Abstract
This article analyzes the process of mediatization in the legal sphere in Israel. It maps the reciprocal relations between legal professionals and journalists in Israel, and examines the impact of the changes that have occurred in the media on the press coverage of the courts, on legal decision-making and on the legal process. Interviews with judges, lawyers and journalists reveal that, despite evidence of the mediatization of the legal sphere, a number of factors serve to contain this process. We suggest the concept of “judinalism” to describe the changed arena of interaction in which there are contradictory processes of acceleration and moderation of the impact of the media on the legal realm in Israeli society.
Keywords
The sculpted figure of the Lady of Justice adorns many courthouses throughout the western world. This impassive, blindfolded woman holding a set of scales is the embodiment of divine order, law and morality in Greek and Roman mythology (Hamilton, 2005). The scales enable the Lady of Justice to measure the strengths of each side of a case. Her blindfolded eyes indicate that justice is (or should be) objective and impartial, regardless of the power or identity of those who come before her. This myth of law still has a powerful hold on the public. Although the judicial system is part of the political structure of modern society, legal actors and institutions have traditionally been regarded as different and often superior to the political establishment (e.g. Baird and Gangl, 2006; Haltom, 1998). The robed human judge is expected to personify the ancient myth of justice by distancing him or herself from other social institutions, from public opinion, and from the ideological skirmish of everyday politics (Baird and Gangl, 2006; Davis, 1994).
However, to current observers of trends in the coverage of ‘popular trials’ in the Israeli press, it seems that even the Lady of Justice, not to mention her human counterparts, find it difficult to cover their eyes and balance their scales. Developments in both the media and legal system in Israel in the last three decades have wrought widespread changes in the way legal matters are covered and in the relationships between legal and media professionals.
Since the political and social upheaval following the ‘Yom Kippur’ War in 1973, the ‘open skies’ policies fostering an expansion of broadcast sources in the 1980s, as well as the relaxation or removal of formal restrictions on journalistic practices, the Israeli media have become increasingly competitive, investigative and critical (Bogoch and Holzman-Gazit, 2008; Caspi and Limor, 1999; Gilboa, 2012; Peri, 2004). In the legal sphere, the Attorney General issued guidelines in 1992 that severely limited the enforcement of sub judice laws (Peleg, 2012; Segev, 2001), 1 so that journalists no longer restricted their coverage of legal affairs to reports of the proceedings but included commentary as well. In fact, except for coverage of matters of national security and in times of war, Israeli journalists are now said to aggressively criticize the political establishment, often undermining the legitimacy of public institutions and officials (Peri, 2004).
Another development in the Israeli media since the 1980s has been an increasing tabloidization of the popular press (Caspi and Limor, 1999). Unlike the tabloid press in other countries, however, the Israeli popular press, like its quality counterpart, strongly emphasizes politics and current affairs (Lehman-Wilzig and Seletzky, 2010; Peri, 2004).
At about the same time that these changes occurred in the media scene in Israel, there were also far-reaching changes in the judicial system, and especially in the actions of the Supreme Court. While in its early years the Court adopted a formalistic ideology and refrained from ruling on politically sensitive matters, from the 1980s on, based on expanded doctrines of justiciability and standing and the broad interpretation of two basic human rights laws, the Supreme Court of Israel, mainly as the High Court of Justice, 2 ruled on controversial issues relating to, for example, collective identity and administration legitimacy (Hirschl, 2004). The Court also claimed for itself the power of judicial review of primary legislation, an act that in effect confirmed the supremacy of the Court over the Knesset (the Israeli parliament). This shift of power occurred alongside a weakening of the country’s political bodies and a growing public distrust in the good faith of politicians (Peri, 2004). However, it has also led to claims of the politicization of the Supreme Court and to increasing criticism of the Court, and a sharp increase in the coverage of the Court and all legal matters (Bogoch and Holzman-Gazit, 2008; Peleg and Bogoch, 2010). The Israeli case is in many respects, similar to other common law countries, in which adversarial trial procedures and an activist Supreme Court have become increasingly attractive to the competitive, commercial and independent media.
Within this context, our study examines the impact of media pressures on legal decision-making and on the legal process itself as experienced and articulated by legal and media professionals. It is based on the concept of mediatization, which has been used largely to describe the impact of the media on the political process (Kepplinger, 2002; Mazzoleni and Schulz, 1999; Schulz, 2004) and examines the extent to which a similar process can be identified in the legal sphere. In addition, it suggests a refinement of the concept of mediatization to capture the changes wrought by the media in the legal sphere.
