32 Black Robes in the Limelight
News Values and Requests to Televise Oral Arguments in the Ninth Circuit Court of Appeals, 1991–2005
Joseph P. Bolton and Christopher D. Kromphardt
To state it lightly, federal courts are scarcely proactive with their own public relations. The federal judiciary is not represented by a press agent, nor do courts issue press releases or alert the public when important cases are to be decided. In light of this vacuum, the media have played a fundamental role in determining the transparency of the judicial process. To determine which cases are newsworthy enough to bring to the public’s attention, journalists must rely on important cues. In this regard, case characteristics that align with particular “news values,” or established factors that attract journalists to cover a story, are salient. News values are “markers of newsworthiness” (i.e., they help predict what audiences will find important and/or interesting), or “characteristics used by media gatekeepers in decisions about what news to disseminate.” For example, the news values of “impact,” “proximity,” “timeliness,” “prominence,” “conflict,” “currency,” and “the bizarre or unusual” are influential markers of a case’s newsworthiness (Sill, Metzgar, and Rouse 2013, 60).
What motivations the media has when covering courts are a matter of great political and institutional significance. As courts lack the ability to enforce their rulings, their authority ultimately depends on the perception of their institutional legitimacy among the public and other political actors. To foster public confidence, judges often emphasize the neutral and restrained character of the courts (Walker, Epstein, and Dixon 1988; Wahlbeck, Spriggs II, and Maltzman 1999; Brennan 1986; Ginsburg 2004). Appellate judges report being concerned with portraying collegial relations, and they believe neutrality to be crucial for legitimacy and compliance (Cohen 2002). For our immediate purposes, Ninth Circuit Court of Appeals Judge Diarmuid F. O’Scannlain has emphasized the importance of televising for “improving confidence in the judiciary” by showing that his court is nonpartisan and legally principled (O’Scannlain 2007, 329). This testimonial from an active federal judge underscores both the potential and desire for televising to enhance public support and legitimacy. Yet to this end, courts must rely on the media as an essential conduit between their actions and the public.
In light of these political and institutional implications, we are interested in discovering what motivates journalists to request televising in the federal judiciary. Available data from media requests to televise made to the Ninth Circuit Court of Appeals—one of only two federal courts of appeals where televising is permitted by the Judicial Conference of the United States (O’Scannlain 2007; Osterreicher 2011)—demonstrate how the news media operate as gatekeepers, revealing what journalists think is most important for their audience to see, not just hear or read about. Our data include televising requests from a variety of broadcast media outlets at both the regional and national scales. Broadcast journalists from local stations (e.g., KBOI-TV in Boise, Idaho, and KRON-TV in San Francisco) and national outlets (e.g., C-SPAN and Court TV) have pursued televised coverage of Ninth Circuit cases. This information provides rare evidence about what the media considers newsworthy before a case has been decided. Despite the political and institutional implications for how aware the general public is of the judicial process, studies of media coverage of the federal courts find reporting to be deficient in information and legal substance (Haltom 1998; Haider-Markel, Allen, and Johansen 2006; Davis and Strickler 2000; Clawson and Waltenburg 2003; Slotnick and Segal 1998). By analyzing these media requests, we learn what activates journalists’ desire for greater transparency in the judicial process and provide critical context for understanding what the media thinks the general public should know.
We rely on news values to guide our inquiry even though news values that are appropriate when covering other political institutions might be ill-suited for courts. In the typical case filed in a federal court of appeals, media outlets would deem little to be newsworthy. Indeed, details of most of the thousands of cases appealed in federal court each year would be of little interest to anyone besides the litigants involved. And even when a case comes along bearing a promise of broad interest, journalists covering the federal courts of appeals in most circumstances would have no chance to request and obtain video footage of its oral argument. Perhaps surprisingly, however, in our analysis of media requests to televise Ninth Circuit cases, we find that what is considered newsworthy is not necessarily synonymous with being a high-profile case. For instance, C-SPAN made requests for Bins v. Exxon (concerning administrative accountability under the 1974 Employee Retirement Income Security Act and Keshishian v. Gonzales (reviewing the adverse credibility finding of an immigration judge). The media’s requests reveal a desire for transparency in both the “rather mundane content” of the Ninth’s docket as well as high-profile cases, such as SVREP v. Shelley (concerning the California recall of Governor Gray Davis; O’Scannlain 2007, 326, 327). So just what do journalists look for when deciding whether to make televising requests to the Ninth Circuit? A review of the relevant literature on media and judicial politics helps us derive some important expectations.
