MUTUAL BONDS: MEDIA FRAMES AND THE ISRAELI HIGH COURT OF JUSTICE Bryna Bogoch and Yifat Holzman-Gazit* Law & Social Inquiry (2008) This study examines the coverage of the Israeli High Court of Justice (HCJ) in the popular and elite press over a period marked by growing activism of the Israeli Supreme Court and an increasingly adversarial and critical media. Our results show that more prominent coverage of the HCJ over time, especially in the elite press, accentuates the salience of the Supreme Court in public life. In addition, the topics, the stages of the HCJ proceedings, the petitioners, and the outcome of the cases covered by the press and the generally uncritical reporting of the Court decisions help create the frame of an autonomous, powerful Court which frequently opposes and restrains the government. We suggest that the pattern of media coverage of the HCJ benefits both the Court and the media: it reinforces the image of the media as a critical watchdog of the government, while at the same time it legitimates the Court’s expansion of power and strengthens its image as an apolitical and independent institution.
Introduction There is a growing recognition among socio-legal scholars of the importance of the study of cultural depictions of the law, particularly in the mass media and popular culture (Sarat and Simon 2003; McCaan and Haltom 2004). Not only is the media the main source of knowledge about the law for the public at large, but it is also an important resource for legal professionals and members of the political elites as well (Friedman 1989; Edelman, Abraham and Erlanger
*
This research was undertaken with the financial support of the Israel Trustees Fund Grant 2002-2004 and a grant from the research fund of the Department of Interdisciplinary Social Sciences, Bar Ilan University. We are grateful to Lawrence Friedman, Ruth Gavison, Sam Lehman-Wilzig and David Wood for insightful comments and feedback on earlier versions of this paper, and to the anonymous reviewers for their very helpful suggestions. Our thanks to our energetic and capable research assistants Yael Amid, Shoshi Goldberger, Dalia Kaplan, Tami Kazabian, Adi Lederman, and especially Nili Shor-Tabachnik for coordinating the questionnaire composition and testing stage of the project, to Efi Grossman and Yoel Bogoch for programming and statistical assistance, to Hana Kupfer for her tireless efforts during the publication stage of the research reports, and to Adam Vital, whose editing improved much more than the language of the paper. Earlier reports of this research were presented at the Annual Meeting of the Research Committee for Sociology of Law, International Sociological Association, Puerto Rico, August 2004 and at the Annual Meeting of the Law and Society Association, Las Vegas, June, 2005.
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1992; Kremnitzer and Linder 1997; Jamieson 1998; Slotnick and Segal 1999). Because the media shapes the public agenda and constructs the legitimacy of substantive issues and institutions through the frames it uses (e.g., Gamson et al., 1992; Van Dijk 1995; Avraham 2003; Entman 2004), public knowledge, awareness and respect for judicial institutions are associated with the scope and nature of media coverage (Grey 1968; Caldeira 1986; Jamieson 1998).1 Despite the global trend to judicial activism (e.g., Tate and Vallinder 1995; Hirschl 2004) and the acknowledged role of the media in shaping public awareness and attitudes to supreme courts (Gibson, Caldeira and Baird 1998), very little empirical research has been conducted on the media coverage of supreme courts outside the United States and Canada (Gies 2005).2 This study of the patterns of press coverage of Israel's High Court of Justice (HCJ) not only presents a case study that is interesting in its own right, but also provides a unique vantage point for the study and analysis of the nature of the relationship between supreme courts and the mass media. In Israel, as elsewhere, there has been an expansion of the role of the Supreme Court and a growing media concern with "rights consciousness," alongside a shift to a more aggressive style of journalism. These trends are not unique to Israel. Studies of the coverage of the Supreme Courts of the United States and of Canada—countries that have witnessed similar developments— have found that these trends have resulted in increased, though still sporadic, coverage of specific cases, particularly those involving civil rights and those with immediate political significance that emphasize easily identifiable winners and losers. These studies have also shown that coverage of Supreme Court decisions and of the Court as an institution has remained largely favorable, despite occasionally sharp criticism (Newland 1964; Haltom 1998; Slotnick and Segal 1998; Perry 1999; Spill and Oxley 2003; Entman 2004; Sauvageau, Schneiderman and Taras 2006;). Some have claimed that instead of providing critical and skeptical coverage of the Supreme Court, the U.S. media has been co-opted into producing the public image that the Court seeks to foster, essentially serving as the Court's publicist (Paletz and Entman 1980; Davis 1994; Haltom 1998; Jamieson 1998; Kennedy 1999). It is precisely the unique function of the Israeli HCJ, whose sole purpose is to hear petitions against state entities and actors, that invites consideration of the wider political implications of the media coverage of supreme courts. Because all petitions filed with the HCJ are complaints against state actors and institutions, the HCJ is inevitably situated in opposition to the government of the day, the Knesset (Israel's parliament) and other public institutions. Israeli governing coalitions have become increasingly fragile in the last two decades, and political bodies have been substantially weakened, while the Supreme Court has gained power (Barzilai 1999; Peri 2004; Yadlin 2003). Thus, we argue, coverage of the HCJ by both elite and popular newspapers typically frames the Court as a powerful, rule-governed, effective protector of the citizen against corrupt, selfinterested or merely incompetent politicians and bureaucrats.
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This depiction serves the interests of both the media and the Court. For the media, the typically non-critical coverage of petitions to the HCJ matches the increasingly adversarial and critical agenda of the press, and helps to maintain its image as the aggressive watchdog of democracy. For the Court, the supportive and extensive media coverage both inspires and reflects the image of an apolitical and independent Court and possibly provides legitimacy for the expansion of the Court’s power at the expense of the other branches of government. Agenda Setting and Media Frames Although the exact nature of media influence continues to be debated in communications literature (e.g., Peter 2004), it is widely accepted that the media set the public agenda by determining the salience of issues, institutions and individuals (McCombs and Shaw 1972; Scheufele 1999). Prominent and frequent coverage by the media establishes the importance of issues in the eyes of the public, with stronger effects noted for those matters that go beyond the realm of personal experience (McCombs and Shaw 1972). Moreover, not only does the media determine what we think about, but there is evidence to suggest that it also influences how we think about these issues (Bar-Tal and Teichman 2005). The concept of "frames" has been used to describe the media's role in "selecting and highlighting some facets of events or issues and making connections among them so as to promote a particular interpretation, evaluation and/or solution" (Entman 2004, 5). Often, the particular frame that is used—i.e., the interpretation or evaluation that is promoted—is consonant with elite interests and understandings (Avraham 2003; Entman 2004). Thus, it is through the patterns of coverage and framing that the media is said to "promote ideologies and values [that] reflect the prevalent power structure" (Avraham 2003, 16). Nonetheless, others have challenged this monolithic view of framing, and claim that media preference for frames such as "power corrupts" can on occasion result in adversarial and even subversive coverage (Wolfsfeld 1997; Sauvageau et al. 2006). Elite and Popular Newspapers Media studies have traditionally distinguished between elite and popular newspapers. Elite newspapers are regarded as professional papers and enjoy the reputation of credibility, accuracy, objectivity and fairness, whereas popular newspapers are often viewed as providing low quality, unprofessional infotainment (Roeh, 1993; Ericson 1995). The two types of newspaper, it is said, provide distinct accounts of events, and highlight different topics and actors (Ericson, 1995; Taras 2000). Recently, critical scholars have challenged these traditional images and have offered an alternative assessment of the difference between the elite and popular press. They claim that the elite press echoes the voice of ruling elites and provides a forum for experts and institutional speakers, while the popular press gives more exposure to non-professionals and to peripheral or oppositional groups (Schlesinger, Tumber and Murdock 1991; Roeh 1993).3 Still others claim
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that news formulas, audience and advertising pressures, journalistic practices and hegemonic values and meanings conspire to produce news that is roughly similar regardless of the outlet (Nir and Roeh 1992; Haltom 1998; Jamieson 1998; Taras 2000). Media Coverage of the U.S. and Canadian Supreme Courts Systematic studies of the news media portrayal of the Supreme Court of the United States and Canada have found that, except for a limited number of cases that receive extensive coverage, news about the Court is generally infrequent, limited in content and largely results oriented (Newland 1964; Graber 1997; Haltom 1998; Sauvageau et al. 2006). Aside from judicial nominations, rarely are either the U.S. or Canadian Supreme Courts covered outside the frame of specific decisions (Davis 1994; Haltom 1998; Sauvageau et al. 2006).4 Moreover, only a small proportion of cases decided by the U.S. Supreme Court are covered (Haltom 1998; Davis 1994; Slotnick and Segal 1998; Spill and Oxley 2003). In the United States, the cases that are covered are primarily those that deal with subjects of proven public interest such as civil rights, discrimination and the First Amendment (e.g., Larson 1985; O'Callaghan and Dukes 1992; Slotnick and Segal 1998). In Canada, coverage was by and large limited to politically charged cases that were presented almost exclusively through a political lens (Sauvageau et al. 2006). The legal importance of a particular decision was rarely found to be a reliable predictor of coverage (Katsh 1983; Slotnick and Segal 1998; Sauvageau et al. 2006),5 and some commentators have suggested that the press ignores truly precedent-setting cases in areas such as banking, taxation and administrative law (Perry, 1999; O'Callaghan and Dukes 1992; Spill and Oxley 2003). Research has also revealed that, as a result of a combination of media constraints and the restrictive media policies of courts, coverage of the U.S. Supreme Court differs considerably from the typically skeptical coverage of other state institutions (Davis 1994; Haltom 1998). The claim is that without access to alternative sources of information such as interviews and leaks (Paletz and Entman 1980; Haltom 1998; Kennedy 1999), reporters covering the Supreme Court, who have not necessarily received legal training (Davis 1994; Haltom 1998),6 uncritically disseminate the opinions that the Court has conveniently digested for them, and in effect thus cooperate with the Court in conveying an image of a highly professional, dignified, independent, apolitical institution. The Supreme Court of Israel The Supreme Court of Israel has two distinct functions. One is as the final Court of Appeals, in which it hears appeals in both civil and criminal cases. The other is as the High Court of Justice (HCJ), which has original jurisdiction over petitions seeking relief from administrative decisions of public agencies. Judgments of the HCJ are final and cannot be appealed (Har-Zahav 1991; Dotan 2000).
