Ethics Quote of the Week: Ken White of Popehat

First Amendment“…Our freedoms are recognized or denied based on court rulings. Our understanding of those court rulings often derives from media coverage of them. When we do a lousy job of covering law, or when we put up with journalists doing so, we’re doing a lousy job as citizens.”

—-Attorney-Blogger Ken White, after meticulously exposing how the media, old and new, completely misrepresented a Texas court’s striking down  an overly broad statute as protecting “upskirt” photographs.

Ken White has delivered another masterpiece, expertly debunking the news media’s criminally ignorant analysis of a Texas Court opinion. I must admit, when I saw the headline “Texas Court: Ban on ‘Upskirt’ Photos Violates First Amendment Rights” and its ilk around the web, I just assumed that reporters were being sensational and dumb as usual, and moved on to other things. Thank goodness Ken was on the case, and properly flagged the danger in lawyers reacting this way. We have a tendency as a profession to think, “Well, there they go again, completely misunderstanding the law, poor dears” when we should be working overtime to set the record straight. I admonish my seminar attendees for doing this regarding the public’s distorted view of legal ethics, and fell into the same trap myself.

Ken’s dissection of the flat-out wrong reporting on this case is frightening: it is clear that most reporters are incapable of understanding what court opinions mean, yet there they are, writing nonsense and making the public more ignorant, not to mention making them think taking upskirt photographs is legal and constitutionally protected.

Counselor White has had a busy year that has kept him from providing his usual volume of daily enlightenment. He is back in top form, and we should all be grateful.


17 thoughts on “Ethics Quote of the Week: Ken White of Popehat

  1. Those reporting on statutes and court decisions are trying to sell and not inform. That is why we have a fairly ignorant public when it comes to the law and other important issues. For example: ask any woman who considers herself an informed person if she understands the Lily Ledbetter Equal Pay Act and you will most get a response that the act guaranteed women equal pay for equal work when in fact it merely decided when the clock starts on the statute of limitations for filing a pay discrimination claim.

    Headlines that get attention even if inaccurate are the ones that sell papers, magazines, or the network show.

  2. Lawyers, bar associations, prosecutors, judges, have done a ridiculously poor job of educating the public about general rules of law and how it works. No understanding of the role of defense lawyers, e.g., leads to aphorisms like “People all hate lawyers until they need one.”

    On the other hand, a recent poll revealed that about 85% or adults polled couldn’t name the three branches of the U.S. government, so it’s probably a lost cause.

    Long ago some legal association tried out a magazine called something like “Everyday Law.” It should be resuscitated in some form. Or a regular 15 minute weekly spot (by members of the legal community) focusing on general legal procedures, issues, etc. Leaving the electronic media (that is, news readers) to explain ANYTHING to viewers is dangerous, since they don’t get the issues themselves.

    Bad data in; bad data out.


  3. While it is incumbent upon a reporter to read the actual decisions reported on, when I read the actual decisions, I frequently despair as to whether our judges are remotely capable of tackling anything involving “study, breadth, objectivity, critical thinking and logic.” As Alan Dershowitz wrote:

    “You probably already suspected that some lower court judges play favorites with lawyers and litigants who supported their election or appointment. But Supreme Court justices? That came as a surprise even to a lifelong cynic like me. …

    Trust no one in power, including—especially—judges. Don’t take judicial opinions at face value. Go back and read the transcript. Cite-check the cases, You will be amazed at how often you will find judges “finessing” the facts and the law.”

    Alan Dershowitz, Letters To a Young Lawyer 11 (Basic Books 2001).

    Pity the poor cub reporter. S/he has no legal training. Asking him or her to pierce the omnipresent veil of judicial dishonesty and tell the real story of a ruling and what it means is a tall order. As Senior Judge Roger J. Miner of the Second Circuit put it, it is more properly the province of bench and bar:

    “In my opinion, one of the most important societal duties of lawyers is the duty to criticize the courts. It is my premise that informed criticism of the courts and their decisions is not merely a right, but also an ethical obligation imposed on every member of the bar.”

    Roger J. Miner, “Criticizing the Courts: A Lawyer’s Duty,” 29 Colo. Law. 31 (Apr. 2000).

    I agree with the Judge. In the Internet Age, it is the ethical duty of the Ken Whites to step up and tell us what the decisions mean. Reporters are out of their element.

    • And not just on this topic, Art. On any topic I actually have experience and knowledge, news media reports are almost invariably inaccurate, misleading, or flat out wrong. Nevertheless, I will accept the analysis of reporters om matters on which I am as ignorant as they are. This is idiotic. Yet I suspect I am not the only one…

      • I am reminded of a quip by Mark Twain: “If you don’t read the newspaper, you are uninformed; if you do, you are ill-informed” [more-or-less correct rendition]. The best reporters these days seem to work for Rolling Stone (e.g., Matt Taibbi), the BBC (e.g., Greg Palast), or TMZ. The sad part is that a lot of people get their news from Jon Stewart because he is more fair and balanced in his presentation than most of the traditional media. He follows in the grand tradition of Mark Russell: Good comedy requires accurate factual representations.

        Russell used to say that he had the best comedy writers in the world: the US Government.

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