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Iandefor
December 20th, 2006, 06:12 AM
In England and Wales (http://en.wikipedia.org/wiki/England_and_Wales), Australia (http://en.wikipedia.org/wiki/Australia) and Canada (http://en.wikipedia.org/wiki/Canada) it is generally considered inappropriate to publicly comment on cases sub judice and can even be an offence in itself, leading to contempt of court (http://en.wikipedia.org/wiki/Contempt_of_court) proceedings. This is particularly true in criminal (http://en.wikipedia.org/wiki/Criminal_justice) cases, where publically discussing cases sub judice may constitute interference with due process (http://en.wikipedia.org/wiki/Due_process).

In the United States (http://en.wikipedia.org/wiki/United_States), there are First Amendment (http://en.wikipedia.org/wiki/First_Amendment) concerns about stifling the right of free speech which prevent such tight restrictions on comments sub judice. However, there are still protections for criminal defendants and those convicted in an atmosphere of a circus have had their convictions overturned for a fairer trial.http://en.wikipedia.org/wiki/Sub_judice


In other words, restrictions on the discussion of matters Sub Judice are not in the US legal code and only in a restricted way under the English, Welsh, Australian, and Canadian legal codes. Since the Ubuntu Forums server is located inside the United States, members of the Forum are free to comment on matters Sub Judice on the condition that it doesn't totally bugger up court proceedings.

Have a good day :).

KiwiNZ
December 20th, 2006, 06:32 AM
Wikipedia is not official. Anyone can add to it .

It is grain of salt stuff.

Iandefor
December 20th, 2006, 06:50 AM
Wikipedia is not official. Anyone can add to it .

It is grain of salt stuff. Then you can fix it.

I've given a source. Can you give a source for your understanding of Sub Judice restrictions, since it appears only you are acquainted with these restrictions?

Also, what gives you reason to believe that particular entry may have been vandalized or is incorrect? The only change regarding the US' stance on Sub Judice was simply a formatting change.

Iandefor
December 20th, 2006, 08:07 AM
EDIT: Nevermind.

hod139
December 20th, 2006, 04:28 PM
Since the Ubuntu Forums server is located inside the United States, members of the Forum are free to comment on matters Sub Judice on the condition that it doesn't totally bugger up court proceedings.


I thought the Ubuntu forum servers were hosted in the UK. Also, what is the context/background of this thread?

bonzodog
December 20th, 2006, 06:01 PM
......Since the Ubuntu Forums server is located inside the United States,....


Um....yeah, the forums are now hosted in the UK, on Canonicals servers, which means US law is no longer applicable on here. That includes talking about codecs and IP/Software. It's now legal, as the Uk does not recognise these things.

ubuntu-geek
December 20th, 2006, 06:29 PM
Regardless we have rules here. They will be enforced.

Iandefor
December 20th, 2006, 07:00 PM
what is the context/background of this thread? A thread had been closed with the justification given that the matter was sub judice and therefore discussion was prohibited.
Um....yeah, the forums are now hosted in the UK, on Canonicals servers, which means US law is no longer applicable on here. That includes talking about codecs and IP/Software. It's now legal, as the Uk does not recognise these things. I hadn't been appraised of the move.

Now that I know that the server is in the UK, this prohibition makes even less sense. Since US law doesn't apply in the UK, why would a US law on the prohibition of discussion on a case in the US courts apply?

KiwiNZ
December 20th, 2006, 07:55 PM
The Domain is US registered , the owner is a US citizen.

The rules of this forum will be enforced by the staff.

az
December 21st, 2006, 09:03 PM
Article 6 of the Site Guidelines....

"Thread Drifting/Steering: Please keep discussions on topic......."

This is not the topic of this thread..

Please split the thread then. See my last post for an explanation as to why I think that should be done. There seems to be more interest in discussing sub judice than Reiser anyway.




This matter has also been through the Resolution Centre.

Where no one can discuss it but one person. There are many others who seem to want to discuss it but those threads are being moderated or locked. That seems excessive.

I think we would all be enlightened by discussing what kind of medium a web forum really is and to what law the contents/users of the forum are subject.

az
December 21st, 2006, 09:46 PM
I'm sorry, but was splitting my last post to this locked thread a mistake? (http://ubuntuforums.org/showthread.php?t=322095). It appears here:http://ubuntuforums.org/showpost.php?p=1915866&postcount=10 but was posted here, where this post now is...

Should that thread be unlocked, then?

BigDave708
December 21st, 2006, 10:02 PM
Article 6 of the Site Guidelines....

"Thread Drifting/Steering: Please keep discussions on topic......."

This is not the topic of this thread. This matter has also been through the Resolution Centre.
And you do that by jailing my post here, huh?