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A person who has reason to believe that an action of the state or a public agency has violated her legal rights may petition the HCJ and apply for an order nisi, which the Court will issue if it decides that the complaint has merit and is justiciable. An order nisi requires the public entity to explain why it will not accept the demands of the petitioner, and is often accompanied by an interlocutory order preventing the public agency from further action for a specific period of time.7 The Court will then hear the explanation of the public agency, and it can either nullify the order nisi (i.e., dismiss the petition) or make it absolute (i.e., accept the petition). A total of 1330 petitions were submitted to the HCJ in 1996, and 344 orders nisi were issued.8 It is mainly for its actions as the HCJ that the Supreme Court of Israel has developed a reputation of being a powerful, influential and activist court. Although Israel has no written constitution, from the beginning the Court developed, through its decisions against state agencies and administrative regulations, a jurisprudence of basic civil rights, such as freedom of speech and association, freedom of religion, freedom of occupation and freedom of movement (Zamir 1990; Sharfman 1993; Gavison 2003). In the first three decades of its existence, within the prevailing ideology of legal formalism, Israel's Supreme Court drew a sharp distinction between politics and law. Petitions involving issues of foreign policy, military actions and other questions concerning sensitive political matters were considered unsuitable for judicial determination and therefore non-justiciable (Dotan and Hofnung 2005). In the 1980s the Supreme Court substantially reduced the requirements for proving standing and justiciability, allowing more petitioners to reach the Court. The Court also applied new standards of judicial review based on the doctrines of reasonableness, rationality of the decision-making process and proportionality to decisions which until that time had been traditionally immune from judicial oversight, such as decisions of the various state security organs (Zamir and Zysblat 1996; Dotan and Hofnung 2005). In 1992, in what has been hailed as a constitutional revolution (Barak 1992; Gavison 2005), two Basic Laws on human rights were enacted by the Knesset.9 These Basic Laws have been applied by the Court in a number of controversial decisions, including on matters of collective identity, distributive justice and administration legitimacy. The Basic Laws allowed these disputes to be phrased as rights entitlements and value issues, and thus subject to judicial review (Hirschl 2004). In addition, the Court used these Laws to claim for itself the power of judicial review of legislation, an act that in effect confirms the supremacy of the Court over the Knesset.10 The Court's role in resolving fundamental societal dilemmas based on these laws as well as on notions of collective values not only enhanced the Court's power but made it more difficult for the Knesset to contemplate overturning these decisions (Mautner 1993; Yadlin 2003).11 The increasingly central role of the HCJ in Israeli public life is thus commonly regarded as a consequence of the transfer of political power from the legislature to the Court. This shift of power occurred alongside a weakening of the country's political bodies and a growing public distrust in the good faith of
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politicians (Barzilai 1999; Gavison 2005; Mandel 1999; Peri 2004).12 Although the trust rating in the HCJ has fallen slightly in recent years, it is still higher than the trust rating accorded any other institution in Israel with the exception of the military, and considerably higher than that reported in other countries (Barzilai et al. 1994; Gibson, Caldeira and Baird 1998).13 Changes in the Israeli Media The expansion of the Supreme Court's powers of review coincided with a growth in the number of media sources available to Israelis.14 In addition, recent decades have witnessed a growth in the subjects and institutions that an increasingly competitive and investigative press scrutinizes. Since the 1980s, in light of severe criticism of the failings of the press prior to the Yom Kippur War, media professionals have approached their watchdog role more seriously (Negbi 1995; Caspi 1997; Caspi and Limor 1999; Peri 2004).15 In fact, Peri (2004) claims that, except for coverage of matters of national security, the approach of Israeli journalists to politicians has gone beyond the critical adversary model in which politicians are aggressively criticized. They have now adopted a competitive model, in which the media "do politics" by undermining the legitimacy of public institutions and officials, and compete with political institutions for the leadership of public opinion and the mobilization of the public for political actions and social legitimation. Another change that has marked the Israeli media scene is the increasing tabloidization of the popular press (Caspi and Limor 1999). However, contrary to the tabloid press in other countries, the Israeli popular press, like its quality counterpart, strongly emphasizes politics and current affairs (Peri 2004). Despite academic and popular interest, there has been no prior systematic study of the media coverage of the Israeli Supreme Court.16 We studied the coverage of the Israeli HCJ in an elite and popular newspaper at four points of time. We will compare our findings to those presented elsewhere, and then suggest how the special role of the HCJ and the pattern of coverage by the Israeli press provide a deeper understanding of the interplay between the media, the Supreme Court and the political realm. Method and Sample We selected for analysis every article mentioning the HCJ17 during the months of January, March, June and November in 1972, 1981, 1994 and 2000 that appeared in two of the three national Hebrew language dailies for the general population: Haaretz, the elite Israeli daily, and Yedioth Aharonot, the popular daily with the highest circulation in the country,18. We chose one year of each decade19 in which a different Chief Justice of the Supreme Court presided,20 avoiding years that were marked by war or terrorist activity,21 as well as months when the Court is typically in recess.22 Although selecting a greater number of years would have improved the generalizability of some of our findings, we have attempted to limit
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the factors that would have skewed the coverage of Court activities in the years that were not sampled. Altogether, our sample consists of 1334 articles. A distinction was made between those articles that dealt specifically with the HCJ, and those that referred to the HCJ in passing in the context of a different story. Each article that dealt specifically with the HCJ was analyzed by a code that examined the prominence and the media frames used in the coverage of the HCJ. The prominence of the coverage was measured by a number of variables, including the size (area) of the report, the size of the headlines, the location of the article within the newspaper, and the use of visual elements such as photographs, illustrations and other graphics. Two types of variables provided the basis for the frame analysis: (1) the type of report (i.e., a news report, opinion piece or other type of article. and the identity and profession of the writer,23 and (2) the legal issues described in the article, the stage of the proceedings covered, the identity of the petitioners and the respondents, the results of the proceedings and the evaluation of the Court's decision. In addition, other variables that were coded were the identities of the judges and lawyers, as well as the extent to which various descriptions of the Court's activities were included in the article. The coders were law or communications students, who were in constant contact with each other and with the principle investigators of the study to ensure consistency of the coding. A random sample of 5 percent of the total database of articles was double coded to examine reliability. Agreement between the coders was generally high, ranging from 78% to 100%, with an average of 94%.24 Results 1. Salience of the HCJ in the Israeli Press (a) Extent of coverage The main finding of virtually all previous studies of the coverage of the U.S. and Canadian Supreme Courts has been the paucity of the coverage and the fact that these Courts are covered mainly in the context of judicial decisions (Newland 1964; Greenhouse 1996; Haltom 1998; Slotnick and Segal 1998; Sauvageau et al. 2006). The results from Israel are quite different. Although Israel's Supreme Court carries out two distinct functions, the press is mostly interested in its role as the HCJ. Altogether, over the years covered by our research, there were only 200 articles dealing with civil appeals, and 289 with criminal appeals, compared to 1334 articles reporting on the Court's role as HCJ, despite the fact that there were somewhat more civil and criminal appeals combined than HCJ petitions.25 We suggest that the preference for HCJ stories ties in with our general thesis that these are particularly attractive to the media in that, unlike most civil or criminal appeals, HCJ petitions are directed against the activities of the government and public bodies. Table 1 presents the yearly distribution of articles in which the HCJ is mentioned in each of the newspapers. In addition, it shows the number of newspaper issues that carried articles about the HCJ each year, compared to the number of issues of the papers published during that time.
