Views from the Bench, 0419 UTBJ, Vol. 32, No. 2. 26

Author:Judge Paul C. Farr, J.
Position:Vol. 32 2 Pg. 26
 
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Views from the Bench

Vol. 32 No. 2 Pg. 26

Utah Bar Journal

April, 2019

March,

2019

Judicial

Independence and Freedom of the Press

Judge

Paul C. Farr, J.

If

angels were to govern men, neither external nor internal

controls on government would be necessary. In framing a

government which is to be administered by men over men, the

great difficulty lies in this: you must first enable the

government to control the governed; and in the next place

oblige it to control itself.

James

Madison, the fourth President of the United States and the

“Father of the Constitution,” published these

words on February 8, 1788 in the Federalist, No. 51. Two

primary protections the Founders put in place to ensure

control of government include the freedom of the press as

enshrined in the First Amendment and an independent judiciary

as outlined in Article 3 of the U.S. Constitution.

In

December 2018, judges Reuben Renstrom, Jeanne Robison, and I

attended a conference in Washington D.C. sponsored by the

National Judicial College (NJC) entitled, “Contemporary

Threats to Judicial Independence and Freedom of the

Press.” The faculty included distinguished state and

federal judges, journalists, law professors, and government

advisors. This course addressed the importance of a free

press and an independent judiciary to a healthy and vibrant

democracy as well as current and historical threats to these

institutions.

In its

description for this course the NJC states:

We have many reasons to celebrate America’s court

system and its role in preserving our democracy, especially

as we observe as other countries struggle to introduce the

rule of law. However, there are many threats to the

independence of our judiciary: some overt, some subtle, all

designed to undermine public trust and confidence in our

system of justice. In their purest form and in an ideal

world, courts would not be subject to improper influence from

other branches of government or from private or partisan

interests. This timely course explores threats to judicial

independence in the United States, emphasizing current

threats in the context of historical lessons. The course will

also explore ways in which judges can appropriately and

ethically respond to these threats. Participants will also

examine the First Amendment, and the media’s role in

supporting democracy.

While

there was much more information presented than can be shared

in this short article, I did want to share some of the

highlights with the Utah Bar.

The

Judiciary and the Press: Bulwarks of Democracy

An

informed citizenry is essential in a democracy. A free press

gives citizens information on which they can act, including

information about their government. While the press is

essential, it isn’t always popular. Sometimes the

information reported includes negative or unpopular views.

Disagreement and frustration with such reporting are

understandable. However, it is the free exchange of

information and ideas that is so important to a healthy

democracy. If there is disagreement with something that is

reported or said, the remedy is the freedom to be able to say

or report opposing views.

Sometimes

individuals that disagree with, or are frustrated by, the

press resort to statements and actions that attempt to

silence, intimidate, or undermine the legitimacy of the press

as an institution. This is something that should be carefully

guarded against by a democratic society. While silencing an

opponent may seem like a “win” or a good idea in

the short term, over time it may have the effect of damaging

democracy and the rule of law.

An

independent judiciary, and respect for the decisions of

judges, are also necessary to support the rule of law in a

democracy. It is to the courts that individuals and

institutions turn for relief from government overreach. Just

as information published by the press may be unpopular,

judicial decisions may also be unpopular. Again, disagreement

and frustration over particular decisions are understandable,

and even expected. We have processes in place to handle such

disagreements (appeals, for example). However, statements and

actions that attempt to influence a judge’s decision,

or undermine the legitimacy and authority of the courts, are

problematic in a democracy. The judiciary doesn’t

control the police or the military. It doesn’t control

the budget. The judiciary relies on the respect and trust of

the citizenry and the other branches of government to...

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