Setting the docket: news media coverage of our courts - past, present and an uncertain future.

• Author: Policinski, Gene
• Position: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis

News reporting on the business of the courts and judiciary has a long history--and an uncertain future.

Reporting on the courts has changed with the times, technology and tastes of the American press and of the public--the latter being the ultimate target of reports on the functions and the institution of our judicial system.

News coverage of judicial proceedings at all levels, nationwide, may well have peaked--in quantity, quality and reach--in the early 1990s, when a declining economy kicked off dramatic cutbacks in newspaper news staffing, reductions later amplified by the drop in the news media's own financial models.

At the outset, it's appropriate to note that this seminar and subsequent series of articles in the Missouri Law Review is intended to explore the legacy of quality, clarity and breadth of Anthony Lewis, the longtime New York Times reporter and columnist who died in 2013.

A legendary figure in legal affairs journalism, Lewis covered the U.S. Supreme Court for The New York Times, and in addition to his Pulitzer Prize winning newspaper work, he published seminal books on landmark cases and issues stemming from those reports, including Gideon's Trumpet and Make No Law. (1)

To be sure, news coverage of the nation's premier court, the U.S. Supreme Court, continues at a high level. Most major news operations continue to staff the Court on a regular, if not daily, basis. Reports on major decisions are virtually instantaneous on multiple news platforms, and the quality of those reports remains high. But apart from staffing and news reports devoted to the ninety or fewer opinions issued each year by SCOTUS (the industry acronym for the Supreme Court of the United States), there has been a steady erosion of the amount of staff, staff time, and news coverage devoted to the courts at all levels in newspapers--traditionally the source of such news for the general public.

Middle-sized newspapers that once had more than one reporter covering local, state, and federal courts now are more likely to have reporters occasionally assigned to cover specific trials or other proceedings. (2) Where once "beat" reporters developed over time the knowledge, sources, and trusted contacts in courthouses to improve their reports, reporters now "parachute" into courthouses with little preparation and no opportunity to cultivate relationships and perspective.

Still, all is not lost. The double-barreled shock of the unprecedented drop in staffing and the rise of new technology replacing the century-old printing press and paper product also have provided new opportunities to rethink the methods of coverage and the nature of the court and free press relationship to reach the common goal of a better-informed public.

Legal blogs and bulletins fill some of the gap, at least at the national level. But we're in transition from a system of news coverage in place for nearly a century to ... well, the unknown.

1. HOW WE GOT HERE

   On August 4, 1735, the printer of the New York Weekly Journal, John Peter Zenger, was brought to trial on a charge of seditious libel. (3) The crown's prosecutor argued that publication alone was sufficient to convict--a long-standing precept of English law. (4) Zenger admitted publishing stories that criticized the governor of New York, but maintained that they could not be libelous unless proven false. (5) A jury agreed with the defendant. (6)

   Zenger's own newspaper first reported the verdict in the New York Weekly Journal of August 11, 1735. There was a small printers note near the end of the final column on page four: "The Printer, now having got his liberty again, designs God willing to Finish and Publish the Charter of the City of New York next week." (7)

   The Journal of August 18, 1735, carried a front-page story with details of the trial, and the notation that "The jury returned in Ten Minutes, and found me Not Guilty." (8) From a Twenty-First Century perspective, one may note that Zenger's second report also effectively produced the first news media "Tweet"--the succinct closing item comes in at just fifty-five characters.

   Fast-forward a half-century to the Federalist Papers, which Alexander Hamilton, John Jay, and James Madison wrote under pseudonyms as the new nation was debating how best to govern itself. (9) In Federalist No. 83, the author, later identified as Hamilton, makes a case to fellow citizens against the idea of civil trials by jury. (10)

   If Zenger gets faux credit for the first Tweet, perhaps Hamilton and his colleagues--by including the courts in their seminal Federalist discussions can be credited with one of the earliest examples of "blogging" about the courts. The Federalist Papers were intended to shape opinion, not to relay news of the day-to-day business of the judiciary.

   In the first decades following the adoption of the U.S. Constitution in 1787 and ratification of the Bill of Rights in 1791, what we would call "hard news coverage" of most subjects was limited by several factors--but mainly by the very purpose of publishing them.

   Most newspapers well into the 1830s were more journals of opinion than the news item-focused reports of today. (11) Reporting on events often came in the form of reprints of highly-personalized letters, or in vitriolic opinion pieces targeting political opponents of the editor or of the paper's financial backers. (12)

   As cities grew in size, and the telegraph allowed for timely transmission of correspondents' accounts, newspapers moved from weekly to daily in major cities. (13) The scope of "news" widened to include commerce, then national events--most significantly, news around the Civil War. In the latter half of the nineteenth century, so-called "penny dailies" emerged in the largest cities, with sensationalized news reports of crime helping drive circulations to record heights. (14)

   Much of the news of the courts initially was taken in first-hand by the public itself. "From colonial times to the early 1900s, Americans routinely sat in the back of courtrooms watching the day-to-day developments of the latest criminal and civil cases. They headed to the courthouse for the same reason people head to movie theaters today--or entertainment," wrote Debra Baker in a 1999 report published by the American Bar Association ("ABA"). (15) But as newspapers presented more news of court activities driven by sensational crimes or legal items involving business, information from the courts themselves about their workings was scarce or non-existent.

   According to a report by the Federal Judicial Center,

   [p]rior to the establishment of the Department of Justice in 1870, the federal government did not regularly collect data on caseloads in the federal courts. During the first 80 years of the federal government, the Congress or the executive branch only occasionally initiated surveys of the business of the federal courts throughout the nation. (16) Such reporting began with relatively simple statistical submissions.

   In December 1801, at the request of President Thomas Jefferson, Secretary of State James Madison sent to Congress the first report of nationwide federal caseloads.... Over the next 70 years, usually in response to resolutions of the Senate or the House of Representatives, the secretary of state or the secretary of the interior prepared reports on the business of the federal courts. (17) The Center's article notes that "[i]n 1859, the Department of the Interior, which then...