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Law Practice,
Judges and Judiciary

Apr. 5, 2021

April, not the cruelest month

Public officials, even judges, may sometimes give voice to social issues

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on gilbertsubmits.blogspot.com.

Once April was the cruelest month. April's lugubrious description now applies to countless past decades. April and months past and future were and will be months of reflection, anger, and resentment. In the current divisive social and political climate, people in and out of the public eye are speaking up and out. This includes judges who in the past have been cautious in voicing their views.

The Canons of Judicial Ethics caution that judges take care about what they say or write when their views may reflect on their impartiality. Judges have generally been careful to abstain from voicing their opinions in a public forum for fear it might reflect on their impartiality.

To what extent is it advisable for judges to voice concerns about racial prejudice in opinions that may at best not be directly about social injustice? That is a subject I raised in my September column of last year "On the Other Hand." In B.B. v. County of Los Angeles, 10 Cal. 5th 1 (2020), a Black man died at the hands of a police officer who applied his knee to the man's neck. In a footnote the court acknowledged the similarity to the George Floyd matter, but pointed out the case had nothing to do with race, nor that decedent died at the hands of a police officer. The court held that "principles of comparative fault do not require a reduction of liability based on the acts of others." The decedent's heirs prevailed. Perhaps I unfairly suggested the concurring opinion was critical of the majority. The concurring opinion by Justice Goodwin Liu joined by Justice Mariano-Florentino Cuéllar stressed that the majority opinion did not acknowledge the racial injustices that have existed in our state.

I thought the concurring opinion was noteworthy because it raised a question in my mind whether it was necessary in light of the majority opinion which emphasized that the holding applied to anyone. The case was not about race. It was about liability. It just happened that the deceased who died at the hands of a police officer was Black.

I argued from one point of view that the concurring opinion focusing on racial injustice detracted from the majority opinion's holding which demonstrated the officer was liable whatever the race of the decedent. The majority opinion in B.B. was a prime example of our high court according justice without regard to race. By focusing on race, which was not an issue in B.B., I argued that the concurring opinion may have given the case a political slant in the eyes of some readers and thus detracted from the majority opinion. But I left open an alternative interpretation by ending my column with "on the other hand...," an obvious acknowledgement that there is another point of view. That I did not explore the other point of view is a good indication that I was hard-pressed to make a convincing argument. There was no indication in either the majority or concurring opinion that race was the salient issue argued by either side.

Was the concurring opinion taking judicial notice of a well-known perception that people of color, more than whites, are more subject to police abuse? That may be true, but that was not an issue in the case. Or did the concurring opinion imply that the race of the decedent made race an obvious but unarticulated issue in the case? On the other hand (here I go again), my acknowledgement there is another point of view speaks to the need to acknowledge the racial inequities that we must finally rectify. Yes, but... sorry, I can't help it. It's what law school and more than half a century of law practice and judging can do to someone.

Whatever one's view of the concurring opinion in B.B., it is benign, harmless beyond all doubt in comparison with the dissent of Judge Laurence Silberman in Tah v. Global Witness Publishing Inc. (19-7132). Yikes!

The facts and holding in the Tah case are not important to our discussion. Suffice it to say it was a defamation case in which plaintiffs lost in their suit against an organization accusing them of taking bribes. The majority opinion held, among other things, plaintiffs did not meet the bar of New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

I need offer only random quotes from the dissent's (let me choose the following noun carefully) ... how about ... "tirade"? Rather than summarize Judge Silberman's dissent, I think it better practice to quote him directly and let readers decide for themselves. Concerning present-day interpretations of New York Times Co. v. Sullivan, Judge Silberman wrote:

"As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). But see Suzanne Garment, The Culture of Mistrust in American Politics 74-75, 81-82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a "bland and homogenous" marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562, 138 U.S. App. D.C. 125 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat.

"Although the bias against the Republican Party -- not just controversial individuals -- is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the '70s. (I do not mean to defend or criticize the behavior of any particular politician). Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction. The orientation of these three papers is followed by The Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television -- network and cable -- is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.

"As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The Atlantic (2020) ('Within a few hours, Facebook announced that it would limit [a New York Post] story's spread on its platform while its third-party fact-checkers somehow investigated the information. Soon after, Twitter took an even more dramatic stance: Without immediate public explanation, it completely banned users from posting the link to the story.').

"It is well-accepted that viewpoint discrimination 'raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.' R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 387, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). But ideological homogeneity in the media -- or in the channels of information distribution -- risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.

"To be sure, there are a few notable exceptions to Democratic Party ideological control: Fox News, The New York Post, and The Wall Street Journal's editorial page. It should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son. Will a lone holdout remain in what is otherwise a frighteningly orthodox media culture? After all, there are serious efforts to muzzle Fox News. And although upstart (mainly online) conservative networks have emerged in recent years, their visibility has been decidedly curtailed by Social Media, either by direct bans or content-based censorship.

"There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact. That was empirically and persuasively demonstrated in Tim Groseclose's insightful book, Left Turn: How Liberal Media Bias Distorts the American Mind (2011). Professor Groseclose showed that media bias is significantly to the left. Id. at 192-197; see also id. at 169-77. And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8-10% in the typical election. Id. at ix, 201-33. And now, a decade after this book's publication, the press and media do not even pretend to be neutral news services.

"It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness -- if not eagerness -- to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press' power."

Enough! Let's take a moment to catch our breath. Need I ask, whatever one's political persuasion, does this retort belong in a judicial opinion? The question suggests the answer.

And this takes me to the subject of judges speaking to social issues in a public forum other than in a judicial opinion. Our chief justice of California -- this title encompasses more than just the Supreme Court -- spoke out on the violence directed at Asians:

"Anti-Asian violence, like any violence based on prejudice, bias, or fear of the other, is reprehensible. Because of who I am as an Asian-Filipina, because of my parents, my aunties, friends, and connected communities of color, these attacks feel more personal.

"We can and must do better. We deepen our understanding by advancing diversity and respecting our differences. In respecting our differences, we strengthen our social contract. In strengthening our social contract, we abide by the rule of law.

"As we pass and approach many anniversaries relating to the pandemic, it is disheartening that while we have made progress on the virus, the disease of racism remains."

Public officials and, yes, even judges, may in certain instances give voice to social issues in a manner that belies even a hint of partiality. Our chief justice did so with dignity and clarity.

Justice Liu saw a similar need to speak out on discrimination of Asians in the legal profession and elsewhere in a March 29 article in the Los Angeles Times. His celebration of the appointment of Rob Bonta, our new attorney general, will not make any justice on our high court any more or less hesitant to reverse a criminal conviction when the facts and the law require it.

Chief Justice Tani Cantil-Sakauye's statement and Justice Liu's article can be found in the Newroom section of the California Court's website. 

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