Thread by @willchamberlain

As promised.

Tommy Robinsonwas jailed for reporting on a criminal trial.

That is almost inconceivable in the United States.

We'll talk about the differences in UK and US law, what avenues Tommy's lawyers might pursue, and why UK law should be changed.

A thread.

#FreeTommy

https://twitter.com/willchamberlain/status/1024684657147867136

First, the statute at issue. Section 4.2 of the 1981 Contempt of Court Act allows judges to place "reporting restrictions" on particular trials.

This allows those courts to ban even *true and accurate* reporting about the trial.

The judge in the Leeds Crown Court had put in place just such a restriction on the underlying grooming trial that Tommy reported on.

Notice the broad language of the above order - banning the publication of "any report of these proceedings."

In American law, we call that a "prior restraint" on speech. Prior restraints are presumptively unconstitutional under the First Amendment.

And, just as our Supreme Court has considered the fairness of the summary procedure for contempt, it has considered the legitimacy of the type of reporting restrictions.

It did so in Nebraska Press Association v. Stuart - 42 years ago.

The facts of the case are dramatic. A gruesome multiple homicide in a small town in Nebraska of only 850 people. The courts, understandably, were concerned that reporting about the case would make a fair trial impossible.

Ultimately, the district judge put in place a fairly narrow order, postponing reporting on a few specific facts about the case - not even the entire case! - for a brief period.

The case made its way to the Supreme Court, which considered whether this was constitutional.

The Court began by noting that the tension between the right of defendants to an impartial jury and the right of the public to free speech and freedom of the press had been in tension since the founding, and continued to the present.

It noted, however, that the type of restriction in the case - a prior retraint - is the "least tolerable" infringement on first amendment rights.

Whereas defamation law allows for damages to be recouped AFTER someone has spoken, prior restraints "freeze" it beforehand.

It noted that such freezes were particularly damaging when it came to contemporaneous reporting. Such reporting assists in justice being carried out - by putting a spotlight on prosecutors, judges, and the government

At this point - it's as if the Court anticipates many of the arguments made today to justify the reporting restriction that Tommy allegedly violated.

"It's only a postponement!" you might say.

Well - the news is RELEVANT right now. Postponing it does damage.

Think about this case.

It is about the systematic sexual abuse of children in the UK.

It is absolutely in the public interest to ensure these matters are discussed FULLY by the press.

These reporting restrictions preclude that.

"The element of time is not unimportant."

Exactly.

The Court notes that there are many alternatives available to preserve the fairness of jury trials - searching voir dire (asking questions of jurors), venue change, postponement, and sequestration. Those should be tried before First Amendment rights are infringed.

Another point the Court is ahead of its time on.

Enforcing these orders is hard! What if people talk about the case outside the Court's jurisdiction?

You know, like on Twitter, in foreign countries?

If reporting restrictions do not work, they cannot possibly be just.

The Court notes that the order was narrow, targeting specific material that the lower court thought would prejudice the jury.

It notes the problem - how can you know, in advance, what will be prejudicial and what won't?

Moreover, the court notes - people are going to hear about it anyway. Shouldn't they hear accurate reports?

Sound familiar? There was a reporting restriction on Tommy's case - and as a result, it blew up worldwide, with tons of misinformation spread about the case.

Given this - that reporting restrictions don't work, that they are prior restraints, and that they inhibit many public goods - this reporting restriction was unconstitutional.

And this was for a *narrow* order.

The United Kingdom has a principle of "open justice."

But after watching this case, can we really say that they value open justice?

If, when two values come into conflict, one always loses - do you actually care?

Moreover...Britain always finds a way to be silent about grooming gangs.

While they are going on? Better not talk about them, for fear of being called racist.

While they are being tried? Better not talk about them, we must prevent every possible taint to the trial.

America is better. We believe that, in most cases, jurors can disregard outside information. And we let the press serve its function - to hold the government to account.

Reporting restrictions are unjust. They make a mockery of free speech. They should go.

FIN.