COURTS AND THE MEDIA:                     PROVIDING A CLIMATE FOR SOCIAL CHANGE

IT HAS LONG BEEN ARGUED THAT THE AMERICAN Supreme Court is a catalyst for social change. One only has to look at the landmark decisions of Brown v. The Board of Education and Roe v. Wade to see the impact these decisions have had on American public policy issues such as integration and abortion. Thurgood Marshall, the chief litigator for the black plaintiff in Brown, predicted at the time that desegregation would be complete in five years as a result of the Brown decision. [Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? Chicago: The University of Chicago Press, 1993, p. 43.] Many others have acknowledged the positive effect of the courts in bringing about social change. [For example, Henry Levin, "Education and Earnings of Blacks and the Brown Decision," in Have we Overcome? Race Relations Since Brown, ed. Michael V. Namorato (Jackson: University of Mississippi Press, 1979), pp. 79-199;and C. Herman Pritchett, "Equal Protection and the Urban Majority," American Political Science Review 58:1964, p. 869.] The media also appears to be convinced of the power of the courts to affect social change. For example, when Justice Harry Blackmum retired from the U.S. Supreme Court on April 6, 1994, David Halton on CBC "Prime Time News" remembered him as the "man who wrote the court's landmark Roe v. Wade decision that women have a fundamental right to abortion." For television viewers, Blackmum's entire career was compressed into one case.

Legal scholars contend that not only are the courts powerful agents for change, but that affecting social change is the court's legitimate role. As Lawrence Tribe states: "In every aspect of our lives . . . not even the most passive, restrained, low-profile Supreme Court imaginable can any longer avoid playing a decisive role." [L. Tribe, God Save This Honourable Court (New York: Random House, 1985), pp. 139-40.] After the entrenchment of the Charter of Rights and Freedoms in Canada, Alan Gold used the Brown decision to justify the Charter. "Brown," he writes, "was such a moral supernova in civil liberties adjudication that it almost single-handedly justifies the exercise." [Alan Gold, "The Legal Right Provision-A New Vision for Deja-Vu?" Supreme Court Law Review, vol 4, 1982, p. 108.] Similarly, John Whyte declared, "As a matter of principle we have adopted the notion that there are adjudicable public issues." [John Whyte, "On Not Standing for Not With Standing," Alberta Law Review, 28, 1990, p. 351.]

Special interest groups also appear convinced that the courts are an effective avenue in which to pursue their agenda. Christopher Manfredi notes that the Women's Legal Education and Action Fund (LEAF), the National Citizens' Coalition (NCC), and the Canadian Civil Liberties Association have been the most active groups launching Charter cases. [Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart, 1993), p. 171.]Every year new organizations are being formed with the sole purpose of raising money with which to launch Charter challenges. In August 1994, gay and lesbian groups formed a defense fund in preparation for the battle over spousal benefits and adoption rights. In the August 1, 1994 CBC "Prime Time News" report, Brian Stewart noted: "Same-sex couples hope the courts will do what the provincial government would not." More recently, 12 welfare recipients joined together to challenge the Ontario government's reduction in welfare rates. They claimed that the reduction violated the Charter. [Michael Valpy, "Welfare and the Charter of Rights," Globe and Mail, November 9, 1995, p. A23.]

One compelling reason for groups to go to the courts to argue their causes is for the public relations value. It has been argued that high-profile cases give groups greater legitimacy among the media and elites, whether in law or in society at large. A positive result in litigation repels a political attack, since such a conclusion justifies a group's position: "Law reformers and foundations feel the need for legitimatization for courts. . . . [C]ases, particularly when they stop a bulldozer or unmask some outrageous practice can be dramatic and newsworthy, and provide legitimacy so necessary for support from elites."[ J. Handler, Social Movements and the Legal System: A Theory of Law Reform and Social Change (New York: Academic Press, 1978), p. 38.]

