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April 17, 2006

Hearing Is Believing; Seeing is Even Better

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - There was no shortage of journalists on hand in the Supreme Court two months ago when Justice David H. Souter made a comment about polluters during a debate over the Clean Water Act.

But what exactly the soft-spoken New Englander said in the cavernous courtroom on Feb. 21 all depends on which news report you read.

For instance, he might have said this:

"If you put the poison into the tributary, it will poison the navigable water. All people have to do is go far enough up the tributary and dump anything they want and it would be OK. I don't think Congress intended that at all."

Or this:

All a polluter needs to do is "get far enough upstream, and then Congress couldn't do anything about it."

Or this:

"All the evil polluters have to do is get far enough upstream to dump and Congress can't do anything."

None of these quotes, however, reflected precisely the words that came out of Souter's mouth.

The first quote, from a daily newspaper, was an amalgamation of three different Souter statements, and none was an exact reproduction. The second, again from a newspaper, dropped 16 words from the middle of Souter's sentence.

The third, from an online report, also omitted a stretch of words, plus it added "the evil polluters" phrase, which, it turns out, Souter uttered in his previous sentence to set up the scenario he wanted to discuss: "Let's assume there's a class of evil polluters out there who just want to wreck the navigable waters of the United States."

In this case, readers got the general gist of what Souter said from all three news outlets.

But for members of Congress pushing for television cameras in the Supreme Courtroom, the general gist is not good enough.

"Public interest in our court system is higher than ever ... yet no branch of our government has remained as great a mystery to everyday Americans as our federal courts," Sen. Charles Schumer, D-N.Y., said during a hearing on the issue last fall.

Given the high court's strong resistance to televised proceedings, which Justices Anthony M. Kennedy and Clarence Thomas reiterated earlier this month in congressional testimony, the networks aren't likely to be broadcasting courtside anytime soon.

But preserving the status quo is the surest way to ensure that the Supreme Court is misquoted - and sometimes badly misunderstood - again and again.

Inaccuracies in media coverage are primarily the product of the fast and furious dialogue between justices and attorneys during oral argument. Reporters who attend the argument sessions have only pen and paper to get it all down.

The justices don't allow tape recorders in the courtroom and they rarely release a same-day feed of their internal audio recordings, which allows the public to listen in and reporters to check their quotes. Making matters worse, the court doesn't publish its argument transcripts until 10 to 15 business days after it hears a case.

The Washington Post's Dana Milbank made light of this predicament by including a disclaimer in a recent article quoting Kennedy's remarks during a key election law case on the constitutionality of congressional redistricting in Texas.

"Kennedy may have actually said something slightly different - but we won't know for sure until the transcript comes out next week," Milbank wrote.

The court has released the audio for just three cases out of the 66 argued so far this term. Last term, the justices released no audio recordings despite hearing high-profile disputes on eminent domain, juvenile executions and public displays of the Ten Commandments.

For the overwhelming majority of cases, the public does not have access to the recordings until after the court ends its term in June, at which point the tapes are made available through the National Archives. That's handy for historians, but not so helpful for journalists.

In a letter sent to Chief Justice John G. Roberts Jr. shortly after his confirmation, the Reporters Committee for Freedom of the Press called the time delay in the audio releases "mystifyingly long."

The group asked Roberts to consider releasing more, if not all, of the arguments on an expedited basis and lobbied for a quick release of court transcripts, saying they would improve the accuracy of news reports on court proceedings.

While the committee also favors televising the arguments, Lucy Dalglish, the group's executive director, said timely transcripts and audio recordings would move the court toward more transparency.

"When the public has more access to what's going on in the courts, you have greater potential for the public to actually understand what's happening in the courts," Dalglish said.

Dalglish said she had not yet heard back from Roberts.

"I'd love a response," she said. "We saw [the letter] as an opportunity with new leadership at the court to let him know what's on our mind."

She remains hopeful.

"I think we're going to make some progress with Chief Justice Roberts on this issue," she said.

Peter Irons, the editor of "May It Please the Court," a series of narrated audio tapes of historic Supreme Court argument sessions, has seen first hand the public's interest in listening to oral arguments.

Irons, an emeritus professor of political science at UC San Diego and a member of the Supreme Court bar, said students have listened to his tapes in thousands of college and high school classrooms.

When the first installment of the series was released in 1993, Irons' publisher sold 75,000 copies.

"There's obviously an audience for them," Irons said.

A regular and timely release of oral argument tapes, he said, would be "a very positive step toward eventually more public coverage of the court."

"There hasn't been any negative impact on the court" from previous audio releases, Irons said. "And it's something I think that those people who do follow the Supreme Court would be very interested in listening to, particularly in important cases.

"The arguments are a very important part of the court's business. And, this is a public forum.

"Of course,, I also think they should videotape these and release them."

Kennedy expressed clear opposition to televised proceedings when he appeared before a House appropriations subcommittee two weeks ago. But he sounded comfortable with audio broadcasts.

The court, Kennedy said, was satisfied with the way the media had used the occasional same-day audio releases.

"What the television networks will do is they'll ... have a drawing of you and then when you're speaking, they would have your picture on," Kennedy said. "And we find that this is very well received."

The Supreme Court's current practices stand in stark contrast with those of the other branches of government.

The White House releases same-day transcripts of practically everything President Bush says, whether he's discussing Medicare policy or delivering perfunctory welcoming remarks to a minor foreign head of state.

In Congress, what lawmakers say on the House and Senate floors is printed in The Congressional Record almost immediately, while recording devices are allowed in committee hearing rooms.

Of course, even with timely transcripts and audio recordings, misunderstandings about the court would continue to crop up occasionally. That happened earlier this month in a high-profile war on terrorism case when the court allowed a same-day broadcast of its argument session.

On April 4, the chief prosecutor for the Guantanamo Bay military tribunals criticized Justice Stephen G. Breyer for comments he made during the March 28 oral argument in Hamdan v. Rumsfeld, 05-184. The court was considering the lawfulness of the special military proceedings Bush created to try terrorism detainees for war crimes.

Breyer had asked Solicitor General Paul Clement to respond to certain arguments made by opposing counsel, including this one: "This is not a war, at least not an ordinary war."

After reading a news report that led him to believe that Breyer was articulating his own personal thoughts on the issue, the Guantanamo prosecutor, Air Force Col. Moe Davis, publicly took umbrage at the "not a war" comment.

Davis apparently had not listened to the broadcast. The quick audio release, however, also facilitated a quick transcript, which Davis subsequently checked. He then apologized for attacking the justice.

"It was my fault for not fully exploring the full context of his statement," Davis said, according to a news report.

In this case the immediate availability of the audio recording quickly debunked misinformation that could have escalated into a full-blown tempest over a justice taking an unpatriotic swipe at the military.

By the same token, the absence of transcripts or audio recordings allows reporting inaccuracies to go unchecked, with whatever consequences that follow.

"I think it is a problem," Dalglish said.

The Supreme Court press corps, she said, probably makes fewer mistakes than those who cover other courts. "But if it's difficult to verify or double check what somebody actually said, there's the potential for a mistake to be made."