Nevertheless, I'm sure neither me nor azz would mind you splitting the latter part of this thread and moving it to the thread started by Iandefor if that thread was re-opened. Then, there would only be one active thread on this topic (the other one in the Resolution Centre can only be replied to by me) and this thread would be able to continue undisturbed by our debates. If there was that single thread dedicated to this subject that every forum member can reply to, then we wouldn't have to hijack this thread.

Thanks.

KiwiNZ
December 21st, 2006, 10:07 PM
This matter has already been answered . Please see earlier posts

useResa
December 21st, 2006, 10:37 PM
Article 6 of the Site Guidelines....

"Thread Drifting/Steering: Please keep discussions on topic......."

This is not the topic of this thread. This matter has also been through the Resolution Centre.
I am a bit dazzled here. The initial discussion was about the topic but than the thread got closed.

Later it was re-opened with the following argument

This case is now being reported in the press. Therefore I have reopened this thread.

You are free to discuss what is being reported in the press , However, remember any presumption of guilt or innocence posted here before the Court has made a decision can be deemed Contempt of Court.

Any post of that nature will be removed.
With these sort of statements as "can be deemed Contempt of Court" I think it is logical that a discussion starts on what is seen as contempt of court.
That is the way discussions go.

Once it is clear what can and cannot be said people will automatically get back on topic.

Just my 0.02

useResa
December 21st, 2006, 11:04 PM
Article 6 of the Site Guidelines....

"Thread Drifting/Steering: Please keep discussions on topic......."

This is not the topic of this thread. This matter has also been through the Resolution Centre.
I have been following this thread since the topic interested me.

The above statement somewhat dazzled me. I think the initial discussion was on topic, but then the thread got closed.

Later on it was re-opened with the following argument

This case is now being reported in the press. Therefore I have reopened this thread.

You are free to discuss what is being reported in the press , However, remember any presumption of guilt or innocence posted here before the Court has made a decision can be deemed Contempt of Court.

Any post of that nature will be removed.
With the above warning "can be deemed Contempt of Court" I think it is a logical reaction that people try to get the boundaries clear. Thus questions will be asked in order to get a clear image of what can and can not be said.
In my opinion this is a logical way the discussion would also go in "real life"

Once these boundaries are clear, the discussion will - in my belief - automatically go back on topic.

NOTE: I though I had put down a reply earlier, but I guess something went wrong with the posting. So sorry if you feel as if you are reading the same reply again.

BigDave708
December 21st, 2006, 11:35 PM
Please keep to the topic of this thread . Any further drifting may result in infractions being issued . I would prefer to avoid that.
Then could we please have a thread where we may discuss this? We do not want to drift off-topic, but we have to because all we have is a few fragmented discussions in the Resolution Centre, most of which are locked. You won't suffocate any argument about this by locking threads - unfortunately, the problem won't go away if it is ignored.

mips
December 21st, 2006, 11:49 PM
How about starting a new thread in the forums discussion, as it is related to the forum.

Then this thread will stay on topic.

BigDave708
December 21st, 2006, 11:57 PM
How about starting a new thread in the forums discussion, as it is related to the forum.
They were all locked.

KiwiNZ
December 22nd, 2006, 04:28 AM
Following a request in the Resolution Centre this thread has been reopened .

Please keep the discussion to with in general terms concerning the matter of sub judice or more accurately Contempt of Court concerning matter that are Sub Judice.

Please do not discuss any decision by staff in this thread.

Also please do not discuss the Hans Reiser issue in this thread.

az
December 22nd, 2006, 04:30 AM
Okay!

Let's please start fresh.

Can we discuss the general topic of sub judice and how it relates and affects forum discussions?

Can a forum discussion really affect a court trial? Is a forum thread considered the same as another medium like TV or radio?

Different countries have different laws and different ways of enforcing them. In the US, it is perfectly fine for Larry King to interview people who are involved in current court cases. Do the Ubuntu forums fall under US law because the domain is regitered in the US or in the UK since the web server is located in the UK?

I will try to reach Mdke (Matthew East) He is part of the doc team and a barrister in the UK. I would be interested in knowing his opinion on the subject.

Let's please discuss the topic and not try to turn this into a flame-fest. This is an interesting question and a polite discussion would be healthy for the forums.

KiwiNZ
December 22nd, 2006, 04:36 AM
Azz

I will be interested in seeing mdke's response so I can compare with what I have .

