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Pretrial Publicity in High Profile Trials: An Integrated Approach to Protecting the Right to a Fair Trial and the Right to Privacy

42 Pages Posted: 8 Apr 2008 Last revised: 3 Feb 2009

Susan Duncan

University of Louisville - Louis D. Brandeis School of Law

Abstract

The growth and influence of nontraditional media and the convergence of these technological platforms on mainstream media brings a host of new issues surrounding media coverage of high profile trials. Hardly a new phenomenon, the media has made a business of covering high profile trials since before the founding of this nation. But the advent of blogs in 1999 and the growing influence they have on the public further complicates the issue. In addition, adoption of more nontraditional delivery platforms, such as blogs, by traditional media as they strive to retain and enlarge readership confirms the growing influence of these nontraditional sources of information for the public. The impact this technology has on the controversy surrounding media coverage of trials, especially celebrity prosecutions, provides ample fodder to ask whether current United States' media practices and the courts' regulation of these practices best serve the individuals involved, the public and the criminal justice system.

Any response to this pretrial publicity explosion needs to be rethought in light of today's new world of communication. This Article analyzes and evaluates many of the current approaches used to balance pretrial publicity against the right to a fair trial and the right to privacy. Concluding these frameworks fail to adequately protect individuals' rights, the Article explores and evaluates suggestions offered by other commentators. Finally, the Article concludes by finding none of these suggestions work but proposes an alternative approach which better balances the freedom of speech, the right to a fair trial and the right to privacy, all of which should be respected as important values in our society.

Keywords: First Amendment, pretrial publicity, high profile trials, right to privacy, freedom of press

JEL Classification: K1

Suggested Citation

Duncan, Susan, Pretrial Publicity in High Profile Trials: An Integrated Approach to Protecting the Right to a Fair Trial and the Right to Privacy. Ohio North University Law Review, 2008; University of Louisville School of Law Legal Studies Research Paper Series No. 2009-04. Available at SSRN: https://ssrn.com/abstract=1117864

Susan Duncan (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States
502-852-6373 (Phone)
502-852-0862 (Fax)

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