May 7, 2007

Writing about the law -- traditional reporting and blogging.

Joan Biskupic gave the opening address today at the 7th Circuit Judicial Conference. Her theme was the importance of traditional journalism in covering the Supreme Court. She described sitting in the Supreme Court to hear oral arguments and the announcements of opinions. She's there. She has the sense that she is witnessing history and creating the historical record.

But a Supreme Court decision isn't an event that takes place in the courtroom. There is value to a reporter's description of how passionate a justice sounded reading from a dissenting opinion or the dubious expression on a justice's face during oral argument, but there is no reason to elevate this writing over a law professor's analysis that is based on reading opinions and argument transcripts and drawing on a long, scholarly study of the Court's work. What has changed and what is challenging traditional journalism is that, with blogs, law professors now write about the cases on the same day. We get the cases and argument transcripts right away, so no one needs to rely on a reporter who was physically present to hear something.

Why isn't it better to have a horde of legal experts receiving the same-day texts and writing whatever they think deserves to be written? One answer is that newspapers exist and must contain articles reporting the news, including the news from the courts. But newspapers don't have to exist and they don't necessarily do the best job of providing information about the law. As Biskupic said, there are very few regular reporters on the Supreme Court beat. These reporters cover all the cases, but law bloggers write about what they choose. Some of us stick to specialized areas of law. Some of us write extensively when the case deserves it and say nothing about other cases. Why is it better to have the same generalist writing about all the cases and providing a steady stream of articles of the same length and depth?

Of course, journalists portray themselves as neutral and strictly governed by professional standards. Meanwhile, bloggers can do anything. But nothing stops a blogger from reporting the work of the courts in a neutral way, following a journalistic approach. And journalists have their biases. Bloggers may provide opinionated commentary, but we may expose the places where the traditional reporters are displaying bias. Isn't it better to have more voices in the mix? There's this notion that the bloggers are distorting what used to be a purer process of delivering the news about the cases, but I think it's more accurate to say that the process only used to look pure because a few reporters were monopolizing the flow of information.

Biskupic noted that a traditional journalist may be asked to blog on her newspaper's website. She, in fact, experimented with a blog -- not visible to the public -- on the USAToday site, and she admitted she wasn't cut out for it. It was hard for her to be chatty and spontaneous, and the idea was abandoned. "I don't have a blogger personality," she said.

Later, there were two panels. The first, discussing traditional media, included David Savage and Jonathan Turley as well as Biskupic. The second, moderated by 7th Circuit judge Diane Sykes, had -- along with me -- Eugene Volokh, Christine Hurt, Richard Garnett, Jason Czarnezki, and Howard Bashman. I'll just do some highlights.

One subject on the first panel was the way some Justices go out and about doing public appearances. Biskupic said: "Justices get in trouble when they go on the road. Well, we like when they get in trouble."

Someone on the first panel complained about how boring it is to sit through confirmation hearings. Now, see, here's why blogging is better! You don't sit in the room getting bored. You're home with the TiVo, making strategic decisions about which parts to watch and commenting only where you have something to say. The reporters see the hearings as mindnumbing blather because they have to produce a news story. Something happened, so there must be an article commemorating the event. Bloggers pick what they want to talk about it. There are no particular spaces to be filled. Just a stream to carry on.

About John Roberts and his family, Turley said: "They looked like they were raised hydroponically by Karl Rove."

Savage picked up the theme of journalistic neutrality. He said journalists represent a "Green Zone" where there is no "pitch to the left or right." And he wheeled out the conventional opinion about blogs: Everyone goes to the blog that expresses the bias they like. The point here is that you need traditional media to keep people from cocooning inside their preexisting beliefs. But newspapers can be worse. People who rely on newspapers can't pop around looking for variety. They are stuck with that one reporter, decade after decade. And one of the things bloggers do is point out the slants and distortions in the newspaper articles.

I'll have to write something about the blogger panel later, because the cocktail reception is already under way, and the dinner is coming up soon. Speaking at the dinner: Justice John Paul Stevens and Solicitor General Paul Clement. So I've got to get my act together and make it to the dinner.


The Drill SGT said...

The MSM protectionist meme is crap. A Supreme Court Journalist is the right person to listen to for analysis of the oral arguments (absent instant audio transcription), but the opinion is written and fixed and a presence when the opinion is handed down is worthless. all that matters is analysis and scholarship and that can just as easily be done from madison or LA.

