The Journal of Appellate Practice and Process

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Volume 18 Issue 1 Article 3

2017

Surveying the Landscape as Technology Revolutionizes Media Coverage of Appellate Courts

Howard J. Bashman

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Part of the Communication Technology and New Media Commons, Courts Commons, and the Law and Society Commons

Recommended Citation Howard J. Bashman, Surveying the Landscape as Technology Revolutionizes Media Coverage of Appellate Courts, 18 J. APP. PRAC. & PROCESS 7 (2017). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol18/iss1/3

This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. 39639-aap_18-1 Sheet No. 8 Side A 11/15/2017 09:50:50 The ESSAY The New York Vol. 18, No. 1 (Spring 2017) 2017) (Spring No. 1 Vol. 18, ROCESS AND PROCESS P , hosted by Breaking Media at http://appellate, hosted by Breaking Media THE JOURNAL OF JOURNAL THE RACTICE AND P ) 10/24/2017 6:48 PM ELETE APPELLATE PRACTICEAPPELLATE How Appealing D OT PPELLATE N O A , Philadelphia’s daily newspaper for lawyers. Bashman is widely known, Philadelphia’s daily newspaper for lawyers. Bashman (D DIT DIT E XEC on any day in 1992, and if I was fortunate enough to have on any day in 1992, and if I was E Just as technology has tremendously changed the manner in changed the manner Just as technology has tremendously in If I wanted to read an article appearing OURNAL OF J HE ASHMAN T Legal Intelligencer for his appellate blog, decisions and about appellate-court years of blogging than fifteen more blog.com/. In news, Bashman has observed first-hand the seismicrelated shifts in mainstream media of this article. are the focus rulings that coverage of appellate-court *Howard J. Bashman, an appellate lawyer who operates an appellate litigation boutique an appellate lawyer who operates J. Bashman, *Howard a monthly column on appellate issues for writes Pennsylvania, based in Willow Grove, which appellate lawyers, judges, and their staffs perform legal perform and their staffs which appellate lawyers, judges, books and from years, moving research over the past twenty-five and legal research services physical law libraries to online so cellular devices, and the like, hand-held access via computers, in which many the manner too has technology revolutionized including type of information, people access nearly every other news coverage. SURVEYING THE LANDSCAPE AS TECHNOLOGYSURVEYING THE MEDIA COVERAGE OF REVOLUTIONIZES APPELLATE COURTS Howard J. Bashman* Times that was connected to the internet—access to a computer service over a telephone probably by a slow-speed dialup to download home—I could eventually manage from modem B 39639-aap_18-1 Sheet No. 8 Side A 11/15/2017 09:50:50 A 11/15/2017 8 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 8 Side B 11/15/2017 09:50:50 Rocky Rocky ROCESS The Plain Plain The P The New Plain Dealer , “founded in , “founded 1 News RACTICE ANDRACTICE P Fails to Find Buyer and Will ’s move to fewer daily issues and in 1992 was to purchase a was to purchase in 1992 PPELLATE A Dear Readers: Information about about Information Readers: Dear Plain Dealer Staff, OURNAL OF OURNAL J ) 11/8/2017 5:11 PM is not alone in offering this sort of comprehensive online is not alone (May 22, 2013, 7:06 AM CDT), http://www.cleveland.com/ http://www.cleveland.com/ AM CDT), 7:06 22, 2013, (May HE rez-Peña, Rocky Mountain News Mountain ࡱrez-Peña, Rocky ELETE D ) or abandoned print for online-only coverage ) or abandoned print for online-only Plain Dealer 2 OT , N The New York Times The New (Feb. 26, 2009), http://www.nytimes.com/2009/02/27/business/media/ http://www.nytimes.com/2009/02/27/business/media/ (Feb. 26, 2009), O , I don’t drive to a drugstore or newsstand or library a drugstore or newsstand or library , I don’t drive to 1(D IMES , Richard Pé , Richard T See, e.g. ESEND R Now that we can access nearly the full contents of pretty full contents of pretty the nearly access Now that we can coverage of news The consequences of the digitalization More recently, the internet has become ubiquitous, readily ubiquitous, has become the internet More recently, ’s Delivery Schedule ’s Delivery The New York Times The New York See, e.g. , N.Y. 1. 2. ASHMAN experience. much any newspaper in the world on our cell phones, the in the world on our cell much any newspaper to purchase or subscribe to of people who continue number delivery of an actual print copy of a newspaper continues home has online largely replaced only Indeed, not its steady decline. of newspapers, the contents accessing to it comes paper when be the and Twitter tend to but popular apps such as Facebook of people learn what is happening, way in which large numbers a newspaper’s web site. instead of directly visiting Across the nation over the past decade or so, some are many. newspapers have closed down (see Denver’s major Mountain News 8 T 8 to see way common more the far But article online. read the and in what was B a newsstand. copy from work, on my at computer on my at high speeds available even on my and perhaps on my cell phone, home, at computer of to see what’s in today’s edition television. If I want York Times edition of that peruse a copy of the print to purchase or and click on the I go to www.nytimes.com newspaper. Instead directly to a list which will bring me Paper,” link for “Today’s of today’s editions appearing in multiple of every article their content. access to full online newspaper, with 27paper.htm (reporting that “[t]he Rocky Mountain News, would, after nearly 150 years of after nearly 150 years would, News, Rocky Mountain that “[t]he 27paper.htm (reporting that the and its last edition the next day, existence,” publish Dealer metro/index.ssf/2013/05/dear_readers_information_about.html [hereinafter Close Announcement] (noting, in explanation of Announcement] Plain The can read our updated digital edition, you digital offerings, that “[w]ith enhanced Dealer anytime, anywhere,” that “[i]t is an exact digital replica of the morning’s paper in mobile device,” that or format you enjoy, delivered daily to your desktop the page-by-page scan you to quickly allows and search capabilities, it “is faster, includes enhanced our reporters as from news . breaking . . that it “offers fronts,” and headlines and section readers that copieswell as real-time of the paper edition information,” and also reminding day”). would still be available “at over 2,000 locations every 39639-aap_18-1 Sheet No. 8 Side B 11/15/2017 09:50:50 B 11/15/2017 8 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 9 Side A 11/15/2017 09:50:50 , , 5 ). ). 