I admit that Contempt of Court due to matters Sub Judice is a mine field . And in the end they come down to a decision by Judge. The best thing to do is to err on the side of caution when dealing with such matters.

meng
December 22nd, 2006, 04:56 AM
Just to throw some hypotheticals into the mix here, to test out the boundaries of this sub-judice-as-it-applies-to-these-forums idea:

1) Is it allowed to comment on Saddam Hussein's alleged crimes again the Iraqi people? Last I heard, his first trial verdict is being appealed and his second trial is still ongoing. Is a comment on Saddam subject to the sub-judice-lock-up-your-threads policy, or does it not apply because it's not the US legal system? Or because Iraq doesn't recognize sub judice? And if the latter, should the mods be up to speed on which countries do and do not recognize this? And if the former, are all non-US jurisdictions fair game for comment?

2) Should the principle extend to any matter under investigation, whether before arrest, laying of charges, through to after the exhaustion of all appeals? Or is it just the first trial (and any retrials) that counts?

3) Should the principle extend to non-criminal matters (e.g. SCO vs IBM) or even other non-corporate matters (legality of gay marriage), that are either currently before or scheduled to come before a judge/jury?

4) By what measure should it be determined whether comments on these forums (comments in general or in particular) bear any material risk of prejudicing a police investigation or court proceedings? Can anyone advance a plausible argument that such comment has a non-negligible chance of prejudicing such proceedings?

5) Has any online forum be charged with or threatened with contempt of court for breaching this principle?

As you can tell, I am rather skeptical of this restriction on forum dialogue. Extended to any logical/reasonable degree, it essentially reduces any discussion here to nought but dry technical Ubuntu-specific matters.

KiwiNZ
December 22nd, 2006, 05:17 AM
Sub Judice means under the courts.

With regards to SCO v IBM , the case is subject to Sub Judice , however the Contempt of Court issue is different in the Civil Court.

I do not know , it would take some time to research as to whether anyone has beed charged with Contempt following posting to a Forum. I know thatpeople have been charged as such for what they have published on the Web. However as to whether you can be charged? the answer is yes.

As to Saddam Hussien he has been found guilty by a Court of appropriate authority so therefore the matter of his innocence of guilt and the material pertaining is not sub judice.
Having said that , any material relating to any appeal is sub judice.

az
December 22nd, 2006, 02:19 PM
Azz

I will be interested in seeing mdke's response so I can compare with what I have .


I sent him an email last night and asked him to answer here, if he has the time and interest in the topic.

Any other lawyers around?

mips
December 22nd, 2006, 02:55 PM
Maybe ask the question regarding Sub Judice and it's applications in US law at http://www.worldlawdirect.com/

Just mention the State the case is taking place in and provide enough details.

meng
December 22nd, 2006, 05:09 PM
Okay, back on topic then, can anyone else comment on the distinction between criminal and non-criminal cases as it applies to sub judice and these forums? Is there a clear legal distinction or is just something someone made up?

KiwiNZ
December 22nd, 2006, 06:56 PM
Okay, back on topic then, can anyone else comment on the distinction between criminal and non-criminal cases as it applies to sub judice and these forums? Is there a clear legal distinction or is just something someone made up?

Read here http://www.law.cornell.edu/wex/index.php/Contempt_of_court,_civil

meng
December 22nd, 2006, 07:00 PM
Read here http://www.law.cornell.edu/wex/index.php/Contempt_of_court,_civil
Contempt of court is a slightly different issue. Sure, one of the reasons you can be found in contempt of court is by inappropriately discussing a matter sub judice (note my use of the word inappropriately) but it isn't the only reason. Furthermore, it doesn't answer my question as to whether this principle is equally applied to non-criminal cases, you suggested in an earlier post that it's less important with those. But I wonder whether it's equally important, and therefore we should also have restrictions on discussing SCO vs. everyone, Palm vs. bozos, etc.

KiwiNZ
December 22nd, 2006, 07:09 PM
Contempt of court is a slightly different issue. Sure, one of the reasons you can be found in contempt of court is by inappropriately discussing a matter sub judice (note my use of the word inappropriately) but it isn't the only reason. Furthermore, it doesn't answer my question as to whether this principle is equally applied to non-criminal cases, you suggested in an earlier post that it's less important with those. But I wonder whether it's equally important, and therefore we should also have restrictions on discussing SCO vs. everyone, Palm vs. bozos, etc.

I didn't say it was of lesser importance I said "With regards to SCO v IBM , the case is subject to Sub Judice , however the Contempt of Court issue is different in the Civil Court.
"
And it is .

meng
December 22nd, 2006, 07:31 PM
I didn't say it was of lesser importance I said "With regards to SCO v IBM , the case is subject to Sub Judice , however the Contempt of Court issue is different in the Civil Court.
"
And it is .
But if you read your source carefully, it describes "civil contempt of court" as opposed to "criminal contempt of court" (there's another entry on the latter).

This is NOT the same as "contempt of a civil court" vs. "contempt of a criminal court" (I'm sure the lawyers would consider the phrasing ugly). So you haven't addressed the question I raised.

