Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment — Oliver Wendell Holmes, Jr. writing for the Supreme Court in Northern Securities Co. v United States (1904)
In the past week two incidents have come up which have pushed the envelope on freedom of the press. One is clearly an illegal incident while the other was a legal incident but has left a bad taste in the mouth. In one incident, it appears that the law itself will be changed; in the second incident it appears as though jurisprudence could conceivably be damaged. What are the two cases? The first one if the News of the World scandal in Great Britain. The second is the Casey Anthony judgment in the State of Florida. Let us look at them.
The first one, of course, is the horrendous case from Great Britain about the newspaper News of the World which has been publishing since 1843 and is now closing this week. By 1950, this had become the largest selling newspaper in the world. It is still considered the largest selling English-language newspaper in the world, but all of that is gone now. It is gone because of a scandal that began back in 2007 but came to a head only this week. The scandal involved the hacking of the voicemail and mobile phones of any person whom the newspaper thought might provide fodder for their news stories. Among the people tapped illegally were not only the royal family, but also family members of troops killed in Afghanistan or Iraq, etc. The outrage that tipped the edge was when the newspaper allegedly hacked the voicemail of a missing 13 year old girl and deleted voicemail messages periodically, giving her family false hopes that she was alive, and keeping the police looking for a live girl rather than a dead girl. Her cadaver was found and it was clear that the girl had been murdered almost immediately. Many feel that the owner of the newspaper, Rupert Murdoch, is closing the newspaper so quickly in order to prevent the investigation from reaching him. In the USA, Mr. Murdoch owns 20th Century Fox, Dow Jones & Company, and the Fox Network.
The Casey Anthony case is a case that has been hyped by the news media, particularly one CNN show, for the last three years. As you probably know, Casey Anthony was charged with first-degree murder in the death of her two year old daughter Caylee. Various theories and bits of evidence have been being released by the news media for those three years, along with unceasing and ongoing speculation about exactly when and how Casey killed Caylee. It is important to note that the news media had unremittingly declared Casey guilty during that time. In fact, the news coverage was so intensive that the prosecutors had no choice but to find jurors from another county in Florida in order to have a fair trial. And, after the evidence was presented, Casey was found not guilty. As a result of public reaction, at this point all but one of the jury have decided to remain anonymous, despite the fact that they have done their civic duty and quickly reached a verdict that said that the prosecution had not proven their case. It is very important to note that both the prosecution and the defense jumped on the news media immediately after the verdict was announced, for the same reason. Both prosecution and defense said that the news media had so tainted the case that it had made a just result very difficult. Of course, the prosecution and defense did not agree on what the just result would have been. But, note that they both absolutely agreed, the news media had misbehaved and damaged jurisprudence.
Both cases have in common that it is acknowledged that the news media misused their freedom of the press in ways that affected both police and courts. In both countries bad laws are being proposed. In Great Britain, it is press control laws that are being proposed. In this country laws have been already formally introduced in more than a dozen states that would make certain convictions easier (but not necessarily more just). As a result of these two cases of press misbehavior, we are facing some bad laws. But, it is very important to note that the media have behaved every bit as badly as Congress, and, unlike Congress, the President, and many state-level judges, society has no way to vote the news media out of office. By refusing to self-regulate, and by opposing any and all laws as being violations of Freedom of Speech, the news media is working itself into an untenable position. And this is not good for Americans. One of our freedoms and one of our rights are being damaged by the current attitude of the news media.
The freedom that is being damaged if, of course, freedom of the press. Already Great Britain, which has not a full equivalent to our constitutional freedom of the press, regulates the news media more than would be allowed in the USA. They can, in certain cases, even prohibit the publication of certain items. It appears that the news media in Britain will be more restricted after this fiasco. While the USA has not yet come to that point, do not be surprised over the next few years if a reaction sets in against the news media that might be just strong enough to overcome Americans’ natural reticence toward any type of press restriction. Already there are anti-paparazzi laws in the State of California, though they are not heavily enforced. That trend could grow.
But, the second problem troubles me the most. Notice that I commented earlier that the jury is mostly remaining anonymous. I am worried that our right to a fair trial is being eroded by misbehaving news media. Think about the pressures that future juries will have, to find a defendant guilty even if the evidence is not there to do so. Already multiple TV opinion “news” shows are berating the jury for their decision. Already they have caller lines whose whole purpose seems to be not merely to “take the pulse” of the watcher, but to make it clear that the jury made the wrong decision when they disagreed with the “talking heads.” The lesson that is being taught to future juries is that the news media must be right and that if you make a judgment based on the evidence presented, it had better be a judgment that agrees with the “talking heads.” And this pressure is not likely to lead to increasing justice, but only to lead to an increasing number of innocent defendants found guilty.
===MORE TO COME===
Leave a Reply