Hengstler, Gary A --- "Talking to the Media: a Us Perspective on Judicial Education" [2004] ALRCRefJl 22; (2004) 85 Australian Law Reform Commission Reform Journal 19

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Reform Issue 85 Summer 2004/05

This article appeared on pages 19–22 of the original journal.

Talking to the media: A US perspective on judicial education

By Gary A Hengstler*

Whenever I conduct the two-hour media session in any of the General Jurisdiction classes for new judges at The National Judicial College in Reno, Nevada, I always can count on one judge to issue the challenge: ‘I never talk to the media; they never get it right.’

That sentence pretty much sums up the attitude of many judges in the United States. The press is the enemy. Case closed.

It is a position some judges feel very comfortable with. After all, for most of America’s history, the press tended to ignore most of the court’s work. They never had to talk to the press because the press seldom came knocking.

Now, however, Americans, through television, have found the courts, and they are intrigued by what they see. Dramas based on legal settings make up a significant portion of the networks’ nightly entertainment. Check out the paperback books at the airport gift shops and see how many of them deal with crime and the courts.

And it didn’t take long for the TV news departments and the daily newspapers to pick up on the public’s growing fascination with the courts. Increasingly, the news includes the latest developments in the most noteworthy trials—all of which is making it more difficult for judges to ignore the media.

Speaking to that same General Jurisdiction class, a judge from Texas, Stephen Smith, probably gave the best argument for greater interaction between judges and reporters:

‘The media is going to do their stories whether we talk to them or not. And if we don’t engage them, we are letting others outside the law define us in the public eye. Who better to tell the public who we are and what we do than we, ourselves? If we fail to talk to the media, we are missing a great opportunity to help educate the public and to help provide trust and confidence in our judicial system.’

Consider the observation of one of the most esteemed jurists in US legal history, Judge Learned Hand, who observed that ‘the hand that rules the press, the radio, the screen and the far-spread magazine, rules the country’. What is amazing is that he drew that conclusion in 1942, long before the dominance of television in the United States. Think of how he would view the consolidated media’s power today!

Of course, the biggest complaint among judges is inaccurate reporting or, even worse, sensational, reckless news coverage. To be sure, there is no shortage of examples of bad reporting. But to focus on that is to concentrate on the exception rather than the rule. Most reporters covering the courts are trying to get it right and fulfill their public service roles in a democratic society. And, as former Chief Justice Warren Berger once wrote, a responsible press certainly is to be desired, but it can’t be constitutionally mandated.

The wariness of the courts and the scepticism of the media have led naturally to tensions, even conflict, between the two. Sometimes basic values are in competition. An example occurred in the criminal case against three former Enron executives when the judge sealed the transcript of the 28 July hearing in Houston. In kicking the reporter and lawyer for the Houston Chronicle out of a hearing, Judge Kenneth Hoyt explained his reasoning:

‘There are matters that do not need to be discussed in public in ways that embarrasses or humiliates the government or the defense and, particularly, the court.’

To which the press naturally responded: Since when is embarrassment a Constitutional justification for blocking the people’s right to know? If prevention of embarrassment were a valid reason for keeping things secret, you can bet that Presidents Richard Nixon and William Clinton would have been rushing to court to argue that point.

Granted, this was one of the more extreme cases, but the circumstances do underscore the periodic clashes between the courts and the media—or, more to the point, the conflict that can arise between the First and Sixth Amendments to the Constitution.

In fact, it can be argued that the drafters of our Constitution built the conflict into the document. The First Amendment virtually guarantees the right of the press to publish or air pretty much anything it chooses. The Sixth Amendment guarantees a defendant a fair trial. Consider the circumstance where a person is arrested and the police announce to the press that they obtained a confession. Consider further that at a preliminary hearing, a judge may throw out the confession on the grounds that the confession was unlawfully obtained, either through police coercion or failure to explain to the suspect that he has a right not to incriminate himself.

The natural question is how to impanel an unbiased jury in a high-profile case where the public has been told of the confession in the media but citizens sitting as a jury are not to consider the confession as evidence? From a defendant’s point of view, how fair is that? Yet under the US system, the courts are powerless to block the media’s reporting, thus illustrating the inherent conflict between the two amendments.

And these competing values can cause court personnel and reporters nationwide to grate on each other in attempting to do their jobs.

The symbiotic relationship

There is a certain irony in the friction between courts and media in that as much as each is wary of—and sometimes even hostile to—each other, they need each other. They exist in a kind of symbiosis, unique to our democratic system.

As the late, great CBS newsman Edward R Murrow observed, ‘What distinguishes a truly free society from all others is an independent judiciary and a free press.’ If there is one common trait the founding fathers had, it was a deep distrust of the potential for abuse by government officials. It is a trait still held by most Americans today.