4 9 see also AL.com (Mar. 23, 2009, 9:18 9:18 (Mar. 23, 2009, The Harrisburg The Harrisburg OURTS , http://www.mlive.com/ , http://www.mlive.com/ IVE 6 C The New Orleans The New , ML (Sept. 28, 2012, 9:17 PM CST), CST), 9:17 PM 2012, 28, (Sept. The Ann Arbor News Ann Arbor The The Birmingham News The Birmingham Staffers Depart as Paper Ceases to Publish Last Edition Tuesday COM PPELLATE note 1 (explaining that the paper was was the paper note 1 (explaining that A and 3 http://www.seattlepi.com/business/article , AL. supra in Cleveland, to Close in July , seattlepi.com (online-only edition of paper, seattlepi.com (online-only New Orleans Newspaper Scales Back in Sign of Scales Newspaper Orleans New Will Offer a Sunday Experience Three Days a Days a Three Experience Sunday Will Offer a see also MLiveAnnArbor had been “the city’s daily newspaper since 1835” “the city’s daily newspaper been since 1835” had Birmingham News News OVERAGE OF C (Mar. 16, 2009), ) 11/8/2017 5:11 PM Many Patriot-News Announcement, Announcement, (May 25, 2012), http://www.nytimes.com/2012/05/25/business http://www.nytimes.com/2012/05/25/business 2012), (May 25, have managed to remain alive by decreasing by decreasing alive to remain have managed EDIA ELETE D M New New — IMES 8 here in Pennsylvania, and Pennsylvania, here in OT N The Plain Dealer The Plain 7 see also Seattlepi.com O (Dec. 22, 2012, 12:57 AM EST), http://www.pennlive.com/midstate/ AM EST), http://www.pennlive.com/midstate/ 22, 2012, 12:57 (Dec. NTELLIGENCER N.Y. T Plain Dealer , -I 1(D , would cease daily publication “after 125 years” but that it and its related years” but publication “after 125 daily would cease OST Dan Richman & Andrea James, Seattle P-I Dan Richman & Andrea P ESEND Dawn Kent Azok. Kent Azok. Dawn Stefanie Murray, Ann Arbor News Arbor Stefanie Murray, Ann Ted Sickler, Ted News R PennLive The Seattle Post-Intelligencer Seattle The See See See See, e.g. See Upheaval , 5. 4. 3. 6. 8. David Carr & Christine Haughney, 7. ECHNOLOGY AND AND ECHNOLOGY EATTLE ASHMAN ann-arbor/ (online edition of paper offering, as of July 2017, state and local news). local news). state and 2017, July offering, as of paper ann-arbor/ (online edition of Daily Publication, Moves to Three Days a Week to Three Daily Publication, Moves and that a new web-based media company, AnnArbor.com, would “publish a print edition and that a new web-based media company, would “publish a print edition AnnArbor.com, later in 2009); beginning week” twice a AM EDT), http://www.mlive.com/news/ann-arbor/index.ssf/2009/03/ann_arbor_news_to_ http://www.mlive.com/news/ann-arbor/index.ssf/2009/03/ann_arbor_news_to_ AM EDT), (reporting that theclose_in_jul.htm /Seattle-P-I-to-publish-last-edition-Tuesday-1302597.php (reporting that the “146-year old/Seattle-P-I-to-publish-last-edition-Tuesday-1302597.php publication Seattle's oldest end business,” would but “would maintainnewspaper, it the nation's largest daily newspaperseattlepi.com, making to shift to an entirely digital news product”); international news, national and news, focused on local sections including, as of July 2017, real entertainment,arts and business, sports, lifestyle news, education, and comics, travel, estate). T (see in Alabama, but the oldest to be not just the oldest newspaper in the state, claim[ed] . . . 1859 business”). continuously operating B as other newspapers—such Numerous Patriot–News Times-Picayune S http://blog.al.com/businessnews/2012/09/birmingham_news_staffers_depar.html (reportinghttp://blog.al.com/businessnews/2012/09/birmingham_news_staffers_depar.html that the and Wednesdays on Sundays, and Mobile would be “published papers in Huntsville their at on digital news coverage emphasis be a greater “there [would] that Fridays,” and [hereinafter Birmingham Reductions]; online home, al.com”) www.al.com (online edition of all three papers, offering, as of July 2017, primarily state of all three papers, edition www.al.com (online and local news). Print index.ssf/2012/12/pa_media_group_1.html (reporting the that starting on January 1, 2013, index.ssf/2012/12/pa_media_group_1.html Sundays,” and Thursdays homes on Tuesdays, to subscribers’ “delivered paper would be and promising both that “[w]hether you read The Patriot-News in print or online at and the same,” will remain of coverage reach find that the depth and you’ll PennLive.com, and in print”). willthat “the company’s digital-first create richer stories online approach about to reduce to three days a home delivery “with larger news sections and week, with more food and dining edition enriched coverage: a Wednesday expanded local comprehensive blueprint for edition with Northeast Ohio’s most a Friday coverage, even more arts, travel, opinion, sports and entertainment, and a Sunday edition filled with full news,” and that “[a] subscription of three premium will days of home delivery include home-delivered week plus the Saturday a edition seven days digital access to our new Ohio State and autos, high-school sports, on bonus edition [that includes sections focused football]”). Week 39639-aap_18-1 Sheet No. 9 Side A 11/15/2017 09:50:50 A 11/15/2017 9 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 9 Side B 11/15/2017 09:50:50 ROCESS P Through Their Their Through Only RACTICE AND P PPELLATE PPELLATE note 5 (reporting that (reporting “more than 100 note 5 A supra OURNAL OF OURNAL J ) 10/24/2017 6:48 PM HE ELETE D OT N These and the many other the many These and the of consequences 9 O 10 (D , Birmingham Reductions, DIT DIT E 8 I/S 575, 583–84 (2013) (noting that jobs had over 40,000 journalism 8 I/S 575, 583–84 (2013) latest-sign-of-print-upheaval-new-orleans-paper-scaling-back.html (reporting that XEC - E The Future of Online Legal Journalism: The Courts Speak Courts Speak Journalism: The of Online Legal Future The The decline in traditional newspaper