by Lev Tsitrin
In attending the recent conference titled “FaultLines: Democracy: A conference on building a democratic press” organized by the Columbia Journalism School, I did not intend to learn about journalism. All I hoped was to do some networking, and to ask the attendees why it was that what obsesses me — the trickery that goes into judicial decision-making in federal courts, and judges’ bizarre and brazen defense of it via the self-given, in Pierson v Ray, right to act from the bench “maliciously and corruptly” was of no interest to journalists, with a result that there is no meaningful coverage of judiciary in the mainstream press. Only later did it occur to me that the panel discussions which I treated as annoying interruptions to my chasing after the journalists in fact offered fascinating insights into journalists’ perception of the purposes of their profession, and on the civic mission of journalism itself.
Perhaps this was what I actually needed to understand. If journalists’ function is to look around and report on what they see, then why do they refuse to see what I saw in federal courts — the officially sanctioned “corruption and malice” manifesting itself in brazen and illegal alteration of argument that results in arbitrary decisions? Or is it that what journalists actually do, is tell us what we should think, instead of telling us what happens? In other words, do journalists act as our own eyes and ears extended to the places where we cannot be present — or do they use the fact that we are not present in those places and therefore cannot verify the information we receive, to skew what actually happens there in a way that serves journalists’ political agendas? Do journalists make us all-seeing — or do they blind us by their selective reporting?
What the panelists said sounded sensible at the moment, though nothing struck me as an eye-opener. Lamentations about “fake news,” “misinformation” and “disinformation” in the encroaching social media were frequent and loud. No panel discussed epistemology per se — so the definition of journalistic truth (and of the opposite thereof) was lacking, though it was assumed by all panelists as self-evident that what they and their news organizations publish was the truth, and the erosion of their audience would mean the collapse of the corporate news business model — and with it, the end of professional journalism and therefore, of all truth.
One could guess though what they meant by truth from one example of it: it was self-evident to every panelist that Obama was inherently good, and that Trump was inherently bad, and a lie-spreader (this came out in the context of chest-beating about press’ presumably counter-productive and therefore self-defeating obsession with Trump — several panelists lamented that instead of ignoring Trump for the sake of the country and the truth, journalists cannot help repeating what he says, amplifying his “lies”.) So at least one benchmark of journalistic truth was obvious — and obviously political.
I wonder whether this, politically active form of journalism — with its wish to shield the public from perceived “lies” by not reporting them (after all, as several panelists pointed out, reporting is of necessity “repeating” and therefore “amplification” of the message), is the reason why judicial fraud is not being reported. I got in front of the mike during Q&A at one of the panels and, observing that disinformation comes in two flavors — disinformation by commission (that is, when the coverage distorts the facts), and by omission — when the facts are simply not being reported, I asked the panel whether journalists’ refusal to report judicial fraud (and its concomitant, scandalous defense — judges’ self-given right to act from the bench “maliciously and corruptly” so as to be able to engage in that fraud with impunity) was the instance of the very “disinformation” that those same panelists decried — this particular disinformation being of “by omission” variety? The rather angry, short retort from the moderator, Adam Serwer of the Atlantic was — I quote from memory — “What are you talking about? Judiciary is one of the most covered news topics!”
This may be so — if reporting the outcome of judicial decisions is to be counted as “coverage of the judiciary.” But of course this isn’t real coverage, for such attitude assumes that what judges do during their decision-making process follows “due process.” Unfortunately, such is not the case — and for a good reason: “due process” won’t let a judge decide the case the way the judge (and the judges’ backers) want it decided. To follow “due process” is simply to let the party with a stronger argument win, rather than give victory to the party the judge wants to win. It would be merely the “rule of law,” while the judges — and those who put them on the bench — want decisions in their favor, law or no law. Their model is the rule of man, not the rule of law.
So it is not just what judges decided, but how they decided it, that needs to be investigated and covered — but at present, no journalist looks under the hood of judicial decision-making, retracing it in order to detect judges’ false (and illegal) steps. If they did it, journalists would have been as astonished by what they saw as I was: judges apparently deciding who will win before even looking at parties’ argument — and replacing parties’ argument in their decisions with judges’ own, entirely bogus one to make their fraudulent decision look plausible. At their most proud journalistic best, the reporters uncover who paid for judges’ vacations, or what stocks do judges own — but looking into how judges decide cases? Heaven forbid — that would not be the proper use of journalism! Journalism extends public eyesight — but extending it up to judges’ desks is to extend it way too far. Too much information is no good for the public’s good!
And this, I guess, is the function of mainstream journalism according to the panelists who spoke at the Columbia conference: not to rock the boat too much, but keep the public reasonably happy with the way the country is governed (unless, that is, it is governed by Trump). As advertisers put it, “Always tell the truth. Tell a lot of the truth. Tell a lot more of the truth than anybody expects you to tell. But never tell the whole truth” (which in reality is just a variation on the “making of sausages” adage — those who like sausages should not know how sausages are made). The public acknowledgement of judicial fraud — by which much of judicial “sausage” is being made — will bring us too close to “the whole truth” from which the public should be shielded. This seems to be the logic of mainstream journalism.
This said, the conference was not a complete waste of time — I chatted up a few people, I passed my quickly-made card to a few panelists, and to some journalists who were in the audience. Though I got no feedback, I am not sorry I went — one has to do what one can. The lesson I learned (yet again) was that corporate media does not want us rednecks to know “the whole truth” — and that therefore sites like the New English Review where “we the people” can exchange our views and compare notes on what we actually see happening around us, are the real “democratic press” that won’t come from a bunch of elitist graduates of the Columbia Journalism School who have their own political agenda and think they know better what “we the people” should, and should not know and think.
Lev Tsitrin is the author of “Why Do Judges Act as Lawyers?: A Guide to What’s Wrong with American Law”