The Relationship Between the Courts and the Media

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada

Today, I would like to share some thoughts on a topic that I expect is of great interest to us all — the relationship between the courts and the news media. The relationship is not always a comfortable one. Journalists are ever after the “big story”. A veteran American court reporter, tongue only partially in cheek, has described his profession thus:

For the most part we are untrained and deadline crazed, with short attention spans and an inbred preference for heat over light and simplicity over nuance. ^{Footnote 1}

By contrast, judges like to think of themselves as “trained” and not overly concerned about deadlines, and possessed of long attention spans, a penchant for nuance, and a confident belief that every word they utter sheds light on the problem at hand, if not on the larger world beyond.

How, one may ask, can such opposites co-exist in a healthy, productive relationship?

My answer is that they can and must, if we want to sustain a society built on the rule of law. Despite occasional discomfort, a free press and an independent judiciary must work together to foster a society committed to the rule of law. The rule of law cannot exist without open justice and deep public confidence in the judiciary and the administration of justice. And the media is essential to building and maintaining that public confidence.

I will begin by discussing public confidence in the judiciary as a cornerstone of the rule of law. Against that background, I will offer some thoughts on what the legal profession can do to further relationships with the media. Finally, I will discuss some of the challenges that flow from the communications revolution we are currently experiencing.

Public Confidence in the Judiciary

Let me turn to my first proposition — that one of the features of all societies sharing a cultural commitment to the rule of law is public confidence in the justice system and the judiciary. Unless members of the public respect the courts that administer the law, they will not settle their disputes through the courts. They will not obey court orders. Judgments become mere edicts that are, to borrow Shakespeare’s words, “like clanging bells, full of sound and fury, but signifying nothing”. In his most recent book, Making Our Democracy Work, Justice Stephen Breyer of the United States Supreme Court poses a “puzzling question” — why does the public accept and follow decisions made by the judiciary, a body he describes as “inoffensive, technical, and comparatively powerless.” The answer to this question rests in the confidence of the people.

How does one build and maintain this public confidence? Obviously, one must appoint competent judges who observe the highest ethical standards of integrity. One must educate youth and the public generally about the justice system and what judges do. One must ensure that the public has access to justice. But fundamental to maintaining and building confidence in the judiciary is publicizing what judges do.

In the 19th Century, English Philosopher Jeremy Bentham warned against secrecy in the administration of justice:

Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial. ^{Footnote 2}

Those words still ring true today. In countries sharing the common law tradition, the open courts principle is a fundamental, indeed a constitutional principle. ^{Footnote 3} Nonetheless, despite the courts’ openness, people may still have little real understanding of how they operate. Most people have neither the time nor the inclination to attend hearings and peruse court records. This is where the media plays a role. Only through the efforts of the press can the vast majority be informed of proceedings before the courts and their judgments. ^{Footnote 4} In his book on the U.S. Supreme Court and the press, Joe Mathewson aptly makes this observation:

When the Court speaks, who listens? Who transmits each new rule of law to the citizenry? Even in the Internet era when the Court posts its opinions promptly on its own Website, both justices and citizens still depend on journalists to get the word out to the broad public. It is still reporters who immediately read the often challenging legal language and make sense of it for lay understanding … ^{Footnote 5}

This places the media in a position of crucial importance, as intermediaries between the legal system and the people it serves. They report on what happens in the courts. And they offer critical reflections on the process.

The duty and right to report includes the right to criticize the way the courts work and the judgments judges render. The right to disagree and criticize is part of the democratic process. It contributes, in the long run, to transparency and to confidence in the judiciary.

This said, we would be naïve not to acknowledge that incomplete, distorted or one-sided press coverage can do lasting damage. Fortunately, the high standards of journalistic ethics in Canada make such incidents rare. The potential for such damage is illustrated by an example from my home province of British Columbia. About 10 years ago, a notorious case involving child pornography went to trial. The defendant, relying on the right to freedom of expression challenged the constitutionality of the prohibition on the possession of child pornography. The trial judge rendered an extremely unpopular decision by striking down the challenged Criminal Code provisions. ^{Footnote 6} The media coverage that followed was very disturbing. A number of commentators focussed personally on the judge rather than on the merits of his decision. His intellectual ability was attacked, and he was castigated as a closet paedophile. The vitriol in the press inflamed public passions on a subject that was already very sensitive. The reaction became so extreme that the individual judge received threats and required police protection. Such sensationalization and distortion do little to help people understand the issues or the justice system, and impose serious costs in terms of the security of judges, the independence of the judiciary, and the repute of the judicial system.

