Judges, journalists and openness

I attended a conference today of about 50 judges and 50 journalists from Massachusetts, New Hampshire and Rhode Island. Among the judges were chief justices, appellate judges and trial judges. The journalists represented print, TV, radio and wire service organizations. Topics focused on ethics and access, from both sides of the coin.

The conference, organized by the National Center for Courts and Media, was very good. But as a lawyer and journalist, I found it disheartening. Here is why.

I take it as a fundamental precept of our democratic system that government should be open and accessible to the public. Openness should be the status quo, with exceptions made only when the presumption of openness is outweighed by considerations of security or privacy.

What I heard from a majority of the judges in attendance today was just the opposite. For them, the status quo is never to talk to the media. Time and again today, I heard judges say that they would not accept a phone call from a reporter or would decline comment if approached in person.

One reason, of course, is that judges comment on the cases that come before them through their written opinions and orders. They consider it inappropriate to attempt to explain or elaborate on those opinions.

But of even greater concern to the judges were the canons of judicial ethics that govern them. In Massachusetts, the Code of Judicial Conduct prohibits a judge from commenting on a case. It says, in Canon 3B.(9):

"Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending Massachusetts proceeding in any court, and shall require similar abstention on the part of court personnel."

The Canon provides three exceptions:

"(a) A judge is permitted to make public statements in the course of his or her official duties or to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.
"(b) This Section does not prohibit judges from discussing, in legal education programs and materials, cases and issues pending in appellate courts. This education exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.
"(c) This Section does not apply to proceedings in which the judge is a litigant in a personal capacity."

At today's conference, we watched a videotape in which a judge sat with a reporter and, in response to a question about a case, gave a scholarly, mannered and informative overview of the process of judging. He studiously avoided commenting directly on the case. Instead, he explained that, as a judge, he looks to sources of law such as the constitution and case law and then applies that law to the record. He offered no specifics whatsoever about the case the reporter asked about, except to point to the voluminous pile of documents by his desk that formed the case record. Most of the journalists in the room thought this clearly fell within exception (a), "to explain for public information the procedures of the court." Most of the judges, however, considered the judge to have overstepped the bounds of appropriate conduct and possibly to warrant investigation by the judicial conduct commission.

If judges are relying on these rules to shut the door on reporters in circumstances such as this, then the rules need to be changed. (Not to mention the question of whether so broad a ban on judicial speech is constitutional. See, Republican Party of Minnesota v. White.) Rather than have rules that create a presumption in favor of silence, why not craft rules that do the reverse – that create a presumption in favor of judicial openness with certain exceptions to protect personal privacy and judicial impartiality. Our government should be modeled on openness – whichever in the executive, legislative or judicial branches. The rules should encourage this and judges should be taught this.

There is much misunderstanding among judges and journalists. Conferences such as this help to bridge the gap. But common sense goes a long way too. Judges and journalists must be able to talk to each other in the normal course, in order to illuminate the courts in the eyes of the public.