The process of mediatization
The term ‘mediatization’ characterizes the process of social change stemming from the entry of a critical and cynical media to the public arena (Kepplinger, 2002; Mazzoleni, 2008; Mazzoleni and Schulz, 1999; Schulz, 2004; Stromback, 2008). It refers to a process by which social institutions become increasingly dependent on the media and must accommodate to their commercial logic (Hjarvard, 2008).
Schulz (2004: 88–9) has identified four aspects of social change which define the mediatization process: extension, amalgamation, accommodation and substitution. Extension refers to the impact of refined media technologies that expand communication capacities. Accommodation involves the ways in which actors adapt their behavior to accommodate the media’s routines and formats. Amalgamation refers to the fact that ‘media activities not only extend and (partly) substitute non-media activities: they also merge and mingle with one another’ (Schulz, 2004: 89). The change in the character of social relations that occurs as a result of the media’s partial or complete substitution of social activities and social institutions constitutes the substitution process.
The concept of mediatization has been mainly applied to the political sphere, although there are also studies of the mediatization of other social institutions and cultural phenomena (Lundby, 2009), such as religion (Hjarvard, 2008) and mourning rituals (Pantti and Sumiala, 2009). However, to date there have been no studies of the mediatization of the legal sphere. Given the growing centrality of the law in most western democracies (sometimes described as the judicialization of social life; Galnoor, 2004), we believe it is important for communication scholars to extend the study of mediatization to the legal realm.
There is another reason why the study of the mediatization of the legal system is particularly interesting. The law has traditionally been perceived as immune to extra-legal influences, and such outside influences are regarded as inherently detrimental to the ideal functioning of the legal system (Bybee, 2010; Karpin, 2002). Moreover, independent judges who are not subject to recurrent elections ostensibly would have no particular interest in ensuring positive media coverage. However, many studies have pointed out that the perceived institutional legitimacy of the court and the public support of the justice system are extremely important for the branch that has ‘neither purse nor sword’ (Bybee, 2007; Gibson and Caldeira, 2011; Gies, 2008). Thus, public relations departments and/or press judges have been set up in many modern democracies, in order to promote positive and accurate coverage of legal decisions (Davis, 2011; Gies, 2005; Schulz, 2010; Staton, 2004). The media, for their part, have demonstrated an increasing interest in legal matters, over and above the criminal sphere, which has had important consequences for the way legal issues are reported in the press, and for the way legal professionals, including lawyers and judges, perform their tasks (Davis, 2011; Gies, 2005, 2008; Schulz, 2010).
While a number of theoretical designs have been suggested for identifying the features of mediatization (e.g. Hjarvard, 2008; Stromback, 2008), our study of the mediatization of the legal sphere in Israel relies on Schulz’s (2004) definition of the four aspects of social change that characterize the mediatization process. This framework allows us to assess the process of increasing media intervention and integration within the legal sphere, rather than relying mainly on an explanation of its current manifestation (Stromback, 2008: 232). Moreover, Schulz’s emphasis on individual actors and social relations made this scheme more suitable for our study than others that take a more macro-approach (e.g. Hjarvard, 2008) or those that analyze the media content itself for evidence of mediatization (e.g. Stromback and Dimitrova, 2011).
We will claim that, while there is evidence of the mediatization of the legal sphere, it appears that the fusion between the media and the legal system in Israel differs in its scope and attributes from the mediatization of the political realm. In addition, we will offer an alternative concept, which we call ‘judinalism’, to describe the emerging relationship between the media and legal system in Israel. We view judinalism as a new social space which is the outcome of the process of the mediatization of the legal realm in Israel. In this mediatized social space, there are elements that are typical of the mediatization of the political sphere. However, in the judinalism sphere there are also contradictory perceptions that mitigate the mediatization process and limit the media impact on the legal process as a whole.
Method
This study is based on semi-structured interviews with judges, lawyers and legal reporters. Ninety-two professionals were interviewed for this study: 30 judges, 30 lawyers and 32 journalists. 3 The professionals were chosen because they had appeared in trials, rendered decisions or reported legal matters that were widely covered by the media. In order to capture the dynamic nature of the mediatization process and to tap the element of change over time in the attitudes and practices of lawyers, half of those interviewed were veteran practitioners while the other half were more recent recruits. Among judges and journalists, the distinction was between former or retired practitioners, and currently serving ones. In addition, the lawyers, mostly specialists in criminal law, were equally drawn from the private (defense attorneys) and public (prosecutors) sectors. 4
Each respondent was interviewed regarding their views about the coverage of legal matters in the Israeli press, the media strategies of the judiciary, and about the influence of the press on judicial discretion and decision-making. Moreover, each group was asked specific questions relevant to their own professional experience. Although the interviews, which lasted from one and to one and a half hours, were structured by a schedule with specific questions, interviewees were encouraged to speak freely and stray from the topic, and to provide specific examples from their own personal experience (see Peleg, 2009 for the complete interview schedule). In addition to the interviews, various writings by judges, lawyers and journalists, including judicial opinions, as well as lectures and reports about the media and legal systems were used as resources for this study. These sources provided additional data about the mediatization of the courts that allowed us to assess the subjective information provided by the interviewees.