The public relations value can also work for the litigants even when the courts do not rule in their favour. There are many instances in Canada where the courts have upheld legislation, but the ruling has so enraged special interest groups and public opinion that eventually the legislation has been changed. W.A. Bogart notes that the courts initially thwarted the women's equality movement. However, the publicity of even a failed application to the court could eventually meet with a favourable outcome if the interested parties were organized and ingenious. For example, in the case of Murdoch v. Murdoch, the court ruled that if she divorced her husband, a farm wife who had worked on the farm had no claim in partnership. Bogart contents that the "lobbying and educating led to legislative action that was much broader than a favourable ruling in Murdoch would have been, thus demonstrating how a loss in the courts was a catalyst for broader and long-lasting legislative change. [W.A. Bogart, Courts and Country: The Limits of Litigation and the Social and Political Life of Canada (Toronto: Oxford University Press, 1994), p. 138.] Bogart cites favourable editorial coverage in major daily newspapers as evidence of this process. Les Pal and Ted Morton note in their analysis that a Supreme Court decision will favour one side or the other, but the ultimate resolution of the issue depends on the determination, organization, resources, and wit of the combatants. [L. Pal and F.L. Morton, "Bliss v. Attorney General of Canada: From Legal Defeat to Political Victory" Osgoode Hall Law Journal 24, 1986, pp. 141-143.] When Suzanne Thibaudeau lost her bid to the Supreme Court, Justice Minister Allan Rock promised to make changes to the system his government had just finished defending in court. He credited Thibaudeau on the May 25, 1995 "CTV News": "Because of her tenacity in sticking with it and seeing this case through the issue has been brought very high on the national agenda."

This study examines the interplay between court decisions, media coverage, and public opinion in Canada. It argues that courts can only produce a climate for change when the media pays significant attention to the court's decision, and that the court's decision has less impact on the climate for change than the media's attention to the case itself. That is, it does not really matter what the courts decide, rather, what matters is how the media presents the case.

This study asks three general questions about media coverage of Supreme Court cases in Canada. When do the media report Charter cases? How does the court decision affect media attention to the broader issue? (This will be assessed by how receptive the media were to the arguments of the plaintiffs.) What legislative effect resulted from the high-profile cases?

Supreme Court rulings receive scant attention on networks

In 1995 the Supreme Court of Canada handed down 103 written decisions. Only 15 of them received any mention on national television news. An additional 10 applications for leave to appeal were mentioned, bringing the total to 25. What is probably most important is that of the cases that were reported, only 4 received any substantive coverage. As figure A shows, three quarters of CBC and almost half of CTV focused on those 4 cases.

This result is not surprising; similar studies of the media coverage of U.S. Supreme Court decisions have come to the same conclusion. The American studies agree that U.S. Supreme Court decisions receive little or no media attention. They also agree, however, that there is some consistency in the finding that media elites pay close attention to what they perceive as major or landmark decisions. One analysis of news magazine coverage concluded that reports on court decisions were "high quality by low quantity." [Michael Solimine, "Newsmagazine overage of the Supreme Court," Journalism Quarterly 57, 1980, pp. 661-663.] In-depth coverage was accorded only to cases that were considered to be of national importance. [David Ericson, "Newspaper Coverage of the Supreme Court," Journalism Quarterly, 54, 1977, pp. 605-607; and Dorothy, A. Bowles and Rebekah V. Bromley, "Newsmagazine Coverage of the Supreme Court During the Reagan Administration," Journalism Quarterly, 69, 1992, pp. 948-959; and Richard Davis, Decisions and Images: The Supreme Court and the Press (New Jersey: Prentice Hall. 1994).]

Click here to view Figure A: Television Attention to Supreme Court Decisions (Appeals and Applications), 1995

Television focuses on cases with social public policy impact

The question that remains is which cases do the media consider worthwhile to report, and which are ignored? Charter cases accounted for only one-fifth of the Supreme Court's caseload in 1995. However, these cases accounted for almost three-quarters of CBC and over half of CTV coverage of the court. Criminal cases were the next most often discussed at nearly one-fifth of CBC and slightly over one-fifth of CTV's coverage of court cases. Torts claims were given 5 percent of CBC and 11 percent of CTV coverage. Procedural matters comprised three percent of CBC and 12 percent of CTV attention. In contrast, the Supreme Court docket was composed of 20 percent constitutional decisions and almost 50 percent criminal.

The cases reported on television news have one thing in common: each challenge raised some significant public policy issue. The policy theme is apparent in the 4 cases that received the most attention and comprised 79 percent of CBC and 48 percent of CTV coverage: RJR (tobacco regulation), Thibaudeau (taxation of support payments), Egan (gay rights) and Latimer (euthanasia). And while few non-Charter civil cases tried in the Supreme Court were discussed, two negligence rulings that were examined in some detail had significant links to issues of public health regulation: HIV transmission through artificial insemination (Ter Neuzen) and ruptured breast implants (Hollis v. Dow Corning), which combined comprised 29 percent of CBC and 10 percent of CTV coverage of the Supreme Court in 1995.