KiwiNZ
December 22nd, 2006, 07:56 PM
Unfortunately all my books are in my office , I am on leave for 3 weeks. I promised my self this vacation I am not going into the office.

mips
December 22nd, 2006, 08:00 PM
As far as I can tell Sub Judice does not really apply in the US legal system. The 1st amendment would take precedence here. The only thing a US judge can do is issue a gag order which is not that common, and then the gag order only applies to those parties actually involved in the legal proceedings. The judge cannot tell every tom **** and harry not to discuss the case as it would be in violation of the 1st amendment.

Contempt of court does not come into play here as it only applies to proceedings within a court or violation of a court order outside of court.

The term sub judice is used but unlike other common law countries (uk, ca, aus, nz, sa etc) it just means 'it's with the courts' unlike the other countries which also means the same and you cannot speculate on it which is usually targeted at the press and not the common man in the street. you cannot stop people from discussing a case around a bbq, who is going to stop you ?

If you google for stuff on sub judice you will not anything on sub judice being used to silence people in the US, you will find many links for those other countries I listed though.

On a side note, the sub judice laws of my country are being criticized because they impede the freedom of expression which is guaranteed by the constitution. This coming from the leading law society and human rights organisations. I think the USA is past this already.

meng
December 22nd, 2006, 08:00 PM
Regarding not going into work while on leave - I quite agree.

I have to profess I am speaking from a position of legal ignorance. However, if I read that definition correctly it is possible to be found in criminal contempt arising from civil proceedings. Happy for the experts to jump in at any time.

KiwiNZ
December 22nd, 2006, 08:15 PM
@ mips

Sub Judice is a rule , the offence of breaking that rule is Contempt

@meng

If in a civil court rits are issued to provide information eg The code in the SCOv IBM case are not responded to , that is contempt.

If in a civil court as in a criminal court you for example fail to follow the instruction of the Judge/Magistrate that is contempt.

If you publish an article whilst a case is before a Court stating party A is guilty that is contempt because the matter is subject to the sub judice rule

BigDave708
December 22nd, 2006, 08:54 PM
If you publish an article whilst a case is before a Court stating party A is guilty that is contempt because the matter is subject to the sub judice rule
Have you heard about the recent events in England about a serial killer attacking women in Ipswich?

http://www.guardian.co.uk/suffolkmurders/story/0,,1977700,00.html

To cut a long story short, the man who has been charged with the murders was the second man to be arrested in connection with the murders. The first has now been released and is believed to be innocent.

My point? The UK media released the names of both men shortly after their arrests. They never obtained the names from the police, rather they got the names through other sources. It's possible that a contempt of court issue will arise later on in the proceedings due to the amount of information the media did find out and release to the public.

Just thought I'd throw that one into the discussion . . .

KiwiNZ
December 22nd, 2006, 09:36 PM
It depends how they report it .

If they say police have arrested a suspect in relation to the killings that is ok
If they reported , the police have arrested an innocent man for the killings before the case was decided..that would be contempt

KiwiNZ
December 22nd, 2006, 09:42 PM
It is all a matter of timing . If you read the Court reporters in your newspaper of choice you will see that they are very adept at the way the report and when they report.

mips
December 22nd, 2006, 10:17 PM
If they reported , the police have arrested an innocent man for the killings before the case was decided..that would be contempt

Hmm, I see nothing wrong with that. The man IS innocent until proven guilty. We are all innocent until proven guilty, except maybe in some countries.

az
December 23rd, 2006, 01:29 PM
If you publish an article whilst a case is before a Court stating party A is guilty that is contempt because the matter is subject to the sub judice rule

In the US, CNN broadcasts the Larry King show every day. He almost always interviews people who are involved in cases which are before the courts. He would ask members of a murdered victim "do you think he did it?" all the time.

This does not seem to be in contempt of court.

mips
December 24th, 2006, 10:29 AM
Surely there must be a US lawyer here that can elaborate here ?!

eXisor
December 24th, 2006, 01:36 PM
I just discussed this with a ZA lawyer (criminal) and he doesn't see an issue here.

The forum has a clear disclaimer that the content posted by members does not reflect their views. This is the same disclaimer as can be seen on news site around the world that allow public posts, eg: BBC/Sky/CNN etc. Legally, the disclaimer is sufficient and protects the forum from member content.

Any 'contempt' action to be taken is thus against the poster, not the forum, and hence I am confused as to why this is a matter ever requiring moderator/administrator intervention.

You cannot protect us from ourselves.

eXisor
December 24th, 2006, 02:35 PM
A further point I would like to make is the matter of legality.

As I see it, it should not be expected of the administrators to evaluate the legal implications of a post. This would require them to be practising lawyers across all the fields of law in the country where the server resides, and where the domain is registered. This is patently undoable.

