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Sub Judice

Freedom of Expression in Matters under Adjudication

An analysis of the justification for restricting freedom of expression so as to ensure that legal proceedings are sound and untainted.

Definition of the Issue

The objective of a judicial proceeding includes both a formal and a substantive aspect. On the formal level, the judicial process is a method for deciding the questions in dispute. On the substantive level, the judicial process is intended to be a just method of deciding questions in dispute. This aspect of the judicial process raises the question that is the focus of this study -restricting freedom of expression in order to protect the propriety of judicial proceedings and their public image as proper.

The justice aspired to by the judicial process, and the protection of which is under discussion here, is of two types.The first type, the more obvious one, is substantive, outcome-oriented (consequential) justice.In the current context this means establishing the appropriate law on the normative level, identifying the factual truth relevant to the dispute at hand and the precise application of the relevant law. The second type, which is more complex, is procedural justice, which in the current context means the conduct of the judicial process in a fair manner. Hence the latter type of justice was referred to by Rawls (who proposed the current leading concept of procedural justice) by the phrase"Justice as fairness." These two types of justice are distinct from each other, but they are closely connected in general and specifically in this context.Together with its intrinsic justification, procedural justice also has important outcome-oriented justifications, as a means of achieving substantive or consequential justice. Accordingly, it is difficult to achieve consequential justice without strict compliance with procedural justice.

The substantive role of the judicial process as a just method of deciding in the two senses mentioned has ramifications for the nature of the rules (substantive and procedural) established by the judicial process for adjudicating different claims. If the purpose of the judicial process is fully expressed on the formal level alone, then adherence to the content and existence of these rules is not important, for on the formal level, it is the fact of the decision that is important and not its nature.However, given the desire to decide disputes justly and not arbitrarily, importance attaches to the existence and contents of the rules of the judicial process.Obviously, the aspiration for justice is not unique to the judicial process and forms the basis of many actions by individuals and governmental institutions.The singularity of the judicial process is in its determination of the official and final decision regarding questions in dispute.Consequently, special importance attaches to compliance with the rules of the judicial process as the official, authorized and accepted institution for justly deciding between conflicting claims. It is this distinction of the judicial process that raises the question of whether the judicial process should be screened from actions that are liable to distort its unique character or damage the public's perception of it as a just process. In this study we will deal with one of the aspects of this general question: the justification for protecting the singular nature of the judicial process from expressions which are liable to damage the propriety of the process or the image of its propriety in the public eye.

The justification for discussing screening the judicial process from external expressions separately from other actions that are liable to influence or create a perception of influencing it arises from the fact that the issue raises questions that are fundamentally different from those raised by other modes of influence. The main difference stems from the distinctiveness of expression, as a type of action, in two senses. First, the nature of the danger an utterance can create is special. Second, there is a special interest in freedom of expression regarding the judicial process, an interest that is stronger than comparable interests in granting freedom to other actions that may influence the judicial process.Similarly, the relationship between expressions and protecting the propriety of the judicial process and its proper image is complex, because expressions may even contribute to the latter interests.The distinctiveness of the issue, in all of the aforementioned aspects, is mainly the result of the fact that the question being discussed is the restriction of expressions by virtue of their content (which may influence the propriety and the public perception of the judicial proceedings).

The Method of Analyzing the Issue

The decision regarding restricting freedom of expression bearing upon judicial proceedings in order to protect the propriety of the judicial proceeding, or its propriety in the public eye, necessitates dealing with a number of questions, both normative and empirical. The general question on the normative level is whether there is any justification for restricting freedom of expression for the reasons of the propriety of the judicial proceeding or the public perception thereof.And, if the answer is positive, what danger to these interests justifies the imposition of restrictions on expressions that create this danger? The main question pertaining to this issue on the factual level is whether there are expressions that are liable to create such a danger of influence on the propriety of the judicial process or the public perception of it.In responding to this question, a distinction must be made between a legal system in which adjudication is by professional judges, as in Israel, and other systems that hold jury trials.Research shows that the answer to the question cannot be general and all embracing. The justification for granting freedom of expression, or contrarily for imposing restrictions on expression, must be examined by focusing upon the type of expression being examined and the nature of the proceeding whose propriety or image we wish to protect. These two variables are of great importance in the context of the various aspects that must be examined in order to answer the above questions.

