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Linda Greenhouse and Jonathan Turley discuss the courts and the press (podcast with transcript)

By Stephanie Francis Ward

January 5, 2015, 8:32 am CST

Looking back on the ABA Journal's century of legal journalism, we were interested in examining how the relationship between the Third Branch and the Fourth Estate has changed and evolved over the years.

Podcast Transcript

Stephanie Francis Ward: Welcome to Asked and Answered podcast. I’m your host, Stephanie Francis Ward. This year, the ABA Journal is celebrating its centennial, and a lot has changed in the field of legal reporting over the past 100 years. I have two guests joining me today to talk about how the relationship between the courts and the media has been affected by the Internet and the social media era. Our first guest is Linda Greenhouse, who has reported on the U.S. Supreme Court for the New York Times since 1978, and is now a senior research scholar and lecturer at Yale Law School.

Also joining me is Jonathan Turley, a professor at George Washington Law School, who has acted as a legal analyst for many media outlets. He most recently made news for agreeing to be lead counsel in the House of Representatives suit challenging President Obama’s executive actions in the Affordable Care Act.

My first question for you, Linda: Do you think the U.S. Supreme Court will allow cameras in their courtroom anytime soon?

Linda Greenhouse: I don’t, actually. Justice David Souter once said the cameras would roll in over his dead body, and of course he’s no longer at the court but he’s very much alive. And I actually think it’s going to be a very long time.

Stephanie Francis Ward: Jonathan, what do you think?

Jonathan Turley: I would agree with that. Both of us have spoken with members of the court, and they are fairly adamant about not wanting cameras. I don’t consider that to be a particularly material issue, the level of support of these given justices. I believe this is something that should be resolved by Congress.

The framers were great believers in technology. These were people of great scientific interest. I think that most of them would have been delighted by the notion that the public could witness arguments. After all, the idea of a public trial and public proceedings is captured within the Constitution.

So I think it’s silly, and I think it’s equally silly for justices to threaten that they will leave the court. I hate to see any of them leave, but that is completely immaterial to me. I think Congress should simply order this level of transparency.

Stephanie Francis Ward: Another question on that note: Given how we use social media now to get information out about Supreme Court opinions, do we even need cameras in the courtroom?

Linda Greenhouse: I’m happy to address that, Stephanie, and to also push back a little on Jonathan’s attitude. I’m really agnostic on the cameras issue, but I don’t think the objection to it is silly. And I think some of our social media experience underscores why it’s not silly.

Let me offer an example. During the Affordable Care Act argument, in the Sebelius case two years ago, people probably remember that Solicitor General Don Verrilli choked while taking a bad sip of water as he got up to the podium to begin his argument on behalf of the government. And that little audio snippet was replayed by the Republican National Committee on ads all over the radio and on the Internet with the little message that “See, even President Obama’s solicitor general chokes up as he tries to defend the Affordable Care Act.”

And when I saw that happen, I thought, “OK, this really sets back the cause of live audio– or let alone television–of the Supreme Court, probably by a generation.”

The Supreme Court is, in fact, open to the public. Of course, there aren’t many seats and people have to stand in line. But it’s actually not correct to hold up cameras versus lack of transparency. The court puts up the transcripts of the argument within—these days a morning argument when you come back from lunch, the transcript is up, the audio is on the court’s website by the end of every week during which arguments are held.

So we could all wish we could get our little snippets and our little sound bites, but I think it’s something that merits more discussion than just a flip “Oh, they’re being silly.”

Jonathan Turley: I just want to respond to that. First, I wasn’t being flip about the merits of it. I was being flip about justices saying that they would retire if they were allowed in the courtroom. But I’ve covered the Supreme Court for two networks, CBS and NBC, and it’s absurd. And the Bush v. Gore decision, we had this scene of people running out to report every change or thing they saw within the courtroom. There’s no reason for it, in my view.

But more importantly, this is a court that I don’t think is held by the insularity. We’ve seen justices who’ve left the court, notably after they gave interviews where they were exposed, quite frankly, to the public as having highly diminished cognitive abilities. I’m thinking of Thurgood Marshall and William Brennan as good examples—not Brennan, Douglas—as examples of that. There is a value to the public seeing these justices and for justices to be seen.