In particular I have seen many posts I would consider libelous if I was the party referred to, but these have, understandably, not been locked or banned.

It seems odd to me that this particular matter, namely 'sub-judice' has been chosen when it seems clear that there is a myriad of legalities that can and do arise every day regarding posts.

As I said, I do not think administrators can be expected to do this job.

Do not get me wrong. I do think the adminstrators and Canonical have the right to enforce the philosophy they have chosen for the forum, and I think they (this matter aside) do a very good job.

meng
December 24th, 2006, 03:52 PM
Agreed. I have no reall quibble with restricting discussion, but not based on a misguided interpretation of the law. If discussing the Reiser case is considered to be in bad taste, then say so and shut it down!

KiwiNZ
December 24th, 2006, 06:36 PM
Agreed. I have no reall quibble with restricting discussion, but not based on a misguided interpretation of the law. If discussing the Reiser case is considered to be in bad taste, then say so and shut it down!

The legal interpretation was not misguided,it was,based on advice given and approprite research.

BigDave708
December 24th, 2006, 07:57 PM
There is a district attorney for - I believe - Delaware who uses Ubuntu, although I don't know whether he is a forum member or not. Don't ask me how I know that though!


The legal interpretation was not misguided,it was,based on advice given and approprite research.
Not that I want to enter into this argument again, but the appropriate research still has not been shown to exist yet.

KiwiNZ
December 24th, 2006, 09:40 PM
Not that I want to enter into this argument again, but the appropriate research still has not been shown to exist yet.

As I said earlier all my legal volumes are at my Office so I don't have them handy.

Also, if you have ever read Legal Books and Journals you would understand why I am not prepared to spend countless hours typing the information here. And believe me at my word per minute rate of typing it would take for ever.

mips
December 25th, 2006, 02:11 AM
The 1st amendment of the US constitution takes precedence. The Sub Judice rule goes out the window.

It took me hours to find this but eventually I found the US Supreme court ruling on the issue of the media reporting on criminal trials.

My first lead was this site:
http://www.mediainstitute.org/ONLINE/FAM2002/Press_B.html

Next I did a search for Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)

See Supreme court bound volume 523:
http://www.supremecourtus.gov/opinions/boundvolumes/523bv.pdf

or

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0448_0555_ZS.html
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=448&invol=555
http://www.hrcr.org/safrica/access_information/United%20States/Richmond.htm

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0448_0555_ZS.html


Syllabus
SUPREME COURT OF THE UNITED STATES
448 U.S. 555
Richmond Newspapers, Inc. v. Virginia