The first aspect to be addressed is the nature of the possible influence created by the expression on the propriety of the proceeding and on the perception thereof. A distinction must be made between legitimate and illegitimate influence. Not every influence on the legal proceeding or on the public trust in the proceeding is illegitimate; an expression may have a legitimate and even desirable influence on the legal proceeding and the public perception thereof. Thus, only expressions that create a danger of illegitimate influence upon these interests may be restricted.

The second aspect is the gravity of the danger of influence on the propriety and the perception of the proceeding.In this context there are two criteria: the first is the type of danger. For example, there is a significant difference between the danger of influence that could lead to unjustly convicting an innocent person of a serious crime and the danger of influence that could lead to a minor error regarding the sum of damages awarded in a tort proceeding between large commercial companies.

The third and last aspect is the value or importance of the expression that endangers the propriety of the proceeding or its image.As opposed to the first two aspects, this aspect does not relate to the purpose of the restriction, but rather to its cost in terms of the special reasons in favor of freedom for the specific expression.

As stated, all of these aspects must be examined with consideration for the type of expression under discussion and the nature of the proceeding, whose propriety or the perception thereof one aspires to protect.Examination of the type of expression is relevant in relation to both the latter aspect, which relates to the assessment of the interest in granting freedom for this expression, and to the first two aspects, which deal with the assessment of the interest in restricting freedom of expression in order to protect the propriety of the judicial proceeding and the perception thereof.Concerning the interest of freedom of expression, the conclusions regarding the justification for granting freedom for a certain type of expression cannot be deduced directly from the general importance of freedom of expression in comparison with other interests, given the large variety of types of expressions and of interests that conflict with freedom of expression, and the fact that their importance varies according to the type of expression and the nature of the interest.This being so, it would seem that the only general conclusion that can be drawn from a general discussion of freedom of expression and its restriction cannot deviate from the modest but important conclusion that establishes freedom as the basic axiom, deviation from which (in other words, restriction of the freedom) must be justified.Admittedly, there are important claims that relate to the special importance of freedom of expression in the general sense as compared to other freedoms. However, the application of these claims differs in both form and degree according to the different types of expressions. Hence, the importance of freedom of expression is ultimately dependent largely upon the type of expression being discussed.Moreover, the type of expression affects also the importance of the opposing interest -- that of restricting expressions in order to protect the aforementioned interests, since the nature and the gravity of the danger that an expression creates to those interests may vary from one expression to another.

These comments are especially valid regarding freedom of expression in relation to the judicial process and its restriction for reasons of the propriety of the judicial process or the perception thereof.The reason for this is that there are many and varied types of expressions that relate to the judicial process and the justification for their restriction in order to protect the propriety of the proceeding varies significantly in accordance with the type of expression, its importance, and the harm that it causes or is liable to cause to the propriety of the proceeding or its perception.The examination of the second variable, relating to the kind of process desired to protect, is necessary primarily because there are differences between the various proceedings in terms of the nature of the interest that exists in protecting the propriety of the proceeding or its perception. Furthermore, the division of the subject into its component parts is important, given the significant difficulty in assessing the degree of danger created by publications that relate to the judicial proceedings and to their propriety and, even more so, to their image in the public eye.Due to this difficulty, the aforementioned distinctions should be made in more specific contexts. Hence, consideration must be given to the above variables: the kind of proceeding and the type of publication and their effect upon the nature of the anticipated danger posed by them to the interests of the propriety of the proceeding and its image as a result of publications bearing upon it; the gravity of the danger and likelihood of its occurrence; and the severity of the restriction that would be caused as a result of the prohibition of the relevant expression to freedom in general and specifically to the reasons that justify the freedom of expression.

The study is comprised of the following chapters: first, the general considerations relating to the nature and scope of the relevant interests are presented: the propriety of the proceeding and the perception thereof on the one hand, and freedom of expression on the other. In light of these considerations, there is a discussion of the general aspects regarding the degree of danger to the propriety of the proceeding and to their public image that may justify the restriction. The second chapter of the study, still on the general level, deals with different aspects of the use of the law for protecting the interests of the propriety of the judicial proceeding and the perception thereof, from expressions that are liable to influence them.General conclusions are then drawn. . The third chapter examines the kinds of judicial proceedings that include special adjudicative principles, as a result of which the possibility of their protection from external influence should be considered.The fourth chapter, in light of the previous three chapters, discusses the central question of the types of expression that ought to be restricted.Finally, in the last chapter there is a formulation, based on the conclusions of the discussion in the previous chapter, of the contents of a preferred restriction and an analysis of the question of the specific legal form that it ought to be given, if any.