coverageThe decline in traditional newspaper of appellate See, e.g. 10. that it While recognizing is all but impossible to empirically study the extent to 9. ASHMAN Opinions? disappeared by the middle of 2012 that insiders observed that “the ranks of had by then and dedicated the and legalprofessional journalists to covering courts affairs have been reporters whose beat of (discussing both the disappearance decimated”), 584 on state formation supreme courts and the in daily” of responsibilities included “check[ing] employees were laid off, roughly a quarter of the total workforce,” quarter when three jointly held off, roughly a employees were laid Alabama papers substituted a robust online presencemore for some of their print editions photographers, editors, reporters, 60—were of the layoffs—about majority and that “[t]he also noting that “thecopy editors and others in the newsroom,” while loss of institutional challenge”). is a journalists many veteran of with the departures knowledge industry have which job losses and other cutbacks in the journalism affected journalistic Davey—a former newspaper journalist who Christopher J. courts, coverage of appellate Court of Ohio— Information for the Supreme of Public the Director later worked as collected many relevant and informative details in a must-read article. Christopher J. Davey, /media/in digitalization of news coverage of course extend to the manner of course extend of news coverage digitalization cover appellate-court rulings. media in which the news general, is difficult to measure courts, and of civics topics in consequence of unavoidable but it seems to be an empirically, and newspaper coverage of declines in newspaper readership state and federal entities, including courts, as a local government areas of reporters primarily result of the disappearance in many the courtsassigned to cover the business of general-interest for newspapers. 10 T 10 B the 175-year-old paper would “scale back the printed edition to three days a week”). a week”). days edition to three printed the back “scale would paper the 175-year-old the number of days per week on which they publish publish they on which week days per of number the print online to free classified advertising loss of The editions. readers, print of and the loss such as Craigslist, alternatives, flocked to have who advertisers in a loss of traditional resulting options, have to online readers follow digital-edition posed of existence to the continued financial challenges tremendous newspapers in the United successful and most even the largest have to survive that have managed States. The newspapers cuts of reporters and staff engaged in large number reducing the and editors the most experienced reporters editors, and often because their risk of losing their jobs have been at greatest costlier to the thus greater (and are so much salaries and benefits brand-new reporters than those of the and editors who employer) replace them. 39639-aap_18-1 Sheet No. 9 Side B 11/15/2017 09:50:50 B 11/15/2017 9 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 10 Side A 11/15/2017 09:50:50 13 , The The San The San stories from Plain Dealer The Cincinnati 11 Kent Faulk , 14 , Dispatch , http://www.statesman OURTS C The Los Angeles The Los Angeles COM . , http://www.sfchronicle.com , http://www.sfchronicle.com , http://www.ajc.com/news/state- COM to that search. Using the search to that search. Using the search . of Canton, Ohio, undertaken for this for undertaken Ohio, of Canton, COM PPELLATE PPELLATE TATESMAN A , http://www.latimes.com/la-bio-maura- , S , AJC. COM HRONICLE . The Akron Beacon Journal The Akron Beacon IMES , SFC The Repository The Atlanta Journal-Constitution OVERAGE OF , LAT Maura Dolan of Maura Dolan , and C The Columbus Dispatch Columbus The 11 ) 10/24/2017 6:48 PM , EDIA ELETE The Austin American-Statesman D M OT N O (D DIT DIT Dayton Daily News Dayton (Cleveland) and E Bill Rankin of Bill Rankin of XEC 12 , the , E See Bill Rankin, Reporter for Enterprise See State Capitol Reporter Chuck Lindell, See Maura Dolan, Writer See Courts Reporter Bob Egelko, Despite the gloomy economic reality for newspapers and newspapers for reality economic gloomy the Despite As to news coverage of state supreme courts, Davey offered this sobering summary offered Davey courts, of state supreme coverage As to news From 2003 to 2006, the average number of news stories in the major From 2003 to 2006, the average featuring the term “Ohio Supreme metropolitan Ohio newspapers combined per year. 925 was average the 2011, 2007 to From year. per Court” was 1,224.5 Court in written about stories were only 783 the Ohio Supreme In 2011, there 1,332). peak year (2006: the drop from percent a forty-one these newspapers, at 385. A quick Lexis/Nexis search of at 385. A quick 13. 14. 12. 11. ECHNOLOGY AND AND ECHNOLOGY ASHMAN a Federal Judicial Conference committee charged with “study[ing] the federal ways that with “study[ing] charged committee a Federal Judicial Conference media”). from the coverage with less courts can still support public understanding T Times B dolan-staff.html (noting that Dolan covers “covers the California Supreme Court and the the covers “covers Court and the California Supreme dolan-staff.html (noting that Dolan collecting recent articles). and Appeals,” of Circuit Court U.S. 9th -regional/bill-rankin/Iw5wIqT8YSqQHL6m14V68I/ (noting that Rankin joined the paper -regional/bill-rankin/Iw5wIqT8YSqQHL6m14V68I/ justice, legal criminal Bill has covered most of his time at the AJC, “[f]or that in 1989, and courts”). and federal Georgia affairs and .com/online/contacts/chuck-lindell/wkKwTLAbogmwBOBJvdPaDN/ (noting that Lindell .com/online/contacts/chuck-lindell/wkKwTLAbogmwBOBJvdPaDN/ justice”). and criminal Texas Senate politics, the “covers legal issues, appellate courts, /author/bob-egelko/ (noting that Egelko’s beat includes “state and federal courts in of “thethe State Bar,” passage that he has covered Court and and California, the Supreme her to the state Supreme Court and of Rose Bird Proposition 13 in 1978, the appointment by the voters,California and the battlesremoval death penalty the over gay in rights and same-sex marriage”). the unlikelihood of any turnaround in that