The new court of public opinion

“The new court of public opinion is a basketball court. Everyone gets their own ball (opinion). Everyone plays by the rules they consider fair.”

In 2015, a pharmaceutical executive named Martin Shkreli hiked AIDS drug prices by 5,000 percent. Of course the media had a field day — here was an un-ambiguously unlikeable guy being an un-ambiguous douche to AIDS patients. There was hardly a need to influence public opinion here.

The hitch? Due to all the negative exposure he received, Shkreli faced extreme difficulty finding an impartial jury this year, for unrelated charges of fraud.

From a Harper’s transcript of jury selection:

The court: “The purpose of jury selection is to ensure fairness and impartiality in this case. If you think that you could not be fair and impartial, it is your duty to tell me. All right. Juror No. 1.”

Juror No. 1: “I’m aware of the defendant and I hate him.”

Benjamin Brafman, Shkreli’s lawyer: “I’m sorry.”

Juror No. 1: “I think he’s a greedy little man.”

The court: “Jurors are obligated to decide the case based only on the evidence. Do you agree?”

Juror No. 1: “I don’t know if I could. I wouldn’t want me on this jury.”

The court: “Juror No. 1 is excused.”

What’s the court of public opinion?

“Innocent until proven guilty” is, technically, our standard.

Traditionally, a judge decides what evidence to allow and a jury of peers decide upon a verdict. Personal feelings, outside knowledge, and pressures from friends and family expressly should not factor into this verdict. Legal cases are not meant to be argued outside of the courtroom, or decided on gut and bias.

The informal court of public opinion has operated alongside our legal system for decades. The term is used to describe advocates on both sides of an issue using media to influence public opinion, and in turn, the jurors and verdict. The courts are well aware of this issue: Juries are selected carefully and sometimes cloistered during trials to try to avoid the influence of public opinion.

In 2017, we reached a vital landmark with Shkreli’s difficulty finding a jury of unbiased peers. With the rise of social media platforms and the 24-hour news cycle, we’re able to saturate public opinion.

Media storms surrounding trials are not unusual. Consider the coverage surrounding the Rodney King beating, the O.J. Simpson trial, and Trayvon Martin’s shooting. In each scenario, the media curated evidence and expert opinions, encouraging people outside of the courtroom to become a shadow jury. They elevated the importance of viewers’ individual opinions on the accused’s guilt or innocence.

Disbelief in the evidence, the judgment, or sometimes the court itself became the story.

Traditionally, trust in the courts has been strong enough for citizens to accept official judgments, even if they disagree. But over the last decade, backlash after judgments that the informed public see as “incorrect” has been increasing.

Remember the shock that followed the Zimmerman acquittal, or when the death of Casey Anthony’s adorable daughter was not avenged? The media, in both cases, extensively covered dissenting opinions from the public.

A jury is asked to hand down a verdict on very specifically worded charges, only referring to evidence that has specifically allowed. Convinced of our own opinions, it is easy forget that the jury is not being asked simply “guilty or not guilty.”

This isn’t inherently a problem. But each decision that the public is groomed to reject can fuel the decline of faith in justice through the courts.

2018: predicting a retreat from fact to opinion

In 2017, the court of public opinion became a diaspora, and personal opinion officially supplanted data and evidence. We’ve left the model of the traditional court, with a commonly accepted set of evidence, behind.

The new court of public opinion is a basketball court. Everyone gets their own ball (opinion). Everyone plays by the rules they consider fair.

It’s fucking madness.

In 2017, a new journalistic standard has been set. The court of public opinion may be invoked to build support for issues that cannot be decided in a court of law. Winning the war for public opinion is tantamount.

Vice, Vox, CNN and a host of other media organizations flooded the state of Alabama with reporters ahead of December’s Senate election. The overwhelming question? “Is Roy Moore a man of god or a child molester?”

I am sitting in a cafe in Los Angeles right now, listening to a group of women explain how they know certain men who have been accused of sexual harassment are guilty, and how they know other’s aren’t.

“He’s a personality. They’re always going to look for oppo research.”

“Now they’re digging into everybody. Looking for everything.”

The problem here is not that these women have formed opinions. The problem is that, increasingly, media organizations are serving as the judge, deciding which evidence to uphold or dismiss.

Worse, they’ve recruited us all as players in their jury. Suddenly, having a defensible opinion is the point. Not truth, or justice.

This is an unhealthy and unsustainable trend.

Using public opinion for good

The court of public opinion is not inherently evil, and there are scenarios that should be argued in the public rather than cloistered in private arbitration. Elements of the #metoo discussion highlight the value of public deliberation. Since redress mechanisms across industries proved unable to justly resolve complaints of sexual harassment and sexual assault — the media was right to step in.

  • Transparently formed definitions: The definitions and weight of sexual harassment and sexual assault are not commonly agreed upon. Arguing the issue in the media can help the public reach common definitions and avoid talking past each other.
  • Cooperatively formed norms: The high visibility processing of those accused can helped cement changes in policy and behavior. Companies across industries are revising harassment reporting policies.
  • Shines light on miscarriage of justice: Media organizations can shine light when existing redress mechanisms are corrupt or opaque. For example, when those with money and influence, like Harvey Weinstein, are held to different standards of justice or protected by allies.

Using public opinion for evil

Journalists and media organizations should carefully police their interventions in public opinion for the following negative effects.

  • Wedging and polarization: Asking if Roy Moore is a saint or predator forces a person to choose an extremely polar side, and occasionally to defend the indefensible. We all probably agree pedophilia is abhorrent, but reporters ask supporters to defend pedophilia alongside Moore.
  • The death of complexity: Forcing people to choose simplistic “sides” reduces complex issues to binary choices. Instead of examining opinions on individual evidence or the nature of specific charges, increasingly media organizations are asking for a thumb up or down on the “villain” in the storyline. When we gloss over complexity we push decision-makers towards overly simplistic solutions, or inaction.
  • The substitution of opinion for fact: When facts are unknown or complex, but a yes or no answer is required immediately, the public is driven increasingly to go with a gut instinct or opinion. Dismissing fact for opinion is more comfortable than changing your worldview — the behavior can be self-reinforcing.

Holding media organizations accountable

Convening the court of public opinion is both an important public service and a dangerous trend in discourse.

In the court of public opinion, media organizations play the stewards of evidence, the prosecution and the defense. As we enter 2018, it is important for these actors to understand the impact of this role upon both individual opinions, collective understanding, and resulting policy.

Caitria O’Neill is a UX designer and researcher, formerly at Facebook.

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