David Bernthal/Off the Bench | Importance of free press, independent judiciary

David Bernthal/Off the Bench | Importance of free press, independent judiciary

Recently, I had occasion to read a News-Gazette editorial and a letter in response written by my friend and colleague John Thies, past president of the Illinois State Bar Association. What I read prompted some thought about two aspects of our democracy — freedom of the press and an independent judiciary.

The former is protected by the First Amendment, which provides, in pertinent part, "Congress shall make no law ... abridging the freedom of speech, or of the press ..." Originally, print was the only media form. Over the years, the protection of the "press" has been extended to the various platforms that have been developed.

Consumers are free to choose what newspapers to read, networks to watch and radio broadcasts to hear. The point is that the government cannot control the media. While those who adopted the First Amendment likely could not have foreseen the development of the press as we know it, they did perceive the need to guard against the government controlling what the people could learn and from whom or what they could access it.

The protection afforded allows journalists to play their important role in our society. One aspect is that of monitoring and reporting the actions of government officials from all branches as well as those of candidates for public office. Regarding the latter, recall Gary Hart. In 1988, Sen. Hart was a viable candidate for president. Published reports of his affair with Donna Rice caused him to drop out of the race.

Naturally, this "watchdog" role puts some tension between those being covered and the people doing the covering. As one whose work was subject to coverage, I was aware of this tension but always recognized the importance of the media in keeping citizens informed regarding the courts they fund.

Given the power of the media to both inform and influence public thinking, the right to a free press carries a responsibility to be thorough, accurate and honest in reporting. There are those who believe media in all forms abuses its considerable power. Some believe that the motive for profit drives media sources to target an audience and tell it what it wants to hear. Maybe that works for the bottom line, but it seems to me that it makes it easier for those who want to undermine the media. Once people lose confidence in the media, its ability to perform its important mission is seriously impaired.

As I write this, my mind is drawn to the late Dave Benton. If one were to look up journalistic integrity, a picture of Dave would appear. We need more like him in all manner of journalism.

The other aspect referenced above, the independent judiciary, is similarly a double-edged sword. Our system is premised on the rule of law. Pressure on judges from powerful forces, political or otherwise, undermines the premise.

Imagine a U.S. president calling a Supreme Court justice who had been nominated by that president. In the call the president reminded the justice that it was time to pay back by voting a certain way on a case. Similarly, imagine a situation where a powerful political figure conditioned his or her support in an upcoming race for higher judicial office on the judge's decision in a case of significance. These examples that I made up illustrate the need for judicial independence. Courts and individual judges must not be subject to such influences. This requires restraint on the part of those in a position of influence as well as a strong backbone on the part of the judges. Decisions must be the product of the application of the law to the facts regardless of how the powerful, the public at large or the pundits react.

The other side of the sword requires an understanding that independence is not the power to do whatever the judge wants to do. We direct jurors to decide the case by applying the law contained in the jury instructions not the law as they would like it to be. Judges have the same responsibility. Failure to do so would result in the rule of John or Ann rather than the rule of law. Imagine the unpredictable mess that would flow from such an approach.

A free press and an independent judiciary are mainstays of our democracy. A person or group seeking to take over our country would likely want to control or neutralize both. We must recognize the importance of each and accept the responsibilities that accompany them.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is askthejudge1@gmail.com.

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