regard, at present a regard, at present turnaround in that of any the unlikelihood regularly journalists who of experienced number substantial Although space ply their trade. continue to the courts cover deserve to be listing all who from me prevent limitations Egelko of include Bob I must here, mentioned Francisco Chronicle Chuck Lindell of of his own state’s situation: state’s of his own Id. Enquirer 2016 that mention the Ohio Supreme Court and an additional twenty-eight Court and an 2016 that mention the Ohio Supreme it.) that mention mid-July 2017 through mid-July 2016 stories from function on their individual websites turned up an additional thirty additional up an function on their individual websites turned article revealed that only 619 of those papers’ news stories from 2016 contained the news stories article words revealed that only 619 of those papers’ database limitations, it was impossible to add of Court.” (Because “Ohio Supreme Plain Dealer 39639-aap_18-1 Sheet No. 10 Side A 11/15/2017 09:50:50 A 11/15/2017 10 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 10 Side B 11/15/2017 09:50:50 The , https: ROCESS P COM . OST The Toledo Toledo The P Birmingham News RACTICE AND ASHINGTON P , W Journalists can register for Journalists , http://www.toledoblade.com/contactus , http://www.toledoblade.com/contactus 19 PPELLATE PPELLATE A COM . , https://www.buzzfeed.com/zoetillman (noting, https://www.buzzfeed.com/zoetillman —a publication whose contents —a publication whose contents and Jim Provance of Provance Jim and LADE 15 COM , . B ’s Columbus Bureau Chief); http://www.toledoblade.com EED , http://connect.al.com/staff/krfaulk/ (noting that Faulk has OURNAL OF OURNAL F J ) 10/24/2017 6:48 PM OLEDO UZZ Blade COM HE , see https://twitter.com/MikeScarcella/status/885505774704832 , see https://twitter.com/MikeScarcella/status/885505774704832 ELETE , T D , B has recently assigned experienced journalist has recently assigned , AL. OT N O (D And Zoe Tillman, who covered appellate courts for 17 DIT DIT E XEC 16 E . See Kent Faulk See Contact Us SeeWashington, D.C. Reporter, Ann E. Marimow, See Zoe Tillman Moreover, thanks to Twitter, news of newly issued federal Moreover, thanks to Twitter, news All of these newspaper reporters, and various others like various others like reporters, and newspaper All of these to the overall trend of exceptions exist Of course, some The Birmingham News Birmingham The 18 15. 19. for To view just a few examples from the Twitter feed of Mike Scarcella, a reporter 16. 17. 18. ASHMAN that Tillman is a BuzzFeed News reporter based in Washington, D.C., and collecting recent and D.C., in Washington, based that Tillman is a News reporter BuzzFeed stories). Journal The National Law 512 (“Twitter account—purportedly belonging to a judge—that follows US attorney is not grounds for recusal: appeals court”), https://twitter.com/MikeScarella/status/883323145788 been a reporter since 1985 and now covers “the courts beat” for both covers “the courts the been a reporter since 1985 and now and the Alabama Media Group). Media Group). Alabama and the largely exist beyond a subscription-only paywall—recently for BuzzFeed, nationwide began covering appellate courts an news publisher whose contentonline-only is freely available to all. ever, earlier than disseminated appellate court decisions is often in a case will be advised of often as promptly as the attorneys publicly the opinions become the rulings, and even before sites. the courts’ own on available Blade The National Law Journal 12 T 12 and state of the federal the rulings regularly cover them, places courts in the appellate newspapers their where are their news to the internet, though, thanks even And located. online is now more widely available those courts coverage of and circulation declining newspaper ever before, than perhaps of local unquestionably curtailed the number readership have that coverage. consuming readers who are example, coverage of local courts. For declining newspaper Washington Post Circuit, Circuit, the Fourth the D.C. and to cover Ann Marimow of Virginia and the District appellate courts of the state-level Columbia. B /JimProvance (collecting recent articles). /JimProvance (collecting (noting that Provance is the of //www.washingtonpost.com/people/ann-e-marimow/?utm_term=.1104909b215f (indicating //www.washingtonpost.com/people/ann-e-marimow/?utm_term=.1104909b215f Washington Post,” and Maryland for the that Marimow “covers legal affairs in the District recent stories). and collecting her 39639-aap_18-1 Sheet No. 10 Side B 11/15/2017 09:50:50 B 11/15/2017 10 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 11 Side A 11/15/2017 09:50:50 , http://www , https://www 13 UBE T OURTS C OU OURTS Appellate%20Court%20 Appellate%20Court%20 C , Y = TATE The National Law Law The National S along with Brad Heath along with FOR . 20 TR PPELLATE C inks.aspx?cat A -l L ’ AT , no. 17-35105 (9th Cir. Feb. 7, 2017) (motion 2017) (motion (9th Cir. Feb. 7, 17-35105 , no. , N and some state appellate courts also state appellate courts and some procedure/state OVERAGE OF 23 - C ) 11/8/2017 5:11 PM , https://twitter.com/mikescarcella (describing Scarcella as a EDIA ELETE and Mike Scarcella of Scarcella of and Mike , https://twitter.com/ZoeTillman (describing Tillman as a reporter D M , https://twitter.com/bradheath (describing Heath as an investigative, https://twitter.com/bradheath (describing Heath Washington Trump v. 21 OT N O 24 1(D frequently tweet out news and links to new appellate- and links to new news out tweet frequently 22 , ESEND Appellate Procedure—State Links Appellate Procedure—State R See @mikescarcella See United States of Appeals for Court the Ninth Circuit See @zoetillman See @bradheath At the same time that technology has resulted in a decrease that technology has time At the same Hundreds of thousands—if notinterested millions—of USA Today 24. The National Center for State Courts has compiled a list of links to the online 22. 23. 20. 