Today there are obvious reasons to believe that the third and fourth branches of power, the courts and the media, have developed a serious distaste for each other, and that this dislike is so strong that there is no room for a mutual compromise. Both operate in an atmosphere of distrust and suspicion, a situation that doesn’t benefit anyone. It’s no surprise that both branches — not to mention ordinary citizens — are unhappy.
The necessity of reconciling the courts and the media is an issue not only for Russia. The problem is international, and the development of effective cooperation between the two branches has been achieved in numerous counties. Peter Solomon Jr., a prominent Canadian lawyer, has stated that the challenge of improving court-media relations starts with recognizing that judges and journalists tend to have a negative image of one another and a relationship based on suspicion, if not outright antagonism, from the start. Solomon emphasizes that in the absence of a commitment to judicial transparency and a recognition by both sides of the necessity of the other, judges blame journalists for mistakes or biases in their reporting, while journalists blame judges for not making necessary case information available in a timely fashion. This problem was common in the United States forty years ago, before the gradual appearance of court press secretaries, online court information, and a variety of special programs and measures aimed at improving relations, including a committee of judges and journalists that ensures first hand contact and an exchange of perspectives.
Unlike many other countries (both common law countries and continental law ones), in Russia — regardless of the regime in place — public opinion demonstrates a negative attitude towards the courts and judges. Before 1917, judges in tsarist Russia were disliked and unpopular, a situation well-described in the books of the great Russian writers Nikolai Gogol, Alexander Ostrovsky and Fyodor Dostoyevsky. Their unforgettable characters and comments provide a grim picture of public perception of the judicial profession in tsarist Russia. These unattractive features were obvious not only for the best XIX century Russian writers: the political elite was also aware of this fact, as evidenced by Alexander II’s reforms. These reforms took place in the 1860s, when Russia was an absolute monarchy with no separation of power, no parliament, and no Constitution. Under these circumstances, Alexander II vested the judiciary with the status of a comparatively independent authority. For the first time in Russian history, the courts were separated from administrative agencies, and Article One of the first act of judicial reform approved on November 20, 1864 began with the words “Judicial power…”
In the Soviet Union, a judicial career was one of the least prestigious professions and was not sought after. The heavy involvement of the Soviet courts in political repression and witch-hunts also contributed to people's dislike of the courts. After the dissolution of the Soviet Union and the emergence of an independent Russian state, judges were divided into two groups: those who got a legal degree under Soviet rule and those of the next generation who never practiced under Soviet rule. This is illustrated by surveys, especially one conducted in 2007-2008 by the INDEM Foundation within the framework of the project entitled “Judicial Reform in Russia: An Institutional and Societal Analysis of The Transformation, An Assessment of Results & Future Perspectives.” The in-depth interviews conducted with different legal professionals showed that the respondents found considerable differences between the judges who practiced under Soviet rule and those who became judges in post-Soviet times. While making a judgment or passing a sentence, older judges took into consideration the circumstances that affected the parties involved in the process. Judges from the new generation usually made their judgments or passed sentences based only on the letter of the law (even this is an idealization since quite often the new generation of judges base their judgments on secondary legislation and often ignore the incentives of fairness and the circumstances of the offense). Sociological data clearly shows, however, that both the old school judges and the new ones are as unpopular as their colleagues from the Russian Empire and the Soviet Union.
Surprisingly, the attitude of the Russian public towards journalists is more tolerant than in many other countries. Here it is important to point out that in the 19th Century, a huge majority of Russian writers were very active in journalism, mainly because it was a good way to earn a living. Russian writers and poets like Nikolai Nekrasov, Fyodor Dostoyevsky, Ivan Goncharov, and others practiced journalism, and Goncharov's famous “Myriad of Agonies” was first was published as an article in the European Reporter magazine. The famous newsmagazine Annals of the Motherland had a bookish tone and published the writings of many famous Russian writers. But all of them were writers first before journalists, and their articles rarely contained sharp criticism, mainly because within the social and political context of Russia at that time, it was very dangerous to criticize the monarchy. The few who did took a serious risk, where the mildest penalty would be lifetime disgrace. An example is Lev Tolstoy’s famous article “I Cannot Be Silent,” where he vigorously protested against the escalation of capital punishment in Russia since Petr Stolypin became the Minister for Internal Affairs and the Chairman of the Council of Ministers. In some cases, the publication of articles containing accusatory statements could result in imprisonment or a sentence of hard labor and exile to Siberia, which was the case for Nikolai Chernyshevsky. It’s no wonder that the so-called muckrakers (a term used by President Theodore Roosevelt in 1906) didn't become an important social phenomenon in the Russian Empire. The point was not the absence of talent, but the absence of circumstances that allowed sharp criticism of the existing social system.
The journalistic activity of Russian writers increased somewhat at the end of the first decade of the 20th Century, and many representatives of the “Silver Age” of Russian culture turned out to be talented journalists. Of course it didn’t mean that all pre-revolutionary print media were equal to Annals of the Motherland, Satirickone and New Satirickone, and that all the authors possessed the talent of Mikhail Saltykov-Shchedrin, Nadezhda Teffi and Arkady Averchenko. Naturally there were tabloids specializing in “yellow journalism,” but the existence of strict censorship and the possibility of criminal prosecution created very unfavorable conditions for “yellow journalists” and prevented the phenomenon of a “yellow press” from becoming a hot issue in the Russian Empire.
In Soviet times, society hardly had a chance to develop a dislike for journalists due to the totalitarian political regime. During almost the entire Soviet period (in other words, until the first years of perestroika) neither a “yellow press” nor muckrakers were a real presence. The totalitarian regime that existed exercised censorship and strict ideological control via the Communist Party of the Soviet Union, leaving no room for freedom of the press. The model typical for countries without democratic political regimes dictated that the responsibility of the media was to transfer the instructions and ideas of the political elite to the people. Within the framework of this model, the Soviet media operated on the following principles :
- the activity of the media shall not undermine the existing regime;
- media materials shall not critique the dominant political and moral values of the political regime in question;
- censorship is justified by the necessity of the realization of the aforementioned principles;
- criticism that targets the government and contradicts the dominant political mainstream can result in criminal prosecution;
- journalists and employees of media organizations are not independent.
The “yellow press” phenomenon took shape shortly after the beginning of perestroika, and Russians had many reasons (both real and artificial) to develop a strong dislike for journalists and to support the message contained in the novel “Second Oldest Profession” by American writer Robert Sylvester. The crucial turning point was right before the start of 1992. On December 26, 1991 the Union of the Soviet Socialist Republics officially ceased to exist. The day after, December 27, 1991, the Law of the Russian Federation “On Mass Media” was adopted. This law proclaimed the freedom of the press, the prohibition of censorship, and symbolized the beginning of a new era, the era of independent journalism in Russia. That was also the start of a new stage of court-media relations.
To be continued.