APPEAL FROM THE SUPREME COURT OF VIRGINIA

No. 79-243 Argued: February 19, 1980 --- Decided: July 2, 1980 At the commencement of a fourth trial on a murder charge (the defendant's conviction after the first trial having been reversed on appeal, and two subsequent retrials having ended in mistrials), the Virginia trial court granted defense counsel's motion that the trial be closed to the public without any objections having been made by the prosecutor or by appellants, a newspaper and two of its reporters who were present in the courtroom, defense counsel having stated that he did not "want any information being shuffled back and forth when we have a recess as to . . . who testified to what." Later that same day, however, the trial judge granted appellants' request for a hearing on a motion to vacate the closure order, and appellants' counsel contended that constitutional considerations mandated that, before ordering closure, the court should first decide that the defendant's rights could be protected in no other way. But the trial judge denied the motion, saying that, if he felt that the defendant's rights were infringed in any way and others' rights were not overridden, he was inclined to order closure, and ordered the trial to continue "with the press and public excluded." The next day, the court granted defendant's motion to strike the prosecution's evidence, excused the jury, and found the defendant not guilty. Thereafter, the court granted appellants' motion to intervene nunc pro tunc in the case, and the Virginia Supreme Court dismissed their mandamus and prohibition petitions and, finding no reversible error, denied their petition for appeal from the closure order.
Held: The judgment is reversed. Pp. 563-581; 584-598; 598-601; 601-604.
Reversed.
MR. CHIEF JUSTICE BURGER, joined by MR JUSTICE WHITE and MR. JUSTICE STEVENS, concluded that the right of the public and press to attend criminal trials is guaranteed under the First and Fourteenth Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmentxiv)s. Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. Gannett Co. v. DePasquale, 443 U.S. 368 (http://supct.law.cornell.edu/supct-cgi/get-us-cite/443/368), distinguished. Pp. 563-581. [p556]
(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that, at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 U.S. 11 (http://supct.law.cornell.edu/supct-cgi/get-us-cite/348/11), 14, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice. Cf., e.g., Levine v. United States, 362 U.S. 610 (http://supct.law.cornell.edu/supct-cgi/get-us-cite/362/610). Pp. 563-575.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmenti), share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmenti) can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmenti) right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmenti) was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right, but also as a catalyst to augment the free exercise of the other First Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmenti) rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally -- and representatives of the media -- have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. Pp. 575-578.
(c) Even though the Constitution contains no provision which, by its terms, guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmenti); [p557] without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Pp. 579-580.
(d) With respect to the closure order in this case, despite the fact that this was the accused's fourth trial, the trial judge made no findings to support closure; no inquiry was made as to whether alternative solutions would have met the need to ensure fairness; there was no recognition of any right under the Constitution for the public or press to attend the trial; and there was no suggestion that any problems with witnesses could not have been dealt with by exclusion from the courtroom or sequestration during the trial, or that sequestration of the jurors would not have guarded against their being subjected to any improper information. Pp. 580-581.
MR. JUSTICE BRENNAN, joined by MR. JUSTICE MARSHALL, concluded that the First Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmenti) -- of itself and as applied to the States through the Fourteenth Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmentxiv) -- secures the public a right of access to trial proceedings, and that, without more, agreement of the trial judge and the parties cannot constitutionally close a trial to the public. Historically and functionally, open trials have been closely associated with the development of the fundamental procedure of trial by jury, and trial access assumes structural importance in this Nation's government of laws by assuring the public that procedural rights are respected and that justice is afforded equally, by serving as an effective restraint on possible abuse of judicial power, and by aiding the accuracy of the trial factfinding process. It was further concluded that it was not necessary to consider in this case what countervailing interests might be sufficiently compelling to reverse the presumption of openness of trials, since the Virginia statute involved -- authorizing trial closures at the unfettered discretion of the judge and parties -- violated the First and Fourteenth Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmentxiv)s. Pp. 584-598.
MR. JUSTICE STEWART concluded that the First and Fourteenth Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmentxiv)s clearly give the press and the public a right of access to trials, civil as well as criminal; that such right is not absolute, since various considerations may sometimes justify limitations upon the unrestricted presence of spectators in the courtroom; but that, in the present case, the trial judge apparently gave no recognition to the right of representatives of the press and members of the public to be present at the trial. Pp. 598-601.
MR. JUSTICE BLACKMUN, while being of the view that Gannett Co. v. DePasquale, supra, was in error, both in its interpretation of the Sixth Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmentvi) generally and in its application to the suppression hearing [p558] involved there, and that the right to a public trial is to be found in the Sixth Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmentvi), concluded, as a secondary position, that the First Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmenti) must provide some measure of protection for public access to the trial, and that here, by closing the trial, the trial judge abridged these First Amendment (http://supct.law.cornell.edu/supct-cgi/get-const?amendmenti) interests of the public. Pp. 601-604.
BURGER, C J., announced the Court's judgment and delivered an opinion, in which WHITE and STEVENS, JJ., joined. WHITE, J., post, p. 581, and STEVENS, J., post, p. 582, filed concurring opinions. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 584. STEWART, J., post, p. 598, and BLACKMUN, J., post, p. 601, filed opinions concurring in the judgment. REHNQUIST, J., filed a dissenting opinion, post, p. 604. POWELL, J., took no part in the consideration or decision of the case.
Some further reading for those interested (with comparison to non US law):
http://www.time.com/time/magazine/article/0,9171,947289,00.html
http://www.time.com/time/magazine/article/0,9171,847816-2,00.html They don't like it but tough.
http://www.usconstitution.net/const.html#Am1
http://usinfo.state.gov/journals/itdhr/0297/ijde/goodale.htm
http://www.projectcensored.org/publications/2005/11.html not related but interesting, media can legally lie in the US :)

Hopefully this clears up any questions and puts the matter to rest.

There was also lots of info on stuff like allowing cameras etc in court. The trial by media while the case is Sub Judice which is very common in the US. Got lot's of stuff for the OJ Simpson trial ;)

In my searching I also came across issues regarding Libel, Defamation etc. From my understanding comments by individuals on the forum would not result in liability towards the forum, the liability lies with the author/individual making the statement. Someone already mentioned this though. I'm sure we could find some case law on this.

mips
December 25th, 2006, 02:24 AM
I'll continue my search for more information tomorrow.

mips
December 25th, 2006, 03:18 AM
http://hotair.com/archives/2006/08/28/nyt-pulls-report-on-terror-plot-from-website-due-to-british-law/
http://www.associatedcontent.com/article/100323/the_story_behind_justice_sometimes.html
http://www.merinews.com/catFull.jsp?articleID=123650&category=India&catID=2&mailer=&responseID=5850&responseType=rtm

KiwiNZ
December 25th, 2006, 04:21 AM
The 1st amendment of the US constitution takes precedence. The Sub Judice rule goes out the window.