Findings
The findings will be presented according to the four phases of the process of mediatization suggested by Schulz (2004). 5 Since the mediatization process has mainly been studied in relation to politics, throughout the article we will compare our results to the findings reported about the political sphere.
Extension
In our study, we found the impact of the expansion of media technologies associated with the extension phase of the mediatization process on the following features: the coverage of legal matters; the nature of legal reporting; and the relations between media and legal actors.
Coverage of legal matters in the Israeli press. Previous research has shown that, parallel to the expansion of the media industry in Israel, including the founding of two commercial television channels, cable stations and news sites on the internet, as well as a growth in the number of commercial newspapers (Gilboa, 2012), there has been a notable increase in the space devoted to the coverage of the courts in the Israeli press (Bogoch and Holzman-Gazit, 2008). Law-related stories appear in all sections of the newspaper, as well as in regular law columns, and more reporters now have some legal education (Peleg, 2012).
One consequence of the increased news value of legal stories and the widespread coverage of legal news has been the enhanced status of the legal reporter: Once the legal beat was not appreciated by our colleagues. Nowadays it is a rather prestigious field of coverage. Once the political reporter, the parliamentary reporter and the military reporter were regarded as the top positions in the newsroom; now the legal reporter belongs there too. (Current legal reporter, Interview, 5 September 2007)
In addition, just as in the mediatized political realm (Stromback and Dimitrova 2011), legal reporters have become more visible. Some legal reporters in the press have become known as legal experts, and are frequently invited to comment on cases and decisions on radio and television programs.
The nature of legal reporting. Despite the greater exposure given to legal issues, veteran reporters claim that commercial constraints on the media have limited the depth of legal coverage in the press. Whereas in the past reports of trials led to discussions of legal issues and social problems, veteran reporters claim that today the messages of the legal text and judicial process are often ignored in the coverage of legal matters, and the dramatic and sensationalist aspects of the case are highlighted.
By contrast, young reporters in our study believe that the digital technologies have expanded the journalistic angles of court reporting and have made it more competitive and innovative. In order to compete with internet reporters who have the advantage of immediacy in publishing mainly formal legal information, other reporters must look for additional information and are obliged to cultivate new news-sources and to offer alternative narratives.
On the other hand, both veteran lawyers and reporters assert that digital communication has distanced reporters from real legal experience. With the possibility of obtaining legal documents via electronic mail, journalists can avoid being present in the courtroom, although they are now more dependent on legal and public relations professionals to supply them with legal information (Darr and Zer-Gutman, 2007). Often, the time pressures of an increasingly competitive press make these ready-made stories too tempting for the journalists to resist: Twenty, twenty-five years ago, reporters used to come to the courtroom and witness legal procedures with their own eyes. In the course of time and due to technological developments, the journalists ceased to come to the court and preferred to receive via email or fax one-sided descriptions of the legal scene. I noticed how journalists have given up their presence in the courts and have [essentially] surrendered to lawyers’ manipulations. (Dan Scheinman, veteran defense lawyer, Interview, 31 July 2007)
Judges, too, have criticized the sensational tone of the expanded legal coverage, and have accused the media of being too aggressive and critical of the court.
I don’t expect the media to treat the court like a sacred cow, or that it should blindly support the legal system. However, it should adopt the values of an independent, a-political judicial branch. The current media are too aggressive and not patriotic enough. While the court defends the media with all its might and regards the media as its partner in serving society as a whole, the media don’t fulfill their role in this relationship, aren’t professional enough and place too much weight on ratings. (Professor Itshak Zamir, retired Supreme Court Justice, Interview, 5 May 2005)
Accommodation
Like politicians who have adapted their statements and schedules to accommodate the media timetable, logic and presentation formats (Brants et al., 2010; Elmelund-Præstekaer et al., 2011; Hjarvard, 2008; Schulz, 2004; Stromback and Dimitrova, 2011), so too in the legal realm, key legal actors have accorded increasing importance to media policy and media strategies, and have accommodated their behavior to media demands. In addition, just as in politics (Brants et al., 2010; Davis 2010), journalists covering the law have become more cynical and distrusting of legal actors.
Judges’ accommodation to media demands. Until 1995 when the first spokesperson for the judiciary was appointed in Israel, there was little interaction between the judiciary and the media. Retired judges explained that, in their time, judges were expected to maintain their distance from the media community, and that silence and passivity were seen as the most dignified response to media criticism.
