Making the world a more just place by educating and inspiring its judiciary SPONSORED BY THE TEXAS MUNICIPAL COURTS EDUCATION CENTER ESSENTIAL TEAMWORK IN DEALING WITH THE MEDIA Professor Benjamin A. Holden OBJECTIVES: After this session you will be able to: 1. Discuss the relationship between the courts and the press; 2. Increase understanding of how the press operates; and 3. Identify methods for achieving effective press coverage. REQUIRED READING: PAGE Benjamin A. Holden, Essential Teamwork in Dealing with the Media – or – How the Third Branch Can Coexist with the Fourth Estate (and Vice Versa) (Jan. 2018) [NJC PowerPoint] .........................................................................................................1 CUSTOM: ESSENTIAL TEAMWORK IN DEALING WITH THE MEDIA FOR THE MB/KZ TEXAS MUNICIPAL COURTS EDUCATION CENTER FEBRUARY 11, 2018 HOUSTON, TX Essential Teamwork In Dealing with the Media -or- How The Third Branch Can Co-Exist with the Fourth Estate (And vice versa) February 11, 2018 Ben Holden, Assistant Professor/Teaching College of Media University of Illinois Media’s Importance to Democracy “Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” ~ Thomas Jefferson I. Who ‘They’ Are Reporters: Young, Scared, Ill-trained Mid-level editors: Targeted for extinction Top editors: Fighting publisher to avoid cuts Publisher: Fighting corporate to avoid cuts All: Multi-tasking like hamsters on a treadmill 1 The Media – Who They Are 40% of journalism jobs lost in past 10 years. U.S. Labor Department – Sept. 2012 Employment of reporters, correspondents, and broadcast news analysts is projected to decline 9% from 2014 to 2024. What is causing the loss of media jobs? Declining advertising revenue IA. The Alternative Bloggers, Tweeters, Texters, specialty website operators, true-crime story hunters, interested party “observers,” disinterested (very focused) “observers,” and various quasi-journalists. “I believe The First Amendment Law of the future will be made by these impecunious individuals…“ -- Floyd Abrams, counsel to New York Times, partner, Cahill, Gordon & Reindel LLP, & RNCCM board member 2 IB. Enlightened Self-Interest BOTTOM LINE: Don't make them sue you. The bad news for democracy is traditional corporate news organizations may not be able/willing to appeal incorrect First Amendment rulings because of corporate pressures...Even if they are right on the law II. Who ‘You’ Are (In Their Eyes) Lawyers: Rich and slavishly dedicated to the status quo Judges: Imperious, aloof and unreachable The Law: Unnecessarily complicated; constructed and administered to serve the wealthy and connected II. What ‘They’ Want and Need Good, clean rulings on: 1. Access to courtrooms 2. Access to court records 3. Open meetings disputes involving other branches of government 4. Judicial rulings including appropriate in- camera transcripts, motions in limine and jury instructions 3 II. What They Want and Need (Cont.) 5. Never ever, ever grant a prior restraint -- unless the paper is trying to disclose troop movements, spy names, bombing-striking targets or bomb making recipes. 6. Unmasking-you may be able to order it. Vol. 1 ISSUE 1 RCMLJ (judges.org) II. What They Want And Need (Cont.) 1. Quickly and decisively dispose of Sheppard v. Maxwell motions on venue and new trials 2. AKA: The 7 Habits of Highly Effective Judges III. An Approach Toward Improved Cooperation 1. M-V-P 2. Meetings to educate 3. (shared) Vocabulary 4. Press Releases on Good News/ Syllabus opinions 4 IV. What’s In It for You? “What distinguishes a truly free society from all others is an independent judiciary and a free press. ” -- Edward R. Murrow, journalist and crusader against the Red Scare and other threats to Democracy IV. What’s In It for You? (Cont.) (Or enlightened self-interest ) Do you really want the replacement refs explaining to the public: Controversial judicial orders (e.g., Exclusionary rule) Complex legal concepts (e.g., ‘Nullification’) Retention elections Judicial compensation Managing The Press 1. Have press management system 2. Know how media are structured 3. Share ‘after-hours’ numbers 5 What’s In It for You? “What distinguishes a truly free society from all others is an independent judiciary and a free press. ” ~ Edward R. Murrow, journalist and crusader against the Red Scare and other threats to Democracy A Judge’s Toolbox 1. On the record 2. Not for attribution 3. Background 4. Deep background A Standard Newspaper Hierarchy (1) EE (2) ME (above 200K circ.) (3) City Editor (4A) Legal Affairs Reporter (4B) General Assignment Reporter 6 Standard Newspaper Hierarchy Executive Editor Managing Editor City Sports Features Copy Desk Editor Editor Editor Chief Legal Affairs General Copy Assignment Reporter Reporter Editor Newspaper Woes May Be Your Opportunity Decline in newspaper FTEs How newspaper people think Tips on working with a depleted press Threshold Issues: • Do you Have a PIO? • Can You “do business” with the EE? • Is the paper connected to a larger group? End of Segment 1 7 Essential Teamwork In Dealing with the Media -or- How The Third Branch Can Co- Exist with the Fourth Estate (And vice versa) Telling The Court’s Story (And Your Own) A. Good Stories About The Judiciary 1. New courtroom openings. 