I don’t buy this idea that we need to protect people from choking on water. I find that rather silly. I think the public value of being able to witness these arguments instead of the artificiality of people standing in line for hours and hearing it secondhand, that is silly.

Stephanie Francis Ward: All right. On that note, I’m curious what you both think about: Has the bench—and when I say the bench, I mean the judiciary in general—do you think how they interact with the press when we’re covering their proceedings, has that changed over the years? What do you think, Linda?

Linda Greenhouse: No, I don’t think it’s changed much. I think there’s a wide variety. There’s almost a thousand federal judges, and obviously many more than that on the state courts, and each one is an individual. In my experience, some judges have been very press friendly or even sometimes aggressively so, and others never want to interact with the media in any way, shape or form. I think that’s always been the case and probably always will be.

Stephanie Francis Ward: Do you feel the same way about lawyers and how they interact with reporters covering them?

Linda Greenhouse: Yes, in my time covering the court I saw a huge increase in effort by lawyers with cases before the court–or lawyers who hoped to have cases before the court–doing the kind of “push” media. It used to be you’d get back from a decision or an argument and you’d have a pile of voicemail messages or a pile of faxes. And then of course, once the Internet and email came in, you’d be flooded with “talk to this expert at the law firm” and all this kind of stuff.

And some of it’s useful; much of it isn’t, but it certainly reflects the notion that law practice today really involves cultivating and maintaining some kind of public profile in contrast to, I think, a much more discreet age in the not-too-distant past.

Stephanie Francis Ward: How do you think—as you said, we all probably get a ton of emails from people who would love to be a source for us. Normally, those emails come after our stories are published, I’ve noticed on my end, at least. How can lawyers, if they want to be a good source, do you have like one tip, Linda, about how they can be a good source for journalists and get called repeatedly?

Linda Greenhouse: Oh, that’s a good question. I think somebody’s got to have real expertise and be willing to go beyond the obvious take on an event, really provide added value. Because that’s what’s really necessary: to step back a little bit and look more globally at our subject. I think what the era of social media and the pervasive internet demands of every participant in this system, a measure of added value because the public can go on the Internet or go on Wikipedia, learn this, that and the other thing.

And so as I saw this happening during my career covering the Supreme Court, I had to ask myself: My readers can go on the court website and they can, thanks to the American Bar Association, read all the merits briefs in every granted case; they can read the transcripts; what do I bring to this? And so anybody who could help me bring a wider context or a deeper understanding beyond the obvious would be somebody that I’d welcome talking to.

Stephanie Francis Ward: And you mentioned, with the Internet, Jonathan, how do you think the Internet has changed legal affairs writing, perhaps both in how it’s done and how it is ingested or taken in by the public?

Jonathan Turley: It’s certainly faster. There’s a great complaint about the impact of the Internet on print. I remember I was with David Savage on a panel years ago and he had this great line that he was a three-time loser because his grandfather was a steel worker and his father was a coal miner and he writes for a newspaper. He has this idea of a failing industry.

I’m not too sure I agree with that. It’s a changing industry, and those changes, actually, represent opportunities for attorneys. There’s a greater number of voices that are being heard.

Some of them are not particularly useful—many of them are. There are a great number of legal blogs, and I have to hand it to the ABA Journal. They have spent a lot of effort in highlighting some of the new blogs, and many of those sites are quite good. And so there is–

Stephanie Francis Ward: I think we should mention that your blog is usually part of our Blawg 100—or is always part of our Blawg 100, right?

Jonathan Turley: Yes. We were very happy to make your hall of fame, I think, a year or so ago.

Stephanie Francis Ward: Right. And that’s Res Ipsa Loquitur.

Jonathan Turley: That’s right. I’m always impressed with the ABA competition in looking at all of the blogs and how very good they are. So, it has changed legal writing in the sense that it has expanded the number of voices. It has also made it a lot faster, and that’s changed a lot. I write for USA Today on legal issues, and it has changed a great deal. I started writing regularly for papers like the New York Times and back in the sort of pony whip days, and it was very, very different. Today, you will go to the Internet almost immediately. And that gives you certain advantages.

When I was writing primarily for L.A. Times, it was a killer, because it would come out—you would be able to file later, but there would be a long delay in when people would see your piece on some case or legal issue.