Current judges, on the other hand, felt that ignoring the media was no longer the appropriate response to the new type of coverage. They felt that the image of the court was being undermined by unwarranted media attacks, and that this had led to the decline of public confidence in the courts. In fact, yearly data provided by the Israel Democracy Institute as well as a long-term survey by Arye Rattner (2009) indicated that public trust in the Supreme Court had indeed fallen. A more media-friendly approach was deemed necessary and in 1996 the Judicial Authority set up a public relations department. Like similar institutions in other western countries (e.g. Schulz, 2010; Staton, 2004), the public relations department of the Judicial Authority provides copies of court rulings on a daily basis in an effort to safeguard against the media distortion of judicial decisions, and to alert journalists to important decisions and cases. Occasionally, the Chief Justice gives interviews to the press, although these are never in direct response to critiques of particular opinions. Other judges, however, are officially permitted to address the press only through the public relations department. More recently, the Judicial Authority has begun debating the utility of using Facebook as part of its public relations policy, but at present it has only used Facebook to recruit security personnel. In anticipation of the potential future use of these media, the Judicial Authority has begun collecting talkbacks on judicial matters from various social networks (personal communication, Ayelet Philo, spokesperson, the Judicial Authority, 15 April 2012).
Unlike the retired judges, who essentially regarded the media activities of the judiciary as relatively unimportant, currently serving judges were concerned that media involvement in the legal process had weakened the court’s power, and that the public relations department was inadequate in curtailing this trend.
The court is not accustomed to the spins that politicians instigate. When politicians attack the judicial system, the court responds like a helpless giant, heavy and awkward, that can’t move its hand. There are so many restrictions on judges, they don’t succeed in transmitting the correct message. (Current judge, Interview, 9 October 2007)
Moreover, on an individual level, they were concerned that in the increasingly cynical and sensational media milieu, they could be the next media victim, and the public relations department was unable or unwilling to meet their needs. A currently presiding judge who was attacked by the media after the conviction of an admired celebrity said: I felt so vulnerable and couldn’t see my picture in the press any more.… I couldn’t talk to anyone about the case and obviously I couldn’t talk to the media. I expected the Chief Justice or other senior [judge] to instruct me how to deal with this situation but this didn’t happen. The spokesperson didn’t support me either and didn’t manage this media crisis. (Presiding judge, Interview, 4 April 2007)
Thus, paradoxically, despite the judicialization of the public domain in Israel, that consigned virtually all aspects of Israeli social life to court scrutiny, and the power of the court compared to other branches of government (Galnoor 2004; Hirschl, 2004), currently serving judges felt that the media were undermining their power. For them, the mediatization of the legal sphere that had emerged as a consequence of the increased media presence in all aspects of the legal process was proving to be stronger in curbing the power of the court than the judicialization of the public sphere had been in increasing its power.
The feeling of powerlessness vis-a-vis the media, and the dissatisfaction with the public relations department may explain another accommodation by judges to media logic. Both currently serving judges and young reporters described how judges initiated contact with certain reporters and told them about personal and professional conflicts within the judiciary.
The family of judges has grown, and the leaks by judges to the media have also increased. Today there is a trade-off: the judge gives information to the journalist and in exchange receives positive coverage. (Current judge, Interview, 12 August 2007)
In the political arena, leaks are regarded as a response to unsolved battles between contradicting perceptions within the establishment (Gans, 1979). Hence it may be that the leaks from Israeli judges are a consequence of the constraints imposed on judges’ relations with the media, and the conflicts among judges that have resulted from the monopolization of media responses by the court’s public relations department.
Lawyers’ accommodation to media demands. Like politicians who have learned to identify the needs of journalists and to manipulate them in order to promote their own interests, lawyers claimed that in order to win legal battles they must manage the media. Although young lawyers dedicated more time to media management during trials than their veteran colleagues and regarded these media strategies as more important, all lawyers described ways in which they had accommodated their work to the demands, formats and logic of the media.
Lawyers described how they tried to make their messages more newsworthy. For example, Moshe Maroz, a veteran defense lawyer said: ‘I always try to be original when I’m interviewed. I think about what can be a good quote and refrain from clichés’ (Interview, 13 August 2007).
Another example of the mediatization of lawyers’ work was the attempt, where possible, to synchronize their legal moves with the media timetable.
I managed to receive a good plea bargain for my client. I was afraid of media criticism that would affect the judge. So I asked for a court hearing in the late afternoon when there were no reporters and it wasn’t reported. (David Yiftach, veteran defense lawyer, Interview, 28 April 2007)
Some young defense lawyers went even further in accommodating to the demands of the media, even at the expense of overstepping clear ethical guidelines. They described how they supplied the press with protocols from police investigations, in complete violation of the ethical code of the Israeli Bar Association.
