20 J. Marshall L. Rev. 581 (1986-1987)
Kemner v. Monsanto Company: The Illinois Supreme Court Confronts the Free Speech/Fair Trial Controversy

handle is hein.journals/jmlr20 and id is 591 raw text is: KEMNER v. MONSANTO COMPANY:* THE
Freedom   of speech' and a litigant's right to a fair trial2 by an
impartial jury are two long-standing tenets of American jurispru-
dence.3 Generally, these two liberties coexist in harmony. When one
litigant's out-of-court comments conflict with the other litigant's
right to a fair trial, however, it becomes necessary to balance the
competing interests. In a matter of first impression, the Illinois Su-
preme Court in Kemner v. Monsanto Company,5 resolved such a
* 112 III. 2d 223, 492 N.E.2d 1327 (1986).
1. Freedom of speech and the press are essential to the enlightenment of a free
people and in restraining those who wield power. Bridges v. State of California, 314
U.S. 252, 284 (1941) (Frankfurter, J., dissenting). For an analysis of the origins of
freedom of speech and press, see Bogen, The Origins of Freedom of Speech and
Press, 42 MD. L. REv. 429 (1983).
2. The administration of justice by an impartial judiciary has been basic to our
conception of freedom ever since the Magna Carta. Its assurance is everyone's con-
cern, and it is protected by the liberty guaranteed by the [f]ourteenth [a]mendment.
Bridges, 314 U.S. at 282. Also, [a] fair trial in a fair tribunal is a basic requirement
of due process. Fairness of course requires an absence of actual bias in the trial of
cases. Estes v. State of Texas, 381 U.S. 532 (1965) (quoting Offutt v. United States,
348 U.S. 11, 14 (1954)), reh'g denied, 382 U.S. 875 (1965).
3. The United States Constitution provides: Congress shall make no law . . .
abridging the freedom of speech .... U.S. CONST. amend. I. Also, [in suits at com-
mon law . . . the right of trial by jury shall be preserved.   U.S. CONST. amend.
The right of freedom of speech is made applicable to the states through the due
process clause of the fourteenth amendment. See Fiske v. Kansas, 274 U.S. 380
(1927); Near v. Minnesota, 283 U.S. 687 (1931). The seventh amendment guarantee of
the right to trial by jury, however, has been held not applicable to the states. Fay v.
New York, 332 U.S. 261 (1947). See also Alexander v. Virginia, 413 U.S. 836 (1973),
reh'g denied, 414 U.S. 881 (1973). Nonetheless, the Illinois Constitution provides for
the right of free speech as well as the right to a jury in civil cases in that [all
persons may speak, write and publish freely, being responsible for the abuse of that
liberty. ILL. CONST. art. I, § 4. Furthermore [tihe right to trial by jury as heretofore
enjoyed shall remain inviolate. ILL. CONST. art. I, § 13.
4. See Wood v. Georgia, 370 U.S. 375 (1962). (Harlan, J., dissenting). In Wood,
a Georgia trial court found a sheriff in contempt of court for his out-of-court state-
ments. In reversing the trial court's decision, the Supreme Court stated that the
right to free speech is not absolute; when the right of free speech conflicts with the
right to an impartial judicial proceeding, an accommodation must be made to pre-
serve the essence of both. Id. at 395. See also Note, A Constitutional Assessment of
Court Rules Restricting Lawyer Comment on Pending Litigation, 65 CORNELL L.
REv. 1106, 1120 (1980) (discussion of the factors to be considered in a balancing ap-
proach between an attorney's right to free speech and a litigant's right to a fair trial).
5. The Kemner trial has been described as the longest jury trial in the nation's
history. Trial lasts 385 days with more to come, Chi. Sun-Times, Mar. 23, 1986, at
66. See also In Illinois: The Longest Jury Trial Drones On, Time, Mar. 23, 1987, at

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