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Table 1. Number of HCJ articles and newspapers with HCJ articles by newspaper and year. Year
HCJ articles per year
1972 1981 1994 2000
Haaretz 48 84 344 426
Yedioth 29 64 154 185
Number of newspaper issues with HCJ articles Haaretz 38 56 96 101
Yedioth 24 50 69 82
Average # of HCJ articles in each issue Haaretz 0.46 0.81 3.31 4.06
Yedioth 0.28 0.62 1.41 1.76
Clearly the coverage of the HCJ has increased substantially over time in both newspapers, with a sharp distinction between the early years (1972 and 1981) and the later years (1994 and 2000). In fact, almost half of the total number of articles in both papers appeared in 2000 (48% Haaretz, 43% Yedioth). However, not only are there more articles covering the HCJ over the years, but by 2000 the HCJ had become a routine, almost necessary element in every edition of the newspaper. Whereas in the early years, only one third to one half of the issues carried items about the HCJ, in the year 2000, 101 of the 105 issues of Haaretz contained a reference to the HCJ, with slightly fewer in Yedioth (82). In fact, in the last two years of our sample there was an average of 3-4 articles on the HCJ in each issue of Haaretz and between 1 and 2 in Yedioth. Thus unlike the U.S. Supreme Court that "disappears [from the media] for months at a time (Greenhouse 1996, 1538), the HCJ now maintains a constant presence in the press.26 Although coverage of the HCJ was greater in the elite press even in the early years, the gap between the papers has widened over time. In 1981, for example, there were only 25% more articles in Haaretz than in Yedioth. By 2000, the difference between the two had more than doubled. Thus, we see that from being an infrequently covered phenomenon, the HCJ is now a common, recurrent feature in both the elite and the popular press, with an almost obligatory status in the elite press. These figures in Table 1 combine both direct and indirect references to the HCJ. Table 2 differentiates between articles that deal specifically and directly with the HCJ and those that refer to the HCJ as peripheral to the reporting of another matter.
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Table 2. Direct and indirect references to HCJ by year and newspaper. Newspaper
Haaretz Direct Indirect Total N Yedioth Direct Indirect Total N
Year 1972
1981
1994
2000
Total
94% 6% 100% 48
96% 4% 100% 84
83% 17% 100% 344
76% 24% 100% 426
82% 18% 100% 902
93% 7% 100% 29
88% 12% 100% 64
78% 22% 100% 154
69% 31% 100% 185
77% 23% 100% 432
In both newspapers there has been an increase in the indirect references to the HCJ over the years, a tendency that started earlier and progressed further in the popular press than in the elite press. Thus, while the popular press may cover fewer activities of the HCJ, it too acknowledges the importance of the Court by appending a reference to the Court to articles that deal with a wide variety of other topics. For both types of newspapers, it seems that by 2000 just mentioning the HCJ is, like sex, an automatic upgrade of the newsworthiness of the event. The indirect references to the HJC are both a reflection of its increased presence in Israeli society, and are an element in the media construction of the importance of the Supreme Court. In the following analyses, we will consider only the 1072 articles that focused specifically on the HJC. It can be argued that the growth of the HCJ coverage is due to the increase in the number of petitions filed with the HCJ and the expansion of the Court's activity. However, while three and a half times as many petitions were submitted to the HCJ in 2000 compared to 1972 (from 491 to 1686),27 the number of articles covering petitions to the HCJ28 has grown almost sixfold in Haaretz (from 45 to 255) and more than fourfold in Yedioth (from 26 to 115). Obviously the newspapers are devoting more coverage to petitions submitted to the HCJ over and above the actual increase in the number of petitions filed with the Court. The expansion of both direct and indirect coverage of the Court's activity in the elite and popular press alike keeps the HCJ on the public agenda and is an element in the constitution of the Supreme Court as a central institution in Israeli society.
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(b) Prominence of Coverage While the number of articles has often been considered the best (and most frequently used) indicator of the salience accorded a particular topic by the press (Kadman 1985), other measures such as the placement, size, use of graphics, and the type of headlines, have also been used (Deacon et al. 1999; Nir and Roeh 1992; McCombs and Shaw 1972). The location of an article on the front page of the newspaper has been used not only as a measure of media prominence (e.g., Kiousis 2004) but also (in the particular case of the New York Times) as a measure of the legal importance of a decision (Epstein and Segal 2000). Although the tabloid press in Israel has gradually reduced the number of full articles on the front page, which now is little more than a headline service for the rest of the paper, the location of an article on the front page of both the elite and popular press testifies to the importance it is accorded by the media. Table 329 shows that there has been a steady increase in the number of HCJ articles appearing on the front page in both newspapers. The increase in the quality press was more gradual, while in Yedioth, the main increase occurred in 2000. Despite the fact that in 2000 there were double the number of HCJ articles in Haaretz than in Yedioth, the two papers carried a similar number of articles on their front page (13 in Yedioth, 15 in Haaretz). For Yedioth, these accounted for 20% of the articles in that year, whereas for Haaretz, they amounted to only 10%. It seems that when Yedioth covers the HCJ, it tends to report the more dramatic stories that warrant front-page status, whereas Haaretz routinely reports on less dramatic HCJ cases as well. Table 3. HCJ stories on the front page of Haaretz and Yedioth over time. Newspaper Year 1972 1981 1994 2000 Total % of Total HCJ articles
Haaretz
Yedioth
1 9 14 15 39
1 3 5 13 22
8%
10%
Differences over time significant in Yedioth p<0.05; between newspapers, p<0.01
What is interesting is that although there is almost no difference in the number of HCJ stories that appear on the front page of the two newspapers in 2000, only one story—a decision regarding procedures related to the dissolution of the Knesset—appeared on the front page of both newspapers. This story, which attests to the power of the HCJ over the Knesset even in matters of parliamentary procedure, was covered in a series of articles in both newspapers.
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Here, the importance of a decision that in effect underlines the supremacy of the Court is confirmed by both the quantity of the coverage as well as by the location of the articles on the front page. The other HCJ front-page stories in 2000 seem to reflect the nature and ideological bent of the paper. For example, six of the front page stories in Yedioth dealt with petitions against prosecutorial decisions in cases involving infractions of norms of behavior by left-wing politicians,30 whereas in Haaretz the most frequent topic on the front page (appearing 3 times) was religion-state issues. By contrast, no religion-state decisions, which have been among the most controversial issues in Israel, appeared on the front page of Yedioth. Hence, while Yedioth gave prominence to the issues for which Court intervention is widely accepted, Haaretz highlighted the cases that were more controversial among the general public, but that are consonant with the ideology of the secular educated readership of the paper. (c) Identity of Petitioner It could be claimed that the growth in the reports of petitions to the HCJ is due to the increase in the number of public interest organizations (NGOs) that have emerged especially in the last two decades in Israel with the explicit goal of promoting social and political change (Dotan and Hofnung 2001).31 Israeli NGOs view petitions to the HCJ not only as an important avenue for achieving reforms but also as a means of gaining publicity and public support (Lebel 2005). Some NGOs maintain large legal and public relations departments that are heavily involved in petitioning the HCJ and in publicizing their efforts at all stages of litigation (Dotan and Hofnung 2001; Lebel 2005). Table 4 shows that there was indeed a steady rise in the reports of petitions by public interest groups in both newspapers. By 2000 about one third of the articles dealt with NGO petitions, compared to less than 10% in 1972. In fact, Dotan and Hofnung (2001) found that petitions by public interest groups accounted for about 12% of the HCJ docket in 1993 and 1995,32 which suggests that these petitions may even be over-reported in the media. However, while the activity of NGO's can no doubt contribute to an explanation of the increase in the media coverage of the HCJ, it cannot be the only reason. First, there was also an (albeit more modest) increase in the proportion of other petitioners reported in the media, such as business groups and public corporations. Moreover, the fact that NGOs invest tremendous energies in an effort to publicize their activities still does not explain why the media are particularly responsive to their petitions to the HCJ. Although the increase of NGO petitions may contribute to the heightened media coverage of the HCJ, we suggest that there is an additional element to petitions to the HCJ, that is related to the anti-government nature of these petitions, which makes them so attractive to the media.
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Table 4. Identity of petitioner by year and newspaper. Year Petitioner Public interest group Business group, public corporation* Politician, political party Local government groups Individuals Total N
1972 Haaretz Yedioth 2% 8%
1981 Haaretz Yedioth 8% 7%
1994 Haaretz Yedioth 23% 26%
2000 Haaretz Yedioth 36% 33%
15%
4%
20%
4%
20%
9%
25%
19%
5%
4%
17%
16%
8%
4%
14%
23%
2%
--
6%
--
5%
2%
4%
1%
76%
85%
49%
73%
45%
58%
22%
24%
100% 41
100% 26
100% 64
100% 45
100% 233
100% 98
100% 279
100% 97
* This category includes commercial organizations, such as banks and industrial companies, public utilities, such as the electric corporation, and statutory bodies, such as the health insurance funds. Effect of year significant within each newspaper p<0.001; Effect of newspapers significant for 1994, p<0.05
2. Framing the HCJ in the Israeli Press Entman's (2004) definition of framing emphasizes the selection and highlighting of certain facets of reality in such a way as to promote a particular evaluation. Some studies have shown that coverage of the U.S. and Canadian Supreme Courts is similar to the coverage of political stories, in that the game or strategy frame predominates. In this frame, the focus is on the players of the game, the strategies used, and the winners and losers (Newland 1964; Haltom 1998; Sauvageau et al. 2006). Others have asked what topics and issues are covered by the media, and what this implies about the way in which the Court is framed (Tarpley 1984; O'Callaghan and Dukes 1992; Slotnick and Segal 1998; Spill and Oxley 2003). The variables presented below allow us to determine what frames are used in covering the HCJ and to suggest how these affect the construction of the Court's legitimacy and power. (a) Stage of Proceedings The game or horserace frame that is said to exemplify the coverage of political events (Entman 2004) as well as the U.S. Supreme Court (Newland 1964; Haltom 1998) refers to the focus of the coverage on the final outcome, rather than on other stages of the process. Although the HCJ addresses the kinds
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of constitutional issues that are decided in the United States by the Supreme Court, the fact that it is a court of first and last resort involves different procedures and work schedules than its U.S. counterpart. For instance, unlike the U.S. Supreme Court, the HCJ has no set days for judicial decisions. Furthermore, the fact that judicial proceedings before the HCJ are typically divided into two stages (whether to grant an order nisi and whether to make it absolute) provide a number of turning points in the life of a petition that are potentially newsworthy. Table 5. Stage of proceedings by year and newspaper. Year Newspaper Stage of Proceeding Pre-litigation Opening litigation During litigation, before order nisi Order nisi, litigation after order nisi Decision After decision Total N
1972 Haaretz Yedioth
1981 Haaretz Yedioth
1994 Haaretz Yedioth
2000 Haaretz Yedioth
4%
---
14%
10%
7%
9%
13%
16%
7%
19%
22%
23%
29%
33%
28%
26%
27%
23%
22%
17%
23%
11%
20%
13%
13%
19%
15%
21%
9%
11%
17%
18%
49%
35%
22%
27%
28%
30%
17%
20%
---
4%
5%
2%
4%
6%
5%
7%
100%
100%
100%
100%
100%
100%
100%
100%
45
26
65
48
252
113
299
113
Differences by year significant for Haaretz, p<0.001.
