by Claude Opus 5.5
Is the US First Amendment approach (no prior restraint, very limited contempt) or the UK strict-liability contempt rule better suited to protecting fair trial rights in the age of social media? Is either workable?
Shortly before the case behind these seminars returned to the criminal process, the names of the seven accused had been published by a student newspaper, repeated across social media and, in one case, wrongly attached to a man with no connection to the events. If any of the seven is eventually charged and tried, the jury will be drawn from a public that has already been told, many times and in many registers, what to think. The United States and England and Wales have very different legal answers to that problem. Comparing them is useful partly because each exposes the other’s weaknesses, and partly because social media puts pressure on both.
Two models
The English approach is set out in the Contempt of Court Act 1981. Under its strict liability rule, a publication that creates a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced is a contempt, regardless of intent. Proceedings become active at an early stage, typically on arrest, the issue of a warrant or charge. The rule is enforced by the Attorney General, and the press is expected to observe restraint from that point until verdict. The best-known modern illustration is the treatment of Christopher Jefferies in 2011: arrested and then released without charge in the investigation into the murder of Joanna Yeates, he was vilified by several newspapers, two of which were later found in contempt and fined. The model protects the jury by controlling what reaches it.
The American approach protects the jury by managing what it does with what reaches it. After Nebraska Press Association v. Stuart (1976), court orders restraining the press from reporting on criminal cases are presumptively unconstitutional, and contempt by publication survives only in the narrowest circumstances. Instead, Sheppard v. Maxwell (1966) directs trial judges to use other tools: change of venue, continuance, careful jury selection, sequestration, instructions, and restrictions on what lawyers and officials say outside court. The press is free; the trial process is asked to absorb the consequences.
The case for each
The English model rests on a plausible empirical claim and a clear moral one. The empirical claim is that jurors exposed to sustained prejudicial coverage cannot reliably set it aside, however sincerely they promise to. The moral claim is that a defendant should not bear the risk of that failure. A rule that prevents prejudice is more protective than one that tries to repair it afterwards, and strict liability gives editors a clear signal.
The American model rests on a different weighting. Prior restraint by the state is treated as among the gravest threats to free expression, because it silences speech before anyone can judge it, and because courts and prosecutors are themselves institutions the public needs to scrutinise. In a case like this one, where the complainant’s supporters argue that the police inquiry and the original decision not to charge failed her, and where the state has now appointed a special prosecutor citing serious questions about that inquiry, reporting on the criminal process is part of how the process is held to account. A regime that muted the press from the moment of arrest would also mute that scrutiny.
It is worth noticing that on the facts so far, the English rule might not have prevented the naming. Nobody appears to have been charged, and if no one had been arrested, proceedings would not be active. The relevant English protection would instead be the law of privacy: in Bloomberg v ZXC (2022) the UK Supreme Court held that a person under criminal investigation generally has a reasonable expectation of privacy in that fact before charge. That is a different tool, with a different rationale, and it is enforced by the individual rather than the state.
The social media problem
Both models were designed for a world in which a manageable number of professional publishers controlled what jurors saw. Social media undermines that assumption in different ways for each.
For the English model, the difficulty is enforcement. The strict liability rule applies to individuals as well as newspapers, and the Attorney General has occasionally warned or pursued social media users. But it cannot realistically police millions of posts, many from outside the jurisdiction. The experience of privacy injunctions in 2011, when identities protected by English courts circulated freely on Twitter, showed how porous national rules have become. A rule enforced against newspapers but not against the crowd may simply shift prejudicial material into less accountable channels.
For the American model, the difficulty is that its remedies assume prejudice is local and finite. A change of venue helps when coverage is concentrated in one county; it helps much less when the case is national and searchable from anywhere. Voir dire can screen out jurors who admit to firm views, but not those who have absorbed impressions without noticing. Jurors can also look things up themselves. England has responded to this last problem by making it a criminal offence for jurors to research their case, under the Criminal Justice and Courts Act 2015; American courts rely mainly on instructions.
Is either workable?
Neither works as designed, but they fail differently. The English rule still does useful work in disciplining mainstream outlets, which remain the most credible and widely read sources, and its clarity matters. The American approach is more honest about the limits of controlling information, but its remedies are under real strain.
A defensible position might combine elements of both: robust protection for reporting on how institutions handled the case; firmer restraint on publishing material that will never be admissible, such as claims about the accused’s character; stronger juror instructions and rules against independent research; and greater weight on the judge’s power to manage trials in light of what the jury has likely seen. What neither system can do is restore the conditions of an untouched jury pool. The deeper lesson may be that fair trial rights now depend less on what the law forbids publishers to say, and more on the norms that the public, including those who post about cases like this one, choose to observe.