The British far-right anti-Muslim activist Tommy Robinson has been sentenced, initially in secret, to 13 months in jail for committing acts of web journalism outside a Leeds court regarding an ongoing criminal trial.
The arrest last Friday, as Fox News reports, happened because Robinson was filming outside a trial of Muslim men "accused of being part of a gang that groomed children." LeedsLive reports that Robinson was livestreaming for an hour to Facebook outside Leeds Crown Court and that 250,000 people saw his reporting.
His imprisonment was for violating what the British system calls a "postponement order" on any public reporting of an ongoing court case, in this case because it involves a series of linked trials. The theory is that reporting on one before the others are over could undermine defendants' ability to have a fair trial. The judge who sent Robinson away justified the severity of the punishment by invoking the potential costs of any retrial made necessary by Robinson's actions.
Even reporting that Robinson had been sentenced to more than a year in jail for what could certainly be seen as an act of pure free expression was itself under a legal gag order. That led to some reporting on Robinson's sentence being memory-holed. The judge rescinded the gag on reporting the Robinson story in response to a challenge from LeedsLive.
British law allows for expansive restrictions on the right to speak or publish regarding certain trials. These rules are framed with a general presumption that free reporting on court proceedings is of course a public good, unless a judge decides it "would give rise to a substantial risk of prejudice to the administration of justice" that cannot be overcome by "less restrictive means."
Robinson's initial arrest for livestreaming was announced at the time as an arrest for "breach of the peace." While he was in custody, the authorities discovered he had already been arrested last May for filming in front of and inside a court building where a rape trial involving four Muslim defendants was being held. Robinson had been given a suspended three-month sentence at the time, and if he did nothing more to get the court's attention in 18 months following, he would not actually serve the time. Now he is, plus 10 more months for last week's livestreaming.
In America, the recourse for defendants who suffer prejudicial publicity generally isn't to lock up the reporters. Overturned convictions are more likely, though even those are rare.
The British blog The Secret Barrister is firmly on the side of existing British law and perfectly happy Robinson is in prison:
To avoid jurors having their deliberations contaminated by what they might read or hear about the earlier linked trials, reporting of all of them is often postponed until the end….This is what we had here. The judge had imposed a postponement order preventing the media from reporting on the ongoing trial until all linked trials had concluded.
Breaching a reporting restriction amounts to a contempt of court.
That's it as far as the Barrister is concerned: crime committed, justice served with 13 months in jail. Those who see Robinson's imprisonment as any kind of restriction on free speech, the blogger writes, are "ye of little brain. He was found to be in contempt of court…because his actions put a serious criminal trial in jeopardy. Running around a court building shouting 'paedophile' at defendants during a live trial, or live-streaming defendants and members of the public—potentially including jurors—entering and exiting a court building against a tub thumping narration of 'Muslim paedophile gangs', is hardly conducive to ensuring a fair trial."
But jurors can be instructed, as they generally are in the U.S., to judge based on the evidence presented in court, not on something they heard some guy with a camera scream. Jurors apt to reach verdicts based on "but I heard a guy shouting in the hall he was guilty" have problems no amount of secret and draconian speech restrictions can solve.
Over a year in jail, especially for someone who is a thorn in the side of a regnant national ideology, feels politically punitive to many of Robinson's supporters. A sympathetic German MP is offering Robinson political asylum. Fox News points out many recent refusals on the part of Britain to let in anti-Muslim activists shows an ongoing prejudice against the ideology on the part of that government.
I am unsure how frequently this law is broken (though British officials have for years also trolled the internet for violators of enforced legal proceeding privacy), nor do I know how people who do not have Robinson's political baggage tend to be treated when arrested for this offense. But a November 2000 NYU Law Review article by Joanna Armstrong Brandwood argues that the relevant law, the Contempt of Court Act,
has proven, at times, both stiflingly strict and woefully ineffective….[C]ritics charge that both the definition of contempt and the extent of the public affairs exemption are unworkably vague. Wide discretion granted to authorities increases both the uncertainty for publishers and the dangers of selective enforcement. This has a chilling effect on free speech, and, not surprisingly, the amount of information published in Britain about the courts and criminal cases noticeably has declined since 1981….From an American perspective, the British law of contempt unnecessarily and inadvisably restricts freedom of the press. While the media might interfere with criminal defendants' fair trial rights, it also has an important role in securing those rights….The British law of contempt limits the effectiveness of the press as a guarantor of individual liberties, thereby potentially compromising the very values it seeks to protect. British commitment to the preservation of the right to a fair trial is commendable, but the heavy club of contempt of court may not be the wisest tool with which to secure that right.
Perhaps Robinson was treated exactly as he would have been if he were a radical vegan reporting on a series of criminal cases involving meat eaters. Even were that the case, and despite the excuses offered by British law, jail for reporting on a criminal case is on its face a blow to both free speech and the public interest, and a jury system that requires such laws has flaws such rules cannot be expected to remedy.