fairness between the parties to the litigation. In addition, common law legal systems have a longstanding commitment to openness in judicial proceedings. At the same time, and in part for the same reasons, they also have a longstanding commitment to freedom of expression. There is inevitably a tension among these three goals, because in cases of great public interest openness leads to publicity, and publicity may threaten or at least appear to threaten the fairness of a trial. In addition, sometimes publicity may create an intrusion on the lives of jurors and witnesses. This is a well-trodden area, and I can only skim the surface of it in this essay. I am going to offer an American perspective on this area - or at least the perspective of one American. I am far from an uncritical advocate of the way that we deal with these problems in the United States. At the same time, I am sufficiently inured in the American ideology of the area that some of the approaches in England (and, I believe, elsewhere throughout the United Kingdom) strike me as unduly restrictive of freedom of expression. I am aware of this bias, and aware of the dangers of criticising a system with which one is not intimately familiar. Nevertheless, I will offer my own views, for what they are worth.