The Volokh Conspiracy
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Do Judges Also "Berate" The Press?
On Monday, the Supreme Court heard oral argument in Murthy v. Missouri. Justices Kavanaugh and Kagan--who both worked in the White House--stated that it was fairly common for government officials to "berate" the press.
Justice Kavanaugh observed that "experienced government press people throughout the federal government . . .. regularly call up the media and berate them." Later, Justice Kavanuagh asked if "traditional, everyday communications would suddenly be deemed problematic"? Justice Kagan added that "like Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech." Whereas Kavanaugh referred to "government press people," Kagan spoke in the first person about her own calls to the press. Kagan explained that "this happens literally thousands of times a day in the federal government." And she offered what such a phone call would sound like:
"You just wrote about editorial. Here are the five reasons you shouldn't write another one. You just wrote a story that's filled with factual errors. Here are the 10 reasons why you shouldn't do that again."
I can imagine being on the receiving end of such a phone phone call from Kagan or Kavanaugh. Indeed, some years ago, I received just such a call. I tweeted about an opinion from a federal circuit judge. The next day, I received an email from the judge asking me to call chambers. I promptly did so. At that point, the circuit judge proceeded to berate me for what the judge perceived to be an inaccurate tweet about the opinion. I tried to explain tweets are very short messages, that can't always capture all the nuances of a complex opinion. My explanation did not suffice. I was told that I should know better, and should take care to accurately characterize the opinion. The phone call went on for some time.
This experience was the most extreme judicial berating I've received, but it is not isolated. Another time I attended a conference and bumped into a circuit judge. I had recently severely criticized a decision from the judge's court. I introduced myself, and the judge replied, with a look of scorn, "I know who you are." No further words were exchanged.
Sometimes, judges use intermediaries. In one instance, a judge complained to my former boss, Judge Boggs, about a blog post I wrote. Judge Boggs relayed the message to me, and I shrugged. Another judge complained to one of my co-authors about something I wrote; I shrugged. In other instances, I've received contact from a judge's former clerks who defended their boss against something I wrote. More shrugging.
I've had other run-ins with judges who gently criticized my writings, or at most, suggested that I got something wrong. Most of the time it is done with some humor and humility, but on occasion, I can tell I've peeved the judge. These experience reinforce a point I've made in recent posts: judges profoundly care what the public thinks about them, and when they feel treated unfairly, they speak out.
I don't think inferior judges are unique. Supreme Court Justices likewise berate the press. In recent memory, perhaps the most visible such incident was when Justice Scalia wrote a letter to the editor of the National Law Journal, calling an article by Tony Mauro "mauronic." And in the Dick Cheney duckhunt case, Justice Scalia charged that many press outlets did "not even have the facts right" and gave "largely inaccurate and uninformed opinions." Scalia, perhaps to his credit, was open with his criticism. Other Justices make these remarks in private.
I am reliably informed that the Justices will often call members of the Supreme Court press corps into chambers for a discussion about their reporting. Of course, the very people who are best equipped to talk about these beratings are unable to do so. But if I had to guess, while Justices Kagan and Kavanaugh were asking their questions during Murthy, the fourth estate in the press box was nodding along.
