The increased reliance on social media as a news source has been well known for several years now, but appellate courts continue to fall further and further out of touch in this new media landscape. Appellate judges largely hold onto the mindset that their case opinions must speak for themselves and that avoiding engagement with the media almost entirely is necessary to maintain judicial integrity. However, the choice to remain disengaged with the media has resulted in a wider gap between the public and the judiciary, with decreased understanding of the courts.
This problem, alongside several pragmatic solutions, was the subject of the Appellate Judges Education Institute’s panel entitled The Ethical Tightrope: Navigating Media Influence and Judicial Integrity. The panel was moderated by Chief Justice Robert J. Torres of the Supreme Court of Guam and included four panelists who each brought a different perspective on the relationship between the media and the judiciary: Peter Shaplen, a journalist who was the media pool producer for numerous high-profile cases; Noah Feldman, a constitutional law professor; Julia Allison, founder of Reimagine Media and a social media influencer; and Justin Elliott, a Pulitzer Prize–winning journalist at ProPublica.
The panelists began by discussing the declining impact of legacy media—newspapers, radio, and television—and the effect on coverage of appellate courts. Professor Feldman explained that legacy media now takes just a glancing interest in the vast majority of appellate cases, and that interest continues to drop. He noted that he is often one of only two people in legacy media to cover the outcome of some appellate cases. With this low number of reporters for such a broad area, courts should expect that most of their cases will not be covered at all, let alone in the rich and complex detail that the fulsome opinions may warrant. Adding to this problem is the fact that, as Justice Torres lamented, the media often misreports or mischaracterizes the courts’ decisions, which exacerbates the public’s misunderstanding of the courts. Such a widespread disconnect makes it more difficult for the public to recognize—and hold courts accountable—when courts stray from their usual processes, issue opinions that are not supported by the law, or otherwise fail to adhere to their role as neutral stewards of justice. The lack of understanding about the role of the courts also makes people vulnerable to misinformation or disinformation from other sources about the effects of certain decisions.
Starting with the simplest solutions, the panelists discussed one straightforward way to improve the public perception and understanding of the courts: direct, proactive engagement with reporters. While it may sound like an obvious response to the problem, it flies in the face of the longstanding practice of most courts of speaking to the media only when strictly necessary. Mr. Elliott explained that courts must give more access to reporters in light of the Streisand Effect—attempting to hide something only draws attention to it. As the public perception of the judiciary worsens, it is important that courts proactively engage with reporters so that the coverage better reflects the broad swath of issues confronted by the courts, rather than a defensive response to press questions on hot-button issues. Mr. Shaplen noted that, if the courts are only using their press information offices as “defensive linebackers,” they’re misusing them.
While that suggestion could be relatively palatable to many judges, Ms. Allison’s proposed solution is far more likely to be met with resistance. She urged the judges to consider establishing a social media presence as a means of civic education. She played several TikTok videos from legal influencers, putting on display their ability to simplify complex issues and thereby make them accessible to the average person. Ms. Allison acknowledged that their videos often oversimplify matters—which certainly comes with its own problems—but emphasized the value in getting through to a new generation via entertaining means. She highlighted influencers who provide straightforward explanations of issues in a wide variety of areas as well as some who focus on a specific niche, such as immigration or family law. The common denominator among all of these individuals was their mastery of engagement, accessibility, and reach.
Ms. Allison explained that it is important for judges to be similarly engaged so that they can have some degree of control over the narrative regarding their cases. She suggested that courts create their own accounts on social media or work in partnership with an influencer to be more transparent about their jobs and decisions. Feeling the immediate tension that filled the room in response to this suggestion, Professor Feldman asked the judges in the audience for a show of hands indicating how many of them have given civics presentations to students. Many of them raised their hands, and Professor Feldman pointed out that this is not very different—both involve explaining their job and its realities in a concise and engaging way to reach more people. And there is one key caveat for both circumstances: judges should remain silent on pending cases.
Ms. Allison emphasized that failing to engage on social media does not protect the judiciary from the harmful effects of an online presence; it merely gives control to other people. Without the verified presence of members of the judiciary online, the court is merely relying on other voices—some credible and some not—to educate the public on its decisions.
However, while social media presence by the courts certainly presents a wide array of options, it is not the only way in which judges can directly explain their decisions to the public. Professor Feldman made a plea for all courts to include with each of their opinions a syllabus that is comprehensible to nonlawyers. Some courts already do this, but many do not, and it is a simple way to reach far more people. He said that courts are just inviting misunderstanding when the only thing they issue is an entire opinion written at the level of usual legal complexity. And, to assuage any concerns that it may be cited as part of the opinion, the syllabus can include a disclaimer that it is only a summary of the opinion; it is not to be cited as the actual opinion.
Appellate judges put an enormous amount of work into each of their decisions, but that work is only being read by a tiny percentage of the public—mainly sophisticated appellate lawyers. Providing a few paragraphs that explain the issue and opinion’s analysis in a straightforward way would give the public meaningful access to the court’s reasoning and thereby help to strengthen trust in the judiciary.
Professor Feldman acknowledged that institutional caution about these changes is entirely appropriate, but he reminded the judges about past resistance to court access that seems normal today. The Supreme Court now provides audio in almost real time, which would have been unimaginable twenty years ago. Going back even further, Professor Feldman discussed the 18th-century resistance to courts issuing written opinions rather than issuing oral opinions and relying on journalists to memorialize those decisions in writing (often incorrectly). Now, it seems laughable that courts would not want to maintain quality control over their opinions in this manner.
The consensus among the panelists was clear: as the gap between the judiciary and the public grows ever wider, appellate judges need to take steps to bridge that gap and prevent further deterioration of trust in the courts—and there are numerous feasible options available to them.
There may be a learning curve as the courts navigate new ways of engaging with the public, but that is no reason to avoid the shift. Mr. Shaplen encouraged the judges to seek out communications training to sharpen this skill rather than shy away from it and continue as though nothing has changed. And increased engagement does not have to mean a free-for-all. As Mr. Elliott clarified, courts should still set ground rules and standards, even within this model of greater transparency.
Professor Feldman warned that we are approaching a moment of crisis regarding public perception of judicial action, and it is in moments of crisis when evolution has to be taken more seriously. He told the room of appellate judges that their belief in their job insulates them psychologically from the reality of the crisis, but their instinct to do or say nothing regarding the issue of public perception is not working.
Finally, Justice Torres stressed that judges are not powerless in the face of misinformation or disinformation. They merely need to think about which tools they will use to address these issues and further engage with the public. At the very least, the actions proposed by the panelists give them a strong place to start.
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