Law Writing 101: Don’t Make People Stupider

For reasons that are unclear, I get an invitation every year to attend the Loyola “Journalist Law School.”  No, not to teach, but to learn. Because it’s not like I’m, you know, a lawyer or anything.

The challenge of reporting on the legal system without a law degree is daunting. To help support journalists who cover the courts on national, regional or local levels, the Civil Justice Program at Loyola Law School, Los Angeles, has developed the journalist law program consisting of a four-day intensive seminar on the legal system. 

Putting aside the fact that whoever sends out the emails promoting this seminar isn’t paying a lot of attention, the concept is great.  Journalists, with certain exceptions, absolutely suck at understanding law. This isn’t to say that they should have the depth of understanding that a practicing lawyer would have, or that they should stop focusing on salacious detail in favor of boring legalistic stuff. If it bleeds, it leads. We know you have papers to sell.

But the constant incorrect use of words, concepts you don’t understand, huge gaps in legal reasoning and flagrant misstatement of law isn’t just bad writing. It makes people stupider. It does harm.  If this program is any good, it has the potential to teach journalists how to do less harm, how to make people less stupider. 

It would likely be more effective if the presentations were made by people less inclined to blow smoke, more knowledgeable about law, more willing to tell journalists that they suck, but then this is Loyola Law School.  Law schools don’t hurt people’s feelings.

But then, poorly written articles about the law don’t just hurt people’s feelings, but have the potential to do serious harm to readers.  Does that matter?  A story in the Daily Report about Mark Bennett’s recent argument before the Georgia Supreme Court provides a prime example.

Houston Lawyer to Georgia Supreme Court: Girls Aren’t Harmed When Treated as Sex Objects

An attorney challenging a state law against sexually exploiting children on the Internet told the Georgia Supreme Court that he doesn’t believe teenage girls are harmed by being treated as sex objects—and he attempted to enlist the lone woman justice to echo his point.

“Every woman in America has the experience of being a teenage girl and suddenly noticing that guys are looking at her differently,” Mark Bennett of Houston, Texas, told the court on Monday.

Was this said? Yes. Yes, it was. And yet it reflects such an utterly absurd misunderstanding of both the argument made, and the context in which it was made, as to suggest deliberate pandering to create outrage.  And to add insult to injury, the article includes commentary by lawyers, including a former Supreme Court justice, based upon the writer’s “explanation” of the argument.  Garbage in, garbage out.

Was this because the writer was venal, purposefully attempting to stoke flames of outrage by making her readers stupider?  Possibly, but I don’t think so.  The writer, Kathryn Turner, may have her own bias, but when she reached out to get a reaction, it wasn’t with any tone of malice or dismissal.

The sense is that she just didn’t grasp anything about the argument as to why the Georgia law was unconstitutional, or where this line, cherry picked from the middle, fit into the argument.  She just didn’t “get it.”  In an effort to blunt the article’s thrust, I offered a comment:

Having been present for the argument, this article reflects no understanding of either the primary arguments against the law, or the context of this responsive argument. The primary argument was that all speech is constitutionally protected unless it falls within a category designated by the Supreme Court as unprotected. The speech criminalized by this law did not, and so the law violated the First Amendment.

The argument referred to in this article was in response to the state‘s appeal to emotion about the terrible harm to a child by any speech that might be sexually arousing. The state sought to paint this as speech by child predators, but the point of the comment is that it includes speech by one child to another, and would criminalize common sexually arousing speech between younger people as well.

What this snippet of argument did was remind the court that some sexually arousing speech is common, ordinary and absolutely normal among teenagers, as we are all aware from our own experiences. And that we all survived it and grew up to be whatever we are today. There is nothing about this to justify the misrepresentation suggested by this article, or the quotes offered by people who didn‘t hear the argument and clearly don‘t understand the context.

Does this suffice? No. It will likely do little to alter the minds of any reader, as it’s just a comment as opposed to the main body of the article, and the credibility of those who were only too happy to be quoted in the article, despite having no clue what they were talking about beyond what the writer told them.

When I wrote about the argument, the most significant thing was that Justice David Nahmias demonstrated the level of constitutional and interpretative awareness necessary to immediately understand and appreciate a sophisticated argument.  Without such smart judges, smart arguments die on the vine.

Without smart journalists, smart arguments get contorted into sources of outrage.  Can a four day seminar at Loyola Law School make journalists smart enough to understand and appreciate the subject about which they write?  Beats me. It’s not like I’m teaching them how to think about the law.  But I sincerely hope it does good, makes journalists more knowledgeable, more competent to write about the law, because too many really suck at it.  And we all suffer when stories make people stupider.


20 comments on “Law Writing 101: Don’t Make People Stupider

  1. Vin

    I read something written by an incredibly astute observer of the actual court argument that it must suck when people misconstrue the argument to be something it isn’t.

    1. SHG Post author

      Misconstruction happens all the time, and can’t be helped. Misconstruction by someone who gets to stand atop a soapbox, on the other hand, and upon whom people rely to convey accurate information, is a different problem. The former sucks. The latter makes people stupider. It sucks, but it causes harm as well.