The Existing Law and the Need to Replace It

In Israel and in other countries, the main problem of the existing law on this issue, especially the general prohibitions dealing with the subject-- and primarily the sub judice prohibition, which is the broadest of all the prohibitions and the only one that regulates the issue completely -- is that the existing prohibitions deal with only a limited number of the aforementioned aspects relevant to the subject and ignore other important aspects.Furthermore, the aspects dealt with by the existing prohibitions do not provide successful criteria for formulating a prohibition in this area. This being the case, the prohibitions existing in Israel today are characterized by their unjustifiably broad scope and their vagueness. The existing prohibitions focus mainly upon the aspect of the likelihood of the danger of influencing the judicial proceeding that the expression poses and ignore the other important aspects, such as the nature of the danger of influence (the distinction between legitimate and illegitimate influence), the gravity of the danger and the importance of the expression that creates the danger. The fact that the existing prohibitions ignore these important factors leads to their failure to fully address the more general distinction between a danger of influence that justifies the establishment of a criminal offense regarding the expression creating the danger, and a danger for which it is appropriate to pay the price, both for reasons relating to freedom in general and especially for reasons that relate specifically to freedom of expression in relation to judicial proceedings.

Hence, assuming that there is room for imposing a restriction on expressions that are liable to illegitimately influence the judicial proceeding, the prohibition should be formulated differently from that adopted in the existing prohibitions, which contain only a vague rule of "chance of influence," the nature of which is unclear, or "an illegitimate attempt to influence," there being no further definition as to the import of these phrases. The preferred form for regulation of the issue is a restriction that clearly specifies (as far as possible) the types of publication that fall within its purview due to their contents. This distinction between types of expressions is reflective of all of the aspects we referred to above and enhances the clarity of the restriction, thereby allowing us to focus upon prohibitions that create a real danger of impairing the propriety of the proceedings or their image. It also offers better protection to both the interest of the freedom of expression and the interest of the propriety of the judicial process when compared with the existing prohibitions, whose breadth and vagueness has practically turned them into a dead letter.

Principles for Determining the Issue

Despite the importance of considering all aspects of the issue, it is clear that such concretization does not always lead to clear-cut conclusions. In the final analysis, there is no escaping that occasionally the decision on a proper arrangement in the matter of freedom of speech that is liable to damage the propriety or the image of the judicial process must be made even when there is some degree of uncertainty concerning the abovementioned topics. In such situations of uncertainty, great importance attaches to the precise analysis of the relevant interests in order to assess the cases in which there are powerful reasons for concluding that there is a real possibility for a conflict between them.A more focused analysis of the interests being discussed in different sets of circumstances may well indicate that in a significant number of them, there is no real clash of interests.In situations in which the conclusion is that such a conflict is a real possibility, general principles must be established for guiding determinations, even when there is uncertainty regarding the factual situation.

The basic principle for situations in which there is a conflict between the relevant interests is the protection of the core element of each of them.In order to apply this principle, one must identify the core of the interest in freedom of expression relating to the judicial process, on the one hand, as well as the core of the interest in the propriety of the proceeding and the public trust in it, on the other. This determinative principle is therefore based upon the assumption that there are significant differences between the strength of each of the interests in different contexts. There are situations in which one interest may be extremely powerful (constituting the core of the interest) and other situations in which though applicable, it is less potent.
The second determinative principle, which in my opinion ought to be adopted, is that freedom of speech is to be preferred in situations in which there are no strong reasons for assuming that it is liable to harm the propriety of the judicial proceeding significantly.As a rule, strong reasons should be required to justify the imposition of a restriction upon expressions relating to judicial proceedings, i.e., it is appropriate to restrict them only when the danger to the propriety of the judicial proceeding is significant, in terms of both its likelihood and its gravity. The main reason for this is the importance of this kind of expression. Furthermore, it must be remembered that expressions relating to judicial proceedings are liable to be of great importance with respect to both the propriety of the proceeding and its image, given that supervision over the proceeding encourages the participants to comply with its rules, whereas restriction of freedom of discussion relating to judicial proceedings may make the public suspicious of the propriety of the proceeding.