A comparison of the Charter decisions mentioned by the networks and the actual decisions handed down shows that television gave proportionately the most attention to equality rights and proportionately the least to legal rights. Notably, the case that received the most coverage, RJR, was litigated as a freedom of speech case. However, the Court's judgment and the media discussion of it centred much more around the issue of the effectiveness of the government's anti-smoking policies.

Click here to view Figure B: Television Attention to Legal Issues

Winners and losers in court and in the media

Intuitively, one would expect that media coverage of a Supreme Court decision would focus on the majority ruling. After all, the majority ruling decides the case, and it seems logical that the media would explore those arguments. However, our analysis of television news coverage of Supreme Court decisions proves this intuition wrong. In the three most highly profiled Charter cases (Thibaudeau, Egan and RJR MacDonald), the media focused more on the arguments of the dissenting opinions than of the majority. In other words, the losers in the case were given more attention-and more sympathetic attention at that-than the winning litigants. Each of the three cases will be examined individually.

CBC sides with Thibaudeau

The issue in Thibaudeau was whether the Income Tax Act's requirement that custodial parents include child support payments in their taxable incomes while non-custodial parents claim the payments as a deductions violated equality guarantees in the Canadian Charter of Rights and Freedoms. Suzanne Thibaudeau argued that the provisions discriminated against her as a single custodial parent and contributed to the high poverty rates among female-headed single parent families in Canada. The government countered that the policy helped single parent families because it usually allowed the parent in the lower tax bracket to pay tax on income earned by the parent in the higher tax bracket-a tax saving to the post-divorce unit as a whole. When the ruling came down on May 25, 1995, both CBC and CTV noted that the Supreme Court "split right along gender lines" in reaching its decision. The five male justices who heard the case disagreed with Thibaudeau while Justices Beverly McLauchlin and Claire L'Heureux-Dube agreed with Thibaudeau.

As figure C illustrates, the overwhelming amount of attention that CBC paid to the arguments put forward by Thibaudeau and her supporters resulted in a one-sided portrayal of the case. Statements aired on CBC were three times as likely to support Thibaudeau's arguments as criticize them. Thirty percent of CBC's overall coverage of Thibaudeau was neutral. Of the remaining statements, 53 percent were supportive of Thibaudeau, but only 18 percent sided with the government.

Click here to view Figure C: Television Attention to Selected Cases

CTV's coverage of Thibaudeau was a complete contrast to CBC's. While CTV aired the same proportion of neutral statements as CBC, it provided nearly twice as many statements in the government's favour as in Thibaudeau's.

Reporters favour Thibaudeau; experts favour the government

On Balance has often argued that the role of television news is to provide balance in its arguments for or against an issue or event. One way that the media provides that balance is in its selection of sources who comment on the issue. Of particular interest in the Thibaudeau case was the penchant for anchors and reporters to offer their own assessments of the case. Although the majority of both CBC and CTV reporter statements were neutral-59 percent on CBC and 60 percent on CTV-the balance of their assessments clearly supported Thibaudeau (figure D). Anchors and reporters were 9 times more likely on CBC and twice as likely on CTV to be complimentary than critical of Thibaudeau's arguments. For example, CBC's Tom Kennedy gloomily reported on May 25, 1995, "For Canadians who object to the court's decision, there is no more legal recourse. As for Thibaudeau, she now says unless the tax laws are changed, thousands of single parents in this country will be stuck in a state of poverty."

Click here to view Figure D: Assessments of Thibaudeau by Sources

And perhaps CTV's Paula Newton already had a compromise solution in mind when she asserted on the May 25, 1995 CTV "News": "Canadian families will be looking for a little balance between those who say the system works and those like Suzanne Thibaudeau who say the system takes much needed money away from their kids."

Balance in the arguments was not to be found in journalists' assessments, but had to come from the sources. On CTV, the balanced sources were legal experts. On CBC, however, statements from the legal experts were outnumbered by those from interest groups. Even the criticisms of Thibaudeau were set off against the input of a large contingent of interest groups, whose arguments favoured her case nine times out of ten. The law professors and lawyers featured on the networks provided some critical balance (18 percent of CBC and 42 percent of CTV statements were critical of Thibaudeau's legal arguments). Legal experts made 65 percent of the negative comments on CBC, and 60 percent of the negative comments on CTV. Even then, Patrick Monahan of Osgoode Hall and Jack London of the University of Manitoba who provided the majority of these statements were noticeably half-hearted in their criticisms. London simply remarked on the May 25, 1995 CTV "News": "Men obviously have more power than women do in our society, Lloyd, and in these cases, the women judges have shown themselves to be the more liberal than the men, but that's a bad rap in this case. This case wasn't about that, this case was about the fairness in the tax system, and the court probably came to the right conclusion. This wasn't about men against women. The Court probably arrived at the right decision."