The news value of conflict may lead journalists to seek media coverage in cases where dissent is likely (Sill, Metzgar, and Rouse 2013; Vining and Wilhelm 2010). As dissent rates vary on the federal courts of appeals by panel type, we consider how different panel configurations (i.e., three circuit court judges, a visiting district court judge, and en banc panels) may impact media requests. The media may also look to certain case participants as a cue for signaling greater newsworthiness (e.g., the chief judge; Vining and Marcin 2014; Johnson and Krafka 1994). Additionally, a case’s issue area (e.g., constitutional, criminal) is a central determinant of media coverage after a case has been decided (Slotnick and Segal 1998; Yanus 2009; Sill, Metzgar, and Rouse 2013). Thus we consider the impact of case issue types on televising requests. Finally, the type of broadcast media outlet (local or national) may relate to the decision to request greater transparency (Hoekstra 2003; Haider-Markel, Allen, and Johansen 2006). We address how media outlet type may be another important factor influencing broadcast media televising requests on the Ninth.
Empirical studies of the factors that make a case newsworthy to journalists are in relatively short supply (and most concentrate on the Supreme Court). Further, few studies explicitly address what the media consider newsworthy ex ante (i.e., prior to the case hearing and decision). Nonetheless, we seek to glean expectations about media motivations for greater transparency in the Ninth Circuit Court of Appeals, where media requests to televise are required three days before the scheduled proceeding.
What prompts journalists to seek out a particularly vivid form of transparency like televising? The Federal Judicial Center (FJC) conducted a report on a 1991–93 pilot program that permitted media coverage of civil proceedings in six federal district courts and two federal courts of appeals (Johnson and Krafka 1994). The FJC interviewed media representatives from nine local news stations, two extended-coverage networks, two legal newspapers, and one national organization for radio and television news directors (Johnson and Krafka 1994). Media representatives reported concern for “whether the subject matter of the case had universal relevance or broad applicability,” how “newsworthy” a case is, if the case is relevant to local interests, and if the case involved “high profile” litigants (29). Local news representatives also expressed that televising improves news coverage by producing “a more realistic depiction of the proceedings” and helping viewers “see the expressions and emotions of the courtroom participants.” Seeing the facial expressions and body language of judges and parties tells “a much better story” (30).
This report establishes that journalists seek transparency that only televising can provide. With good reason, journalists and judges alike express high hopes for televising. Studies on media coverage of lower courts (Haltom 1998) and the Supreme Court have found reporting to be deficient in information and legal substance (Haider-Markel, Allen, and Johansen 2006; Haltom 1998; Davis and Strickler 2000; Clawson and Waltenburg 2003; Slotnick and Segal 1998). Judges have expressed optimism that cameras in the courtroom may help educate the public on the work of appellate judges, increase the accuracy of media reporting, and depoliticize the perception of the federal judiciary (O’Scannlain 2007). Televising may also encourage the media to emphasize the full process of adjudication as opposed to mere holdings (O’Scannlain 2007, 328–329). As judges express concern for legitimacy and public confidence in the judiciary, televising may potentially enhance transparency, the quality of coverage, and public awareness of the judicial process.
Journalists’ desire for televising is bound to be driven by their sense of a story’s newsworthiness, which is in turn driven by news values. When news values can be found in specific features of a case, journalists may view it to be more newsworthy and thus seek greater transparency in its adjudication. Several case features directly relate to news values, including issue area, whether the case involves a question of constitutionality, and the possibility of conflict.