.

No it doesnt , acts that prejudice justice either indirectly or facie curiae may incur a charge of contempt of court.

mips
December 25th, 2006, 11:21 AM
No it doesnt , acts that prejudice justice either indirectly or facie curiae may incur a charge of contempt of court.

Maybe in NZ, Aus, UK, Ca, Za and lots of other countries but not all. In the US the press is free to report or comment on criminal cases. Have you not seen this in action ??? Everyone from Fox to CNN does it.

Sorry but you are wrong on this one in the context of US law.

Can somebody please get Prof. Kingsley online ;)

eXisor
December 25th, 2006, 12:25 PM
KiwiNZ: Please address the points I raised...

Namely .... Is ubuntuforums protected by the 'member content disclaimer'?

The answer to this point is surely the basis of this discussion.

If ubuntuforums is not covered, then your censorship on points of legality is understandable, although your interpretation of the law remains open to debate.

If ubuntuforms is covered, then your censorship on the basis of legality cannot (IMO) be justified at all.

As I said, you cannot, and IMO, should not, be trying to protect us from ourselves.

speedman
December 25th, 2006, 03:20 PM
Maybe in NZ, Aus, UK, Ca, Za and lots of other countries but not all. In the US the press is free to report or comment on criminal cases.

The same applies here in Canada. The press is free to report on all cases that don't involve a minor and are not under a court imposed publication ban.

A modicum of common sense needs to be applied here.

SM

KiwiNZ
December 25th, 2006, 07:22 PM
KiwiNZ: Please address the points I raised...

Namely .... Is ubuntuforums protected by the 'member content disclaimer'?

.

Precisely!!!

There is no published disclaimers,hence my decision to moderate.

eXisor
December 25th, 2006, 08:31 PM
KiwiNZ:

Then surely publishing a disclaimer is what needs to be done.

The alternative, namely, expecting administrators to know all applicable law, is obviously untenable.

rkh
January 23rd, 2007, 09:06 PM
I am a US lawyer. I realize that no one has spoken in this thread for a few weeks, but there seems to be some confusion between US and UK law. In the US, the First Amendment provides pretty strong protection. So, generally speaking, you cannot be held in contempt -that is what we are talking about here- unless you are somehow involved in the case. So, while I am not your lawyer so take this merely as a hypothetical-wink wink- you don't have to worry about discussing a US case on a message board. SCO is a US case. Reiser's case is a US case. I don't see how a UK judge would have jurisdiction to nail someone for contempt in a US case regardless of where the servers are. But hey. Like I said, I am a US attorney-what do I know from UK law.

mips
January 23rd, 2007, 11:16 PM
I am a US lawyer. I realize that no one has spoken in this thread for a few weeks, but there seems to be some confusion between US and UK law. In the US, the First Amendment provides pretty strong protection. So, generally speaking, you cannot be held in contempt -that is what we are talking about here- unless you are somehow involved in the case. So, while I am not your lawyer so take this merely as a hypothetical-wink wink- you don't have to worry about discussing a US case on a message board. SCO is a US case. Reiser's case is a US case. I don't see how a UK judge would have jurisdiction to nail someone for contempt in a US case regardless of where the servers are. But hey. Like I said, I am a US attorney-what do I know from UK law.

Thank you, thats what I've been saying all along :wink:

Dunno if they are going to believe a single lawyer though, maybe some of your fellow lawyers can back you up.

Do you have any case law examples on this issue by any chance ?

KiwiNZ
January 24th, 2007, 12:28 AM
I am a US lawyer. I realize that no one has spoken in this thread for a few weeks, but there seems to be some confusion between US and UK law. In the US, the First Amendment provides pretty strong protection. So, generally speaking, you cannot be held in contempt -that is what we are talking about here- unless you are somehow involved in the case. So, while I am not your lawyer so take this merely as a hypothetical-wink wink- you don't have to worry about discussing a US case on a message board. SCO is a US case. Reiser's case is a US case. I don't see how a UK judge would have jurisdiction to nail someone for contempt in a US case regardless of where the servers are. But hey. Like I said, I am a US attorney-what do I know from UK law.

Thank you very much for your input , much appreciated.

Do you have any precedents we can quote ?

rkh
January 24th, 2007, 05:29 AM
I haven't had a lot of time to research the issue, but here is a start. Keep in mind that I am not the lawyer for this discussion board, its readers, etc, etc. A good basic reference for contempt under US Federal law is the US Attorney's Manual. You can find the sections regarding contempt at: http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/39mcrm.htm.

"There are four essential elements under 18 U.S.C. 401(1). They are: (1) misbehavior of a person; (2) in or near to the presence of the court; (3) which obstructs the administration of justice; and (4) which is committed with the required degree of criminal intent. United States v. McGainey, 37 F.3d 682, 683 (D.C. Cir. 1994)."