So, this is where we stand. The media, reporting accurately and fairly on legal proceedings and judgments, including criticism, even strong criticism, make an invaluable contribution to public confidence in the judiciary and, thus, to the rule of law itself. On the other hand, inaccurate, unfair or sensationalized reportage — fortunately rare in Canada — has the potential to distort the public’s view of the justice system and undermine public confidence in the rule of law.

Developing a Positive Relationship with the Media

Faced with this dilemma, we should ask ourselves what we can do encourage media coverage that presents an accurate and fair picture of what happens in the courts — not excluding informed criticism — and thus enhances public confidence in the administration of justice.

First, let me say what, in my opinion, will not work. Restricting access to information and controlling how it may be presented — while sometimes necessary — practiced injudiciously leads the public to infer that the justice system has something to hide. Nor are orders holding reporters in contempt — while occasionally necessary — likely to instil public confidence in the courts. The residual image in the public mind is inevitably that of the bullying judge using state power to punish the valiant reporter. Forgotten is the conduct that made the order necessary.

What then will work? First, instead of viewing the media as the enemy, the justice system should acknowledge the essential role the media plays in informing the public of legal developments. This does not mean that judges or lawyers should condone distortion, inaccuracy and sensationalization. But it does mean that they should promote dialogue with members of the media to the end of ensuring that reporting is accurate, prompt and appropriately complete. There are many ways to do this.

There are many things that courts are doing to help journalists do a better job. Let me list a few of the things we do at the Supreme Court of Canada. We publish statistics on our work, setting out the numbers of applications and judgments, the breakdown by subject matter, and average times taken to deal with the cases heard. Each year, the Chief Justice reports to the bar at the annual CBA conference and follows this with a press conference. From time to time, the Chief Justice gives interviews on how the Court is functioning. Our media relations committee holds yearly meetings with reporters to discuss what is working, and what is not working. Measures such as these attest to the attitude of mutual respect and openness that should prevail between the courts and the press. In our case, they have been much appreciated by the press and have led to improved coverage of the Court and its decisions.

Let me move from “big picture” administrative issues to helping ensure accuracy in the reporting of particular court decisions. Through press officers, summaries of judgments and oral briefings, courts across Canada are helping journalists ensure their reports of cases are complete and accurate. In the long run, public confidence will be undermined if media reports are confusing or misleading. Ensuring accuracy is, of course, the first responsibility of journalists, the vast majority of whom are professional and want nothing more than to “get the story right”. However, the law is a complex field. Expert knowledge and years of experience are required to understand its subtleties. And legal language is often difficult for all but the initiated to comprehend.

In the Supreme Court of Canada we try to address the issue of accuracy on a variety of fronts. First, we try to make our judgments as clear as possible. Second, we provide head-notes that summarize the essential points of each decision. Third, the Court’s Executive Legal Officer, or ELO, a senior lawyer seconded to the Court for a two year stint, assists journalists by providing briefings on every judgment released by the Court. These briefings are off the record, for information only and not for attribution. The ELO acts as a source of information — not a spokesperson for the Court — and explains the factual and legal background of the case and guides the press through the reasons for judgment. The ELO does not place a “spin” on the judgments. The goal is simply to ensure accuracy by guiding the media through the Court’s judgment in as objective a fashion as possible. To help journalists get their stories out in a timely way we have expanded this process to provide lock-ups, where reporters are briefed in advance of the release of a decision. In these and other ways, we try to assist journalists in their job of reporting accurately and completely on judicial decisions.

I have been discussing how courts can help inform the press, (and through the press, the public) on the day-to-day functioning of the courts and the content of judicial decisions. The approach I have discussed is premised on a fundamental principle of great importance — the principle that the courts should be open, subject only to narrow and judicial exceptions.

Of course, not everything can always be disclosed; sometimes the pressing concerns of privacy or security trump openness. Rules of evidence properly curtail what goes into the court record. Publication bans play an essential role in trials of young offenders, sexual offences and some family matters. Restrictions on dissemination, such as sealing orders, may occasionally be necessary.

Concerns of privacy, security and court process may also justify limits on how the media go about gathering and transmitting information about judicial proceedings. Electronic media, including television and new web-based media, now represent the primary means by which the vast majority of people receive their news. They constitute uniquely powerful means to provide information to the public about the administration of justice and the decisions of judges and juries. But they also may present risks.

