I recently read an article in Utah's Cache Valley Daily, by Rachel Christensen, about the importance of good legal news reporting to the public's understanding of the court system. In her article, she says that the lack of a good relationship between the media and the Supreme Court is a major part of the problem of why so many people have such little knowledge about the Court.
She writes, quoting RonNell Andersen Jones, law professor at Brigham Young University, about the media and the Supreme Court: "Both have a shared interest, and that shared interest is in serving the public, in ensuring social learning, an appreciation of current legal affairs, and in turn ensuring the importance of the ongoing vibrancy of our democracy," quoting Jones.
According to Jones, both sides blame each other for the problem of the public not fully understanding how the Court works. Thus, she recommends that the press become more knowledgeable in legal matters and the Court make a greater effort to make summaries of court cases more accessible to those who don't know the law.
This story struck my eye. The disparity between how lawyers think about legal issues and how legal issues are presented to the general public by the media is a continuing issue of concern. From what I observe, most legal issues are presented to the public by the media as a subset of politics and public policy, often as conflicts between various group interests--rather than as conflicts between individual's legal rights and obligations.
More importantly, cases are often presented as conflicts between social classes, or between those with competing political interests. Thus, members of the general population feel the need to "take sides" in judicial wars, and thus to respect those judges whose decisions lead to results that match their self interest and to reject those judges whose decisions lead to results that don't.
For instance, during the Justice Sonia Sotomayor nomination proceedings, members of the public who oppose the public policy of Affirmative Action were outraged that Justice Sotomayor, when she was on a Court of Appeals, "voted in favor of Affirmative Action." In actuality, she voted as an appellate judge that it was reasonable for a local government employer to suspect a test contained an unreasonable racial bias when the results and application of the test would create a huge disparate impact negatively impacting minority firefighters, and thus legal liability under Title VII of the 1964 Civil Rights Act.
In other words, Justice Sotomayor's ruling was misportrayed to be a political comment on a political issue, Affirmative Action. More precise reporting on the subject would have advanced the public's understanding of the appellate process. Another disparity between the public's opinion and the court's actions is the recent case of Dukes v. Walmart.
In Dukes, the Supreme Court ruled that the plainiffs' claims were not sufficiently similar to allow them to join a class action. As an attorney with a fair amount of plaintiff-oriented employment law experience, I am disappointed to hear comments in the media that suggest that the case makes it harder for individuals to pursue discrimination cases, where the decision related solely to class actions, not individual claims. That said, depending how the lower courts interpret the decision, it could impact class action certification. Although that result is foreseeable, it is not necessary. The news media has not made that clear.
Another classic example is the "McDonald's Coffee case", Liebeck v. McDonald's Restaurants, presented by the right wing as a case where clumsy individual blamed a corporation for her own sloppiness, coupled with an unchecked runaway jury verdict. Those on the left saw the case as a victim of corporate carelessness fighting the machine. Thus many seemed to develop an opinion as to whether the jury was justified in its conclusion or a politically-motivated jury, regardless of facts of the case. This has been extremely unfortunate. First, in this case, the jury verdict of almost 3 million was reduced by the judge to $640,000.
Thus, this case really can't be an example of an unchecked run-away jury because the verdict was actually "checked." Second,during the trial, plaintiff's showed that her injuries were foreseeable by the particular McDonalds franchise because it faced numerous complaints of injuries due to hot coffee, and that this franchise in this case typically sold coffee at temperatures that would burn a customer if consumed at the time of purchase.
In Constitutional cases, the problem is sometimes worse. Liberals and Conservatives think about complex issues like abortion, affirmative action, homosexual marriage and national health care is very different ways. Often they disagree about the underlying meaning of certain Constitutional principles, and sometimes disagree about what Constitutional principles are implicated in deciding these issues.
Like many in the legal community, I am tempted to blame the media for their failure in properly presenting the legal issues at hand. This article up to this point might be read in such a manner. However, reporting on legal issues can be quite difficult and unfair on the reporter. Reporters are asked to present complex issues in a small number of words, and often not given enough time to fully study the issues at hand. Furthermore, reporters run the risk of being accused of bias by either side if they don't satisfactorily represent that side's perspective in their reports. Thus, reports are thus forced to write superficial reports in order to avoid being accused of bias. Satisfying consumers of news is also very difficult.
Consumers of news don't have time to read and listen to complex presentations. They want the "bottom line" headline (e.g. "news at the top of the hour"), or the one-paragraph version, which is, as mentioned above, a very difficult challenge when reporting legal news. There is another set of consumers which is particularly motivated by learning about partisanship, either by its analysis or by participants--as is evidenced by the popularity of cable news commentators (e.g. msnbc, fox news) and biased radio news hosts (Rush Limbaugh, Glen Beck).
Thus, we in the legal community have a challenge that goes slightly further than is reflected in Ms. Christensen's article. As is reflected in Ms. Christensen's article, we in the legal community probably need to do more to encourage the legal education of reporters. Also, perhaps the Rules of Professional Conduct should include a provision that instructs lawyers how to interact with the press.
My vision is that the Rules of Professional Conduct might require us lawyers to communicate with the press in a manner that requires us assure that members of the press are made aware when we are giving them a biased comment. However, the press corps should also do more to assure that its legal reporters are given time to understand the context of the story they are writing.
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