Studies on media and the judiciary coalesce around the notion that a case’s issue area is a central determinant of media coverage (Slotnick and Segal 1998; O’Callaghan and Dukes 1992; Gates and Vermeer 1992; Yanus 2009; Sill, Metzgar, and Rouse 2013). Sill, Metzgar, and Rouse (2013) posit that issue areas serve as cues for greater newsworthiness by aligning with established news values. Developing on Straubhaar, LaRose, and Davenport (2009), the authors theorize that the news values of impact, proximity, timeliness, prominence, conflict, currency, and novelty, or the bizarre or unusual, are influential markers of a case’s newsworthiness (60). Journalists are expected to cover areas that are of the greatest interest to the public (Knobloch, Sundar, and Hastall 2005) and cases containing issues that are already reflected in the media’s agenda (currency; Sill, Metzgar, and Rouse 2013; Straubhaar, LaRose, and Davenport 2009).
Analyzing all orally argued Supreme Court cases with written opinions from 1946 to 2001, Sill, Metzgar, and Rouse (2013) find that cases pertaining to the First Amendment, civil rights, criminal rights, and privacy are more likely to get front-page coverage in the New York Times (73). Slotnick and Segal (1998) find that a case’s issue area is also a central determinant of televised media coverage during the 1989 Supreme Court term and that First Amendment, civil rights, and criminal cases are all more likely to receive televised coverage. It is expected that cases involving individual rights are attractive to the media because of their correspondence to the news values of prominence, impact, and novelty (Straubhaar, LaRose, and Davenport 2009; Sill, Metzgar, and Rouse 2013; Solberg and Waltenburg 2014).
There is also evidence that journalists may look to the court’s behavior regarding constitutional questions. Examining media coverage of twenty state supreme courts, Yanus (2009) finds that constitutional cases are 28 percent more likely to receive media coverage than statutory cases, which she attributes in part to constitutional decisions’ greater durability (191). Declarations of unconstitutionality by both state supreme courts and the US Supreme Court were found to increase the likelihood of significant newspaper coverage (Vining and Wilhelm 2010; Sill, Metzgar, and Rouse 2013).
Finally, the news media’s inclination toward covering conflict may lead journalists to seek transparency in cases where dissent is likely. Dissent, and in particular the number of dissenting justices, increases media coverage of Supreme Court rulings (Sill, Metzgar, and Rouse 2013). Likewise, dissent on state courts of last resort increases the probability of front-page media attention (Vining and Wilhelm 2010). At the federal courts of appeals, dissent varies by panel type: the dissent rate in all en banc cases between 2005 and 2010 was 77 percent compared to the overall courts of appeals dissent rate of less than 3 percent (Epstein, Landes, and Posner 2013). Altogether, this evidence leads us to predict that news values prompt journalists to look to issue areas, whether a case involves a constitutional question, and whether dissent is likely when deciding whether to request televising in the judicial process. Constitutional questions and dissent are attention-grabbers, which align with news values (i.e., impact, conflict) and serve to cue greater newsworthiness. Thus we should expect greater transparency via televising for these cases.
The media may also look to case participants as a cue when considering a case’s newsworthiness. Looking at coverage of the US Supreme Court in television news broadcasts and online news sources, Vining and Marcin (2014) find that “decisions authored by the chief justice have 3.74 greater odds of coverage in television news and 4.55 greater odds of being reported on elite news web sites,” which they attribute to the chief justice’s prominence and visibility (107). Conversely, Sill, Metzgar, and Rouse (2013) find that media coverage of Supreme Court cases is not dependent on the nature of case participants—with one notable exception being the solicitor general. While Vining and Marcin (2014) examine television news broadcasts and online sources; Sill, Metzgar, and Rouse (2013) only assess print media (i.e., front-page coverage in the New York Times). Thus this differential in media type may likely contribute toward these authors’ conflicting findings. Given that the chief justice’s prominence and visibility have been shown to increase televised media attention, this evidence leads us to expect that participation by the chief judge—who also serves as a figurehead of his or her court, has administrative responsibilities, and is involved in all en banc cases—may prompt journalists to pursue televising in the judicial process.
