Media Takes Its Direction from Legal Process

>> Thursday, September 25, 2008

I think it is often overlooked how interconnected the fields of law and journalism are. Both are, in theory, supposed to be about the search for the truth. In journalism that truth is supposed to be the events and the objective facts that apply in any given situation. In our legal system it is supposed to be about finding the truth as it relates both to equity and matters of fact. Namely what is the just out come of a case as dictated by law and society? Unfortunately the media has become reliant on a false interpretation of how the legal process works to find the truth.

The media commonly discusses the court of public opinion. they have set up our public discourse to reflect this. our current media works in an adversarial fashion with the 4 actors typical of any trial. We have the attorney's for the plaintiff and the defendant represented by the pundits from the two opposing sides. Then you have your judge, the media figure, who directs the case. Lastly we have the viewers at home acting as the jury. What the media likes to term fair and balanced is actually a bastardized version of our adversarial legal process.

The argument that the media advances is that they, like the judge in a legal case are not present to determine matters of fact. Decisions related to matters of fact are the domain of the jury. The judge is supposed to be the neutral arbiter of the case presented. The media tries to emulate this notion of neutrality, the removal of all bias from the process of getting to the truth. We know though that this is a sadly romanticized view of how things work in both the media and in the courts. there is also an important distinction that illustrates why the legal model does not translate well to the media.

The key is the rules of procedure that govern how the process operates. The court system operates along well defined, concrete rules of procedure that establish base requirements of the actors. One of these base requirements is the element of proof. At numerous points in a suit the defense may move to have a directed verdict that forces the judge to make a call on whether the prosecution has met it's burden of production or proof for its case. at this point the judge has to make a call about on the motion. this does not happen in the media. A debate taking place on tv lacks these features of procedure.

Something else that people fail to understand about the courts when translating the model to the media is that the facts of a case are not always the facts as they actually occur. They are rather found facts. Like the classic doll test of brown v board that the supreme court fully misinterpreted. The courts are bound by the facts available in the court room, the media should not be bound in this way. There is no limitation on the facts that the media could bring in. Any discussion should be conducted with a full agreement on the facts as they actually are not as they are assumed to be.

Something else that separates how the adversarial process works in the legal system and how it plays out on tv is that getting caught lying on tv carries little repercussions. getting caught lying in court comes with potential disbarment. It is true that there are lawyers out thee who lack the desired ethics but these people gain a reputation. The other lawyers and the judges and the clerks and the secretaries all know how they operate and they receive treatment and trust commensurate with their reputation. This is clearly not what happens in the media. People like jerome corsi and bill o'reilly and glenn beck and lou dobbs and sean hannity are allowed to go on tv and spew their views without censor. If tv was like the courts these people would be scoffed at and ridiculed by people like tom brokaw or even brian williams instead they are treated as serious opinion makers. what they said would have no merit to anyone.

In addition to this the criminal justice system has a big problem with favoring the big money players. The ability to hire the right lawyer for your case can be the difference between conviction and freedom. Money plays a role because only those with money can really afford to go to trial in many instances. The courts have serious issues when it comes to dealing with the poor and the indigent. The romantic image of a system where everyone gets their day in court is false.

We live in a litigious society and that is not a bad thing. having people take their problems to court rather than settling their problems vigilante style is fine. its even ok that many cases are settled out of court. Our society views courts and the rule of law as a forum for justice. We accord the images and trappings of this system with a certain deference and respect. It is natural to imagine that we could export the model we so admire to other areas of life, like the media. However, taking pieces of the process like the adversarial nature will not always succeed. This is the case with the traditional media.

Public discourse is not a trial. The public square is not a court room. we should not look to a gladiatorial style combat between adversarial pundits as the best method to find truth. There are not two sides to every issue and we should not force create them to satisfy the desire for a trial of the objective truth. If we are dead set on that path the very least we could do was put every tv pundit under oath. At least that way we can throw them in prison when they lie and subvert the debate.


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