21. ECHNOLOGY AND AND ECHNOLOGY ASHMAN .youtube.com/user/9thcirc/videos (including an unusually sophisticated search function: the (including an unusually .youtube.com/user/9thcirc/videos audio-only recording term “travel ban” is the first hit produced by the distinctly non-legal of the oral argument in that this hearing appeal)). Readers will recall to stay TRO pending was conducted Circuit to upload to its courtroom video for the Ninth no telephonically, so there was channel. YouTube resources of those states that make their appellate available in court oral arguments this manner. reporter for USA Today who covers “law and justice”). justice”). “law and who covers Today reporter for USA and describing his beat @TheNLJ and @Legal_Times, senior editor at as@lawdotcom, “courts”). and enforcement,” “regulatory,” “[f]ederal provide live and archived online access to oral-argument oral-argument to online access and archived provide live recordings. 284928 (“New: US appeals court says 1st Amendment protects photographing, recording protects photographing, recording 1st Amendment court says US appeals 284928 (“New: (“Now— police officers”), https://twitter.com/MikeScarcella/status/879360209713549312 ruling that said DEA administrative violated Oregon subpoenas Ninth Circuit overturns US (“Now: https://twitter.com/MikeScarcella/status/877901875202277377 privacy”), and Mississippi “‘religious liberty’ law”). blocking was injunction that appeals court overturns tweets). her cataloguing of course, and, BuzzFeedNews” justice for and “covering courts of Journal anyone else has done so. court rulings before the internet of appellate-court rulings, in newspaper coverage oral arguments to those rulings and to appellate access has made before. Every federal appellate available than ever more freely its published opinions appellate court makes court and state and Nearly all federal appellate courts, online. freely accessible audio oral-argument also make courts, state appellate many its oral livestreams The Ninth Circuit online. freely available on YouTube, arguments in February 2017 when people watched online and on television T to filing system electronic court’s appellate a federal from alerts of new filings,be notified includingof court’s filing the will lawyers in a case as quickly as the opinions, just particular as Tillman, Journalists such be notified. B .ncsc.org/topics/appellate/appellate Oral%20Arguments%20Online. Oral%20Arguments%20Online. 39639-aap_18-1 Sheet No. 11 Side A 11/15/2017 09:50:50 A 11/15/2017 11 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 11 Side B 11/15/2017 09:50:50 , hearing hearing - , Chenda , Chenda ROCESS P E.g. appeals - of 17-35105 State of - court - And despite the And despite RACTICE AND P 25 trump - , https://www.youtube.com/wtch?v , https://www.youtube.com/wtch?v 26 donald UBE - T PPELLATE PPELLATE Trump’s Travel Ban Court Hearing: Five Hearing: Travel Ban Court Trump’s OU A After the Ruling, and the Tweet, What Comes After the Ruling, and the , Y president - OURNAL OF OURNAL J ) 10/24/2017 6:48 PM (Feb. 7, 2017, 9:23 PM EST), https://www.usatoday.com/ PM EST), 9:23 (Feb. 7, 2017, , Adam Liptak, , Adam HE ELETE COM . D OT N See, e.g. O ODAY , at A8 11, 2017, (discussing Feb. consequences of travel-ban hearing (D (June 29, 2012, 4:59 PM), http://www.cbsnews.com/news/getting-it-wrong , Richard Wolf & Alan Gomez, , Richard DIT DIT IMES E T COM , USAT . United States Court of Appeals for the Ninth Circuit, United States Court of Appeals XEC E See, e.g. See Getting it Wrong: Media Rushes to Report Supreme Court’s Health Care Decision Care Getting it Wrong: Media Rushes to Report Supreme Court’s Health EWS Despite the advantages of real-time reporting, experience shows that experience Despite the advantages of real-time reporting, the pressure to N.Y. offered a rare opportunity for the offered a rare opportunity public to hear the federal court system general spokesman far and wide were eager to tune in. A court in action, and listeners listened to Japan Germany and as France, far away from as said 137,000 people said that Madden David channel. YouTube the court’s the live audio stream on began since the court argument for an oral largest audience was “by far” the live on carried was also The feed years ago. two arguments live-streaming oral site. web TODAY’s USA on and News Fox CNN, MSNBC, The news media’s making this important oral argument available in real time illustrates media’s making this important oral argument available The news 25. 26. ASHMAN Next? Takeaways story/news/politics/2017/02/07/takeaways 14 T 14 B CBSN and decision). =RPOFowWqFGU (providing oral-argument audio). The motions panel to which the panel to which audio). The motions (providing oral-argument =RPOFowWqFGU in Phoenix, chambers was in his Canby matter was assigned did not sit together: Judge was in her chambers Judge Friedland and in his chambers in Honolulu, Judge Clifton was in San Jose, California, when they heard the argument by telephone. Similarly, Mr. Flentje, from government for the federal Special Counsel to the Assistant Attorney General, argued General of the State argued of Washington, Solicitor while Mr. Purcell, D.C., Washington, from the office of his co-counsel the Minnesota and from Olympia, Washington, Attorney Minnesota. Email from on the line, but did not argue) was in St. Paul, was General (who for the 9th Cir., of App. to U.S. Ct. Gelmis, Chief Deputy Clerk for Operations, Susan V. -media-rushes-to-report-on-supreme-courts-health-care-decision/ (showing screen shots of (showing screen shots -media-rushes-to-report-on-supreme-courts-health-care-decision/ has Court Supreme that “[t]he website announcing CNN.com on banner News Breaking that other online news mandate for health care”; individual reporting struck down the the “that the Supreme Court had ruled assertion stories—like the Post’s Huffington also reporting of the court’s opinion”; mandate unconstitutional”—conveyed “the opposite all of that “[w]ith report”; and noting [erroneous] CNN’s re-tweeted Time and that “NPR the of politicians tweeted out handful reports, a by mixed the confusion created delete”). to later rushing Court ruling, misinterpreted Supreme hearing-travel-ban/97616664/. Wolf and Gomez reported that the hearing that the hearing reported and Gomez Wolf hearing-travel-ban/97616664/. Id. yet room for And at its best. there remains online news the civic value—of the power—and hours an measured analysis released or days after