Table 5 presents the stage of proceedings covered in reports on the HCJ in each year and in each newspaper. Since the 1980s, coverage of the HCJ has been extended to a wider array of Court activities. Just the intention to submit a petition to the HCJ (or the threat of submitting) is considered newsworthy, even before any legal proceedings have been initiated. Table 5 shows that in the earliest period, most reporting centered on the decision, whereas by 2000 the decision phase constituted only about one quarter of the coverage in both papers. In fact, there was more coverage of the phase prior to the issuing of an order nisi (about 60% of the articles in 2000 in both papers) than after an order nisi was issued.
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Unlike the media portrayal of Supreme Court decisions in the United States, in Israel it is not only who won or lost that is considered newsworthy, but also the process of enlisting the Court against the government or other public entities.33 Rather than a game frame, it is a due process frame (Haltom 1998) that characterizes media coverage of Israel's HCJ. Articles about the various stages of the proceedings, and even about the intention to petition the Court, keep the HCJ in the news and on the public agenda. More importantly, by reporting the process regardless of the final decision, the press emphasizes the unique rulegoverned nature of the judicial process and identifies the Court as the institution that individuals and public interest groups can turn to in their fight against the government. (b) Outcome of Decisions Another aspect of the game frame used in analyses of the U.S. Supreme Court is that when results are reported, there is an over-reporting of successes as opposed to failures (Franklin and Kosaki 1995; Haltom 1998; Slotnick and Segal 1998; McCaan & Haltom 2004). We compared the results of HCJ petitions reported in the popular and elite newspapers to data from the Central Bureau of Statistics (CBS).34 The limited data available from the CBS shows a continuous increase in the number of petitions to the HCJ, and a corresponding decrease in the success of petitions between the 1970s and 1994 (Table 6). Thus, whereas in 1972 an order nisi was granted in 45% of cases, by 1994 petitions had only a 14% rate of success. However, the granting of an order nisi does not mean that the petitioners ultimately achieved their aims. In fact, less than 10% of the order nisi were made absolute and the petitions accepted, even in the earliest period, and the success rate appears to be declining.35 A rather different story was told by the press. Table 6. Outcome of petitions to the HCJ by year (Central Bureau of Statistics).
Outcome Order nisi not granted Order nisi granted Of these: Order nisi made absolute Order nisi discharged
1972 55% 45%
1982 56% 34%
Year 1994 86% 14%
2000 No data available No data available
9% 36%
7% 27%
5% 9%
No data available No data available
N
491
667
1248
1686
Table 7. Outcome of petitions reported in the press by year and newspaper.
December 2006
Year Newspaper Outcome Order nisi not granted Order nisi granted Order nisi made absolute Order nisi Discharged Total N
MEDIA FRAMES
1972 Haaretz Ye dioth ____
1981 Haaretz Yedioth
15
1994 Haaretz Yedioth
_____
2000 Haaretz Yedioth
_____ 8%
6%
2%
10%
14%
22%
36%
36%
35%
27%
24%
41%
27%
45%
29%
20%
18%
15%
48%
31%
43%
33%
36%
36%
41%
56%
29%
18%
16%
100%
100%
100%
100%
100%
100%
100%
100%
27
14
25
17
82
42
96
37
*Differences over time, Haaretz, p<0.001, Yedioth not significant; Difference between newspapers significant in 1994, p<0.005.
It should be noted that the results in Table 7 are not entirely comparable to the data from the CBS, where the final status of cases is calculated on the basis of those petitions in which an order nisi has been granted. In the press, however, the reporting of the final result is not dependent on coverage of the decision regarding the order nisi. Nevertheless, it is clear that with the exception of the coverage by Haaretz in 1994, in both newspapers, the granting of an order nisi or a final decision in favor of the petitioner was reported more frequently than its denial.36 In other words, the press reports many more instances when the citizen succeeds in enlisting the Court to overrule the government than when the Court aligns itself with the regime. Not only is this contrary to data from the CBS, but it also contradicts a number of articles based on substantive analyses of decisions that claim that the HCJ in fact legitimates the dominant ideology and endorses government positions (Shamir 1990; Barzilai, 1996; Gavison 2005). Thus the press frames the Court as a powerful independent institution that frequently takes the government to task for violating the rights of citizens. We still have to explain the the 1994 anomaly noted above, in which almost 60% of the petitions reported by Haaretz were cases in which the HCJ rejected the petitions. One reason might be that between 1992 and 1995 Israel was ruled by a coalition led by the left-wing Labour Party, and a larger number of petitions were submitted by right-wing and religious politicians in that period than at any other time between 1986 and 1999 (Dotan and Hofnung 2005).37 The success rate of these petitions was significantly lower than those submitted by left-wing incumbents even when controlling for other factors (Dotan and Hofnung 2005). Thus, reports on the denial of petitions submitted by right-wing or religious groups are congruent with the left-wing, secular ideology of the Haaretz and would no doubt have enhanced the image of the Court among its readers.38
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(c) Topic of Decisions The subject of judicial decisions has been considered among the most important factors predicting coverage of the U.S. Supreme Court. Human rights, discrimination and First Amendment issues are more frequently covered than other, sometimes legally more significant topics (Slotnick and Segal, 1998; Perry, 1999; Spill and Oxley 2003). In Israel, complaints alleging violations of human rights by state authorities or the inappropriate behavior of public officials are lodged directly with the HCJ, and thus we expected that media coverage of the HCJ would focus on these issues. We also expected that intensified commercial pressures in more recent years would be associated with an increase of press coverage of highly divisive religion-state and security matters. Table 8: Subjects of petitions to the HCJ by year and newspaper. Year* Newspaper
1972
1981
1994
2000
Haaretz
Yedioth
Ha are t z
Yedioth
Ha aretz
Yedioth
Haaretz
Yedioth
22%
18%
25%
21%
26%
19%
30%
21%
22%
11%
28%
23%
28%
26%
25%
30%
Subject of Petition Economics1 2
Public norms 3
Civil rights
5%
7%
6%
19%
8%
14%
21%
18%
Politics4
7%
4%
20%
21%
8%
11%
11%
11%
29%
33%
3%
2%
10%
9%
7%
9%
Security
2%
---
14%
6%
15%
14%
5%
8%
Freedom of
2%
7%
5%
4%
5%
4%
2%
4%
International6
11%
19%
--
4%
1%
2%
--
----
Total
100%
100%
100%
100%
100%
100%
100%
100%
45
27
65
48
260
114
304
115
Religion-state 5
expression
N
*Difference over time significant p<0.001; between newspapers not significant. 1 Economic petitions are related to import or other licenses, zoning decisions, customs, banking, subsidies, social security and environmental law. 2 Public norms include petitions against nominations in the public sphere, inappropriate behavior by a public official, exaggerated perks or employment agreements in the public sector. 3 Civil rights include issues of discrimination, freedom of movement, privacy, protests and demonstrations, equality. 4 Politics includes elections, parliamentary procedures, political activity and parliamentary immunity.
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17
5 Security includes petitions that are related to the work of all the security forces (policy, army, intelligence), including those submitted by Palestinians. Petitions by Palestinians on issues of equality, etc., are in the civil rights category. 6 International affairs are usually extradition decisions, or are related to governmental decisions about international adoptions.
