August 12, 2019 Judicial Ethics

Judicial Ethics, Impartiality, and the Media

By Marla N. Greenstein

Judges take a variety of approaches when faced with their role with the media. Some take control of their message with formal Facebook pages and personal web pages and Twitter feeds. Others take an extreme total absence of interaction, believing the safest approach is avoidance. And the vast majority of judges view the media with fear and hesitance but have a desire to accurately reflect their roles and judicial decisions.

Apart from the prohibition on commenting on pending cases, and the various restrictions surrounding campaign and political speech, judges have latitude in interpreting their roles with the media. While there is no single approach and jurisdictional cultures differ, judges should explore their own relationship and comfort with the media.

As many of the articles in this issue highlight, the judiciary as a whole and many individual judges are under attack for exercising their proper judicial functions. In this highly politicized environment, the judiciary stands out as the “rational” branch of government, dispassionately applying rules and interpreting laws within a constrained informed discipline. There is legitimate concern that by engaging the media, judges could be drawn into the politicized and emotionally charged public arena.

The Model Code of Judicial Conduct requires each judge to uphold the integrity of the judiciary. But can this obligation be fulfilled without engaging the public through the media? For years judges have engaged in “judicial outreach” in an effort to engage the public in the work of the courts. What challenges the judges and the public is the general inability to answer the types of questions that the public really has about courts and current legal issues.

This issue of The Judges’ Journal is replete with cautions for judges. What may be missing is how judges can have a meaningful presence in the media, as needed, that informs the public and maintains the impartiality of the judiciary.

Several courts have developed guidelines to assist media representatives in covering the courts. The guidelines set out the basic structure of the courts, procedural steps in both criminal and civil cases, and who can be contacted to answer questions about court process. They also often include cautions about the limits on how judges may speak about ongoing cases. For example, the online “Journalist’s Guide” to the Federal Courts explains: “In keeping with ethics rules, federal judges do not grant interviews about active cases. Judges ‘speak’ through comments made in open court or through written decisions. Reporters must rely on the official case proceedings as their primary information source.”1 Several court systems have a designated “public information officer” who can answer questions that judges may not and can participate in media interviews.

There is a clear need, however, for parallel “guidelines” for judges’ interactions with the media. While judges are well acquainted with the prohibitions on their media presence, judges seem to believe that the warnings and limitations are a license to avoid media interactions. The Reynold’s Center for Courts and the Media at the National Judicial College produced a very comprehensive program and set of guidelines that sought to address this issue. For a more concise, and perhaps more accessible, set of guidelines, Kansas Judge Steve Leben authored “Ten Tips for Judges Dealing with the Media” that, while several years old, are still adaptable today.2 Briefly the tips:

  1. Don’t consider the media as the enemy.
  2. Set the right tone for your staff.
  3. Have someone available for media to meet with in person and to contact by telephone even after hours.
  4. Find a way to provide information on background.
  5. Make it easy for them.
  6. Understand deadlines.
  7. Communicate with the media as soon as possible about key events.
  8. Don’t impose restrictions unless it’s really necessary—and explain them when you do.
  9. If you don’t know something, don’t try to answer.
  10. Prepare.

It is in the last tip that Judge Leben makes the essential point that should be emphasized here. “The coverage of court proceedings is important. It shapes public opinion of the court system, and fair coverage promotes fair trials. Given its importance, judges should focus on preparing to handle our dealings with the media just as we must prepare to tackle complicated legal issues, the procedural aspects of court hearings, or supervision of our staff. These are all important parts of our job.”3

In the era of bloggers, social media commentary, and instantaneous news reporting, some of these tips may need adjustment, but the goal remains the same. Respect for the integrity of the courts ultimately results in effective communication with the public about the work of the courts. Media in all its forms facilitate that important knowledge and communication. While an ethical challenge, it is a challenge worth meeting. 

Endnotes

1. Federal Court: Media Basics—Journalist’s Guide, U.S. Courts, https://www.uscourts.gov/statistics-reports/federal-court-media-basics-journalists-guide.

2. Steve Leben, Ten Tips for Judges Dealing with the Media, 47 Court Rev., nos. 1–2, 2011, at 38, http://aja.ncsc.dni.us/publications/courtrv/cr47-1and2/CR%2047-1Leben.pdf.

3. Id. at 41.

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By Marla N. Greenstein

Marla N. Greenstein is the executive director of the Alaska Commission on Judicial Conduct. She is also a former chair of the ABA Judicial Division’s Lawyers Conference. She can be reached at mgreenstein@acjc.state.ak.us.