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The Scales and Scalia

05/25/2011 12:00 pm ET

In a speech in Phoenix on Tuesday, Robert F. Kennedy, Jr. said we have "a negligent press in this country," indicting everyone from "pollutors to politicians," but especially this administration for enabling the worst environmental president, and letting him off the hook. Moreover, Kennedy suggested that we have a press that acts as a vehicle for the delivery of entertainment rather than one that informs, and investigates. Amen. "We know more about Tom and Katie than about global warming," as Kennedy rightly said. (Fishbowl NY) Undoubtedly, we've been seduced by opinion, and abandoned by fact. But, Kennedy isn't the only one castigating the news media lately.

On Saturday, in a discussion about the role of the judiciary at the behest of the National Italian American Foundation, Supreme Court Justice Antonin Scalia blasted the news media, as well as the reading public, suggesting that they are somehow mysteriously complicit in that they allow for distorted representations of federal judges and courts. Scalia observed that "The press is never going to report judicial opinions accurately. They're just going to report, who is the plaintiff? Was that a nice little old lady? And who is the defendant? Was this, you know, some scuzzy guy? And who won? Was it the good guy that won or the bad guy?" (Editor and Publisher). With words like "scuzzy" and "nice," this sounds more like it could be coming from the president, or Donald Rumsfeld, than a member of the Supreme Court. And, if "scalia" is Italian for scales, clearly these are not the scales of justice, but the ones generally found covering reptiles.

Intriguing, isn't it, how two men, from opposite sides of the political spectrum, come to the same conclusion about the press, if for different reasons. The first, Mr. Kennedy, arguing for more information, more knowledge whereas, in contrast, a Supreme Court judge suggesting that selling papers means writing for a bunch of simpletons. Think about this, you have a man sitting, for life, on the highest court in the land who thinks that you might just not be capable of understanding the complexities of the court or their rulings. Is this altogether different from what judges in 18th Century England thought? Further, in his speech to the National Italian American Foundation, on Saturday, Scalia also demystifies the notion of an independent judiciary: "You talk about independence as though it is unquestionably, and unqualifiedly a good thing," he tells the group. Yes, yes, the court, like the Congress, should be under the king's thumb, and not just King George, mind you, but future American monarchs.

People, Judge Scalia contends that people understand, or misunderstand, the highest court in the land as a result of a news media that "typically oversimplifies and sensationalizes." (E & P) He also thinks that the Internet has an adverse effect on the way in which judges and their opinions are viewed, or maybe shared? Implicitly, the question isn't representation or misrepresentation, but judicial privacy. It is just possible that Scalia is suggesting that the Court's judgments belong to the realm of esoterica, like the documents this administration has increasingly opted to label "classified." Maybe it's not so much that the press is pandering, after all, but that the people aren't at a level where they're capable of understanding more than whether the plaintiff was "a nice little old lady," and is this what the Judge is suggesting, really, beneath it all? Or, is he claiming, along with Robert F. Kennedy, that the press is delinquent in fulfilling its obligation to foster an informed electorate?

But, when a federal judge orders a prominent New York Times investigative journalist, Nicholas Kristof, to identify, and turn over information from 3 of his confidential sources, information without which his piece about anthrax mailings that killed more nearly half a dozen people in 2001 might not have been written, how in the hell can we expect the press not to think twice before engaging in controversy, as well as muzzle themselves, or self-censor? How can we expect journalists to provide us with anything more than a dog and pony show when cynicism has spread as far as the Supreme Court, hen the courts are strong arming them to compromise their ethics, and rat out those who gave them privileged information? When the notion of a free press is neutralized by the suggestion that the news media provides us with fiction, and those who make policy can provide us with authentic information? Do we stifle dissent when we impugn, and neuter those who bring us our information?

Over the past 5 plus years, we have seen more grand jury subpoenas of members of the press than ever in our nation's history, including the McCarthy era, mostly frivolous subpoenas. We have seen journalists hand-cuffed and taken to jail, or placed on house arrest. We have seen responsible network broadcasting turned into a parody of "Good Morning America." Is this any justification for pandering to the lowest common denominator, or presenting news-lite? Hell no.... but self-censorship, my friends, is the most insidious form because it never sees the light of day.

Yes, Mr. Kennedy is right to suggest that we, in this country, have been seduced by opinion and abandoned by fact, a trend that can only widen, and worsen, if other judges, like Scalia, take the bench, and impugn not only the integrity of the news media, but the ability of the American people to understand both judges, and judicial findings. The Bush administration's policy of classifying, and making privileged information can only expand when Supreme Court judges roll over to executive control. Would it be audacious to suggest that Scalia, a strong proponent of looking to the "original Constitution" as a guide revisit that great document which provides for checks and balances, as well as an independent Court? More to the point, the Judge himself oversimplifies when he suggests that the news media doesn't report accurately, as well that the independence of the Court is not always a good thing.

Notably, while both Scalia, on the right, and Kennedy, on the left, agree about major defects in the press, the former reflects the kind of elitism that takes us back to the monarchy while the latter presumes that information in the right hands can lead to progressive change. And, while nobody is talking about the Supreme Court anymore, it's time to get started because whoever we elect as president, in 2008, will have the opportunity to appoint more Scalias, and Scalia-clones,after which the Constitution will be found along with Gideon's Bible in your local Motel 6.

It is inconceivable that anyone seated on the highest court of a country founded by progressives would suggest that the news media can never report anything accurately; this kind of thinking poses a clear and present danger to a free press. At best, such a worldview leads to mediocrity; at worst, dictatorship. We have already witnessed what a class, and classified view has to offer us; one that promotes privacy, and exclusivity while, at the same time, depriving us of our right to confidentiality. If nothing else, the past decade has shown us that mediocrity has many takers. Excellence, on the other hand, is yet to be spoken for.

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