In high-profile cases there’s competition among the defense lawyers who will be the first to disseminate protocols from police investigations. You cannot allow yourself to sit still and lose a chance to strengthen your ties with the media. (Young defense lawyer, Interview, 29 April 2007)
Veteran defense lawyers were highly critical of this strategy, not only because it was unethical but also because of its potentially negative effects on their client’s reputation. They felt that publicly exposing their clients during the humiliations of a police interrogation would inevitably hurt the client. In their eyes, the lawyers’ efforts to win the case by strengthening ties with the media came at the expense of the client’s best interests.
Journalists’ attitudes to media accommodation by legal actors. Despite, or perhaps because of the growing ties between the legal community and the media, journalists have come to distrust the behavior of legal actors and to doubt their integrity.
Some journalists felt that the media strategies of defense lawyers undermined their ability to provide a reliable legal defense for their clients. These legal reporters criticized the conduct of their media sources despite their dependence on them: Let me be blunt. Some of the defense lawyers don’t give a damn for their clients. All they want is to maximize their media coverage. (Rivka Noiman, former legal reporter, Interview, 14 May 2007)
Like the disdain expressed by journalists of political actors who attempt to use them as tools to further their political goals (Brants et al., 2010), legal correspondents are suspicious and cynical of the motivations of lawyers and judges. While journalists are pleased with their increasing importance and status in both the legal and media spheres, they have become less reverent of legal professionals and more skeptical about their moves and claims.
Amalgamation
The amalgamation phase of mediatization concerns the way the media is woven into the fabric of everyday professional and public life, so that the media’s definition of reality amalgamates with the social definition of reality (Schulz, 2004: 89). Translating this to the legal sphere, we examine the views of legal and media professionals about the effects of the media on decision-making in the legal processes.
Judges’ views. The most important influence of the media, mentioned by both current and retired judges as well as by defense attorneys, was the effect of the media and public opinion on the level of sentencing. Judges tended to phrase this effect as an example of their attentiveness to public needs and concerns, rather than as a response to media pressures. Retired Justice Dahlia Dorner gave the following example: ‘The media supported the plea of women’s organizations for stricter punishment of abusive husbands and the level of punishment in these cases increased’ (Interview, 26 April 2005).
Another media effect mentioned by the judges was the change in their writing style. For example, retired Judge David Bar-Offir of the Tel Aviv District Court explained that ‘there are paragraphs in some of the court rulings that I intentionally wrote in a more journalistic style to catch the media’s attention’ (Interview, 26 April 2005).
Nonetheless, the judges repeatedly stated their commitment to the law and legal factors as the sole determinants of their decisions, and in both written opinions and in the interviews, decried attempts by legal actors to use the media to influence their decisions.
The media impact is only on the macro level and not on the micro one. The media has no influence on the legal core of judicial discretion. For example, despite media criticism sexual offenders are still acquitted. (Amnon Strashnov, retired judge, Interview, 9 December 2007)
At the same time, they claimed that the media had adversely affected public opinion of the courts, and that media criticism of the courts and their distorted presentation of judicial decisions were the key reasons for the decline in public trust of the Israeli courts: How come that a recent poll indicated that 40% of the Israeli public think that judges accepted bribes? Not even one Israeli judge was ever convicted of accepting bribes! The attacks on the court and the lack of accuracy in the reporting of the court planted these false perceptions among the public. (Professor Aharon Barak, retired Chief Justice, Interview, 11 December 2007)
Like politicians, judges presumed that the media exerted a strong influence on public
opinion, but did not affect their own decisions (Cohen et al., 2008).
Lawyers’ views. Both veteran and young prosecutors in Israel pointed to a number of media effects on prosecutorial decision-making. For example, some prosecutors claimed that the District Attorneys assigned prosecutors to high-profile cases according to their media skills, rather than their legal expertise: The media are our steady companion, they are present all the time. There was a very famous murder case that was examined by a brilliant prosecutor who looks like a weirdo and it was taken from her and was given to a less professional but better- looking [lawyer]. (Veteran prosecutor, Interview, 1 May 2007)
Another, more controversial, effect was the media’s influence on the negotiation and conclusion of plea-bargain agreements. Both prosecutors and defense attorneys claimed that media criticism prevented the conclusion of plea bargains in high-profile cases.