On the other hand, if the conclusion is that there are strong reasons for restricting expressions in order to protect the propriety of judicial proceedings, then they should prevail. The central reason for this decision is the difference in the nature of the two interests. The interest in freedom of expression is based mainly (though not only) on consequential grounds, intended to attain common general goals for a large number of individuals (who live in a particular social framework). For that reason, local damage to this interest, provided that the basic principle of freedom of expression is maintained, does not totally demolish the stated objectives. This remains true even if the damage is to the essence of freedom of expression, i.e., the most important expressions, even though in that case the cost of the damage would be especially heavy.On the other hand, the interest in protecting the propriety of judicial proceedings is first and foremost (but not only) the interest of the parties to the proceeding.Thus, any damage to this interest would totally demolish the primary objective that it is intended to protect. Therefore, when the essences of each of the interests clash and there are good reasons for restricting an important expression in order to protect the propriety of the judicial proceeding, the latter interest should be preferred. In such a case it would even be justified, for example, to restrict a particularly important expression if the conclusion is that its utterance would create a serious danger of denying the right of a person accused of a serious crime to a fair trial.

In these kinds of situations in which there is a conflict between the essences of both interests, it is important to be aware of the possibility of preventing such conflicts. This possibility derives, inter alia, from the fact that the interest in conducting a judicial proceeding is occasionally weaker than the interest in protecting its propriety, once the decision to conduct the proceeding has been made.Consequently, an expression may be important to the extent that it is preferable to avoid conducting a criminal proceeding, the propriety of which would be damaged by permitting the expression.

The situation is different with respect to the protection of the proper image of legal proceedings in the eyes of the public, given that the nature of this interest is more like the nature of the interest in freedom of expression than the interest of the propriety of judicial proceedings.Moreover, while the interest in protecting public trust in the propriety of judicial proceedings, which is a legitimate interest, cannot be disavowed, it must also be remembered that this protection is largely speculative, thus dictating extreme caution before restricting expressions for its sake.

Conclusions Regarding Different Kinds of Expressions

Normative Expressions

The most obvious kind of expression that ought to be broadly defined as legitimate is a normative expression, as opposed to a descriptive-factual expression. In other words, an expression dealing with the question of how one should behave, especially an expression regarding the content of the current or the desired law. In principle, the judge ought to have consideration for all of the legally relevant considerations in his normative ruling. The point of departure should therefore be that influencing the judge's discretion on the normative level is legitimate.

Before accepting this conclusion, we should explore a number of difficulties, which are not decisive. The first difficulty arises from the fact that even when a publication is prima facie legitimate, it is liable to damage the propriety of the proceeding and the perception of its propriety because the publication is not subjected to the established rules of judicial proceedings (such as cross-examination). However, the danger that a normative expression could influence a judge without the parties to the proceeding being able to relate to it is not serious (especially in comparison with factual publications) because of its general nature. As opposed to a factual claim, a normative expression is not limited to a specific case and there is therefore little chance that denying the parties the opportunity to relate to it will influence the final conclusion (its acceptance or rejection). Similarly, assessing normative expressions, as opposed to factual ones, does not necessitate gathering evidence, and thus assistance provided by the parties to the judge is less important.

Another difficulty is the fear of influencing the judge to rule in a deviation from existing law. In my opinion, this difficulty is also not significant.This is a difficulty that could arise from the judge's desire to placate a particular pressure group, or due to the judge's opinion that the existing law is misguided. The first possibility will be discussed below. In the latter case, there is not much chance of illegitimate influence. A certain degree of interpretation of existing law in view of the judge's understanding of a preferable law is legitimate and even desirable, and in that sense, drawing the judge's attention to claims regarding (what is claimed to be) the preferable law is even desirable. In instances where it is not legitimate, for instance when the existing law explicitly states otherwise, it can be assumed that the danger that professional judges would cross that line (between existing and preferable law) is not great, except in cases that touch upon the very core of their conscience, and in that case it can be presumed that their views are not based on one isolated publication.

An additional difficulty relates to the interest in maintaining the public's trust in the propriety of the judicial process.The difficulty here is that even if the influence is legitimate, the public might perceive it as being illegitimate.I believe that this difficulty too, should not lead to abandoning the approach that influence on the normative level is legitimate. This conclusion derives from the fact that in the normative context, it is relatively easy to adopt the optimal solution for bridging gaps between substance and the mistaken perceptions of some people: correction of the mistake.