Take, for example, an issue that has been with us for some time — television cameras in the courtroom. In the United States, as you know, television cameras have been allowed in state trial courts for years, (although not in federal courts or in the Supreme Court of the United States). Concerns emerge from this experience. One concern relates to decorum in the court room. The O.J. Simpson murder trial of the mid 1990’s, with its media circus atmosphere and around-the-clock coverage did little to foster public confidence in the administration of justice, one might argue. A second concern relates to the privacy of victims and witnesses, who may be transformed from quiet citizens to dinner-table topics overnight. A third concern is that witnesses may be tempted, consciously or unconsciously, to tailor their evidence to what the T.V. audience expects or how they would wish to be seen, corrupting the central truth-finding mission of the trial.

The general practice in Canada is precisely the opposite of that in the United States. Canadian trial courts have not generally permitted their hearings to be broadcast on television, where witnesses are involved. (Recently, while hearing a case concerning the validity of the Canadian Criminal Code’s prohibition on polygamy, Chief Justice Baumann of the B.C. Supreme Court permitted the video recording of closing legal arguments which were then streamed to the Internet on a 10 minute delay.)

Before appellate courts in Canada, the practice has been more liberal. The Supreme Court of Canada has permitted television coverage of all its hearings since the mid-1990s. Our courtroom is fitted with fixed cameras that automatically focus on the speaker — whether counsel or a judge — without any disruption. The insomniacs among you will also know that CPAC broadcasts most of the Court’s hearings in their entirety. Most of our hearings are now webcast live on the Court’s website.

The Supreme Court’s experience with television and webcasting has been positive. Live webcasting, in particular, has opened the Court to many citizens across the country. However, this does not mean that other courts ought necessarily to follow our lead. Many of the concerns surrounding the broadcasting of court hearings do not apply to the Supreme Court. We hear no witnesses. With our fixed cameras, there is no possibility of disrupting the decorum of the Court, nor, given the nature of debate before the Court, any real risk of sensationalisation or trivializing the hearings. From our perspective, which is quite different from that of a trial court, I believe that the broadcasting of our hearings has contributed to public confidence in the Supreme Court of Canada.

The Future: Challenges Posed by the Communications Revolution

I have been talking about how those involved with the judicial system can constructively work with the media to promote press coverage that is accurate, prompt and appropriately complete in substance and in form. But having urged this course, let me close on a cautionary note. Identifying the media with whom to work and finding effective ways to do this work is about to become much more difficult.

Newspapers, radio and television, despite their importance, are now old technology. Many people today — the young and even the not-so-young — use social media as their main sources of information. Without exaggeration, we are witnessing a profound cultural shift in how people communicate and how information is packaged, disseminated and consumed.

The explosive growth of new media signals a shift in who reports on legal proceedings. Court decisions may no longer be the preserve of trained professional journalists. Anyone with a keyboard and access to a blog can now be a reporter. And who is to say they are not? Some bloggers will be professionals and academics providing thoughtful commentary and analysis. Others will fall short of basic journalistic standards. Will accuracy and fairness be casualties of the social media era? What will be the consequences for public understanding of the administration of justice and confidence in the judiciary? How can a medium such as Twitter inform the public accurately or adequately in 140 characters or less? If witness or juror contamination is a concern with television, is it not even more so with ubiquitous social media accessed or received automatically via a hand-held device?

And overarching all these questions is the essential one — what steps can members of the media or the legal profession take to ensure responsible reporting and its correlative, continued public confidence in the judicial system, in the face of the ever-evolving communications revolution?

Judges in North America are already grappling with some of these questions. Should judges “tweet”? Should they be on Facebook? And other, more complex, queries wait in the wings.

One thing seems to me to be clear. In facing the reality of the modern communications revolution, it is crucial that we understand the technology and how it is being used — something lawyers and judges, often castigated as Luddites, may not find easy. And having understood the new technology and its uses, we must do what we are doing today — discuss, reflect, and share experiences and best practices.

I return to the proposition with which I began: that the relationship between the courts and the media is one of inescapable interdependence. As the late William Brennan Jr. of the United States Supreme Court aptly wrote, there exists:

… a fundamental and necessary interdependence of the Court and the press. The press needs the Court, if only for the simple reason that the Court is the ultimate guardian of the Constitutional rights that support the press. And the Court has a concomitant need for the press, because through the press the Court receives the tacit and accumulated experience of the nation, and — because the judgments of the Court ought also to instruct and inspire — the Court needs the medium of the press to fulfill this task. ^{Footnote 7}

Justice Brennan was right: the media and the courts are locked in a mutual, if sometimes uncomfortable embrace. We need each other; our interests are inextricably intertwined. As the media invent and re-invent themselves, so must judicial understanding evolve of how we relate to the media. We must look forward; we dare not hang back. This is our only choice, for what is at stake is nothing less than the rule of law.

Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Carleton University
Ottawa, Ontario
January 31, 2012