Table 8 shows that there has been a sharp decline in the coverage of one the areas for which HCJ intervention is most controversial. The proportion of religion-state issues reported has declined from a high in 1972 of 29% and 33% in Haaretz and Yedioth respectively to 7% and 9% respectively in 2000. On the other hand, civil rights issues have increased fourfold in Haaretz and more than doubled in Yedioth, to about one fifth of the articles in 2000. In that year the most frequently reported issues were economics, public norms and civil rights. All the other topics reported in 2000 comprised 10% or less of the press coverage, including only 5% and 8% of the articles in Haaretz and Yedioth that covered often controversial security issues, and only 2% and 4% respectively on freedom of expression cases. While there are no data with which we can compare the actual Court docket with reports in the press,39 there is abundant evidence of the increased activism of the Court, especially on issues of civil rights and the regulation of norms of behavior by public officials (Dotan 1996; Dotan 2000). These are also the topics where Court intervention is accorded widespread public legitimacy (Gavison 2000), compared to more controversial decisions in security matters and in religion-state issues. Our findings on the extensive reporting of areas of HCJ activity that are widely approved of by the Israeli public, such as civil rights issues and public norms, are consistent with our assumption that the framing of the HCJ in the press serves two functions: (1) it provides the press the opportunity and the ammunition for criticizing government actions on issues for which there is widespread popular support both for media criticism itself and for the role of the Court, and (2) it constructs the Court as an institution that deals with issues that are central to public life, that preserves order in the public sphere, and that promotes equality. The large proportion of articles covering economic activities adds another dimension to the media's construction of the power of the Court. While the coverage of decisions concerning public norms and civil rights typically appear in the news section of the newspapers, more than two thirds of the reports of judicial proceedings involving economic issues appeared in both papers in a separate economic section. These items were also generally considerably shorter than articles covering civil rights and public norms.40 Thus, the frequent coverage of economic petitions demonstrates that the Court is heavily involved in the economic life of the country. The framing of economic petitions as less prominent topics of specialized interest preserves the centrality of the Court's role in maintaining public order and furthering the protection of human rights.41
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(d) Evaluation of the HCJ Various commentators have noted the increase in investigative reporting in Israel over the years (Caspi and Limor 1999; Peri, 2004), and the fact that there are very few institutions in the country that have not been demythologized or at least challenged by critical reports. Peri (2004, 92) claims that, similar to the U.S. model, in all matters not related to security the Israeli media have adopted a role of confrontation, challenge, criticism and scrutiny of all government institutions. Not only does the coverage of the HCJ belie the critical stance of adversarial journalism, as Table 9 demonstrates,42 but it suggests a congruence of interests between the media and the Court in upholding the legitimacy of the Court and undermining the other political institutions. Table 9. Evaluation of HCJ decisions by year and newspaper.* Newspaper
Year
Haaretz
1972
1981
1994
2000
Total
Supportive
39%
28%
20%
22%
23%
Neutral/not clear
54%
68%
69%
65%
67%
Critical
7%
4%
11%
13%
10%
100%
100%
100%
100%
100%
28
28
102
120
278
Supportive
38%
26%
36%
32%
33%
Neutral
50%
69%
58%
50%
56%
Critical
12%
5%
6%
18%
11%
Total
100%
100%
100%
100%
100%
Total N Yedioth
N
16 19 53 44 132 *Includes articles about decisions whether to grant order nisi and final decisions; does not include articles about earlier stages. Differences over time and between newspapers not significant.
Only some 10% of the articles in both the elite and popular press criticized the decisions of the HCJ, compared to between one quarter and one third that supported the Court's decisions, and about 60% that were neutral.43 This consensus of support in the coverage by both papers has fluctuated only slightly over time, and although it appears that there are more critical articles in 2000 in Yedioth than in early years, the difference is not statistically significant. Compared to the treatment of other political institutions,44 there is very little of the skeptical or critical news coverage of the HCJ. Moreover, both the popular and elite press are more than twice as likely to support Court decisions that in
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MEDIA FRAMES
19
effect challenge governmental policy and decisions. Praise of the Court's decisions is often explicitly contrasted to the government's inadequacies. The HCJ declared in a courageous decision45 worthy of the utmost praise that Arab citizens can no longer be adversely discriminated against in the distribution of state lands.… From now on, declared the HCJ, the State will no longer be able to maintain discriminatory policies against its Arab citizens. (Haaretz, March 10, 2000) Yedioth was even more blunt in its comparison of the Court and the government: For the first time in the history of the state a deep fissure was created in one of the biggest racist and embarrassing bluffs that the state bluffed itself and its citizens, the bluff that transformed Israel into the only democratic state in the world in which it is possible to maintain racially pure settlements….The HCJ did not yet break down the wall and perhaps in its wisdom it did not yet do so…. Again we can feel real pride in the Supreme Court of the State of Israel. ( Yedioth, March 10, 2000) In effect, it seems that the Court provides the media with ammunition in their monitoring of and confrontation with political institutions, while the media provides the Court with the legitimacy and support it requires.
Summary and Discussion The study of the news media has proved a particularly fertile ground for examining the political implications of the cultural construction of law and legal institutions (Davis 1994; Haltom 1998). This paper has focused on the media representation of law over time in elite and popular newspapers in one of the most prominent intersections between law and politics in the Israeli context, namely the activity of Israel's HCJ. Although the HCJ addresses issues that are similar to those dealt with by other supreme courts and some of our findings match comparable findings in other countries, others are substantially different. For example, the overreporting of the success of petitioners corresponds to findings about the preference for decisions in favor of those initiating appeals elsewhere (e.g., Franklin and Kosaki 1995; Haltom 1998; Slotnick and Segal 1998; McCaan & Haltom 2004). Similarly, the fundamentally positive coverage of supreme courts is typical of most contexts, although both in the U.S and Canada the Supreme Court has on occasion been savagely criticized, particularly when its decisions have been framed as ideological or political decisions (Jamieson 1999; Kritzer 2001; Sauvageau et al. 2006 ). In Israel, the fact that the HCJ handles petitions against the state sharpens the political implications of both HCJ petitions and decisions. We could therefore have expected to find particularly critical coverage of the HCJ in Israel. Instead, we found that despite the expansion of media coverage of the HCJ over the years, both the elite and popular press maintained a highly supportive stance toward the Court.
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The generally positive coverage of the Supreme Court in the U.S. has been explained by the media strategies of the Court and commercial and professional constraints on reporters, all of which promotes an over-reliance on Court-generated, self-serving documents (Davis 1994; Haltom 1998). Our study of the HCJ suggests that explanations that focus on the cooption by the Court may ignore the advantages for the media's own image that supportive coverage provides. It is this aspect that is highlighted by the special position of the HCJ visà-vis state authorities, and the complex relations among the media, the HCJ and the state in the Israeli polity that this position creates. This interpretation is reinforced by the features we found that are unique to the coverage of the Israeli Supreme Court. First, the Israeli Supreme Court sitting as the HCJ appears to be more widely covered than other supreme courts. Despite the apparent trend to greater interest in supreme courts elsewhere, all similar studies have underlined the fact that Supreme Courts are rarely covered outside of a small number of high-profile decisions, often involving politically divisive issues or celebrities and political figures (Slotnick and Segal 1998; Sauvageau et al. 2006). Our findings show that in recent years HCJ coverage has not been limited to high-profile decisions, but extends to more routine matters, especially in the elite press. Moreover, there has been an increase in indirect reports of the HCJ, in which references to the HCJ have been appended to articles that have otherwise little to do with the Court or its decisions. It seems that the activist approach of the Court which has made all areas of social life justiciable (Dotan 2000) has been culturally constituted by the press by invoking the HCJ in contexts outside the litigation process itself. Second, the game frame which has characterized Supreme Court coverage elsewhere and in which final outcomes are emphasized has given way lately in Israel to a due process frame. The Israeli press considers all stages of the litigation process as newsworthy, not only the final outcome of the case. In fact, our findings show that there was more coverage of the early phases of the litigation prior to the issuing of an order nisi than later ones. The press thus contributes to the construction and perpetuation of the power of the HCJ by the continuous coverage that keeps its institutional accomplishments on view at all stages of the judicial process and in all areas of public life. Our findings about the exceptionally prominent and extensive coverage of the HCJ and the particular frames used in such coverage can also be attributed to a variety of other factors. The sizable increase in media coverage of the HCJ may be part of a more general trend of greater interest in the law in popular culture, which has been attributed to the inherent congruity of legal issues with newsworthy criteria of the mass media (Ericson 1996; Freeman 2005; Sauvageau et al. 2006). Similarly, it might be suggested that the media, as a mirror of society, reflects the growing involvement of the HCJ in everyday life as a consequence of changes in the doctrines of standing and justiciability. Another important factor is the spread of litigation-oriented NGOs whose own institutional legitimacy and viability depend on media attention. Nevertheless these explanations do not address the crucial and self-serving benefit to the media itself which coverage of