The media affects the prosecutors’ professional discretion, especially on plea bargains. Years ago we refrained from plea bargains because we were afraid of the criticism of the Supreme Court. Now the Supreme Court seems far away. We’re afraid of the media’s immediate criticism. (Veteran prosecutor, Interview, 18 June 2007)
Thus, whereas in the past prosecutors were basically concerned about the strength of their evidence for conviction in the negotiation of plea bargains, today they also take into account potential media criticism of the cessation of the trial process. This finding reflects the shift in the status of the media in the legal sphere from an observer and commentator to a deterring factor in the decision-making of key players. This is precisely the claim of the theory of mediatization.
Despite their unanimity about the growing importance of the media on various aspects of the legal process, prosecutors and defense lawyers alike maintained that in Israel, justice was basically meted out objectively and impartially. It seems that, with all the manipulation of the media, and their own efforts to harness the media to their cause, lawyers still had faith in the basic integrity of the judiciary. As a young defense lawyer put it: ‘After all, there’s no alternative to the judiciary in our society and I believe that trials in Israel are mostly fair and just’ (Interview, Yaacob Sklar, 29 April 2007).
Journalists’ views. Just as there were differences in the attitudes of veteran and younger legal professionals, former and current legal reporters disagreed about the effects of the media on the judicial process. Contrary to those who had formerly worked the court beat and who felt that judges were by and large immune to media pressures, current court reporters felt that they were able to influence various aspects of the legal process. They believed that Supreme Court justices would prioritize hearing appeals that were previously the subject of media attention, and that ‘the court never postponed a hearing in a high-profile case regardless of the actual urgency [of the hearing]’ (Moshe Goraly, current reporter and legal analyst, Interview, 22 May 2007).
Similar to both judges and lawyers, reporters referred to the effect of the media on the level of punishment. In the following quote, the journalist also refers to the effect of the media on judicial conduct in court: A particularly cruel serial rapist whose trial got enormous coverage was sentenced to 35 years. I don’t recall abusive fathers who raped their daughters hundred of times getting such verdicts. More than that, I find that judges who are aware of the presence of journalists in their courtrooms become more patient and attentive. (Current reporter, Interview, 19 April 2007)
However, journalists pointed to other, less obvious media effects. Current reporters mentioned the effect of the media on the career advancement of judges. One senior reporter claimed that his coverage had contributed to the Supreme Court appointment of one judge: ‘I helped create a positive image for one of the judges that I respected. I feel responsible for his promotion to the Supreme Court’ (Interview, 5 September 2007).
While judges have been known to use the media for their own strategic purposes (Davis, 2011), this example shows the way reporters too will use their coverage to further their preferences, even in the nomination of Supreme Court justices. It is telling that former reporters did not mention these or other effects of the media on the legal process.
Despite the differences between former and current legal reporters, however, all the journalists who participated in our study felt that the law does not completely surrender to the media and were convinced that popular trials were also fair trials. A current reporter who cited numerous examples of the influence of the media in the Israeli legal arena also stressed that she believed in the objectivity of the judicial system: I can’t understand why judges are concerned with media coverage.… My professional satisfaction doesn’t derive from my ability to influence legal actors but from the fact that these people see me as a source of information. I’m not worried about judicial populism. In general, I believe in the impartiality of the Israeli judicial system. (Anat Roe, Current reporter, Interview, 23 September 2007)
Thus, although most of the participants in our study regarded the legal sphere as permeated by the media at all levels, no one claimed that the judicial process had been overtaken by the media, and all professed a basic belief in the impartiality of the legal process in Israel. Both law and media professionals share an ethos regarding the independence and the autonomy of the judiciary in Israel, and this common ideology seems to mitigate the mediatization process in the legal arena.
Substitution
The substitution component in mediatization theory refers to the way in which the media replace social activity in the public or private sphere and alter its character. Blumer and Kavanagh (1999) have claimed, for example, that the media substitute for political parties as the organizers of political campaigns in western democracies. Public figures rely on media advisers, fundraisers and polls while political activists are pushed aside.
Many observers of the Israeli media scene have claimed that the media coverage of particularly dramatic cases has become a virtual trial that not only reports on the events of the trial itself but often includes information and interpretations that are constructed by the media. These frequently include criticism of legal professionals and procedures (Peleg, 2012; Segev, 2001). Although the coverage of popular cases was never objective and neutral in either quality or popular newspapers in Israel or elsewhere (Fox et al., 2007; Nobles and Schiff, 2004), both legal and media actors pointed to the novel use of court-like procedures in the media, such as having a witness reconstruct the crime at the crime site, or using polygraph tests to seemingly prove the guilt or innocence of the defendant or the truth of the testimony by witnesses. Unlike actual trials, these media representations are not constrained by rules of evidence or subject to court scrutiny or examination. One recent example mentioned by various respondents was the coverage of the sexual assault trial of former Minister of Justice Ramon, in which a popular newspaper conducted polygraph tests of two witnesses who supported the minister, and reported the results of these tests in the newspaper (Yarkony, 2007). These witnesses were never tested by polygraph for either side during the trial, and the test results were never assessed by the court because polygraphs are not admitted as evidence in criminal trials. The newspaper constructed its case in favor of the minister even before the actual trial began (Flozker, 2008), and gave particular prominence to the defense claims, in addition to reports of its own investigations (Peleg, 2012). In general, it was felt that the press used a combination of accounts and facts to construct a narrative either in favor or against the defendant, with little basis in legal procedure or evidence.