Now, you get put up pretty quickly and you join that debate. But that also adds, obviously, a great deal of pressure. You have to write faster and there’s greater opportunity for error. There’s also been a complaint among many people writing in the field that they don’t have as much time to do more substantive work. And I think that is a legitimate concern. There’s pressure to get it on the website. I just literally, a few minutes before this call, I finished a column and they’re putting it on the Web as we speak. And so it’s very fast, now.

Stephanie Francis Ward: All right. We’re going to take a short break to hear from our [advertiser] and we’ll be back with our guests, Linda Greenhouse and Jonathan Turley.

Advertiser: This ABA Journal podcast is brought to you by WestlawNext. Folder sharing on WestlawNext enables you to tap into previous research across organizational boundaries like never before, saving you time from reinventing the wheel. Learn more at westlawnext.com.

Stephanie Francis Ward: And we’re back. I’m Stephanie Francis Ward and you’re listening to Asked and Answered. Joining me today are Linda Greenhouse and Jonathan Turley. Have journalists changed their ethical standards over the years, specifically in regards to covering legal issues?

Jonathan Turley: I do think that this change of technology is changing the definition of a journalist. And with it, it’s changing the dimensions of journalism. And that is creating some practice issues and some ethic issues.

It’s also creating some legal issues. As you know, courts continue to struggle with who is a journalist and whether bloggers would be included in that definition. But part of that debate does go to the different standards that apply to people who write for newspapers and people who have simply blogs. The column I just filed 30 minutes ago had to go through fact checkers, so I gave them an earlier draft and it’s carefully vetted.

That’s not the case with many blogs. Many blogs are treated as a type of ongoing conversation, the sources are not normally vetted, and also the influences on the writer are not always revealed.

So that has been a point of tension with many journalists who feel the pressure from bloggers and feel that they are under much higher standards and limitations as they try to work in this environment.

Stephanie Francis Ward: But do you think maybe that’s a symptom of the profession, as I will admit sometimes we have pretty healthy egos and there’s this drive to be first. When it comes down to it, the pressure is for us to do our best job we possibly can, not to worry about others, do what we can do.

Jonathan Turley: I do think that there still remains a qualitative difference between folks that write for major newspapers, and I would also say for major blogs, and those that write for the great variety of other blogs. You do see a quality difference. You see a lot of stuff that gets thrown up on blogs that is not true, that has not really been sourced or checked. And that creates all this fog of confusion as people try to sort through what are reliable sources. I think eventually this is going to settle down a bit.

I think that the industry is changing; that is quite certain. I think print is having a serious times in terms of making the financial aspects of this work. But I think eventually we’re going to hit an equilibrium point on all of these issues.

Linda Greenhouse: I agree with that. People will learn what are the reliable sources of information, and those are the ones they’ll return to. Or if you just want to be entertained, there are things that I look at in the idle moment at my computer just because I want a little break and I think it would be fun and I don’t really care about the accuracy of it; it’s just a way of getting a few minutes of amusement.

Jonathan Turley: I do think that another aspect of that, to sort of build on what Linda said, is that there is this growth of sites and even cable stations that are sort of echo chambers for just one view. And Linda has had a wonderful career, as have others like Lyle Denniston [of SCOTUSblog], of really a standard of care and professionalism in writing, great reliability.

I think that the problem is that we have the rise of so many blogs and sites that hammer away at just one perspective. And you see how distortive that becomes; that they look at facts and really mutate them, including case decisions.

I wrote a column recently criticizing sites on the left and the right for their response to the [King v. Burwell] decisions. These are decisions in the D.C. Circuit and the 4th Circuits that came out differently on the ACA, on the healthcare issue. And what disturbed me is how many of them immediately looked at who appointed the judges, and basically portrayed the judges as being ideologues who were following predictable patterns. When you read the opinions, that’s simply not true, that these courts—both of those decisions were very well-written and were based in long-standing, jurisprudential views. And I think you see more of that type of cheap shot that comes out of the new media.

Linda Greenhouse: I think one thing that’s very useful about the online environment is presumably those columns or blogs or whatever they were included links where the reader could click and read the opinion for himself or herself. And the column that I write—the opinion column that I write now twice a month for the Times website, I put in all the links and I find it a very good discipline. If I’m making a reference to something that I read online, or some piece of video that somebody posted, I will link to that.

