Prof. Samuel R. SIMON – Conflict of Laws and Core American Constitutional Values: The Collision of Freedom of the Press and a Criminal Defendants Fundamental Constitutional Rights

This lecture by a distinguished practicing attorney and professor of law addresses the issues that arise in the United States when the constitutional right of a free press collides with a criminal defendant’s constitutional rights to a fair trial, to a fair and impartial jury, and to due process of law.

In the American criminal justice system, an accused criminal defendant is innocent until proven guilty at trial. To this end, he enjoys a panoply of unalienable constitutional rights that the courts jealously guard at each stage of the proceedings. Equally, every American school child knows that freedom of the press — the constitutional freedom to publish without let or hindrance — is protected by the courts to the utmost possible extent. These rights may collide in any number of ways. When they do, it falls to the judiciary to balance the press’s constitutional right to publish — which is correlative to the public’s right to know — with the constitutional protections given to everyone accused of a crime, no matter how heinous.

One of the most difficult factual scenarios presented by such a collision arises in the context where the news media publishes articles based on confidential or private information that the reporter obtained in violation of a court order prohibiting its dissemination. As well as the conflicts that result from constitutional tensions (“free press vs. fair trial”), core conflict of laws principals are implicated when the reporter gathering the information is acting under color of the law of a state that provides an absolute privilege for such activities, but the criminal prosecution that gave rise to the non-dissemination order occurs in another state with another body of law, a state where the reporter is accorded, at best, only a qualified privilege.

The lecture by Visiting Guest Professor Simon, which should be of interest to everyone concerned with comparative law and conflict of laws issues, discusses and analyzes these conflicts in depth, and suggests a mechanism by which the courts may render justice where, as here, fundamental constitutional and statutory rights collide. Ample opportunity for questions will be offered.