Lastly, the type of media outlet may relate to the decision to request greater transparency. Studies show that media outlets are particularly attuned to covering cases affecting their own geographical area (Hoekstra 2003; Haider-Markel, Allen, and Johansen 2006; Johnson and Krafka 1994). However, this emphasis on local issues may be offset by the more limited resources available to smaller media outlets. Nevertheless, we predict that local broadcast media outlets may be more likely to seek greater transparency in the judicial process.
Data and Method
The Ninth Circuit’s “Guidelines for Photographing, Recording, and Broadcasting in the Courtroom” stipulate that media requests “to broadcast, televise, record electronically, or take photographs at a particular session” must be made to the clerk of the court (United States Court of Appeals for the Ninth Circuit). Our data come from the list of media requests submitted as an appendix to Ninth Circuit Judge Diarmuid O’Scannlain’s testimony before the Senate Judiciary Committee in 2005. O’Scannlain’s sample runs from 1991, when the Judicial Conference of the United States first began a pilot program in which select federal courts were permitted to televise (Osterreicher 2011, 239), up until his 2005 congressional testimony. His appendix lists the following: case name, case number, the date of oral argument, the name of the requesting media outlet, the type of coverage requested, whether the request was granted, and the names of the panel judges. We supplement this information with original data collection, identifying whether the media outlet was a regional or national organization, and issue codings from LexisNexis.
We narrow our sample in a few key ways. First, we analyze only those cases in which a request to televise was made. While this decision rule excludes a small number of cases with media interest in, say, taking still photographs, it sharpens the analytical focus on media interest in the most vivid form of transparency. Second, we consider only the subset of cases where the media outlet did not later withdraw their request and where oral arguments were not later canceled.
There were tens of thousands of cases decided by the Ninth Circuit from 1991 to 2005, and our sample of orally argued cases with a televising request from Judge O’Scannlain’s data consists of 144 cases. As our analysis reveals, these cases are hardly random. Therefore, it would be inappropriate to draw general inferences about all Ninth Circuit cases from this sample through a statistical technique like multiple regression. Our analytical approach is to trace descriptive patterns in those cases where a media request was made and oral arguments were held. As far as we know, ours is the first social-scientific attempt to understand the media’s motivation to pursue this unique form of transparency (i.e., televising cases in the federal judiciary; although see O’Scannlain 2007).
What similarities recur across the set of media requests to televise? A good place to begin our analysis is by looking at different panel configurations. We see in figure 1 that the typical case panel consisting of three circuit court judges (CCC) is well represented, with 101 requests. As one should expect, given their unusual occurrence among all cases decided by the Ninth Circuit, panels with a visiting district court judge (DCC) and eleven-judge en banc panels (EB) are less common among media requests. It is evident that the news media does not rely on only one type of panel when seeking transparency.
Interestingly, the rate of district judges’ participation in cases in our sample (21.5 percent) exceeds by a wide margin the rate of these visiting judges’ participation of 11.04 percent in a random sample of all Ninth Circuit cases drawn from 1925 to 1996 (Benesh 2006, 308–309), although the rate of district judge participation we find matches more closely the rate of about a quarter of sittings during the 1970s (Wasby 1980, 371–372). District judge participation at the circuit court of appeals level is done in the interest of efficiency, so it is unclear if there is a reason for media interest to be higher in cases with DCC panels.