PeterP said...

"I don't have a blogger personality," she said.

Pray God there is no such thing as a 'blogger personality'.

If ever there were a way to perdition that is it.

Some people blog. Some people don't blog. That's all there is.

Bruce Hayden said...

'Savage picked up the theme of journalistic neutrality. He said journalists represent a "Green Zone" where there is no "pitch to the left or right."'

This is the usual journalistic myopia. They don't believe that their reporting is biased because everyone they know thinks just like they do and so don't see their own biases. But whatever little Supreme Court reporting I have seen seems to come somewhat slanted to the left, regardless of the intent of the reporters.

Of course, if you accept the left liberal mindset of MSM reporters as being the center of the universe, then there is no issue of bias.

T J Sawyer said...

The biggest difference between bloggers and reporters is the same for law, science, engineering, construction, and even politics: the bloggers tend to be experts practicing in their field. Reporters have never appeared in a court, designed a load bearing structure, built a bridge or run for office.

It DOES make a difference!

Kirk Parker said...

Wow, my opinion of Turley just went down a few notches! Did he get any flack for this preposterous slur on the Roberts?

hdhouse said...

I am intrigued by the implied argument associated with the use of the MSM phrase. Juxtapose that with a blogosphere that isn't a bell curve with neutrality in the center but rather a great big "V" with neutrality balancing the 49% on either the right or left side.

What makes you think blogs get it right? They aren't self-policing fact-pacts. Just look at this one and Ann is pretty much trying to run a centrist blog yet there are more looney rightwingers on here than squirrels in the forest.

Maxine Weiss said...

Oh this is fascinating stuff.

I can't tell you how I've longed to learn about what these Justices are feeling inside.

"She's there. She has the sense that she is witnessing history "

I can't tell you how reassured I am to know that fact.

"There is value to a reporter's description of how passionate a justice sounded reading from a dissenting opinion or the dubious expression on a justice's face during oral argument,"

Oh, it's what we've all wondered....but were to afraid to ask.

I'm absolutely riveted to these startling revelations.

Aunt Sally said...

In the years to come, I can only pray God that law students, lawyers briefing cases, and judges ruling on cases give less of a crap about a reporter's "sense that I'm witnessing history," than they do about the text.
The major problem with newspapers, and even with their online organs, is a shocking reluctance to link to the text and let those of us who care think about what has been said. Given the now standard practice of pdf release of all these things, it is inexusable.

Anonymous said...

Ms. Althouse, I appreciate your analysis, but your taking Mr. Turley's comments out of context is far worse than anything he had to say. He made the comments about Roberts in a most positive way, talking about what a perfect choice he was from a conservative standpoint and how it was effectively impossible for the overwhelmed Senators to make much of the confirmation hearings. Obviously he'd have preferred a different candidate, but it was a humorous expression of exasperated frustration more than anything else.

Also, don't be so defensive about what the traditional media (labeled instructively by your readers as the "MSM") had to say. Lay persons need to be aware of Supreme Court decisions, and they need to learn about it in as unbiased (and, yes, sometimes as dumbed-down an analysis) as possible. That flawed and unique human beings are the ones crafting these articles is inevitable. It doesn't mean it should all be dismissed.

Just because they can also get it from you between your pictures of french toast and white linens doesn't mean that's enough. Law students and others who treat the Supreme Court's decisions as a hobby might be more interested in your take than in Ms. Biskupic's. But both serve a different, yet entirely valuable, purpose.

I do have one other comment about your own remarks. I was troubled to hear you say without hesitation that blogging is number one for you, more important than any other credential or professional responsibility that you maintain. Without getting too much into it, if you're going to wander around the country calling yourself a law professor, shouldn't your first priority be your students? (That other professors take writing scholarly articles more seriously than teaching themselves isn't a justification, its an indictment of the entire profession.) I love reading law blogs as a hobby, but I found that today's panel was completely misguided about the role these things play. They exist for those who want something extra, just like avid and knowledgable sports fans may want to read more about their successful team than the often unsatisfying coverage in their local papers. If blogs have any minimal impact on the judicial process, it is (at this point) through little more than exposing certain clerks (and maybe a very tiny handful of internet-savvy judges) about what's out there in the law.

Ultimately, an opinion-driven blog post, just like a law review article or even "MSM" (to use the embarrassingly absurd and speaker-discrediting term of some of your readership) article can be useful as an additional post hoc justification for a particular decision. But it is little more.

hdhouse said...

