Fault Lines
16 August 2018

Trump, Media, and The Dumbing Down of Criminal Justice

October 14, 2016 (Mimesis Law) – The Greenstein Golden Rule of legal blogging can be written as “Educate your readers; don’t contribute to making the dialog about an issue more stupid.” Why write the second clause in a negative, you may ask. Unfortunately, that’s because public discussion, particularly when led by media outlets and memes, is making society less informed and more confused.

Journalism is supposed to be something that elevates rather than debases. Walter Cronkite said, “Our job is only to hold up the mirror – to tell and show the public what has happened.” And Edward R. Murrow said, “To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful.”

Although this campaign season has helped reveal the paucity of good legal information in the media, it certainly did not begin just now. Before there was Trump’s pussy-grabbing comments, there was a great deal of discussion about what constituted sexual assault, consent, and what should be done about media panic created around campus rape.

There was the University of Virginia rape hoax, which was perhaps too sensational to be true. As the threads of the story ripped apart like sun bleached beach towel, Rolling Stone understandably tried to save face, but the elements of the media aimed to make us all stupid by arguing that truth didn’t matter. The cause, whatever that means, is greater than facts. Because the cause is righteous, the peddlers of falsehood can claim moral superiority while defending lies.

Advocacy journalism of this sort starts to create myths, such as victims of crime, particularly rape, rarely lie and should be taken as true. A righteous crusade must prevail, otherwise why take it up? So, journalists advocate things like the elimination of due process because those attendant legal rules impede victory. In their near-religious zeal, they forget that a rule such as finding guilt beyond a reasonable doubt serves a useful purpose:

When it was students’ lives being destroyed, you didn’t care very much. You went along. Even if you realized it was wrong, you didn’t want to risk being called “rape apologist” for standing up to the mob. Now that it’s your friend, you’re willing to take the chance. Welcome to the dark side of reality.

Nobody gives a damn until it touches their life.

The idea that the victim is always to be believed is a convenient way for our self-appointed intellectual elites to end discussions and grant favor to chosen politicians. When it’s Bill Clinton sexually assaulting an intern and others, it’s largely victim blaming. When the media mob is turned on Clarence Thomas or Donald Trump, it’s a different story. Of course there is bias in the media; bias exists everywhere. But, meanwhile, the media is propagandizing to the public rather than educating the public about the law.

When Trump made his self-described locker room statement about pussy grabbing, many writers immediately jumped to telling the public Trump was advocating sexual assault. Again, setting aside the political, this is yet another example of the media confusing offensive speech, thoughts, or even certain conduct with criminal acts. Fault Lines contributor Greg Prickett discussed so-called revenge porn this way:

The problem here stems from a belief that if something is offensive, it can therefore be made criminal. Not true. As an Oklahoma Sooner fan since I was knee-high and as a graduate of Texas A&M, I’m offended every time that I see the burnt orange of Texas University.* But that doesn’t mean we should throw people in jail for that. Okay, well, maybe we should, but we can’t. It’s not constitutional to jail someone for free speech, which is what wearing that awful color actually is, free speech.

Revenge porn is like that. It’s clearly offensive, at least as far as the egregious examples suggest, but in most cases the so-called victim knew that the photos or video were being taken and consented to the photography. In a good number of cases, the “victim” was also the photographer, taking a selfie and sending it to their partner willingly. They are just upset that after the relationship went bad, the partner posted the photo somewhere, or sent it to someone.

Fault Lines Editor Scott Greenfield dissected a New York Times article that wanted to support free speech but couldn’t bring themselves to quite do it when it involved Trump:

Walking this very fine line between loving and hating the First Amendment, according to whether or not you favor any particular outcome, is a dangerous and offensive trick. The New York Times wants to leave open the door to the suppression of speech that it finds unacceptable, while slamming it shut when some yahoo like Trump tries to use it to pander to the base emotions and ignorance of people who aren’t Times subscribers. Or to put it more bluntly, free speech is very important except when the Times says it’s not, because feelings.

In the process of trying to play both sides of the issue, however, it deliberately embeds a degree of stupid in its readers. The only thing missing is the reference to “yelling fire in a crowded theater,” provided that the people in the theater who burn are all Trump supporters.

