Justice Anthony Kennedy is concerned that the news media’s decline is harming the integrity of the courts. Photo credit: The Aspen Institute via Flickr Creative Commons.
BY LOGAN HAINE-ROBERTS — On February 11, 2013, a number of UMLR students had the incredible opportunity to meet privately with United States Supreme Court Justice Anthony Kennedy when he visited UM. Among many other things, Justice Kennedy–entirely unprompted–launched into a discussion of his serious concerns about the dwindling number of journalists covering criminal trials following the economic downturn. Justice Kennedy believes that trial reporters connect the people to the courts, and can tell the public if “a judge doesn’t know what he’s doing.” Justice Kennedy lamented that, as the numbers of trial reporters decline, “we’re losing that.”
This is not a unique concern. The National Judicial College expressed concern about media coverage of trials as early as 2005, and the media’s diminished courts coverage has been well-documented since. The Pew Research Center’s Project for Excellence in Journalism, for example, has documented the collapse of the news industry in its yearly State of the Media Reports. The number of journalism professionals has shrunk by nearly a third since the early 2000s, according to Pew. A recent Pew report summed up the problem, concluding that “[t]his adds up to a news industry that is more undermanned and unprepared to uncover stories, dig deep into emerging ones or to question information put into its hands.”
Reporters provide important scrutiny of trials and the trial process. David Oscar Markus, partner at Markus & Markus PLLC and author of the Southern District of Florida Blog (our favorite local legal news source) believes that “having open courtrooms is vitally important to our country and our democracy.” Markus called attention to the case of Aaron Swartz, the young Internet activist who committed suicide during, and possibly as a result of, his controversial prosecution. “People are shocked that the criminal justice system was operating in such a fashion,” Markus said. “But had there been any significant coverage of the case before the tragic suicide, maybe something could have been done before it was too late.”
The downturn is also troubling for journalists, and not solely because of shrinking job prospects. Nick Madigan is director of communication for the UM Law School, and a former trial reporter with experience at the New York Times, the Washington Post, and the Baltimore Sun, who covered, among other things, the Michael Jackson trial. Madigan believes that the dwindling amount of courtroom journalism is weakening the critical, traditional role of journalists in a democratic society. According to Madigan, journalists have historically been responsible for “exposing corruption and mendacity of all kinds.” But the recent downturn has limited their ability to expose these problems to the public. “If the public doesn’t see the system and its flaws,” Madigan said, “they may lose interest.”
Markus has witnessed the cutbacks firsthand in South Florida. “Unfortunately, it’s obvious to anyone who is around the courthouse frequently – there are fewer reporters than there used to be,” Markus said. Mr. Markus laments the change he has seen over years working in Florida’s Southern District. In 1997, “there were a number of reporters who were at the courthouse literally every day. Now, unless there is a big hearing or there is an important part of a trial, reporters generally aren’t at the courthouse.”
So where does the news come from if not the journalists? The answer may be troubling to anyone concerned about the public’s ability to–as Pew puts it–“question information put into its hands.” Indeed, the very entity that should be subject to scrutiny is increasingly filling the void. According to Markus, “the government has a very big media outreach program in which they create – and even write word for word – the news in many cases.” Mr. Markus explained that the media have come to rely on these government press releases.
The resulting problem is immediately apparent–when the public sees stories based on government releases, it gets one perspective. Any sense of impartiality is removed, but the public perception of impartiality in the news remains. Necessarily, there will be problems when the very system journalism seeks to expose to public scrutiny provides the lone perspective and basis for its reporting and the public’s assessment.
Coverage of criminal cases in local trials is not as glamorous as the issue of news cameras in the Supreme Court, another media coverage issue that Markus generally supports. But even Nina Totenberg got started in local trial reporting where she was able to deftly synthesize facts and legal issues for public consumption. And cameras may not solve the problem. If they are present, the issue of providing digestible analysis to the public remains. Reporting on trends in criminal trials provokes the public and prompts government reaction. For example, scrutiny of trends in police interrogations led to the United States’ Supreme Court decisions in Escobedo v. Illinois and Miranda v. Arizona. More recently, reporting like Gary Webb’s Driving While Black has brought attention to systemic issues such as racial profiling in traffic stops. Within the past year, reporting on racial trends in New York City’s controversial stop-and-frisk policy has garnered intense public attention.
Markus suggests that social media has helped by making coverage easier. Cameras may also be a step in the right direction by giving the public easier access. However, unless experienced reporters are documenting and exposing the problems and trends in criminal trials to the public, there is legitimate cause for Justice Kennedy’s concern.
