How Noninstitutionalized Media Change the Relationship between the Public and Media Coverage of Trials

By Wheeler, Marcy | Law and Contemporary Problems, Autumn 2008 | Go to article overview

How Noninstitutionalized Media Change the Relationship between the Public and Media Coverage of Trials


Wheeler, Marcy, Law and Contemporary Problems


I

INTRODUCTION

Justice Brennan's concurring opinion in Nebraska Press Ass'n v. Stuart (1) puts citizenship and the public at the heart of the purpose of media coverage of legal proceedings:

   Commentary and reporting on the criminal justice system is at the
   core of the First Amendment values, for the operation and integrity
   of that system is of crucial import to citizens concerned with the
   administration of government. Secrecy of judicial action can only
   breed ignorance and distrust of courts and suspicion concerning the
   competence and impartiality of judges: free and robust reporting,
   criticism, and debate can contribute to public understanding of the
   rule of law and to comprehension of the functioning of the entire
   criminal justice system, as well as improve the quality of that
   system by subjecting it to the cleansing effects of exposure and
   public accountability. (2)

That is, media coverage of legal proceedings should further the public understanding of those proceedings and of the legal system generally and should foster oversight over its functioning. Unfortunately, much coverage of legal proceedings now serves to increase ratings rather than to increase the public's understanding of the justice system. (3) Moreover, examples like early coverage of the Duke lacrosse case show that the press can exacerbate--rather than expose--abuses of the judicial system and the legal system generally.

Since the advent of the Internet, however, additional media outlets--like blogs and wikis--have begun to change the relationship between media coverage of legal proceedings and the public. (4) That is partly because these newer media outlets are noninstitutional; they cover stories differently than do traditional media outlets. Just as importantly, these noninstitutional media outlets change the role of the reader in coverage of legal proceedings. Whereas these new media outlets carry their own risks, at their best, they go a long way toward accomplishing Brennan's goal of making the judicial system more transparent for the public.

This article explores select instances of noninstitutional media coverage of legal proceedings--by focusing on blogs--and examines the ways this coverage may differ from institutional coverage. Part II uses Timothy Cook's description of institutional media to lay out distinctions between institutional and noninstitutional media. Part III provides several case studies of noninstitutional legal coverage. Part IV explores what distinguishes noninstitutional coverage from institutional coverage. Part V describes some risks and checks unique to noninstitutional production on the Internet. Part VI concludes by returning to the role of the blog reader.

II

A DESCRIPTION OF INSTITUTIONAL MEDIA

The distinction between "institutional" and "noninstitutional" media is a more meaningful one than that between "old" and "new" media. The initial move by established media outlets to Internet publication did not lead to an immediate change in either the practices of production or the end product: existing media outlets "repurposed" the content that appeared in their newspaper or broadcast outlet, providing the same story in fairly static form. (5) Thus, if there is anything new about "new" media on the Internet, it largely derives from the rise of noninstitutional outlets as an alternative to Internet production offered by the institutional press.

Timothy Cook's Governing with the News provides a useful definition of the characteristics of institutional media. Cook shows the many ways in which the institutional character of the press contributes to coverage that is, in process and content, very homogenous: "The news media, despite different technologies, deadlines, and audiences are structured similarly in their internal organizations, the way they interact with sources, the formats they use, and in the content they provide. …

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