Egan receives sympathetic attention

The second case was Egan, which involved a challenge by a homosexual couple on the definition of "spouse" in Old Age Security legislation. This legislation prevents same-sex couples from qualifying for spousal benefits. In Egan, the claimant argued that his exclusion from the benefit scheme constituted discrimination on the basis of sexual orientation.

Although television news provided substantially favourable attention to Thibaudeau, they were even more supportive of Egan's position. On both networks, the negative commentary was negligible. Half of CBC and 40 percent of CTV attention to the Egan case was neutral. Of the remainder, almost all the statements on both networks were supportive of Egan (figure C). The most negative analysis of the Egan case came from law professor Jack London, who was not critical of Egan himself, but rather of the court. On the May 25, 1995 CTV "News" London said, "Essentially, what they're saying is, it's the old saw, political saw, Lloyd, about being a fiscal conservative and a social liberal. The court's saying yes to liberalism for homosexuality, they are entitled to protection, but not when it costs money. That's the bottom line."

Support for Egan comes from interest groups and legal experts

Unlike the coverage of the Suzanne Thibaudeau case, reporters and anchors offered very little assessment of the Egan case. Most of their comments were factual. The bulk of the positive commentary about Egan came from interest group and legal expert sources. In fact, only on CTV did any source dissent from the dominant opinion (figure E). The only negative evaluation of Egan's argument, provided by Jim Weisgerber of the Catholic Bishops Conference, was quoted briefly on the May 25, 1995 CTV "News." Weisgerber stated that spouses are married people and "marriage is between a man and a woman."

Click here to view Figure E: Assessment of Egan by Sources

Despite their factual presentation of the case, television journalists were quick to point out that Egan won more for gay rights than he lost. Peter Mansbridge in introducing a story on the May 25, 1995 CBC "Prime Time News" said, "Egan has lost his own case, but won a victory for all homosexuals." Ian Hanomansing added in the story immediately following, "At least one legal analyst who has studied the decision says too much is being made of what Egan and Nesbitt lost-the specific benefit-[and] not enough of what they won."

Egan purportedly won a moral victory because the courts decided that homosexuality could be the basis for sexual discrimination. The story then focused on the decision opening the doors for further cases involving equality rights for gay men and lesbians. Lloyd Robertson in his May 25, 1995 newscast said, "The high court said, no, homosexual couples cannot collect the same pension benefits that other couples receive. But in making that ruling, it said discrimination against homosexuals is against the law. So, as Roger Smith reports, gays and lesbians are left with something to cheer about, and reason to be unhappy." CTV then showed a clip of John Fraser, a "Gay Right's Activist," saying, "We know that we are equal. Nothing can change that. The Supreme Court has opened the doors to future legal challenges."

In the CBC panel discussion presented on the "Prime Time Magazine," the two commentators, Patrick Monahan from Osgoode Hall, and Sheliagh Day from the National Committee on the Status for Women were very critical of the majority ruling in the Egan case. Indeed, the opinions of these two panellists formed a united front. This is somewhat against the usual practices, at least on paper, at the CBC. In theory, CBC panels should provide balanced opinions. If someone with an alternative perspective can not be found for a program, then it is unnecessary to interview two individuals with the same opinion. In this case, the commentators merely echoed each other. For example, Monahan argued: "When you read the judgement as a whole, I think the sense you get is that the court is taking a very narrow approach to the overall burden of justification, if you will, that's on government in order to justify laws that might discriminate against gays and lesbians. I mean, essentially, I think the court is saying that it's open to Parliament and to the legislatures to prefer heterosexual couples because of the ability of heterosexual couples to procreate and have children. And I must say, for my money, on this one, I think the court got it wrong. I must say I found the dissenting judgement, judgements, in fact, much more persuasive here." To that Day responded: "And I agree again. It seems to me we've got a real question here that the court, the majority, is just not dealing with properly-what is the basis for social benefits in our society?"