I really almost never make a factual assertion in the column, which I emphasize is an opinion column. But it’s a fact-based opinion column, I like to think. So any factual assertion I make, I provide a link and people can go as deeply as they might care to. And I actually really like that aspect of it.

Stephanie Francis Ward: So that includes you’ll link to opinions, right?

Linda Greenhouse: Yes, if I’m making something of “this person said this” or whatever. I let the reader in on my own sources.

Stephanie Francis Ward: I see. And I imagine readers really appreciate that, as well. Because I think so many times when you’re reading an article about a case, you think, “Gosh, I’d love to read this opinion” and then you Google it. But if it’s in the article, I think that’s quite useful.

Linda Greenhouse: Yes. I just sent a column in to my editor a few minutes before we started recording this show, also as Jonathan did, about last week’s Supreme Court argument in the pregnancy discrimination case. And I put in links to the argument transcript and to the briefs, and so on, so that if people’s interest is piqued by various factual assertions in the column, they can click and see what they think, themselves.

Stephanie Francis Ward: I see, right. A question for the two of you: Would you say the profession has become more diverse over the years, in terms of covering legal issues? And if so, has that changed our storytelling process and the information that gets out when we publish our work?

Linda Greenhouse: I think, as Jonathan said earlier, there certainly are more voices and more outlets. There are websites and blogs that deal with the certain state and local courts, and that would have been a really extensive venture to maintain in the print world.

So if that’s the kind of thing you mean, I think—and then there’s somebody like Doug Berman with his sentencing blog, or Rick Hasen with his Election Law Blog. These individuals who are law professors couldn’t have maintained that kind of communication with a very interested audience without the social-media online environment.

Stephanie Francis Ward: All right. If a young person is interested in getting in legal journalism, Linda, what advice would you have for them?

Linda Greenhouse: I’m actually asked that quite often by young people, and what I tell them is they have to be prepared to be very nimble, very flexible, be able to do their writing across many platforms. And I think it’s an exciting field but a tough one to make a living at, actually.

Stephanie Francis Ward: Jonathan, would you add anything to that?

Jonathan Turley: I think a part of this brave, new world that we see in the Internet is, in fact, the opportunity for folks that want to be heard on these issues. And I think that it’s a great change. It used to be that a relatively small number of people would write regularly on legal stories, and they were quite good and quite talented and quite informative.

But we’re seeing a difference, now, where more people can be heard and the marketplace is elevating some voices over others. And so I think that young lawyers have the greatest opportunity they’ve ever had to be heard.

I think one of the changes–and I think this is highlighted in Linda’s last remark about not making much money at it–is that you’re going to see more people doing legal reporting as a secondary job. That’s, I think, the greatest change that we’re seeing. That is, you see people like me that have multiple jobs. I litigate, I teach, and I also write for the newspaper and also on a blog. I think you’re going to find more multi-tasking lawyers in that sense. I think that’s a good thing.

Now, there are challenges there. Just this week, we saw a decision that Above the Law will have to go to court on a defamation case. There’s issues as to how much coverage insurance policies have for blogs. There’s also that question of whether bloggers are journalists, although this year the 9th Circuit in the Obsidian Finance case said that bloggers were journalists. We also have a recent decision on New Zealand saying that.

But there are some legal perils there, that people need to be cognizant of. They are, in fact, publishing work that others could view as defamatory.

Stephanie Francis Ward: That’s everything I have for the two of you today. I’m Stephanie Francis Ward, and thank you so much for joining us on the ABA Journal’s Asked and Answered.

Advertiser: This ABA Journal podcast is brought to you by WestlawNext, powered by WestSearch, the world’s most advanced legal search engine delivering the best results in seconds. Learn more at westlawnext.com.

[End of Transcript]

Updated on Jan. 8 to add the transcript.

In this month’s Asked and Answered podcast, moderator Stephanie Francis Ward talks to Linda Greenhouse and Jonathan Turley about the past, present and future of legal journalism, and how it has influenced courts. Greenhouse reported on the U.S. Supreme Court for the New York Times for four decades, and is now the Joseph Goldstein Lecturer in Law and Knight Distinguished Journalist-in-Residence at Yale Law School. Turley is an attorney, legal scholar and professor at George Washington University Law School and is a legal analyst for several media outlets.