Ronald D. Rotunda

O DIREITO DA DISSIDÊNCIA E A DÍVIDA DOS ESTADOS UNIDOS COM HERÓDOTO E TUCÍDIDES

The United States prides itself as a country that respects free speech, the right of all persons to criticize the government even in times of war. However, it was not always so. The events related to World War I brought the first cases raising free speech issues to the U.S. Supreme Court. While several justices, in particular, Oliver Wendell Holmes, praised free speech, the Court upheld all the Government prosecutions of dissidents. It has taken nearly a century since those cases for the Supreme Court to come full circle and now protect those who criticize the Government in time of war. When the Court changed its views to create the modern protections, it relied on philosophical justifications for free speech that go all the way back to the ancient Greeks, 2,400 years ago. The modern justification for free speech relies on these philosophers from ancient Greece. There is little new under the sun. While governments typically believe that, for the public good, they must censor speech and squelch dissenters in time of war, the Greeks believed that their free speech made them stronger, not weaker. There are those who argue it is more difficult for a democracy to go to war because it cannot conduct the war successfully if the people oppose it and dissenters remain free to criticize. That is a good thing, not a bad thing. In modern times, no democracy has warred against another. As Pericles reminds us, “[t]he great impediment to action is, in our opinion, not discussion, but the want of knowledge that is gained by discussion preparatory to action.” As other countries embrace democracy and protections for dissidents, our increased freedoms should bring us more peace and less war.

Judicial Elections, Campaign Financing, and Free Speech

79 MOST STATES (39 at last count) choose judges through popular elections.1 But these elections are often quite unlike ordinary political campaigns. When judges run for reelection, or when lawyers run for judicial office, they are typically subject to rules that limit what they can say in the course of their campaigns.2 The incumbent judges issue rules that are both intended to restrict, and in fact do severely restrict, the political speech of judicial candidates running for office. These rules are “law” in the same sense that rules of evidence or rules of civil procedure are law,3 so one should not think of such rules as advisory. They have real bite, and those who violate them are subject to

Reporting sensational trials: Free press, a responsible press, and cameras in the courts

It is common today to criticize the media for the way in which they report sensational trials. Lawyers often join in this criticism, claiming that the portrayals harm their public image. This article examines such complaints and demonstrates that including cameras in the courts need not lengthen a criminal trial, nor substantially affect the judicial process. Using the O.J. Simpson criminal case as a backdrop, the article shows how delays in that case were caused not by cameras, but by the judges inconsistent rulings that signaled to the defense lawyers that they were under a different and more lenient standard than the prosecutors. Surveys of American judges show that those who have experienced cameras in their own courtroom have come to the conclusion that such media coverage does not impede justice, aids the public in understanding the judicial process and has little effect on Americans perceptions of lawyers. Those judges who have the urge to play to the cameras should ban them, but if they do not, ...