Turning now to EB panels, we anticipate that the media might be more interested in televising these cases thanks to the news value of conflict. Conflict arises in the judicial process when a judge issues a dissent, and dissent is far more likely in EB cases (77 percent) compared to the overall dissent rate of 3 percent in all cases heard in the circuit courts of appeals from 2005 to 2010 (Epstein, Landes, and Posner 2013). EB cases occur infrequently, at the rate of fifteen to twenty-five cases per year, or “less than one quarter of 1 percent of all cases decided by the courts of appeals” (Epstein, Landes, and Posner 2013, 270; “Ninth Circuit En Banc Procedure Summary”). Figure 1 shows that media outlets made televising requests for twelve EB cases, or 8.3 percent of all televising requests. While 8.3 percent is higher than “less than one quarter of 1 percent of all cases decided by the courts of appeals,” it is still lower than we might expect given the news media’s taste for conflict.
We suspect that the news media may face crosscutting pressures from a televising perspective. While news outlets might be intrigued by the high likelihood of dissent and the rare occurrence of an EB case, it is also true that many cases that are reviewed by EB panels involve highly technical and legally narrow issues (Giles, Walker, and Zorn 2006; George 1999). While EB panels provide judges with the opportunity to promote themselves as technocratic arbiters of the law, these cases may not be enticing from the media’s perspective because they are less amenable to attention-grabbing headlines and easily digestible soundbites. This result reflects an important divide between journalists’ news values and judges’ preferences for judicial promotion. The data show that judges grant requests to televise EB cases at a higher rate than other panels: 9 of 12 EB requests were granted (75 percent), while only 19 out of 31 (61.3 percent) DCC cases and 72 out of 101 (71.3 percent) CCC cases were granted. While judges are more accommodating of EB televising requests, the media may be less attracted to the typical EB case. It is intriguing that what judges view as desirable for media coverage may not hold true for journalists, and thus judicial goals for televising may not be reached.
We now turn to the question of whether media outlets are particularly interested in televising panels with the chief judge presiding. Two men and one woman served as chief judge from 1991 to 2005—John Clifford Wallace, Procter Hug Jr., and Mary Schroeder. The data show that these three judges sat on nineteen cases where requests were made during their service as chief. The chief judge is required to sit on all EB hearings (of which twelve had media televising requests), so the media only made requests in seven additional cases featuring the chief. The chief justice of the United States can seemingly stimulate greater media coverage of his or her court (Vining and Marcin 2014); chief judges, on the other hand, apparently are less of a draw.
As we argued above, our review of the literature indicates that certain issues are likely to be deemed more newsworthy by the media. We predict that cases with newsworthy issues will be more likely to yield requests for greater transparency. Utilizing keywords from LexisNexis to explore how two such issues—cases involving constitutional law or criminal law—are represented in the sample, we find that both issue types are common in cases targeted by the media for greater transparency. Figure 1 shows that questions of constitutional law figured into forty-seven cases with requests, while criminal law cases are not far behind with thirty-seven requests.
The final attribute we analyze is the geographic identity of the news media outlet. The judges on the Ninth Circuit made the decision, following a pilot program, to seek permission to keep televising. But how often do the media outlets of the Ninth Circuit present these judges in action? Contrary to our prediction, we find that local media outlets are apparently less inclined to make requests than their counterparts in the national media, such as C-SPAN or Court TV. Outlets that serve the Ninth Circuit made requests in only thirty-one cases, or about two cases a year. Why the local media made so few requests is a puzzle deserving further scrutiny.
Indeed, why so few cases attracted any media attention is a puzzle. More than 70 percent of all requests to televise were granted, so it would seem that the news media could have become a partner in shining a light on the Ninth Circuit’s proceedings. However, with fewer than 150 requests made over the course of more than a decade, it is apparent that the news media rarely reached for the light switch.
We find that journalists’ desire for televising cases heard by a federal circuit court of appeals appears to be driven by some of the same factors that predict media coverage after the fact at other courts. Journalists in both instances seek coverage in cases involving constitutional questions and criminal law. Journalists also do not appear to be that interested in technical questions, such as those that arise in en banc panels. For these factors, our analysis is supported by the account of media coverage that emerges from extant research.