Both legal and media actors expressed criticism and concern about the implications of the trial by the media. Despite the fact that legal professionals use various strategies to attempt to influence media coverage, and the profit-motivated (and financially threatened) press cooperates with them, neither lawyers nor journalists were satisfied with the current mode of media trials. Yet both judges and lawyers objected to restricting the freedom of the press by legal means. None of the legal professionals agreed to reviving the sub judice prohibition which has not been used since 1992, or to imposing other limitations on the coverage of the courts in the Israeli media.
Surprisingly, and contrary to our expectations of the extremely competitive and aggressive journalists who today typify the profession (Peri, 2004), some journalists favored limiting the coverage of court cases by law: Someone has to limit the press promiscuity. The ethical rules have failed to guide the press. I support the revival of the sub judice rules and the indictment of journalists for contempt of the court. (Noam Sharvit, current reporter, Interview, 11 May 2007)
Another reporter suggested pressing criminal charges against journalists who violated gag orders (Interview, 23 September 2007). In general, journalists covering the courts today felt that the now-diluted code of professional ethics was no longer an effective constraint on the behavior of legal or media actors. Thus, contrary to legal actors, they suggested using the legal system to inhibit the intervention of the media in the legal process, and to put a brake on the mediatization of the legal sphere in Israel.
Summary and discussion
Media scholars have discussed the inevitability of the ‘mediatization of everything’ (Livingstone, 2009), often describing the negative consequences of the media’s infiltration of social institutions, especially in the political sphere (Mazzoleni and Schulz, 1999). In fact, Mazzoleni and Schulz (1999: 249) claim that the very term ‘mediatization’ ‘denotes problematic concomitants or consequences of the development of modern mass media’, and describe the distortion of the functioning of democracy feared by critics due to the mediatization of politics. In the legal sphere symbolized by the blindfolded Justitia, any outside influences are regarded as irrelevant and detrimental to the ideal process (Bybee 2010; Karpin 2002). This is particularly true of the influence of the media, which are regarded as almost the antithesis of the law.
Indeed, there is a distinct difference between media logic and legal logic. While the law requires in-depth rational analysis of each piece of evidence, so that procedures may be long and drawn out, media rhythms, grammars and formats favor quick and skeptical reports that are often characterized by superficial results-oriented ‘horse-race’ style coverage (Brants and van Praag, 2006; Stromback, 2008). Whereas the law seeks to resolve conflicts, the media seek to accentuate conflicts; judges conduct deliberations behind closed doors, sometimes using gag orders to limit public knowledge whereas the media favor transparency and seek to reveal and expose; judges have traditionally downplayed their own persona, using clothing and language to divert attention from themselves as individuals, whereas media logic demands the personalization of events in order to tell a dramatic story (Rosen-Zvi, 2005; Wolfsfeld, 2011).
Nonetheless, despite the myth of judicial immunity and the incompatibility of media and legal logic, our analysis has shown ample evidence of the mediatization of the legal sphere in Israel. Thus we found indications of closer relationships between the legal system and the media, and changes in the perceptions by judges, lawyers and legal correspondents about the status and preferred nature of media–court relations. We discovered growing importance accorded media conduct within the legal community in the actions and decision-making of legal professionals. Lawyers and judges gave examples of media considerations affecting the hearing of cases, the level of sentencing, the conclusion of plea bargains, professional prestige and advancement, as well as causing conflicts and rifts among members of the legal community, provoking officially prohibited contacts with and leaks to reporters and generating a feeling of powerlessness vis-a-vis the media. Similarly, we found that the increase in legal stories in the media and the subsequent greater transparency about the law led to innovations in legal reporting, virtual trials in the media, journalistic cynicism about the motives and actions of legal professionals and a rise in the status accorded to media actors who cover legal affairs, in addition to the blurring of ethical boundaries by both legal and media professionals. However, all professionals were wary of continued mediatization effects, and both sought to contain the involvement of the media in the legal process.