appellateimportant decision, some of that the print editionsthose more reflective assessments of newspapers even appearing in still produce them. the Ninth Circuit livestreamed its first oral argument concerning concerning argument first oral its livestreamed Circuit the Ninth travel ban. so-called Trump’s President of thematter subject interest in the tremendous oral travel-ban it interesting the least visually been one of have argument, may participating with the attorneys all times, of oral arguments also themselves the judges telephone and by remotely locations. off-camera participating from be first to post a story can lead to errors. The best-known example may be the confusion may be the confusion example be first to post a story can lead to errors. The best-known Supreme Court’s Obamacare ruling. online reporting surrounding early on the Ngak, Ngak, Washington, et al. v. Donald J. Trump et al. Trump Donald J. Washington, et al. v. 39639-aap_18-1 Sheet No. 11 Side B 11/15/2017 09:50:50 B 11/15/2017 11 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 12 Side A 11/15/2017 09:50:50 ANK The T Chicago Chicago , ACT —F 15 and the and ORG . , 1 J. App. Prac. & App. , 1 J. The Wall Street The Wall Street OURTS C ESEARCH R , and (Aug. 11, 2017, 6:49 PM CDT) CDT) 2017, 6:49 PM 11, (Aug. EW , P Los Angeles Times PPELLATE PPELLATE A The New York Times The Id. OVERAGE OF C ) 10/24/2017 6:48 PM Despite Subscription Surges for Largest U.S. Newspapers, Newspapers, U.S. Subscription Surges for Largest Despite Tribute to the Honorable Richard S. Arnold Tribute to the Honorable Richard EDIA The Los Angeles Times ELETE D , M OT 27 N O (D DIT DIT E 28 . Price Marshall, XEC , Michael Barthel, , Michael E , “saw an 8% decline in advertising revenue and a 4% decline an , “saw in total revenue, Cf. To summarize, technological innovations have severely innovations have technological To summarize, Appellate judges and lawyers with the talent and time to lawyers and judges Appellate time and the talent with 28. On the other hand, health like numbers,markers of financial subscription profits, 27. ECHNOLOGY AND AND ECHNOLOGY ASHMAN (copy on file with author). Ms. (copy on file with author). Ms. Gelmis can be heard at the start of the oral-argument She spent on to counsel. recording describing the applicable procedures the hearing the 1 of the James R. desk in Courtroom deputy’s at the courtroom seated telephone while Francisco. San Courthouse in Browning Tribune the that although also pointing out 5%,” and increased revenue though circulation Process, 199, 203 (1999) (noting that Judge Arnold was mindful of this aspect of the the of mindful of this aspect was Arnold that Judge (1999) (noting 203 Process, 199, with appellate judge’s role, always writing such care that his opinions were “understandable to the losing party—notto only his to also lawyer, the but litigant himself”). Journal http://www.pewresearch.org/fact-tank/2017/06/01/circulation-and-revenue- (June 1, 2017), financial statements fall-for-newspaper-industry/ (reporting that “[y]early show that The in 2016—ayear- 500,000 digital subscriptions 47% added more than York Times New than 150,000 digital Journal added more over-year rise” and that “[t]he Wall Street a 23% rise, according to audited statements Jones”;subscriptions, produced by Dow noting of both the company the parent as well that Tronc, Washington Post & Process, May, Editor, J. App. Prac. Bellhouse Nancy Author, & J. Bashman, Howard Hearing in Travel-Ban Physical Locations of Participants undermined the economic model of the newspaper industry model of the economic the undermined to subscribe because fewer readers and read actual newspapers, their news online. preferring to get As a result, many their staffs reduced and cut back significantly newspapers have have even gone out of schedules, and some on publication on have had a negative impact business entirely. These changes newspapers, strongest and seemingly even the most renowned financially speaking, such as T B write opinions and briefs in language accessible to in language accessible and briefs write opinions who people to those wonderful service providing a are thus are not lawyers of their take advantage who general public of the members to access those ability technology-facilitated briefs and opinions lawyers judges and styles of many the writing online. Although more over time hope that legalese, one can afflicted by remain written so that will be and briefs appellate opinions and more by intelligent understood they can be easily of the members general public. and share prices at those very papers have increased dramatically in the first half of 2017. in the first half dramatically have increased at those very papers and share prices See, e.g. Circulation and Revenue Fall for Industry OverallFall for Industry Revenue Circulation and 39639-aap_18-1 Sheet No. 12 Side A 11/15/2017 09:50:50 A 11/15/2017 12 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 12 Side B 11/15/2017 09:50:50 Ars ROCESS (May 19, (May P COM . operates a IMES , NYT RACTICE ANDRACTICE P (May 3, 2017, 4:41 PM EDT), (May 3, 2017, 4:41 PM EDT), Any number of blogs 30 NSIDER I PPELLATE , http://www.hollywoodreporter.com/blogs , http://www.hollywoodreporter.com/blogs A ARKET Trump Has Been “Rocket Fuel” for NYT Digital Has Been “Rocket Fuel” for NYT Trump that “quarterly circulation that “quarterly by revenue increased The Hollywood Reporter —M 29 COM OURNAL OF OURNAL , https://arstechnica.com/tech-policy (including legal news , https://arstechnica.com/tech-policy (including legal news J ) 11/8/2017 5:11 PM HE ELETE is not the only new entrant in the arena. new entrant in is not the only , CNBC. New York Times New York D “has said that it was profitable last year—and not through cost- “has said that it was profitable last year—and OT N Post O is privately held and does not release financial data, its leaders expect , Breaking News, Is Also Breaking New Ground New Also Breaking Is , Breaking News, 1(D frequently covers rulings involving legal issues frequently covers rulings involving BuzzFeed ESEND R See Esq. The Hollywood Reporter–THR See ArsTechnica–Policy Although it appears beyond dispute that traditional traditional that dispute beyond appears it Although high-quality newspaper who appreciates As someone of appellate-court coverage to online When it comes 30. 