"There are three essential elements under 18 U.S.C. 401(3). They are: (1) there must be a violation; (2) of a clear and reasonably specific order; and (3) the violation was willful. United States v. Nynex Corp., 8 F.3d 52, 54 (D.C. Cir. 1993)."
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00753.htm

Additional resources on the issue-under primarily Federal law- can be found at http://www.law.cornell.edu/
Search under "contempt" and you will find a bunch of useful stuff. Search under "sub judice" and you will find mostly irrelevant material.

I do not practice in Federal Court - I am a NY attorney- and I can speak with very little authority on the international legal implications. But this issue implicates very basic first amendment principles under US law. I'll buy a box of donuts to the first person on this board who is haled into a US court for merely discussing a US court case. Like I said before, I don't know about UK or Canadian law, but I honestly think that those courts have better things to do than police the public discussion of foreign court cases. If these were British cases then the law might be different. I would still have no fear of discussing the case here. Even if the court had jurisdiction, there is no way that the extradition would ever happen.

In a way, its kind of hard to give you a good recent case that says that uninvolved people can't be charged with contempt because the issue doesn't up much. If anyone is curious, take a look at my links-read the law for yourself. This isn't brain surgery, I'm not smart enough for that :).

-RKH

mips
January 24th, 2007, 11:53 AM
The thing is that the constitution has the final say. We have a very modern & new constitution over here. Many laws have been repeeled (or whatever you call it) because they are considered unconstitutional by the constitutional court.

We also have the right to freedom of speech entrenched in our constitution but our rights do not stretch as far as those of US citizens. Hate speech for example is not allowed though. I disagree with this though.

We also have the sub judice rule here but there has been utterances from the legal fraternity that it is unconstitutional. Was also mentioned in one of our local law reports.

Currently the media over here does not pay that much attention to the sub judice rule. The media has been making good use of the high/supreme/constitutional courts though where certain judges issue (or try to) gag orders etc.

I foresee the sub judice rule not being valid in our not to distant future.

Other countries that practice English Common Law might have a constitution that incorporates a bill of rights but the constitution is not considered supreme law (NZ for example, Also see 1960 Canadian bill of rights.). In SA for example the Constitutional court has the final say and it's ruling are binding on ALL lower courts.

Look up on how constitutions work or don't work in places like the UK, NZ, Canada, Aus etc. A simple act of parliament would change the UK constitution.

mips
January 24th, 2007, 12:14 PM
A good basic reference for contempt under US Federal law is the US Attorney's Manual. You can find the sections regarding contempt at: http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/39mcrm.htm.


767 Indirect Criminal Contempt -- Persons Against Whom the Action May Be Commenced


To be held in criminal contempt for violation of a court order, the defendant must be an original party, one legally identified with an original party, or an aider and abettor of one of the above enumerated persons. Backo v. Local 281, United Brothers of Carpenters and Joiners, 438 F.2d 176, 180-81 (2d Cir. 1970), cert. denied, 404 U.S. 858 (1971); Reich v. United States, 239 F.2d 134, 137 (1st Cir. 1956), cert. denied, 352 U.S. 1004 (1957). But see Manness v. Meyers, 419 U.S. 449 (1975) (attorney giving good faith legal advice not to be found in contempt).

mips
February 21st, 2007, 11:35 AM
For anyone who wants to see how sub judice does not apply in the USA turn on your tvs and watch Larry King live on CNN.

The topic is the Anna Nicole Smith paternity & burial court case which is happening in CA, FL & Bahamas.

Most of the lawyers involved in the case are being interviewed by Larry King. They are discussing the case, each others clients etc. They are even discussing that their clients are gonna take the stand tomorrow and what they are going to testify about. Even the judge is being discussed. Even things mentioned in chambers came out.

Pretty good example of how sub judice does NOT apply in the USA.

rkh
February 21st, 2007, 07:34 PM
Good illustration -of the sub judice issue only. I'll leave you to draw your own conclusions about what it says about the US media. The judge probably could bar the attorneys from speaking. Obviously he has not and almost certainly will not. US courts are generally reluctant to make such orders in non-criminal cases.

To sum up. There is nothing in US law to prevent forum members from discussing the Anna Nicole Smith case. Hopefully, nobody will discover the linux angle in this story so it can end here.

mips
February 21st, 2007, 09:10 PM
Hopefully, nobody will discover the linux angle in this story so it can end here.

You lost me, what angle ?

rkh
February 22nd, 2007, 12:22 AM
If there was one I don't think that I would say -see my prior post- wink wink.

mips
February 22nd, 2007, 10:04 AM
lol, you know how to keep an idiot in suspense ;)