December 2006
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21
the HCJ provides, and the role of the press in constructing and legitimating social institutions. Of course, we cannot assert that in the absence of media coverage, the Court's power and status would not have increased. What we have sought to do is to demonstrate the media's role and interest in the presenting a strong, important and favorable image of the Court. There are two schools of thought among media scholars about the extent to which the media actually provide critical coverage of establishment institutions and values (Wolfsfeld 1997; Sauvageau et al. 2006). One school claims that an adversarial model of journalism now pervades Western media—one in which journalists adopt a cynical, negative, critical and aggressive approach to political personalities and institutions (Wolfsfeld 1997; Peri 2004). The alternative view is that media criticism of the government is weak and superficial, and that it actually "reinforces the power of the powerful by celebrating and sanctifying the established interests and values in society" (Sauvageau et al. 2006: 10; Wolfsfeld 1997). While we have generally interpreted the results of this paper within the adversarial model, it is nonetheless true that media coverage of the HCJ can also be seen as benefiting the authorities. The adversarial model holds that in an age of fiercely competitive commercial media, confrontations with political actors are marks of professional achievement. Professional journalists are expected to scrutinize government policies, political persons and party activities, sometimes to the point of undermining the political actors and institutions with which they are associated (Peri 2004). Peri (2004) claims that this competitive model is now prevalent in Israel, and that the media "do politics" by demonstrating hostility and cynicism toward political bodies and actors. The HCJ is ideally placed to provide grist for the media mill in its adversarial role toward the ruling government and to add legitimacy and authority to the media's criticism of the government. As Ericson (1996) has noted, in the very process of reporting on law and the activities of legal authorities, the news can go a long way towards creating a convincing image that it is an objective, neutral and fair agency of public interest. It is therefore in the media's interest to cultivate the image of the independent, non-partisan Court, because it provides authoritative and seemingly disinterested support for their increasingly aggressive criticism of the political sphere and of political actors. The consistently supportive reporting of successful petitions, the association of the HCJ with the practices of all important societal institutions, the emphasis on topics for which there is a broad consensus in favor of judicial intervention, and the due process frame that covers various stages of the petitioning process—all these serve to reinforce the independent, non-political image of the Court itself and enhance the Court's status as an institution that promotes and monitors order and legality in the public sphere. Within this adversarial model of media-politics relationship, the extensive and favorable coverage of all stages of HCJ litigation on a variety of topics thus corresponds to the Court's own self-interest and the image it seeks to present. However, there is also evidence that the media in general reflects the prevalent power structure and reinforces hegemonic values and institutions
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(Barzilai 1996; Liebes 1997). The extensive and favorable framing of the HCJ as an institution that regularly rules against government bodies and acts to curb government power detracts from the role of the Court in legitimating government policies. Most petitions, after all, are not accepted, and in most cases the Court upholds, rather than rules against, prevailing government practice (Shamir 1990; Barzilai 1999). Just as it is in the interest of politicians to foster a belief in the independence of the Court while, in fact, in most cases they actually receive the Court's blessings to do what they want (Gavison 2005), it is similarly in the interest of the media to participate in cultivating the image of a powerful activist Court. This allows the press to present itself as the watchdog of democracy that exposes government abuse of power, backed by the authoritative and independent HCJ, without really challenging the status quo. There is another sense in which the coverage of the HCJ serves a hegemonic function. It has been claimed that, following their loss of control over the Knesset, the old-time political elite has colluded in the transfer of power to the Court, where demographically and ideologically they still prevail, thus ensuring the continued supremacy of their values and policy preferences (Mandel 1999; Mautner 1999; Hirschl 2004). To the extent that this is indeed the case, the disparate interests of the Supreme Court, the former political elites and the media all coincide, and the extensive coverage of the HCJ petitions serves all these actors. This is especially true of the elite press. Although on most indices there was no difference between the elite and popular press and both were supportive and largely uncritical of the HCJ, Haaretz provided far more extensive coverage of HCJ petitions, including the more routine cases, as might be expected of a serious elite newspaper. This greater exposure not only emphasizes the importance of the HCJ to the economic and social life of the country, but, in the Israeli context, it also accentuates the opposition and contrast of the Court to the political sphere. In addition, Haaretz gave greater prominence to those Court interventions that were consonant with its own liberal, secular stance, and which were often highly controversial decisions among the general public. By contrast, the popular press emphasized the more universally sanctioned role of the Court in curbing political corruption. The salience of the coverage of HCJ petitions and the nonconsensual topics that are highlighted in Haaretz seem to indicate that the elite newspaper endorses and promotes the transfer of power to the Court on a wider range of issues than does the popular press. Both views of the elite press thus seem to be supported by these data: the view of the elite press as providing deeper and more informative coverage of important societal issues, as well as the view that the elite press reinforces the legitimacy of certain professional and institutional elites, and serves as a powerful mechanism for these elites to preserve their hegemony. In Israel, it is widely held that the Supreme Court, particularly in its role as the HCJ, serves as the bulwark against the deterioration of democratic values which the political sphere is too self-interested or corrupt to confront (Mandel 1998; Gavison 2005). This is the view that is promulgated and constantly
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23
reinforced by the press, which seems to regard the legitimacy of the Court as too fragile and precious to endanger by extensive criticism or at least the type of skeptical coverage accorded other institutions. Our analysis of the HCJ has shown the benefits for the media and for the Court that this type of coverage affords. The question that remains is whether it also serves the best interests of the Israeli public.
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Hoekstra, Valerie. 2000. The Supreme Court and Local Public Opinion). American Political Science Review. 94(1):89-95. Jamieson, Paul W. 1998. Lost in Translation: Civic Journalism's Applicability to Newspaper Coverage of the US Supreme Court. Communications and the Law. 20:1-35. Kadman, Yitshak. 1985. Social Welfare Issues in Israel's Press and Parliament: The AgendaSetting Function of the Press. Ann Arbour: University Microfilms International. Katsh, Ethan. 1983. The Supreme Court Beat: How Television Covers the United States Supreme Court. Judicature. 67 (1):6-12. Kennedy, Randall. 1999. Cast a Cautious Eye on the Supreme Court. In Covering the Courts: Free Press, Fair Trial and Journalistic Performance, eds. Robert Giles and Robert W. Snyder. New Brunswick: Transaction Publishers. Kiousis, Spiro. 2004. Explicating Media Salience: A Factor Analysis of New York Times Issue Coverage during the 2000 U.S. Presidential Election. Journal of Communication. 54:7187. Kirby, Hon. Justice Michael. 2001. The Judiciary in Federation Centenary Year: Good News, Bad News, No News. Sydney, Australia: Australian Institute of Judicial Administration ISSN 1448-0832. Kremnitzer, Mordechai. 1996. A Newspaper that Thinks Differently. The Seventh Eye. 10: 29-31 (Hebrew). -------- and Aviel Linder. 1997. The Big Missed Opportunity. The Seventh Eye. 9: 30-31 (Hebrew). Kritzer, Herbert M. 2001. The Impact of Bush v Gore on Public Perceptions of the Supreme Court. Judicature. 85(1):32-38. Larson, Stephanie C. 1985. How the New York Times Covered Discrimination Cases. Journalism Quarterly. 62: 894-896. Lebel, Udi. 2005. Law-Communications Complex Against Political-Defense Complex: The Relationship between Media, Law and Security in Israeli Society. In Media and Security: Dynamics of a Relationship, ed. Udi Lebel. Sde Boker: Ben Gurion University of the Negev. (Hebrew). Liebes, Tamar.1997. Reporting the Arab-Israeli Conflict: How Hegemony Works. London: Routledge. Linder, Aviel. 1996. The Letter of the Law: Reports on Court Rulings Dealing with Violence in the Family. The Seventh Eye. 4:12-16 (Hebrew). Mandel, Michael. 1999. Democracy and the New Constitutionalism in Israel. Israel Law Review. 33:259-321. ------ .1998. A Brief History of the New Constitutionalism, or 'How We Changed Everything So That Everything Would Remain the Same. Israel Law Review. 32:250-301. Mautner, Menachem. 1999. A Rabbinical Court in Netivot. In Fifty to Fourty-Eight, ed. Adi Ophir. Special Issue. Theory and Society. 12-13:467-475 (Hebrew). -----1993. The Decline of Formalism and the Rise of Values in Israeli Law. Tel Aviv: Maagaley Dat (Hebrew). McCann, Michael W. & William Haltom. 2004. Distorting the Law: Politics, Media and the Litigation Crisis. Chicago: Chicago University Press. McCombs, Maxwell, E. and Donald L. Shaw.1972. The Agenda-Setting Function of Mass Media. Public Opinion Quarterly. 36:176-187.
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Miljan, Lydia and Barry Cooper. 2003. Hidden Agendas: How Journalists Influence the News. Vancouver: UBC Press. Mizrzahi Shlomo and Meydani Assaf. 2003. The Political-Cultural Perspective on Judicial Actvisim and Democracy: The Israel Supreme Court as Policymaker. Israel Studies. 8(2):118-38 Naveh, Chanan. 1998. The Role of the Media in Shaping Israeli Public Opinion 19921996. Occasional Papers, the Leonard Davis Institute for International Relations, the Hebrew University of Jerusalem. Negbi, Moshe. 1995. Freedom of the Press in Israel: Values in the Law. Jerusalem: Jerusalem Institute of Israel Studies (Hebrew). Newland, Chester A. 1964. Press coverage of the United States Supreme Court. Western Political Quarterly. 7:15-36. Nir, Rephael and Itshak Roeh. 1992. Intifada Coverage in the Israeli Press: Popular and Quality Papers Assume a Rhetoric of Conformity. Discourse and Society. 3(1):61-68. Nobles, Robert and Donald Schiff. 2004. A Story of Miscarriage: Law in the Media. Journal of Law and Society. 31(2):221-244. O'Callaghan, Jerome and James O. Dukes. 1992. Media Coverage of the Supreme Court's Caseload. Journalism Quarterly. 69:195-203. Paletz, David L. and Robert M. Entman. 1980. Media Power Politics. New York: Free Press. Peleg, Anat. 2006. Reluctant Partners: The Relationship between Judges and the Media in Israel. MA thesis, Department of Political Studies, Bar Ilan University (Hebrew). Peri, Yoram. 2004. Telepopulism: Media and Politics in Israel. Stanford: Stanford University Press. Perry, Barbara A. 1999. The Priestly Tribe: The Supreme Court's Image in the American Mind. Westport, Connecticut: Praeger. Peter, Jochen. 2004. Our 'Long Return to the Concept of Powerful Mass Media': A Cross National Comparative Investigation of Constant Media Coverage. International Journal of Public Opinion Research. 16:144-168. Roeh, Itshak. 1993. Between Two Approaches to Journalism. In Topics in Communications for Theses and Papers, ed. Tirza Levtsion. Jerusalem: Rekes (Hebrew). Saltzberger, Eli M. 2001. Temporary Appointments and Judicial Independence: Theoretical Analysis and Empirical Findings from the Supreme Court of Israel. Israel Law Review. 35:481-511. Sarat, Austin and Jonathan Simon. 2003. Cultural Analysis, Cultural Studies and the Situation of Legal Scholarship. In Cultural Analysis, Cultural Studies and the Law: Moving Beyond Legal Realism, eds. Austin Sarat & Jonathan Simon. Durham: Duke University Press. Sauvageau, Forian, David Schneiderman and David Taras. 2006. The Last Word: Media Coverage of the Supreme Court of Canada. Vancouver: UBC Press. Shachar, Yoram and Miron Gross.1996. Allowing and Denying Petitions to the Supreme Court: Quantitative Data. Research in Law. 13:329-355 (Hebrew). Schlesinger, Phillip, Howard Tumber and Graham Murdock .1991. The Media Politics of Crime and Criminal Justice. British Journal of Sociology. 42: 397-420.
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Scheufele, Dietram A. 1999. Framing as Theory of Media Effects. Journal of Mass Communication. 49(1):103-122. Segel, Amit. 2005. Thorns and Roses: The Coverage of the Supreme Court. The Seventh Eye. 57: 45 (Hebrew). Shamir, Ronen. 1990. Land Mark Cases and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice. Law and Society Review 24(3):781-805. Sharfman, Daphna.1993. Living Without a Constitution. Armonk, N.Y.: Sharpe. Slotnick, Elliot E. and Jennifer A. Segal. 1998. Television News and the Supreme Court: All the News that's Fit to Air. Cambridge: Cambridge University Press. Spill, Rorie L. and Zoe M. Oxley. 2003. Philosopher Kings or Political Actors: How the Media Portray the Supreme Court. Judicature. 87(1):23-29. Taras, David. 2000. Mass Media Reporting of Canadian Supreme Court Decisions: Mapping the Terrain. Canadian Journal of Communication. 25. http://www.cjconline.ca/viewarticle.php?id=589&layout=html******. Last accessed July 7, 2006. Tarpley, Douglas J. 1984. American Newsmagazine Coverage of the Supreme Court, 1978-81. Journalism Quarterly. 61(4):81-84. Tate, Neal C. and Torbjorn Vallinder, eds. 1995. The Global Expansion of Judicial Power. New York: New York University Press. Van Dijk, Teun A. 1995. Power and the News Media. in D. Paletz, ed., Political Communication and Action. Cresskill, N.J.: Hampton Press. Wolfsfeld, Gadi. 1997. Media and Political Conflict: News from the Middle East. Cambridge: Cambridge University Press. Yadlin, Omri. 2003. "Judicial Discretion" and "Judicial Activism" as a Strategic Game. Bar-Ilan University Law Rev.19 (2):665-720 (Hebrew). Zamir, Itshak.1990. Public Law: Revolution or Evolution. Mishpatim. 19:563-571. (Hebrew). ----- and Allen Zysblat.1996. Public Law in Israel. Oxford: Clarendon (Hebrew).
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Endnotes 1
There is some disagreement about whether greater media coverage promotes or erodes public support of the courts (Hoekstra 2000; Franklin and Kosaki 1995; Krtizer 2001; Spill and Oxley 2003; Miljan and Cooper 1979). 2
Discussions of court-media relationships outside the United States and Canada have not dealt with high courts or constitutional courts, but rather have presented the topic in general (i.e., Kirby 2001; Gies 2005) or focused on specific courts, such as criminal courts (Ericson 1995, Nobles and Schiff 2004). 3
However, Taras (2000) and Avraham (2003) have found that quality news organizations give greater prominence to disadvantaged groups and unpopular causes. 4
In addition, Haltom (1998) has noted that individual justices are sometimes featured in stories about birthdays or anniversaries at the Supreme Court. 5
One study that found that the importance of a case was a reliable predictor of the coverage it received was Greco-Larson and Tramon, 1993, cited by Slotnick and Segal (1998). 6
Perry (1999) notes that today there are more reporters on the legal beat who have some legal training. However, Sauvageau et al. (2006) found the most of the reporters covering the Supreme Court of Canada were parliamentary correspondents, who had little training in the law. The request for an order nisi is heard by one Justice. Substantive decisions are taken by a panel of three Justices, who may decide on their own accord to expand the size of the panel to any odd number of Justices up to a maximum of 15. The President or the Deputy President of the Court is also empowered to expand the size of the panel chosen to hear a particular issue. 7
8
1996 was the last year for which the Central Bureau of Statistics published statistics about the proportion of orders nisi issued. In 2001 it published some data about the number of petitions (1868 in all), but no information about the number of orders nisi granted. The Courts' Administration website presents information about the number of petitions both pending and decided, but none about the type of decision made. 9
The two Basic Laws are Basic Law: Freedom of Occupation, and Basic Law: Human Dignity and Liberty. 10
It should be noted that while the Court had previously invalidated legislation in 1969, Bergman v. Ministry of Finance, the decision was based on procedural rather than substantive issues. Since 1992, the HCJ has invalidated only three laws, none of which touched on nationally significant issues. However, it has been argued that the threat of Supreme Court review has had a significant impact on legislation (e.g., Dotan 1996; Mizrzahi and Meydani 2003). 11
Along with the shift from a formal to a more activist approach, the Justices have become increasingly aware of the need to address the public in their decisions (Mautner 1993; Peleg 2006). In 1996 the Courts Administration appointed a public relations officer in order to improve what it perceived as inaccurate and inadequate coverage by the media. Until that time, the Justice
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Department spokesperson acted as the spokesperson of the courts as well. Today, five permanent staff are employed in the public relations department of the Courts' Administration. This appears to be something of a global trend. Media officers have been appointed in both civil and commonlaw judicial systems (Gies 2005; Kirby 2001). 12
See Peri (2004), Mizrahi and Meydani (2003), Barzilai (1999) and Hirschl (2004) for various explanations for the weakening for the Knesset and the strengthening of the Supreme Court. 13
The Supreme Court has consistently figured as one of the public institutions most trusted by Israelis, coming a close second to the security forces in surveys conducted periodically by the Democracy Institute of Israel. Public trust in the Supreme Court has fallen in recent years, from 87% in 1994 to 72% in 2005. The level of support for the American Supreme Court appears to be lower than that reported in Israel (e.g., Hoekstra 2000; Perry 1999). Support for the Israeli Supreme Court among journalists is substantially higher than in the general public, with a trust rating of 93% (Abiri 2003). 14
In the early years of the state, almost every political party had its news outlet, in addition to the three general, commercial, Hebrew-language newspapers that were not politically affiliated. Political newspapers could occasionally be very critical of the government of the day and of the security forces, but such criticism was considered ideological rather than professional, and thus did not influence policy makers (Barzilai 1996). Today, there are only three daily party-affiliated papers, associated with the religious parties, with a circulation of less than 6,000 each. The commercial daily press has expanded and includes a financial newspaper, and four Russian language newspapers, as well as local weeklies. In addition, the broadcast media now includes cable and satellite services offering hundreds of international and Hebrew-language stations. 15
Barzilai (1996) claims that despite a general trend to more critical reporting, the Israeli media continues to serve as a mouthpiece for the ruling elite, especially during times of war. See also Liebes (1997). 16 There have been a few opinion pieces criticizing the coverage of the Israeli Supreme Court that have focused on the accuracy of media reports of specific decisions (e.g., Kremnitzer and Linder 1997; Kremnitzer 1996). Occasionally these have criticized the media of overly deferential coverage (Segal 2005) and of serving the interests of the Court and the liberal, secular sector of society it is perceived to represent (Gordon 1999; Linder 1996). There is a master's dissertation that analyzed the coverage of five decisions on religion-state issues between 1993 and 1998 (Don-Yechiye 2004). In addition, some studies have referred to the coverage of the Supreme Court in the context of writing about the media in particular cases (i.e., Barzilai 1996; Lebel 2005) but these do not focus specifically on the Supreme Court. 17
There are a number of reasons for our decision to focus on the HCJ rather than on Supreme Court coverage in general, of which the most important is the intrinsic difference in the procedure, type of decisions and type of cases dealt with by the Supreme Court in its dual functions as HCJ and as appellate court, which would make comparison on all these dimensions cumbersome. We discuss elsewhere the coverage of the Supreme Court as an appellate court in civil and criminal matters is discussed elsewhere (Bogoch and Holzman-Gazit 2005).
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18
Israelis are avid newspaper readers. According to Naveh (1998) and Peri (2004) 82% of the Jewish population read a newspaper more than twice a week.. Haaretz is the only elite daily newspaper in the country, while Maariv and Yedioth Aharonot (commonly called Yedioth) are the popular newspapers. Yedioth is chosen to represent the popular press in most studies, because of its wider circulation (i.e., Avraham 2003; Nir and Roeh 1992). According to the Advertising Association's survey in 2001, about 47% of newspaper readers on weekdays read Yedioth, compared to 27% for Maariv. In addition, despite its status as an independent commercial paper, Maariv was more closely identified with the establishment in the early years of the state. In recent years, a criminal case against the editor-in-chief of Maariv led to a series of articles critical of the Supreme Court in 1999, especially in relation to the trial of Arye Deri, a politician from an ultraorthodox Sephardic party. Thus, our choice of the more widely read Yedioth to represent the popular press may exclude the more critical articles in Maariv, although the particular criticism in the Deri case would in any case not have been included in our sample. 19
In Israel only Haaretz has a computerized database of articles, and it dates only from 1994. Thus, each complete newspaper had to be read by the research assistants in order to locate the articles in our sample. Consequently, budgetary considerations limited the number of years that could be sampled. The choice of only one year per decade has some precedents in other studies (i.e., Sauvageau et al. 2006). 20
The Chief Justice is the most senior Justice on the Supreme Court. Justices serve until their compulsory retirement at age 70. 21
Periods of armed conflict are marked by rallying round the flag in the press, as well as by extensive coverage of these events, to the detriment of other issues (Peri 2004; Liebes 1997; Barzilai 1996). For this reason, we avoided the years of the Yom Kippur War (1973) and Lebanon War (1982), and the years of the first and second intifadas (1988 to 1990, September 2000 to 2004). 22
Unlike the U.S. Supreme Court, the end of term has no relevance for the number of decisions released (Davis 1994), and there are no periods of time when the Court is particularly inactive, except for months of extended holidays, when the Court is not in session. 23
Haaretz has dedicated legal correspondents with legal education who appear for the first time in our sample in 1994. Yedioth does not have a special legal correspondent, but uses a combination of general or crime reporters and jurists and reporters with some legal background or training. The identity of the reporter was not found to be related either to the prominence or to the frame of the article, and thus is not presented here. 24
Variables that could be coded in a straightforward manner without requiring a decision to be made by the coder (such as the date of the newspaper article) were omitted from the reliability tests. In addition, because the second analysis was based on xeroxed copies of the article, variables such as the sizes of the article, visual data and headlines were also excluded. Analysis of the sources of disagreement for the variable with the lowest agreement rate -78% for the subject of the petition - revealed that the discrepancies were due to the large number of articles included
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in the "other" category. The principal investigators reviewed each of the 39 articles coded as "other" and recoded them. 25
For instance, in 2001 there were 1019 civil appeals submitted to the Supreme Court (not counting an additional 1011 requests for the right to appeal), 846 criminal appeals (plus 371 requests for the right to appeal) and 1866 petitions submitted to the HCJ (Bogoch and HolzmanGazit 2005). 26
Although both papers increased in size during these years (Caspi and Limor 1999) this fact is not in itself sufficient to explain the increase in the number of HCJ articles. First, it does not explain why the the HCJ has attained almost obligatory status in the daily press, with several articles per issue on the HCJ. Second, it does not address the greater disparity in the number of articles between the two papers. In fact, the increasing tabloidization of Yedioth might have predicted a decrease in the number of HCJ articles. 27
Figures for 1972 to 1994 were obtained from the Central Bureau of Statistics, and for 2000 from the Courts' Administration. 28 In this table, the number of articles includes only those that deal with submission of petitions and judicial proceedings and decisions. Articles that dealt with the HCJ as an institution or that profiled Justices were excluded. 29
Other measures of the prominence of HCJ stories can be found in Bogoch and Holzman-Gazit (2005). Articles were coded as appearing on the front page even if the complete article did not appear on the front page, but was headlined on the front page. 30
Stories about the misconduct of public officials come under a "power corrupts" frame that Wolfsfeld (1997) maintains is particularly important in Western journalistic culture.
31
We wish to thank a reviewer for this suggestion.
32
It should be noted that in their category of public interest NGOs, Dotan and Hofnung (2001) include all groups except for political parties and the general trade union organization (the Histadrut). For present purposes we have not included business groups or ad hoc groups specifically formed for the purpose of filing one particular petition. An example of such a group is the group of parents of soldiers killed in an action who petitioned the HCJ against the Minister of Defense's decision not to allow them to attend meetings of a commission of inquiry. By contrast, a long-standing non-profit organization, such as the national organization of bereaved parents, would be included in our category of public interest organizations. 33
We also examined the stage of the petition that was reported in the articles by the different categories of petitioners, in order to determine whether the increased activities of NGOs might have been related to the reporting of earlier stages of the petition. There was no significant difference between the petitioners. 34
There are two other sources of statistical information about the fate of petitions to the Supreme Court: Shachar & Gross (1996) and Salzberger (2003). These sources do not make a distinction between petitions and other requests, and only present the final outcomes. Their results are similar to the rates of orders nisi that are made absolute from the CBS reported for that period. In
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addition, Dotan and Hofnung (2001) examined the success of appeals by NGOs and politicians based on analysis of HCJ files between 1986 and 1995. They found that the success rate of NGOs (9.9%) was higher than that of any other category of petitioner (Dotan & Hofnung 2001). 35
On the Supreme Court's website, a chart indicating the reasons for closure of HCJ petitions in 2001 showed that 2% of the petitions were made absolute. However, it is difficult to know if this figure is equivalent to the data previously published in the other sources. 36
We know from other sources (Dotan and Hofnung 2001) that about 25% of petitions to the HCJ end in settlements in which the petitioner achieves at least part of what s/he sought. Over the period covered by our research, only three articles reported compromise settlements, and two of those related to compromises initiated by the HCJ Justices. 37
Dotan and Hofnung (2005) analyzed the petitions submitted by politicians between 1986 and 1999. They found that 62 of the 82 petitions by right-wing politicians were submitted between 1992 and 1995. 38
Although only about 10% of the petitions reported in both papers during that time were submitted by politicians, the other petitions against a left-wing government and its administrative decisions would also be more likely to come from right-wing oppositional groups and the rejection of these, too, would be more attractive to Haaretz and its readers. 39
Even before the Central Bureau of Statistics ceased publication of statistics detailing HCJ activity in 1997, the subject matter of HCJ decisions was not included. The only clue as to the type of cases dealt with by the HCJ was the identity of the public entity against which the petition was filed. Today the Courts Administration of the Supreme Court provides information on the number of cases handled, petitioned and outstanding, but not about the subject matter at issue. Dotan and Hofnung (2005) provide data on the subject matter of petitions filed by politicians, distinguishing petitions regarding government policy from those dealing with specific political issues. Their data was thus not suitable for comparison with ours. 40
For example, the mean size of civil rights articles was 305cm2, while the mean size of economic articles was 133cm2. 41
The high number of reports on economic petitions, especially in Haaretz in 2000, may also be related to competition in the media market. The launching in 1983 of Globes, a daily economic newspaper geared to the business, professional and political elite, attracted readership from the same social strata as Haaretz. Globes runs a daily legal section, which often reports on economic petitions to the HCJ. To meet this competition, in 2000 Haaretz launched an online magazine for economic issues called The Marker, which is now included as a separate, magazine-type section in the daily print edition of Haaretz. 42
Both news reports and commentary were included in these analyses. Table 9 presents articles covering decisions, rather than earlier phases of the procedure, because decisions are often controversial, are more likely to be covered extensively than other phases and thus, as Haltom (1998) has shown, to incorporate ideological biases, whereas reports of other phases are often spot items which are expected to stay close to conventional journalistic standards of neutrality. In fact, analyses including all stages revealed very similar results to the ones reported here. Articles
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were coded as supportive if there were explicit expressions of support for the decision, or if only the claims of the winning side were presented. Articles were coded as critical if there were explicitly negative statements about the decision, or if only the claims of the losing side were presented. 43
In Sauvageau et al. (2006) there was a similar proportion of negative articles, and a lower proportion of positive articles (7% compared to 23% in our data). Prof. Ruth Gavison (pc) has suggested that since 2000 there has been an increase in the number of articles criticizing the Supreme Court. Peleg (2006) found that both serving and retired judges felt that the press had become increasingly critical of judges over time. 44
It should be noted that neither Peri (2004) nor Caspi and Limor (1999) present quantitative analyses to base their claim that Israeli journalists have taken a more critical stance toward political institutions over time, although there seems to be a general consensus of opinion that this is so. We thank Prof. Sam Wilzig-Lehman for this observation. 45
HCJ 6698/95, Idel Kaadan and Iman Kaadan v. Israel Lands Authority and others. An Israeli Arab couple had been denied the right to acquire a long-term lease of land to build a house in Katzir, a new community established by the Jewish Agency whose official policy prohibited the leasing of land to non-Jews. After five years of attempts by Chief Justice Aharon Barak to avoid ruling on the petition and to bring the parties to settle out of court, a four to one majority ruled that the state could not transfer state lands to the Jewish Agency to be used for establishing Katzir on the basis of discrimination between Jews and non-Jews.