29. ASHMAN blog titled “THR, Esq.” that covers appellate court rulings blog titled “THR, Esq.” that industry. affecting the entertainment closely cover appellate court rulings that touch on issues of appellate closely cover Washington Post 2017 to be its “third straight James B. Stewart, year of double-digit growth”); revenue Washington Post 16 T 16 rulings appellate-court state federal and coverage of newspaper that the financial setbacks of the result as a has decreased same technological suffered, those industry has newspaper of real-time coverage in faster have resulted innovations in access to them, easier and faster and rulings appellate-court that arguments to the oral access direct addition to providing have preceded rulings. those may prone perhaps more rulings, I am coverage of appellate-court Yet, about the good old days. to reminisce than younger lawyers the speed at which appreciate I also very much time, at the same disseminated rulings can be widely news of appellate-court and oral arguments and the ease of accessing today via Twitter in digital form. appellate rulings rulings, B Technica touching on technology. 2017), https://www.nytimes.com/2017/05/19/business/washington-post-digital-news.html (reporting that the /thr-esq (updating Hollywood-related legal coverage frequently and maintaining archive/thr-esq (updating legal coverage of Hollywood-related past coverage). among topics covered from tech-policy perspective and maintaining archive that includes maintaining archive that includes from tech-policy perspective and among topics covered site’s tech-related legal coverage). 11.2 percent,” that “[p]aid subscriptions11.2 percent,” that “[p]aid for digital-only surpassed million, up 62.22.2 have to date, and year . . were up 21 percent “shares . that and year,” percent year over months”). 12 past over the percent risen about 29 http://www.cnbc.com/2017/05/03/shares-of-new-york-times-surge-after-subscriber-growth http://www.cnbc.com/2017/05/03/shares-of-new-york-times-surge-after-subscriber-growth .html (reporting of the cutting”; that in May 2017, it “trailed only CNN and the New York Times” among news Times” among news York the New cutting”; that in only CNN and it “trailed May 2017, . in that its “digitaldigital page views; . organizations in unique users and ad revenue is . million”; and that it expects 2017 excess of $100 its “thirdto be straight year of double- digit revenue growth”); Natalia Wojcik, Subscriptions, CEO Says 39639-aap_18-1 Sheet No. 12 Side B 11/15/2017 09:50:50 B 11/15/2017 12 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 13 Side A 11/15/2017 09:50:50 _ 36 Debra Debra And Proof (JULY 5, 35 offers COM journals_law_ . _ see also 17 Law Blog The blogs about 34 . OURTS OURNAL regularly cover cover regularly C 33 ’s demise); , And various other And various Election Law Blog Law Election 32 , ABAJ , http://blog.sfgate.com/politics/ ’s already very strong ’s already very , http://blog.sfgate.com/stew/author Law Blog PPELLATE , https://blogs.wsj.com/law/ (featuring , https://blogs.wsj.com/law/ A 37 , https://www.jsonline.com/blog/proofand Law Blog SFGate–Blog , , http://legal.blog.ajc.com/. How Appealing Milwaukee Journal Sentinel Milwaukee Journal Author: Bob Egelko , http://www.lawfareblog.com/ that blog is (indicating ’s Law Blog Shuts Down Shuts ’s Law Blog OVERAGE OF , C , http://electionlawblog.org/ (indicating that blog covers, http://electionlawblog.org/ The San Francisco Chronicle The San Francisco ) 11/8/2017 5:11 PM , https://www.justsecurity.org/aboutus (indicating that blog , https://www.justsecurity.org/aboutus is , https://takecareblog.com/ (characterizing blog’s mission as (characterizing https://takecareblog.com/ , Professor Hasen’s Hasen’s Professor Lawfare Egelko posts); , http://appellateblog.com/ blog—in light of its May (describing EDIA 31 ELETE D M The Atlanta Journal-Constitution The Wall Street Journal The Wall Street OT N blog of the Take Care O Just Security , 1(D had often been “a source for articles appearing at ABAJournal.com”). ABAJournal.com”). at for articles appearing source “a often been had down (reporting that “[t]he Wall Street Journal Law Blog has shut down after Wall Street Journal Law Blog that “[t]he (reporting down _ ESEND R See The Wall Street Journal–Blogs See SFGate–Politics Blog See SFGate–Politics SeeHearsay and Sentinel–Proof Journal See Appealing How SeeBrief AJC–Bill Rankin’s Legal See, e.g. See Election Law Blog Even old-line newspapers have entered the law-blog arena. arena. the law-blog have entered newspapers Even old-line shuts _ Law Blog 37. 36. 35. 33. 34. 31. 32. ECHNOLOGY AND AND ECHNOLOGY ASHMAN /begelko/ (same). hearsay/ (indicating that blog covers “crime, courts and legal issues in Milwaukee and courts and legal issues in Milwaukee “crime, hearsay/ (indicating that blog covers throughout Wisconsin”). “[t]he law of politicselection law, campaign finance, legislation, and the politics of“[t]he law: nomination process”). Court the Supreme and voting rights, legislation, redistricting, Web’s first blog date—as “[t]he devoted to appellate litigation”). That founding 6, 2002, at http://howappealing.abovethelaw blog’s archive be confirmed in the founding date can initial post). archived to see (scroll down .com/2002_05_01_appellateblog_archive.html published in cooperation with Brookings and characterizing it as focusedpublished in cooperation with Brookings and on “hard national security issues”); the President ‘shall “[e]nsuring and faithfully executed’” take Care that the Laws be indicating that it provides “a platform legal analysis for incisive of a wide range of issues”). thoroughly covers cases within its realm. covers cases thoroughly own my blogs, including rulings. appellate-court state and federal interesting on AJC.com, legal issues concerning writes a blog Bill Rankin the web site of and Hearsay time time. to court rulings from coverage of appellate operated its own WSJ.com Until recently, supplementing and state courts. coverage of federal T security. national B of even Bob Egelko legal issues on that publication’s web site from time to