That is why in drafting the Constitution, they tried to hedge against government overreaching. The two most important safeguards remain an independent judiciary, free to tell the executive and legislative when they have gone too far, and a free press, unfettered in its efforts to expose governmental wrongdoing or mistakes.

The irony lies in the fact that there is no free press unless judges say so. How the courts construe the First Amendment directly determines the relative freedom of the press. And there is no independent judiciary unless the public has the requisite degree of confidence and trust in the fundamental fairness and integrity of the judicial system. Since most people do not attend court personally to observe judges in action, that public perception and trust must come from media reports on court activities. So, in a sense, the courts and media are mutually dependent on each other to perform their respective civic duties.

The access questions

As the Houston episode suggests, the main battleground today is over access to courts and court information. The ‘prior restraint’ issues largely have been settled by the US Supreme Court in favour of the press. If the press has the information, there isn’t much that can be done to prevent the press from publishing it.

The question today, however, is whether the First Amendment includes a right of the press to the information in the first place. In this area, much remains unsettled. Judges, cognisant of their responsibility to ensure a fair trial and to balance privacy rights, often are uncertain as to how much access the press should be given in a case. At the same time, judges are aware that, in general, the courts must operate in a transparent atmosphere so retain and improve the public’s trust and confidence.

It is in this crucial area of access that our Center focuses much of our attention so we can assist judges to keep an appropriate balance as the law continues to develop.

Ethical considerations

An added wrinkle the Center assists judges with is the ethical rules that largely prohibit a judge from commenting on a pending or impending case. Even though the rule appears to be a strict prohibition against public comment, the second part of the rule creates an exception when the goal is to help educate the public about the judicial process. That is why some judges, while avoiding comment on substantive matters that occurred that day in court, have answered reporters’ questions about the process in a generic sense. During the Mike Tyson rape trial, Judge Pat Gifford met with reporters each day after the sessions to help novice reporters understand court procedures and terminology, but without comment on the specifics of what happened in court that day.

Of course, as I indicated earlier, some judges won’t talk to the press under any circumstances. And freedom to comment includes the freedom to decline comment. However, when a judge who spurns the press later complains about inaccurate reporting, we should recognise that one of the reasons a reporter’s account might be factually inaccurate is that there was no one to talk to help get the story straight. Most reporters covering the courts are not legal specialists. They are general assignment reporters, often thrown into the court coverage at the last minute and are unprepared.

Whether a judge feels motivated to help a journalist understand what is going on will depend on how much of an obligation the judge feels he or she has in public outreach to help improve the overall knowledge of citizens about their courts. More and more, courts are attempting to shore up the public’s comprehension that unfortunately was not learned sufficiently in the public school system.

There is one other aspect regarding ethics that judges also are concerned about. Many find it irritating that while they can be sanctioned for a violation of judicial ethical rules, reporters are under no such constraints. True, there are ethical guidelines for the press, but they always are, and must be, voluntary and aspirational.

That is because, under the First Amendment open to all citizens, the government cannot require reporters to be licensed. There is no effective way for any governmental unit to monitor and punish the press for ethical violations without also risking the potential for governmental abuse and censorship simply because someone did not like what was printed or aired.

And even if the legal community understands the concept intellectually and legally that doesn’t prevent the emotional feeling of a sense of frustration and anger, especially when one is unfairly criticised by the press.

The tensions between courts and media are here to stay. The media have discovered the courts as a rich news source for the human drama and conflict the courts must wrestle with. The best that can be done is to work toward a greater understanding of each other to minimise the conflicts, which is why our Center exists.

Judges from across the nation attend three-day workshops entitled ‘First Amendment and Media Issues for Judges’ at the Donald W Reynolds National Center for Courts and Media in Reno. We also have workshops for general assignment reporters who want to learn how to cover the courts better. We provide workshops for court employees so they can know the basics and serve as court information officers when the media shows up for a high profile case. And we hold seminars across the nation, indeed in other countries as well because, especially in these times, it is in our nation’s interest that the courts and media retain the public’s trust. A starting point is to lessen the conflict between the two. That is why the National Judicial College and the Reynolds School of Journalism created the Center with funding from the Donald W Reynolds Foundation.

* Gary A Hengstler is the director of the Donald W Reynolds National Center for the Courts and Media in The National Judicial College in Reno, Nevada. Its purpose is to help reduce tensions between judges and journalists over First and Sixth Amendment issues. Also, it provides specialised programs and training for judges and journalists and court public information officers, as well as being an information resource in this niche area. Prior to moving to Reno, Hengstler was the editor and publisher of the American Bar Association Journal for 11 years. He also started The Texas Lawyer weekly newspaper. A lifelong journalist, he also retains an active law licence in Ohio.