In summary, notwithstanding the difficulties mentioned, when the issue concerns the publication of an opinion on the normative level, my view is that the scales lean towards permitting the expression.This conclusion is reinforced by three additional considerations for permitting normative expressions. The first consideration is that the violation of freedom of expression by restricting normative expressions is serious because normative expressions are general, and this particular kind of freedom of expression is important.Furthermore, the issue of restricting them is liable to come up repeatedly in judicial proceedings because they are so general, and restriction would thus be long lasting. Secondly, one must take into consideration the difficulty of identifying the normative expressions that are likely to be relevant to a particular legal question, which is a product of the fact that any legal conclusion relies on prior normative assumptions of which there are usually many.Finally, one must remember that everyone, including judges, is influenced in his decisions by a variety of sources, including private (as opposed to public) sources that cannot be assessed and are not (and should not be) restricted. Almost inevitably, by comparison to the public discourse, these sources are usually less diverse in nature and consequentially in the views they express, and it may well be preferable to permit unrestricted public discussion, at least of normative issues, in order to balance or counteract the influence of private sources, at least to a certain extent.

Expressions Whose Restriction Might be Considered

The study concludes that there are four types of publications that create a real danger of illegitimate influence upon the propriety or the perception of judicial proceedings that could justify their restriction. These four categories relate to criminal proceedings; hence, there is room for restricting only expressions relating to this type of proceeding.

The two more serious types of expressions are:

  1. Inadmissible factual information, with the exception of information regarding which there is a special interest in its publication prior to the termination of the proceeding. The aim of the restriction of this type of publication is the protection of the propriety of the judicial process by way of preventing the influencing of judges and potential witnesses and protecting the image of the proceeding in the public eye.
  2. Information emerging from an investigation conducted by a governmental body, except for: (a) reporting the actual conduct of the investigation; (b) information regarding which there is a special interest in its publication prior to the termination of the proceeding; and perhaps also (c) information that was discussed in the legal proceeding. The goal of the restriction of these types of publications is the protection of the propriety of the judicial proceeding, by way of preventing the influencing of potential witnesses and the protection of the perception of the proceeding in the public eye.

The two types of expression that pose a less serious danger are:

  1. A one-sided assessment of the evidence that was gathered for the proceeding. This restriction is intended to protect the propriety of the judicial proceeding and its perception in the public eye.
  2. A series of publications relating to the guilt (and to a lesser extent the innocence) of the accused person which creates a one-sided trend of the publications relating to the issue. The goal of this restriction is the protection of the propriety of the judicial proceeding by way of preventing influencing the judges, the prosecuting bodies and potential witnesses and the protection of the perception of the proceeding in the public eye.

Any restriction relating to all of the aforementioned types of publication must, in my opinion, also include the requirement that the publisher be aware of all of the components of the restriction; specifically, the content of the expression and the fact that it relates to a pending proceeding.

The Nature of the Restriction

The two latter types of publication can be regulated only within the framework of the media's rules of professional ethics and not within a criminal prohibition, due to their vague nature.

Given the doubts regarding the justification for the second type of publication - the publication of information from a police investigation when there is no special interest in doing so - here too, a rule of professional ethics applicable to the media should be preferred.Such a rule should be supported by guidelines for police investigators and the representatives of the prosecution to refrain from giving any incriminatory information, the publication of which is not of exceptional legitimate interest, and especially to refrain from initiating the publication of such information.

With respect to the first type of publication -inadmissible evidence, the publication of which during a criminal proceeding is not of special importance -- the restriction can in principle be in the form of a criminal prohibition. However, given the drastic nature of criminal law, which warrants its utilization only when less drastic measures are not effective in dealing with the relevant danger, it is preferable that also in the first stage, use be made of rules of professional ethics. This approach is preferable in the present context, especially in view of the fact that in Israel today, the existing criminal prohibitions have practically been unenforced, so that the issue is in fact one of establishing rules in a sphere that was not previously regulated. Moreover, rules of professional ethics could be efficient in the present context, even with regard to the media (and not only governmental authorities) because of their interest in complying with rules concerning the way they work in light of the ongoing nature of their work.In the event that experience indicates that rules of professional ethics do not provide sufficient deterrence, these first two types of publication are sufficiently defined (despite the caveat of a special public interest that exists in both of them) to enable them to be anchored as a type of criminal prohibition.These two types of publication are also sufficiently serious to justify a criminal prohibition, if the alternative of a professional ethics code is shown to be insufficient.

Injunctions cannot constitute a general or exclusive arrangement because their specific nature does not provide sufficient prior guidance. Even so, the use of injunctions can be considered in specific cases in which there is a particularly grave danger that a certain publication would damage the propriety of the proceeding, as a way of directing the attention of the media to the special danger. The exercise of this authority should occur only in particularly serious cases and not as a matter of course, in order to avoid the unjustified restriction of freedom of expression.