time. time site from web that publication’s legal issues on 2017, 11:18 AM CDT), street http://www.abajournal.com/news/article/wall more than a decade . . . [m]ore than 20,000 posts and five lead writers,” and acknowledging acknowledging writers,” and five lead and thanposts 20,000 . . . [m]ore more than a decade that blog author/begelko/ (collecting headlined announcement of “The WSJ Law Blog: 2006–2017,” and suggesting at paywall suggesting at paywall and 2006–2017,” Blog: WSJ Law of “The headlined announcement that full article to which headline refers will reveal Wall Street Journal Cassens Weiss, “based at the Center University School Justice for at New York Human Rights and Global it as “anof Law” and characterizing online forum for the rigorous analysis of U.S. national policy”); security law and 39639-aap_18-1 Sheet No. 13 Side A 11/15/2017 09:50:50 A 11/15/2017 13 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 13 Side B 11/15/2017 09:50:50 ABA ROCESS P have arisen to fill fill have arisen to RACTICE AND 39 P , PPELLATE PPELLATE A and various regional law-focused law-focused and various regional or will have more or less confidence or will have more Reflections on the Role of the Appellate Courts: A Reflections 38 41 , http://www.theindianalawyer.com/ (offering constantly http://www.theindianalawyer.com/ , OURNAL OF OURNAL The Indiana Lawyer Indiana The J ) 10/24/2017 6:48 PM , 8 J. App. Prac. & Process 91, 94, 98 (2006) (pointing out (2006) 98 91, 94, & Process Prac. App. , 8 J. HE ELETE note 10, at 589–94 (acknowledging decline in news media, in news media, decline (acknowledging note 10, at 589–94 Whether the general public will continue the general public to Whether , http://www.abajournal.com/ (offering news and information in news (offering , http://www.abajournal.com/ D 40 OT N supra O (D , Stephen G. Breyer, G. Breyer, , Stephen DIT DIT E ’s online edition, ’s online Davey, Davey, XEC E See ABA Journal See See, e.g. See Lawyer The Indiana For all of these reasons, I am reluctant to opine concerning concerning to opine reluctant I am reasons, all of these For The only thing that is certain about the future is continued is continued about the future is certain The only thing that 38. 40. 41. 39. ASHMAN have the same amount amount of faith and trust in the judiciaryhave the same as has historically been the case, news in which the manner in our legal institutions now that 18 T 18 as publications, such B whether news coverage of federal and state appellate of federal and news coverage whether courts’ than now better or worse rulings is or even twenty- it was fifteen relying different, often is certainly ago. The coverage five years Press, The Associated such as on wire services more heavily time, new providers At the same News. and Bloomberg Reuters, (whose content Service, Law360.com News such as Courthouse associated with paywalls), new online outlets is largely behind longstanding legal-informationthe sources such as Journal parts of the gap. raised in this article will of the concerns many change. No doubt now. But from years or fifteen trivial—ten quaint—if not seem utmost of importance.remain the topic will The appellate trust of the general public to judiciary depends on the faith and arbiter of public and role as an impartial carry out its important private disputes. View from the Supreme Court View from the Supreme that prestige,” asserting that the Supreme Court’s long history has given it “tremendous streets fighting otherwise be in the one would “the result of that prestige is that people who updated legal reporting pertaining to Indiana in categories of “latest news,” “in depth,” and “in depth,” of “latest news,” categories to Indiana in pertaining updated legal reporting paper). of the of the print edition contents to the access also offering “trial reports,” and and effect on public knowledge about discussing relevant research into decline’s make their processes more to courts urging and and judges, perceptions of courts and judges to take a more active role transparent in educating the about the public role of the courts). categories that include “featured news,” “latest headlines,” “in-depth reporting,” “topics” in “topics” reporting,” “in-depth “latest headlines,” news,” include “featured that categories magazine).print digital edition of the the access to subscriber and “legal technology,” another submit their disputes to the rule of law,” characterizing this acquiescence to the this acquiescence characterizing another submit their disputes to the rule of law,” that warning rule of law as “important for the stability of the United States,” and will weather thoughtful the courts because although problem attacks pose a “[p]ersistent of specific judicial opinions, cannot survive acriticism courts constant deluge of negative judiciary”). the entire for popular support comments intended to undermine 39639-aap_18-1 Sheet No. 13 Side B 11/15/2017 09:50:50 B 11/15/2017 13 Side Sheet No. 39639-aap_18-1 39639-aap_18-1 Sheet No. 14 Side A 11/15/2017 09:50:50 19 OURTS C PPELLATE PPELLATE A OVERAGE OF C ) 10/24/2017 6:48 PM EDIA ELETE D M OT N O (D DIT DIT E XEC E To end on what I hope is an encouraging note, if electronic electronic note, if I hope is an encouraging what To end on ECHNOLOGY AND AND ECHNOLOGY ASHMAN T B about the judiciary is collected and disseminated has changed so changed has and disseminated collected is the judiciary about seen. to be much remains in which of the manner the vast majority continues to be media suggest it future, as all signs the in is communicated information by be heartened we should then will be, of that coverage the fact the has made and appellate-court rulings appellate courts print-onlyLet publications to electronic media. transition from coverage of appellate media’s us hope that electronic matters so that and grow to expand journalists’will continue digital the appellate courts knowledge of will come to rival the across the nation expertise that existed and when local back publications— not just large national regional newspapers—and the the journalists to cover of work could assign experienced appellate courts. 39639-aap_18-1 Sheet No. 14 Side A 11/15/2017 09:50:50 A 11/15/2017 14 Side Sheet No. 39639-aap_18-1