After SCOTUSblog announced that it would be providing only facts and no analysis of cases involving the law firm that financially supports the blog, commentators questioned the viability of SCOTUSblog’s mission to provide objective, impartial coverage of Supreme Court cases. One legal blogger went further to argue that there is “no such thing as viewpoint neutrality in any form of publishing,” and that the blogging revolution has released us from having to hide behind “false objectivity.” I disagree. Although neutrality is impossible to achieve, objectivity is an honorable aspiration that betters the quality and trustworthiness of news or analysis. The difference between the approaches of the sensational docu-series Making a Murderer and the popular podcast Serial reveal important lessons for maintaining objectivity in legal blogging — and extend beyond, to legal teaching and approaches to the law generally.
Neutrality and objectivity are distinct concepts. Neutrality is the absence of biases or preferences. Objectivity is the ability to form positions or analyze information without incorporating one’s prejudices. Neutrality is unattainable and likely not even desirable. We cannot assess data without priors about, at the most abstract levels, what is good (saving human life, informed voters, reasoned decisionmaking). Even at baser levels, everyone approaches a story or a case with beliefs about the world and favored parties (the government, the little guy, the straight-talker). Objectivity is, however, a laudable goal. This goal can never be fully realized, because people cannot eliminate high-level beliefs about social goods or even preferred methods of reasoning that inform their analysis. But legal bloggers can attempt to analyze the merits of cases, the strength of precedent, and the coherence of logic in a way that is divorced from one’s underlying preferences about either the parties at issue (at the crassest level), the ultimate outcome, or the rights at stake.
Making a Murderer, which chronicles the false rape conviction and subsequent murder prosecution of Steven Avery, presented as neutral in tone but seriously compromised objectivity. The tone of Making a Murderer was ostensibly journalistically neutral – not appearing to favor either side – although the directors manipulated the presentation of facts to make Steven Avery appear more sympathetic while (perhaps rightfully) demonizing the prosecution. The directors allowed their non-neutral partisanship to affect their objectivity. I thoroughly enjoyed Making a Murderer, as much as one can enjoy 10 hours of overwhelming anger at a failing legal system, but I felt manipulated by the end, and now I have no idea what to think about Avery’s guilt or innocence. For example (SPOILER ALERT) it turns out that many blood vials in forensic facilities have a hole at the top, although the docu-series presented this evidence as surely indicating that the prosecution had used Avery’s blood to frame him for Teresa Halbach’s murder. Luckily, our open Internet has allowed facts and analysis to surface that were obscured by the denied advocacy of Making a Murderer. (Perhaps Avery’s guilt or innocence is beside the point, and the real takeaway from the docu-series is our poorly functioning legal system. If that is so, an objective presentation of the evidence would allow us to see this without worrying that the presentation of this issue was also skewed.)
On the other hand, Sarah Koenig, the narrator in Serial, approaches cases with clear non-neutrality. She seemed to have quite the crush on Adnan Syed, the defendant whose potential innocence was the subject of Season One of Serial. Koenig also states her opinions and evaluations of her subjects up front and insets herself into the story as she evaluates the evidence. But I trust Koenig. I believe that she tries to be objective; she is truly struggling with efforts to get to the bottom of what really happened in both seasons of Serial. She endeavors to give the listener an accurate representation of the available information.
This difference between Making a Murderer and Serial resembles the distinction I teach my students between writing an objective memo and a persuasive memo. Objective memos analyze legal issues to predict how a court will likely come out. Persuasive memos, like advocacy briefs, write to convince others to adopt their position. Both memos are an exercise in persuasion – both are trying to convince readers to see the world as the writer does – but one begins with a genuine search for the “right” answer (in this case a prediction), while the other allows its biases to dictate its analysis.
Legal blogging is not neutral. As the author of this blog, I care deeply about First Amendment rights and usually want courts to interpret speech rights broadly. However, when I analyze free speech cases, I also present to readers the other interests that are in tension with free speech (right to privacy, civil rights), so that readers can follow my reasoning but make ultimate evaluations for themselves. I provide analysis, but I attempt not to unfairly skew the presentation of information in the direction I favor. I will try to evaluate the Justices equally, and I will attempt to be non-partisan in my presentation of issues. “False objectivity” is clearly problematic, but aspirational objectivity (especially if disclosing one’s priors) allows blogs to be trustworthy sources of information.
Claiming that no journalist, blogger, or even judge can be either objective or neutral is a cop out. Pure states of these terms are platonic ideals, but we can aspire to do a better job admitting our priors and not allowing them to cloud our analysis. As a teacher, I try to keep my priors to myself to avoid affecting the discussion. When this is impossible, especially at very abstract levels of overall approach to the law, I admit my priors but make very plain to students that they may take other approaches. Journalists and judges, who must appear neutral and cannot overtly display preferences, can attempt to judge all parties and cases equally according to the same interpretive principles. All we can do is try.