Cognitive dissonance is for everyone. Journalism had become very post-modern then. It’s not really about who, what, where, how, and why anymore. It’s about how that makes the writer and reader feel. Free speech is good when it is used to communicate approved message. Otherwise it’s a problem. Likewise, declaring something a crime has less to do with the actual law than the type of friends the writer wants to keep and the types of dinner parties the journalist wishes to attend.

Moreover, many people say and do dumb things, the result of which may appropriately result in that person losing a job or being publicly shamed. But not every misdeed is criminal nor ought to be treated as such. Trump may have indeed have actually committed a crime by grabbing genitals, but his general statement without out more is insufficient evidence.

For example, if Trump had done such a thing in Ohio, then there would need to be proof that the person knew, or was reckless, that the other person views the contact as offensive. And of course, he’d get the benefit of rules like presumption of innocence, standard of proof, etc. It’s smoke, but it’s not quite fire.[1]

Trump’s candidacy has raised other issues where the media leads its readers astray. For example, former lawyers made statements about their representation. A lay person might infer that this conduct was okay. But Fault Lines contributor Ken White had this to say:

The attorney-client relationship depends upon trust, particularly in criminal cases. Lawyers can’t do their jobs right when they can’t get the true facts from their clients. Getting the truth is challenging enough under normal circumstances. It’s much harder in a culture that treats the attorney-client relationship as something the lawyer can monetize later if the client gets famous. Unethical lawyers who break the duties of loyalty and confidentiality for money or prestige damage the profession, and with it the rule of law. The media is complicit when it treats a shameful betrayal of professional obligations with a shrug.

Mainstream journalism does a poor job informing you about the laws. This applies as well to lawyers turned journalists writing for news outlets. The strength of Fault Lines is that professional lawyers are writing about legal issues. It’s not just book learning; writers share perspectives based on experience won through the practice of law. Moreover, everyone here is doing it as a labor of love, rather than to impress friends, future employers, and potential benefactors.

Further, we may bring our interests, biases, and points of views with us while we write, but we do it as lawyers. Unlike journalism, when you stand up to make a legal argument to a court, feelz gets you nowhere fast. And if you can’t learn to successfully weave facts and law together to educate your audience, then you will be a hungry and bored lawyer. Even if you disagree, you’ll walk away a little smarter from a Fault Lines post. You can’t say that about many articles by journalists.

5 Comments on this post.

Leave a Reply

*

*

By submitting a comment here you grant this site a perpetual license to reproduce your words and name/web site in attribution.

  • Beth
    14 October 2016 at 10:07 am - Reply

    While Bill Clinton has been accused of sexual assault by multiple women, I don’t think any of the accusers were interns. He had a consensual affair with an intern.

  • Richard G. Kopf
    14 October 2016 at 4:26 pm - Reply

    Andrew,

    Thanks for this. I agree that I don’t want journalists who write about the law to make me dumber. I can do that on my own.

    For a particularly good example of people who write about the law but have never practiced it, yet find law teaching jobs at Yale, see Linda Greenhouse, Let’s Legislate From the Supreme Court Bench, New York Times (Oct 13, 2016), available at:

    http://www.nytimes.com/2016/10/13/opinion/lets-legislate-from-the-supreme-court-bench.html

    Sister Greenhouse continues her long tradition of seeing legal disputes in the Supreme Court as political questions to be resolved by modern day Platonic Guardians. According to Greenhouse, any other view is “simply fatuous.”

    All the best.

    RGK

    • Andrew King
      16 October 2016 at 6:30 pm - Reply

      Judge,

      Toobin and Greenhouse were the first two people that came to mind, but for some reason I could only think of Nina Totenberg’s name. My problem with names is represented in the first sentence of this post. I wish I had found this link to use; thanks for sharing it.

  • The Legal Antidote To Virtual Sexual Assault
    28 October 2016 at 12:00 pm - Reply

    […] fondling another person,” has the American public’s attention like never before thanks to off color remarks from a presidential candidate during an election season best described as a carnival sideshow. It […]