Thus, instead of the term ‘mediatization’ used in the political sphere, which seems to imply the subsuming of politics to media control, we suggest using the term ‘judinalism’, 6 to describe the interface that has developed between the media and the legal system, and the implications of the intense, critical and commercial media coverage for the status of law in Israeli society. The concept of judinalism is a combination of the words judicial and journalism. In this arena of interaction, judges continue to claim their immunity from extra-legal influences and try to keep the decision-making process behind closed doors, while media actors demand transparency and seek exposés to increase ratings. In the judinalism sphere, journalists may adopt a judicial role regarding the guilt or innocence of defendants, particularly celebrities being tried in court. In this sphere the media often affect the decisions and the practices of the main players, as well as their perceived power vis-a-vis the other actors. Thus judinalism is also an arena of rivalry for prestige and social power, and can become the locus of conflict, mistrust and competition among legal actors.
However, in the judinalism arena, there are contradictory processes of acceleration and moderation of the impact of the media on the legal realm in Israeli society. In contrast to the terms ‘demediocracy’ and ‘telepopulism’, coined by political media researchers (Caspi, 2007; Peri, 2004) to describe the merger between the political arena and the media, the term ‘judinalism’ takes into account both the mediatization of the legal sphere and the factors that serve to mitigate this process.
Both institutional and cultural factors come into play to limit the mediatization of the legal sphere. As Schrott and Spranger (2006) have noted regarding the political sphere, institutions that display a high level of formalism and a lack of transparency of the decision-making process curb the mediatization process, even when there is strong interest and intense media coverage. Thus, in the legal sphere, constraints on the judges’ ability to conduct interviews or to bypass the official channels inherently limit the information available to journalists. Similarly, formal constraints, such as gag orders or sub judice laws exist and are occasionally used to control media reports of judicial proceedings.
Brants and van Praag (2006) have suggested two factors that limit the negative and cynical reporting they use as indications of the mediatization of politics in the Netherlands: a political culture of non-adversariality that comes with consensus democracy, and the strong influence of public broadcasting values. Similarly, Stromback and Dimitrova (2011) suggest that political news culture, journalism culture and political communication culture may affect the mediatization of news content.
In our study, we found that the traditional view of the importance of an independent judiciary for achieving justice, and the perception of the basic validity of the law and trust of those that work in its service, still have a strong hold on the participants in both the media and legal realms. Although there were differences expressed by younger and older actors about the importance and nature of media strategies that reflect the increasing mediatization of the legal sphere, there was a consensus across professions and age groups about the independence and fairness of the Israeli legal system. This shared ideological commitment of the journalists as well as of the legal professionals to a just legal process seems to provide a brake on the mediatization process of the legal sphere, and opens the realm of judinalism. In this sphere, there is room for adaptation to the demands of increased media involvement and an appreciation of the opportunities that these media provide, as well as a basic concern expressed by all the actors for the preservation of a legal process that is fair and just. It is precisely because the term ‘mediatization’ has been associated with the negative consequences of an all-powerful media that we have suggested the term ‘judinalism’ to describe the new interactional arena between media and legal actors, a term that includes the social, cultural and professional concomitants of the new media environment, and the pressures and limitations of media power in the legal sphere. Thus, in addition to the negative impact of the media, the judinalism sphere includes the positive aspects of increased media-legal interaction, such as the expansion of public discourse about legal matters and legal experience, the greater transparency and visibility of legal institutions, and the exposure of a wider public to legal logic that potentially contributes to a more extensive democratic discourse.
The concept of judinalism offers a nuanced account of the mediatization process in powerful traditional social institutions that have been relatively immune to media interventions. It provides a basis for comparison with other social institutions that have lately had to cope with increasing media pressures, such as the military or the church. In addition, it invites comparison with the factors that impede and accelerate the mediatization of the law in other legal systems, such as in civil law countries where judges basically control the process, and there is a less prominent role for lawyers. By focusing on the experiences and perceptions of legal and media actors rather than on media content, this study has provided an assessment of the ways in which media actors adapt and internalize media logic (Stromback, 2008), an area that has thus far been theorized rather than empirically examined. Whether the sphere of judinalism appears among legal and media actors in other jurisdictions, and what form it takes, is a question for continuing research.
At the end of our journey in this unploughed field of research we assume that the blindfold has been removed from one of Justitia’s eyes in that the media do in fact affect various aspects of the legal process; however, both the legal and media communities are interested in maintaining the distance that at least part of the blindfold affords.
Footnotes
Acknowledgements
Earlier versions of this paper were presented at the meetings of the Israeli Communications Association and the International Communications Association in 2011. We thank the participants at the conferences for their useful comments, and we would especially like to thank Jay Blumler, Gil Gies and Sam Lehman-Wilzig for their comments and encouragement at various stages of this project.