Our analysis uncovers several ways in which journalists’ desire for televising deviates from established predictors of media coverage. Local journalists appear less likely to seek out this vivid form of coverage than national outlets are, which runs counter to our prediction that they would be more interested. The chief judge does not figure prominently in televising requests, even though the chief justice often serves as a focal point for news coverage.
Our approach reveals much about how the news media covers the judiciary. Coverage that occurs after the decision is announced necessarily relates to the decision-making process itself. We identify factors that might stem from media outlets trying to anticipate the judges’ behavior but, crucially, are not directly influenced by the actual case outcome. We also find that televising is not necessarily sui generis: some of the same factors related to media coverage in general are also related to the desire to televise. Additionally, we find that the behavior of journalists may impede judges’ goals for televising. Judges hope this type of vivid access will yield educative results, yet the pattern of requests reveals that the picture of court work portrayed is likely to be skewed (as found in media coverage of courts more generally; Segal and Slotnick 1998; Solberg and Waltenburg 2014). Finally, how some of our predictions deviate from our findings encourages future avenues of research.
Our analysis has normative implications for broader relationships between journalists and the federal judiciary. We believe that our study provides clues for how journalists might cover other federal courts. The Supreme Court famously refuses to permit televising, which has led to rebuke from critics ranging from journalists to comedian John Oliver. Longtime judicial reporter Tony Mauro is skeptical of this reticence, writing that “the Supreme Court is far from the fragile flower that its protectors make it out to be by shielding it from a news medium that is no longer new or especially threatening. Courts throughout the world have allowed broadcast coverage for years or decades and survived” (Mauro 2011, 275). If Supreme Court justices are concerned about their coverage, we see no reason to believe that the behavior of journalists covering the Ninth Circuit would differ substantially from that of other courts’ press corps. In other words, we anticipate that journalists will utilize similar criteria wherever they pursue greater transparency in the judicial process via televised proceedings. Whether judges and justices will acquiesce to their requests, we suspect, depends on the overlap between news values and the motivations of federal jurists.
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- What are “news values,” and why are journalists motivated to cover courts? Why is it a matter of institutional importance that the media cover courts? Why are judges concerned with how the media portray courts?
- The authors discuss that judges are more likely to grant en banc televising requests, wishing to promote novel cases and the image of a technical, impartial court. Conversely, however, the authors also find that media outlets are less likely to request televising for en banc cases. How might this reflect a divide between journalists’ news values and judges’ preferences for judicial promotion? Between news values and newsworthiness?
- How is it perhaps counterintuitive to the authors’ expectations that national broadcast media outlets seek televising requests more frequently than local broadcast media outlets?
- Thank you to Matt Morrow for his research assistance. Authors contributed equally to the preparation of this manuscript. ↵
- Our data also provide the opportunity to explore strategic case promotion by Ninth Circuit judges. In another study, we show that a higher likelihood of dissent relating to ideological panel composition positively predicts the denial of a request to televise (Kromphardt and Bolton, unpublished manuscript). ↵
- A possible explanation for DCC panels’ overrepresentation is fluctuation in judges taking senior status and retiring, prompting a greater need for district judges to help (Wasby 1980, 372). ↵
- George’s hybrid theory argues that three factors—reversal of a lower court, dissent, and a liberal ruling—largely account for which panel decisions are reviewed en banc (1999, 220). As such, George’s model successfully explains why consequential and high-profile cases such as O’Connor v. Consolidated Coin Caterers Corp. (involving substantial intercircuit conflict) and the well-known case regarding whether the Virginia Military Institute could refuse to admit women (United States v. Virginia), cases of great interest to journalists, were not granted en banc review, while minor contract cases and civil suits were. These less-dramatic cases contained panel dissent and reversed the lower court’s rulings, while O’Connor and the VMI case did not (George 1999, 273). ↵
- We cannot determine whether these issues are overrepresented in our sample because we were unable to determine what percentage of the Ninth’s docket consists of each issue. ↵