2. Retirements of beloved jurists. 3. “Firsts” among women, minorities, etc. 4. Drug courts and innovative sentencing. 8 Good Stories About The Judiciary 5. Hard Time For Hard Offenders – Judge Rosemarie Aquilina on Larry Nassar. 6. Innovation in Media Relations – Judge Terry Ruckriegle in Kobe Bryant Case. B. Telling The Court’s Good Stories (And Your Own) 1. The press-ready press release. 2. Knowing news deadlines. 3. Knowing your beat reporter. 4. The ‘evergreen’ story. C. Working with the Press to Minimize the Impact of “Bad” Stories (Crisis Communication 101) 9 Working With The Press To Minimize The Impact of ‘Bad’ Stories 1. Draft ‘talking points’ and stick to them. 2. Say only what you want to be quoted saying. 3. Do not be afraid to (calmly) repeat yourself. Working With The Press To Minimize The Impact of ‘Bad’ Stories 4. Tell the truth; never lie. 5. No. 5 does not mean disclosure of everything you know. 6. Build trust: don’t make this the first time you talk to this reporter. Working With The Press To Minimize The Impact of ‘Bad’ Stories 7. Don’t ask a professional journalist to read back a quote; instead try: “I’m happy to help make sure you got that right; I know this may be a little confusing.” 10 End of Segment 2 Essential Teamwork In Dealing with the Media -or- How The Third Branch Can Co- Exist With the Fourth Estate (And vice versa) Mistrial by Mobile – Social Media and Your (Millennial) Jurors 11 Ethical Perils for Attorneys Who Use Social Networking Apr. 2009: Sean Conway, a lawyer, was angry at a judge So he blogged that the judge was an “Evil, unfair witch!” Florida Bar reprimanded and fined him Judicial Ethics and Social Media Do you currently have a professional Facebook account? Judicial Ethics and Social Media Do you currently have a personal Facebook account? 12 Best Social Media Practices & Cautionary Tales for Judges Courts Wrestle with Social Networks In civil fraud lawsuit, boss sent text message to his employee on witness stand during a sidebar conference about employee’s testimony Spectator alerted judge who confronted the boss and employee and read their texts into the record Judge said the texts were “underhanded and calculated to undermine the integrity… of the legal process.” Result: Miami-Dade Circuit Judge Scott Silverman dismissed the lawsuit Judges on Facebook Should a judge be on Facebook? CCPIO’s Report Released August 26, 2010 says 40% of judges have Facebook accounts Most of those are elected judges 13 Williams-Yulee v. The Florida Bar Holding: Florida’s ban on the personal solicitation of campaign funds by candidates for judgeships does not violate the First Amendment. States may prohibit judicial candidates from personally soliciting money. 5 – 4 decision – sharply divided court North Carolina Judge Faces Ethics Problem Judge presided over custody and support hearing “Friended” the attorney for the defendant on Facebook Discussed the case and whether one of the parties had had an affair Used Google to conduct own research on plaintiff Query: The Judge’s Conduct Is … a. Not actionable because he was exercising his First Amendment rights; or b. Requires a public reprimand to educate other judges and the public about appropriate communications; or c. Requires private censure because the judge and public can be educated without publically embarrassing the judge; or d. Requires a suspension; or e. Requires termination? 14 Result in North Carolina North Carolina judge was issued a public reprimand South Carolina Magistrate judge may be Facebook “friends” with law enforcement officers and employees as long as no discussion of anything relating to judge’s position as magistrate judge New York Judge may be a Facebook friend of lawyer on judge’s calendar but Judge must avoid the appearance of impropriety Judge’s conduct must promote public confidence in integrity and impartiality of judiciary 15 Kentucky Being Facebook friends does not “reasonably convey” the impression that the lawyer Facebook friend to a judge is in a special position to influence the judge. Judges should be mindful of whether online connections alone or in combination with other facts rise to the level of “a close social relationship” that should be disclosed and/or requires recusal. Ohio Allegation that judge wrote emails to newspaper about cases pending in her court. Emails came from judge’s account (“lawmiss”) at times when someone was logged into her office computer. Judge denies that she wrote emails and sued newspaper for invasion of privacy. Ohio A judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge.