Free Speech and Due Process, Part III

GUEST: Burt Neuborne, Esq.
VTR: 1/16/1997

I’m Richard Heffner, your host on The Open Mind. And my guest today is Professor Burt Neuborne of New York University Law School.

Now, I need to say to you that we’ve been doing several programs in a row. This is the third. My introduction is very, very informal. What I had wanted to do early in the first program was get to a subject of great importance, and then found that the other subjects we discussed — and I hope you saw those programs — were of equal, perhaps even greater importance. No, I can’t say “greater importance,” because the question of the law, the question of the uses of the law, the question of our due processes. What could be more important than that?

At any rate, The New York Times recently wrote a story. It dealt initially with the Simpson trial, the civil trial. And in it there was a quote that goes this way (it quoted my guest today): “If one side makes a mistake, it has to live with the mistake, even if it terribly distorts the outcome. The feeling is that the outcome is less important than the process, than defending the adversary process in the long run”. And this had to do with an argument that was offered about working in the details of the case, of trying sometimes to obfuscate the issues in a case by using every trick in the book that stems from due process. And I wanted Professor Neuborne, who is a distinguished professor of law, to deal with me as a civilian, as I am, on this question of, gosh, I thought that trials were designed to reach the truth and justice; and now I find that trials are really a playpen for adversaries. How can I come out of this?

NEUBORNE: Well, they are designed to reach the truth. But they’re designed to reach the truth in a way that we think, maybe erroneously, is the safest way to do it. I mean, there are two ways to try to reach the truth. There is the European, the European continental system, something we would call an inquisitorial system, where you’ve got a powerful judge with a responsibility for carrying out a government-initiated investigation. And the parties are essentially spectators. They play some role. They’ll argue, they’ll put some information in. But the real thrust of the case is run by the judge. And, years ago, you may remember a wonderful movie called “Z,” where the examining magistrate was the great hero.

HEFFNER: Right.

NEUBORNE: That’s the European model. They think they’ll get to justice and truth faster and cheaper if they had a central investigation arm that gets the facts. The Anglo-American system takes an entirely different tack. Our assumption is that what you do is let the parties put the information in. The judge is a passive figure. The judge is a referee, maintains order in the courtroom. But the judge doesn’t generate the information coming in. The information and the arguments come in from the two parties themselves. And the theory is that in the clash of relatively equally matched adversaries, each trying to put their information in and doing the best thing they can, that there is a better chance of truth emerging from that process than from risking everything on a single government official doing the investigation. It’s quite consistent, by the way, with an overwhelming ethos in both our culture and our law, and that is: mistrust of the government.

HEFFNER: Well, there’s more to it than that, isn’t there? Isn’t there a kind of social-Darwinian basis to this?

NEUBORNE: Well, it works out that way. I mean, one of the critiques, one of the criticisms of the adversary method is that it works only if you have relatively evenly balanced sides. If one guy’s got all the muscle, and the other guy doesn’t… And, of course, that would happen, for example, the most extreme example in our culture would be a litigant that can’t afford a lawyer and who is in court opposed by a very, very powerful entity. It’s hard for us to imagine, but this is the way we ran our trials up until the 1930s, and it wasn’t really until the ’60s that everybody was guaranteed a lawyer, even in a criminal case.

HEFFNER: But, wait a minute. Why do you say, “It’s hard to imagine,” when, indeed, the picture that so many people today have is that of, well, the usual play on the Golden Rule: “Who has the gold rules?” The usual play these days on justice in a courtroom: “Who has the gold, pays for the attorney who is more experienced, better at the adversarial procedure than others”.

NEUBORNE: Well, I mean, I guess you’ve revealed a flaw in my nature. I mean, I said, “It’s hard to imagine”. I just assume that people would so want this to work and would so want to understand the fact that you do need equally matched adversaries in order to have the adversary system work that they would be very offended when it wasn’t operating that way. But you’re right. The norm, the reality in American courtrooms is that one side usually has more power than the other, whether it’s the prosecutor having more power than the defense, or, in Simpson’s case, an enormously powerful defense having as much or more power than the prosecutor. The adversary system so depends on both sides being good and both sides being equal that when one of them makes a mistake or is not equal, the whole thing then begins to come apart.

HEFFNER: Well, that’s interesting. That was what you said to The Times, what they quoted, what intrigued me about what you were saying. Wouldn’t that lead Burt Neuborne to say, “But that doesn’t happen. Let’s give up the adversarial procedure.”

NEUBORNE: Oh, I’m a critic of extreme adversarial positions. I mean, I believe that we… Two things: I’m a critic of the existing structure, and I want to do two things: First, I want to try to make the structure work as well as it can by seeing to it that we do have well-trained, relatively equal adversaries who understand, by the way, that they’re supposed to play by the rules. I mean, it’s like the Marquess of Queensbury Rules. What’s happened now with a lot of American litigation is that kneeing somebody in the groin is the way the fight begins. There’s no sense that there is supposed to be some set of civility and set of rules that operate. And so if you go flat out… It was a wonderful phrase that a law professor when I was studying said, “Waging total law on each other.” If you “wage total law on each other” in the adversary system, the system crumbles. I mean, it depends on so many assumptions: assumptions of civility, assumptions of ethics, assumptions of quality, assumptions of equality. And when those assumptions are not there, the adversary system does not deliver justice.

HEFFNER: You say it collapses. So that I ask you: Has it collapsed? Does it deliver justice?

NEUBORNE: In many settings it collapses. In many settings it does not deliver justice. In many settings, where the parties are very badly matched, we would get much better justice if we had the judge playing a more aggressive role. And one of the unreported aspects of American procedure — you won’t find it in the books, and you won’t find it in the cases, and you won’t find it in the theory, but you’ll find it in the real life of the court — is that many times judges play a much more active role in the case than the theory would indicate, because they find either they have to even the scales by helping one side get his case in, or they have to exercise control in some way because the lawyers have gotten out of control. The critique of the Simpson criminal trial was that the judge simply failed to be energetic enough. Now, the truth is, in some sense it’s unfair to that judge. What that judge was doing was a textbook example of what an American judge is supposed to be: passive, retiring, leaving the initiative to the lawyers, simply coming in when the judge has to in order to make a decision. And the net result was a shambles; it was a Donnybrook. Because the defense, both sides actually, ran with the ball as far as they could, and the judge wasn’t stopping them. What was needed to make that trial work was a European style judge: a judge with a heavy hand who said to the lawyers, “This much, and no more. And I’m going to limit your ability to engage in just total adversary histrionics.”

HEFFNER: You said a moment ago that some judges are participating more. When Harold Rothwax wrote his book, “Guilty”, he said he didn’t believe in the potted-plant theory of judging.

NEUBORNE: Harold is a perfect example. I mean, Harold is a very aggressive and vigorous judge. The guy that wrote the adversary textbook, the adversary method, somewhere in Heaven there’s the author of the adversary method textbook, he turns over in his grave every time Harold walks into a courtroom. But Harold does those things in order to make the system work. Because if he didn’t it would fall apart even worse.

HEFFNER: Okay. You and I know that Harold is an extraordinary, a unique, almost sui generis person. Therefore, what likelihood is it that our system will be able to deal with this problem of the adversary relationship without really formally turning to a different, the European model?

NEUBORNE: Yeah. We should say “the inquisitorial model,” as it’s known.

HEFFNER: Why do you say “inquisitorial?”

NEUBORNE: Oh, because the judge acts as an inquisitor.

HEFFNER: But you realize what connotation…

NEUBORNE: I know. “Inquisitorial” has a loaded phrase in our… But it’s not meant to be a pejorative phrase.

HEFFNER: It’s an inquirer. Inquirer.

NEUBORNE: Yeah. That’s right. The usual way that they divide up adjudicatory systems, fact-finding systems, trial systems, is to say, “This is an adversarial system; this is an inquisitorial system.” It’s not meant to mean…

HEFFNER: I see.

NEUBORNE: …that this one is worse; it’s that this one is run by a state inquisitor, a state inquiry; and this one is run by the two parties, and not by the judge.

HEFFNER: What’s your preference?

NEUBORNE: Well, my preference is for taking the best of both; a kind of “modified adversarial system”. And, by “modified adversarial system”, I mean this: first, a requirement that before you call it an adversarial system you really have the raw materials for an adversary process. Making sure both sides are represented. And that means we have to do something about counsel, about the availability of counsel in this country. Counsel is too expensive, beyond the reach of the middle-class person, beyond the reach even of a corporation unless the money involved, and unless the contract is a contract for a million bucks or more, doesn’t pay to litigate it. So that, unless we can find ways of bringing the cost of the process down so that it’s not priced out of the ability of average people, you can’t really say you have an adversary system there, because the guy with the most money wins that. He just sweeps the board in everything except very, very expensive cases.

We also, obviously, have to worry about counsel for the poor. If you can’t afford a lawyer in this system it’s really an illusion to say that there is a rule of law. It’s really just whatever the other guy is willing to give you. And so, under those circumstances, judges do two things: sometimes the judge will actually tilt toward the person without a lawyer, actually help him get his case in. That’s not the world’s best way to do it because the jury sometimes gets a very bad vision of what the… But the other thing is, the judge will simply insist that a lawyer be appointed, or insist that structurally lawyers be appointed in the whole group of cases. In some sense, we have to expand our notion of the right to counsel to assure that we’ve got adequate counsel in most of these cases.

HEFFNER: But having counsel isn’t the same as adequate counsel really.

NEUBORNE: No. I would…

HEFFNER: Wasn’t it Chief Justice Berger, Warren Berger, who spent so much of his time on the court…

NEUBORNE: On the quality issue.

HEFFNER: …being concerned about the quality of representation?

NEUBORNE: Well, you know, that’s a hidden problem in this country. We’d like to think that lawyers operate in a high-quality way in the courtroom. And there is an elite slice of the American bar that really is quite extraordinarily good. And at the highest levels the level of representation, if you can afford to buy it, is like the level of medical care that we can get. It’s unmatched. But you’ve got to have a lot of money. Once you get below that, economics, the economics of the profession, a sort of contempt that some lawyers have for their clients, kicks in, and you’d be amazed at how many flat-out ethical lapses there are: lawyers not paying attention to their case, not calling up their client, not letting them know where it is, not doing the ordinary things that have to be done in the process. And we pretend that that’s not so. There are blinders on in looking at the system. But the system, to the extent the system doesn’t deliver justice, it’s often because we’re not paying enough attention to seeing to it that the system gets the raw material, the ideal raw material that we assume is there. I sometimes despair of being able to deal with that. For years… This is one of the self-regulatory problems. Lawyers regulate themselves. Whether it’s a bar association… And they’re not very aggressive in regulating themselves. They’re awfully lenient on themselves when it comes time to regulate.

HEFFNER: They’re very much like doctors.

NEUBORNE: Like doctors, like advertising people. You know, self-regulation is a myth in this country. We think that our elites, that our professional elites, if we give them the power to regulate themselves, we hope that that means that they’re going to do okay. And sometimes they, you know, there are some successes in self-regulation.

HEFFNER: Let’s talk about that business of self-regulation a bit, because it comes up in so many instances and in so many areas. We were talking earlier about rating television programs and the voluntarism, and the voluntary system of, you ask a television producer, “What rating have you put on your program?” You know I spent 20 years in Hollywood fighting — fighting, fighting, fighting — you may not like that idea, consider it too close to censorship — but fighting about what a rating should be, enough years to know that in our dollar society, in our chromo-civilization, if someone says to the other person sitting at this table — not, of course, to you or to me [Laughter] — “Tell us what you want. And will you do it honestly? Will you take it honestly or dishonestly?” The point is he or she will probably do it or take it, and not be concerned about the honestly or dishonestly. What does that mean? We’ve so long thought in our civilization, in our society, that as proper individuals we could govern ourselves, regulate ourselves. What are the implications?

NEUBORNE: Well, I mean, obviously I think we can still govern ourselves. I mean, if what you’re talking about is the fundamental notion of governing ourselves through a democracy, I haven’t lost not a half step of faith in that. But if what you’re asking, I think, is the more pragmatic question about: Should we take self-interested groups of individuals who have strong economic stakes in a particular situation and say, “Look, somebody’s got to watch you. There’s got to be a watchdog. There’s got to be a watchdog for the lawyers, got to be a watchdog for the doctors, got to be a watchdog for the cops. Who’s going to watch you?” Over and over again our answer has been, “Let us watch ourselves. We know, we’re an ethical group. We have strong professional standards. Let us watch ourselves, and we’ll police ourselves.” Whether it’s a police review board, whether it’s the cops, whether it’s the doctors, it doesn’t work. It doesn’t work. It’s a romantic illusion that we have that people will be able to rise above their economic self-interests and impose restrictions on them that bite. They’re great on restrictions that don’t bite, but the moment they bite, the moment they get in the way… And I’m as, you know, I would be as guilty of this as anybody else. If somebody came down tomorrow and said, “Have you heard about the level of law-school teaching? Do you know how terrible it is? And these people are paying thousands of dollars to come sit in the classroom and they sleep. So what we’re going to do is we’re going to put in a regulatory network to make sure that you guys teach a little better.” I’d have a fit. And the first thing I would say is, “Well, if there’s a problem, let us fix it ourselves. We’ll fix it ourselves. Don’t let there be an outside force.” But deep down, without the outside force, the problem doesn’t get fixed.

HEFFNER: Why do you say, “This has nothing to do with self-government. This has nothing to do with democracy.” Isn’t there a real relationship between saying, “We can do it ourselves. We want no one in on this.” It’s not just, “We’ll do it ourselves”; it is, “Mind your own damned business. This is ours.” You don’t think this has anything to do with self-government?

NEUBORNE: Well, it has to do with the notions of mistrust of the government. In other words, the argument is, “I want to do it myself. I’ll regulate myself. Because if I don’t regulate myself, who is the next person? Who is the default regulator?” The default regulator at that point is the government. So they say, “Rather than have the government come in, we’ll regulate it ourselves. Individuals can govern themselves better than the government can govern themselves.” That’s the mantra.

HEFFNER: Yes. I hoped you would get there, because…

NEUBORNE: It took me a long time. [Laughter]

HEFFNER: …you have already said that… No, I didn’t mean that.

NEUBORNE: No, I’m just teasing. I’m just teasing.

HEFFNER: That philosophical observation, because you have already said, “It doesn’t work when we law professors do it ourselves, when doctors do it themselves…”

NEUBORNE: It doesn’t work when there’s a strong economic incentive that… People will not do things that are going to cost them a lot of money voluntarily. They’re just not going to do it.

HEFFNER: Even the people who speak through movies, through television programs?

NEUBORNE: Certainly not them. [Laughter] I mean, you know… One of the things that — you know this better than probably anybody in the world — you do a market-driven mass communication, and the content of that mass communication is going to depend less on the aesthetic judgment of the artists than on a determination of what’s going to sell tickets. If it’s a market-driven phenomenon, you’ve got to go for the largest audience. Want to know why, if you turn on the television, everything looks the same, and it’s all just as bad? I mean, you know, mass television is, you can’t tell one program from another, you can’t tell one channel from another. It’s all one indiscriminate mass that’s aimed at the largest possible audience. It’s the economics that’s driving it.

HEFFNER: So there is a censor in all of this. His name happens to be…

NEUBORNE: The market.

HEFFNER: …the dollar.

NEUBORNE: Yeah. Mr. Market is the biggest censor I know. Mr. Market is a major censor.

HEFFNER: Ah. So, if we talk about government, there’s no sense in saying, “There’s censorship there, but there’s no censorship in the private sector.”

NEUBORNE: Oh, goodness, no. No. No. I mean, private censorship takes place every day. You know, remember a couple of weeks ago when the big spat about whether Disney was going to keep doing the movie on Tibet.

HEFFNER: Right.

NEUBORNE: They made what I’m proud to say I think is a good judgment to keep making the movie. But if they had not made it, if they had decided that they would make more money by opening up Chinese theme parks than by doing this movie, and then stopped the movie, that’s censorship. I mean, you know, it’s not government censorship, but some private person would have pulled the plug on that speech, and that would’ve been the end of that speech. But that’s as much censorship as any other kind. And, you know, in earlier programs we’ve talked about the accumulation of too much private power by a private person to censor is, at least in my opinion, as dangerous as the accumulation of too much power by the government to censor.

HEFFNER: Of course, we do still elect the government; we don’t elect the corporation.

NEUBORNE: That’s right. So that in some sense the government is even less dangerous than the private individual. Which is why we often turn to the government to regulate… I mean, my, to the extent I’ve written and argued in this area, I’ve said that we can, if you get entities so big that they have too much power, what you’ve got to do is break them up. The only force I know capable of breaking them up is the government. The only stick big enough to break up the huge, powerful entity is the government saying, “You gotta break up.” No one else is going to be able to do that. And that’s what I meant when I said, “You turn to the government at that point to break up the private enterprise.” I don’t know any other way to do it. The market can’t do it by that time because by that time the entity is so strong that it’s impervious to market demands.

HEFFNER: You mentioned in one of our other programs, when I brought about my least-favorite expression, “The marketplace of ideas,” you said that wasn’t a…

NEUBORNE: It’s not the strongest defense of free speech. I mean, it’s a wonderful rhetorical phrase. And it’s a phrase that had been… I use it. I use it all the time, when I’m in court and when I’m making arguments. But the notion that the truth will occur inevitably through the workings of the market, and that what you have is just this sort of marketplace in which one idea fights with another idea. It’s interesting that you should… It has the same assumptions that the adversary system has. It has certain baseline assumptions.

HEFFNER: It’s that Darwinism again.

NEUBORNE: Yeah. And the assumptions are: equal access to it, relatively equal resources, and a system which will enable the information to be listened to and heard in a thoughtful and careful way. When that breaks down, either because one guy’s got a big microphone and the other guy’s only got a small, little pad, or because one person suppresses information that would allow other people to know what’s going on, you can’t really say there’s a marketplace of ideas. There’s communication going on, but it’s not a marketplace. And it certainly is not a justification for keeping the government out. You could just as easily argue that the marketplace of ideas demands government intervention in order to fix the market. Just like, tomorrow, if you were manufacturing tires, automobile tires, and somebody were to say to you, “Gee, one guy’s got 80 percent of the market, and he’s controlling what all the tires look like, and there’s no more competition in that market,” it wouldn’t take us five minutes to have the government in there with an antitrust suit. Bam! You break that market up into smaller, competing units, and the market begins to operate better. You could say the same thing about today’s free-speech world in the United States. If you’ve got seven companies that control everything, do you really have a market in ideas, or do you have an oligopolistic system where a group of powerful people divide up the market and they all make money but there’s no real competition and there’s no real material coming in from anything but the most orthodox, mass-dominated voices?

HEFFNER: Then you’re ready to blow the whistle when we’re talking about tires, but you don’t want to even make a little squeak when they’re talking about what you call ideas — I would call acts of violence.

NEUBORNE: Oh, no. Well, see, that’s a distinction that we’ve had on several of the shows. I am willing to use the government to reform the structure of the industry. I mean, I am willing to…

HEFFNER: Break ’em up.

NEUBORNE: Break ’em into bite-sized pieces so that we could all roll around in the mud and grapple together. What I am not prepared to do is use the government to tell the industry what it should say. And the difference is between imposing substantive controls and imposing structural reforms.

HEFFNER: You know, we have less than a minute left. I’ve always felt it’s almost degrading or demeaning to put ideas in the same category as products, the marketplace of ideas. Do you have some of that feeling?

NEUBORNE: Yeah, sure there is. I think that the metaphor downplays the… It isn’t a market. I mean, when we’re talking about speech, I would much rather use Tom Emerson’s wonderful metaphor about “Speech really is the innate expression of the dignity of the individual.” I mean, this is something that’s inside us. It’s not a marketplace of ideas. But when you engage in self-expression, when you say — even self-expression that’s wrong — if I tell you that the Earth is flat, the respect for the integrity of me as an individual means that my assertion, silly as it is, is part of my human personality, and I defend it.

HEFFNER: Professor, we must come back some time and talk about Tom Emerson.

NEUBORNE: Ah, a wonderful man.

HEFFNER: Meanwhile, thank you so much for joining me again, Burt Neuborne.

NEUBORNE: Thank you.

HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. And if you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150.

Meanwhile, as an old friend used to say, “Good night, and good luck.”