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Observations on the media: judge of its own fallibility

The press isn’t perfect, and if it understands that fact, perhaps the press will do a better job the next time — if so, we’ll all benefit.

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This is the 14th in a series of occasional commentaries on the judicial system from the perspective of a District Court judge. The author is now retired.

As a young assistant U.S. attorney in the 1970s, I sometimes wondered if the reporters and I were sitting through the same proceedings. There were reporters who would focus on something they thought would make for good copy but which had little importance to the case I was trying. But in time I came to have a high regard for reporters who took pains to accurately describe proceedings in a fair and balanced manner.

That’s not to say the news media always performs admirably. Reporters are human; they don’t always report as accurately as they should. Neither do reporters and editors always make the best choices about what to include and exclude from an article.

Unfortunately, the news media isn’t always ready to acknowledge its shortcomings; it wants to be the judge of its own fallibility. A past experience with the press is a good example. At the start of the football season in 2017, I wrote an op-ed that was critical about how the news media treated a young woman who had come forward to report she had been sexually assaulted by several University of Minnesota football players. I had some knowledge of the matter because the young woman and the players had appeared before me in court on a request for a harassment restraining order.

At the hearing, the young woman testified for an entire morning on direct and cross examination — approximately three hours — describing in agonizing detail what she said happened during the night in question. The restraining order issue settled over the noon hour, but the next day the news media failed to detail the young woman’s testimony, notwithstanding the columns of copy and on-air time the media had dedicated to the dispute in the days prior.

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It wasn’t until six weeks later, when the University of Minnesota Disciplinary Report relating the sordid events on the night in question was leaked to the media, that news organizations finally reported in detail what the young woman said happened. In the meantime, the reporting made it seem as though the players were being treated unfairly because they hadn’t been criminally charged.

As a judge, I couldn’t comment until after the matter was finalized and even the possibility of further proceedings was extinguished. But after some of the football players were expelled or suspended and the time for appeals of the administrative process had run, I submitted to the Star Tribune the op-ed, entitled, “It Was All About Football — When the Media Lost Sight of Human Values.” I expressed how appalled I was at how the press reported on the matter. I hoped that if there were similar complaints of athlete sexual misconduct in the future, the news media would report more fairly.

The Star Tribune didn’t publish it. That was the paper’s right — a newspaper doesn’t have to publish any article, including one that comments critically on its coverage. But refusing to acknowledge criticism does little to bolster the news media in the public’s eye. In an era when the president repeatedly decries what he says is “fake news” and singles out the media as an “enemy of the people,” it may be natural for the press to seek comfort by refusing criticism — but it won’t garner the respect that the press seeks and deserves.

Judge Mel Dickstein
Judge Mel Dickstein
Perhaps it was an aberration. Or perhaps the problem is a deeper one — a media both resistant to criticism and insistent on getting its own way. Recent Star Tribune articles about a Hennepin County judge’s decision rejecting the newspaper’s demand for the release of juror names in a murder case suggest a deeper problem. The Star Tribune was entitled to challenge the judge’s denial of its request — that’s how our system of justice works. The paper can argue the court impinged on its press freedom, and appeal an adverse decision.

But the Star Tribune also published several articles about the denial of its request for the juror names. It even published an article to announce that one other media entity joined its motion — as though that’s news. Equally concerning is that the paper’s articles tended to be one sided, drawing principally on their own attorney’s arguments, the statements of their own selected expert and their own managing editor — as though those are the authorities on which public opinion and the courts should rely.

Now the Star Tribune is using the same strategy because it disagrees with an order filed in the George Floyd murder case limiting access to some evidence, pretrial. The Star Tribune and others filed a motion asking that the order be rescinded, as is their right. The motion will be heard and decided by the court.

But rather than respect the judicial process, the Star Tribune is again using its pulpit to try to influence public opinion and the courts. Prominent on the first page of its State section last week was a one-sided article summarizing the press’ argument without input from any adverse party, and before the court has heard or ruled on its motion. The article says the Star Tribune filed a motion “chastising the court,” which is exactly what its article is attempting to do — outside the judicial process.

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What is concerning is the theme that emerges from the paper’s conduct. On the one hand, the paper is reluctant to allow itself to be criticized; it wants to be the judge of its own fallibility. On the other hand, the paper isn’t reluctant to use its position to advance its view of the fallibility of others.

Whatever merit the Star Tribune motions may have, using its position as a news organization to advance its interests in court is unacceptable — it’s an inappropriate use of its power in a community in which the Star Tribune dominates the news.

Respect for the press is important to a strong, democratic society. So when the press doesn’t do as well as it should, or when it uses its position to advance its own interests, or demonstrates disrespect for the judicial process, it should be all right to point it out. The press isn’t perfect, and if it understands that fact, perhaps the press will do a better job the next time — if so, we’ll all benefit.

Mel Dickstein recently retired as a judge in Hennepin County District Court, where he handled a mix of civil and criminal cases. He is a former partner in the law firm Robins Kaplan.

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