Hey Mr.

I used the non-term MSM only as a reference as it was used in the original post. I find it to be merely jargon that feeds the "we v. they" attitude of some bloggers and a number of right wing commentators. You will notice that MSM is a rarely evoked term finding its way on the left supplanted niftily by Rush Limbaugh's "drive by media".

Linda Greenhouse, certainly a long time and respected SC reporter is a perfect example of the fray. For decades we found her on McNeil Lehrer or Washington Week on Friday nights after a monumental decision laying it out in terms that meant something to the citizens not the lawyers. Then it got tangled with the general MSM/lefty chants regarding the NYTimes to the loss of everyone. She is now a "liberal" or something and not a reporter with a wonderful pen and explanative powers. Precisely the argument Ann puts forth.

Frankly there are perhaps less than a half dozen lawyer types (including Ms. Althouse) who endeavor to give something of a neutral reading of the event and the law and set us non-lawyers into the research engines (notice i didn't say search engines) to bone up on the issue. Many others on this board and on, frankly, all blogs shape and contort to further their agendas and certainly not the truth.

I'm not sure which or what you are peddling here. So please start your next essay with your POV if you have one or say that you don't.

Ann Althouse said...

"Without getting too much into it, if you're going to wander around the country calling yourself a law professor, shouldn't your first priority be your students? (That other professors take writing scholarly articles more seriously than teaching themselves isn't a justification, its an indictment of the entire profession.)"

In terms of my job obligations, the students do in fact come first. My point was -- and I think it was clear in context -- that my commitment to the form of writing that I have undertaken here is so important to me that if I had to choose, I would leave teaching so I could blog the way I do. There are other things I would put above the students in that sense, of course, such as my deep personal values and my children. If there was an unresolvable conflict between serving the students as a teacher and something like that, I would have to give up the role of teaching.

Of course, on any given day when I have a class, I must do that as well as I can. I wouldn't, for example, blow off a class because blogging is more important to me! If you think I was saying that, you misheard me.

So I go around the country calling myself a law professor and that means something, but I also go around the country calling myself a blogger. Both are meaningful to me. If for some reason, there was a conflict between the two things, and I had to choose, I would choose blogging. I hardly think that's corrupt. Why isn't it virtuous to say that I'm dedicated to what I do and I would sacrifice for what I believe in, which actually includes interspersing legal commentary with french toast and spiders? I think this helps students, by the way.

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hdhouse said...

Wurly....let me get this straight. according to your theory if i am a weather reporter for the NYTimes and i note that the temperature is 72F there is a good chance you won't believe me because why?

It is that kneejerk "gotta be a liberal and distort" stupidity that is at the heart of the darkness in this nation. You should be ashamed. You would be if you weren't so intellectually challenged.

John said...

My problem with journalists is not so much that they are intentionally biased, it is that they simply don't know very much. They are quite good at covering things like Paris Hilton or stories about how much money this or that candidate has raised. They like easy subjects with easy facts that can be reported.

They are terrible at covering technical subjects like the law or the economy. When journalists write stories about these they tend to have a preexisting view of the truth and then look for facts to confirm this view. They don't necessarily get things wrong as much as they get them half right. Most journalists know just enough to be dangerous about a subject.

A good example of this is Dalia Lithwick's awful article in Slate at the beginning of the Duke rape saga. Now, if you have ever prosecuted or defended many rape cases, something I have done, you knew from the beginning that the Duke rape case would come down to one of the accused ratting out the other accuseds. Whenever you have a rape at a party, it either happens after everyone leaves or there are a ton of witnesses, all of whom will sing like birds when confronted by the police. I and no prosecutor I have ever met has ever actually seen a case where someone will really go to jail to save his buddies. It just doesn't happen.

Lithwick, although she did go to law school, has been anywhere near a rape case. Again, she knew just enough about the subject to be dangerous. So of course she completely missed that aspect and was in no way concerned that none of the accused had turned state's evidence in the five months since they were charged. She just saw all of this physical evidence that must tell the whole story one way or another and how the innocence project told her that just because DNA tests don't match doesn't mean someone is innocent. All true, but all not really the point. Why? Because Lithwick has never done anything and doesn't really know much. What is worse, she doesn't even understand how little she knows. Unfortunately, she is pretty typical and why you can't trust the media.