  2. LTMG

    In this day of relying on bumper sticker messages to form entire belief systems, somebody has to write the text for bumper stickers. Who better than lazy thinking journalists?

  3. Jeff Gamso

    I get the same invitation every year. I keep thinking I should pretend I’m not a lawyer and apply just so I could find out just how good a job they do out there in La La Land.

    But at some level I think the problem is that too many of the reporters covering these things simply don’t pay attention. All they do is look for a sound bite and turn that into a theme. (Reporters on legal stuff being no different from reporters on other things.)

    The good news is that there are, as you note, exceptions. The bad news is that I suspect the problem is neither the ignorance nor the malice of the majority but the approach they (and their masters) take to covering the news.

    1. SHG Post author

      Maybe next year, we should all go and have a party, wreak a little havoc, even drink an alcoholic beverage or two. Might be fun.

  4. Sara Kubik

    Journo profs lament that investigative journalism is now far too rare.

    So if someone does not spoonfeed the current reporting group, the message they create is often wrong.

    It’s not just legal topics, it’s anything that is complex. This is especially true with legal + concepts like legal + technology.

    Thank goodness for non-mainstream media outlets.

    1. SHG Post author

      While you’re certainly right, law is a bit of an odd duck. Reporters don’t pretend to know much about science, and it’s rarely all that controversial, so they are more easily inclined to listen rather than let their bias guide their writing. But everybody thinks they know law. How hard could it be, since even lawyers can do it? And it’s pervasive, almost daily fodder, so surely they are at least near-experts after a week or two. What’s not to get?

      1. JYH

        I don’t think there is as much distance between reporting on law and science as you say here. As a scientist, I can safely say that we are pretty much in the same boat.

        Whether or not journalists are willing to defer to scientists (and I would say not), the resulting coverage usually has all the same defects you cite here. Just as a reporter can, in good/reasonable faith, completely miss the relevant content of a legal argument, they do the same with scientific findings and arguments. As you say, the result can be so inaccurate and misleading that readers understand science (or law) and how it operates even less than they did before.

        One example of the sort of misunderstanding that poor science reporting causes: science, especially the stuff that reporters are interested in, is actually often deeply controversial.

        For a long time I believed that science was the odd duck and held the crown for poor reporting. This post is as good an expression as I’ve seen that the scientists aren’t alone. Anyway, at least there appears to be a small movement in both fields to fix things.

        1. JYH

          My favorite cautionary tale on this count: an op-ed sometime last year in NYTimes by an accountant arguing that if only everyone knew double-entry accounting, it would spell the end of corporate malfeasance, government budget-breaking, economic bubbles, *everything else wrong with society*, etc…..

          I was greatly disturbed to recognize my own arguments about science literacy in the form of his argument. Just with different nouns. Moral: we are all blinded by the things that hit close to home.

        2. OEH

          I’m a scientist with barely any legal understanding, and bad legal writing still bothers me more than bad science writing. I’m not entirely sure what the difference is.

          I think part of it is that while bad science writing misinforms people it doesn’t anger them (it might make them angry if they realize it’s wrong, but the statements aren’t inherently inflammatory).

          I think SHG has the controversy point dead on. Yes, scientific ideas are often controversial among scientists, but rarely among the general public. I actually think it’s scientists who too often make the mistake of assuming that the root disagreement in a public controversy is one of scientific facts instead of one of values or interests.

          There was the case of the Italian geologists who (briefly) went to jail for telling the public (rather inartfully, but accurately) that small tremors do not predict a big quake to come. A lot of people were worried that those defendants were being held accountable for a misunderstanding of fact; but most of the people stressing over it were other scientists who worried that the same thing might happen to *them*; the general public was much less concerned.

          1. JYH

            To each his own I guess. For the record, I’m not a fan of the tendency to oversimplify and misinterpret when writing on any topic. And I’m not sure there is tons of value in arguing over which sort of misinformation is worse.

            I appreciate that there are extra emotions at play when people are arguing about the rules that govern them. However, there are countless examples that show how badly rendered scientific content can be inflammatory, or at least motivate stupid actions (take, for instance, intelligent design, vaccines, cloning, GMOs, climate change, Ebola, any given Malcolm Gladwell book). Are these “worse” or “better” at inflaming than legal issues? I don’t know, but it’s not the case that legal issues inflame while scientific issues do not.

            As to public vs expert controversy (e.g. “originalism” actually encompasses a variety of theories), and whether we are arguing over facts, values, or interests (e.g. pretending a result is legally compelled), I still see lots of parallels between the way science and law are handled.

            1. Jeff Gamso

              And there is no credible evidence – none – that Shakespeare did not write Shakespeare’s plays. Drives serious scholars who actually know what it is of which they speak nuts.

              Nor, to pick a more recent but actually more relevant example, regardless of how the press misreported it, the study was not about whether we should eat Bacon rather than salad, nor did it suggest that we should. (Of course, on a personal note . . . .)

  5. Marc R

    Leading law professors, hot issues of the day, a buttload of breakout sessions (per the brochure); four days should change the media’s general comprehension of law. Or they could do research in the courthouse libraries that have lots of practical manuals in topic areas and procedures, and, of course, computers loaded with Westlaw.

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