By providing two commentators with exactly the same position, CBC failed to give an alternative perspective. In Thibaudeau, the commentators acknowledged that another side of the argument did exist, namely, that Thibaudeau could have her child-support reduced if her husband could not make the deduction from his support payment. However, they did not acknowledge that there was another side to the Egan case, namely, that Egan and his partner had been paying taxes as individuals rather than as a couple. Because they were not considered a couple for tax purposes, they could each qualify for tax benefits such as GST credits, something that a combined income might preclude them from doing. In examining only the benefits to heterosexuals, television painted an overly rosy picture of how the tax system benefits opposite sex couples.

RJR victory criticized by television

RJR MacDonald Inc. v. Canada was a challenge by a tobacco manufacturer to Canada's ban on tobacco advertising. In RJR, the claimant tobacco company argued that the tobacco advertising ban violated its freedom of expression under the Charter. The appeal was successful, and the Supreme Court struck down the ban against tobacco advertising on September 21, 1995.

Television provided more neutral descriptions of the RJR case than they did of Egan or Thibaudeau. Almost one-fifth of CBC and one-quarter of CTV statements about the tobacco ban case were neutral (figure C). However, while television's attention to Thibaudeau's argument was 25 times more likely to be positive than negative, and while attention to Egan's argument was entirely positive, attention to RJR's arguments was favourable in only 19 percent of CBC and 21 percent of CTV overall attention to this case. Examining the balance of opinion, CBC was twice as likely and CTV almost twice as likely to criticize the decision as they were to support the Supreme Court's decision.

Journalists lead the criticisms of the tobacco ban ruling

The trend favouring Thibaudeau and Egan and criticizing RJR was evident even when one examines journalists' statements in isolation. As figure F shows, CBC journalists were 8 times more likely to be critical of RJR's arguments than supportive of them. In contrast, CTV's journalists were only slightly more negative than positive toward the ruling. CTV reporters focused on the fact that the tobacco industry was going to be self-regulating. For example, on September 21, 1995, CTV's Roger Smith emphasized, "Despite its victory, the tobacco industry promised to live by the old rules while it talks to the government about new, less restrictive ones."

Click here to view Figure F: Assessment of RJR by Sources

CBC's coverage focused more on the moral issue of smoking. For example, Dan Bjarnson on the CBC "Magazine" on September 21, 1995 on the issue of tobacco advertising had this to say: "What now seems so wrong with this picture is that there was a time when nothing was wrong with this picture. The ordinariness of smoking was the problem. Cigarette advertising was so pervasive and so overwhelming, it convinced many of us into believing smoking was so very normal. Why did those people blitz us like that? University of Toronto historian and author Paul Rutherford cautions us, don't believe the tobacco propaganda."

The subsequent discussion on the "Magazine" was often acrimonious and heated when tobacco lobbyist Rob Parker of the Canadian Tobacco Manufacturers Association was pitted against Michael Dector, who was labelled a health care policy analyst. This begs the question, whose interests does Dector really represent? Although Parker was able to argue the decision on its legal grounds, the debate often moved away to the issue of health risks. Parker argued: "The industry's pleased about the result. I think it's not only a victory for freedom of expression. It's a victory for common sense. . . . It's a coup in-a victory-they believe they have a fundamental right to communicate with their customers, they make and sell a legal product." Dector's arguments emphasized the need for bans and increased taxation on tobacco products. He also argued that the industry is very powerful. He said, for example, "It's very had to pull it down. It's very had to pull down smoking. The industry is very successful in finding ways to identify with worthwhile causes, to identify with sports events, to identify with worthwhile causes, to identify in its naming of products with the problems young women have with self-esteem. It's a very tough issue to change your behaviour of people with an addictive substance. This isn't freedom of choice. This isn't some substance people get up in the morning to say, `well I'll think I'll make a decision.' This is a highly addictive substance which an industry makes a lot of money from. And that makes it unique and it's why the entire health community in this country stand against your industry and stand against anything that gets in the way of trying to reduce the consumption of tobacco."

As interesting as the debate between the smoking and health lobby might be, in this instance, television coverage did not examine the court's decision and the issue of freedom of speech. What distinguished the coverage of the RJR case from Thibaudeau or Egan was that in the former, legal analysts were conspicuously absent. There was little discussion surrounding the majority and dissenting opinions. No analysis was offered of the arguments presented by the justices, and no assessments were made about the composition and biases of those sitting on the Supreme Court. Further, unlike Thibaudeau and Egan, audiences were not told what precedent the RJR case might set, nor told whether the court was justified in its denial of government activity. Television coverage focused on the narrow health and moral issues surrounding the sale and use of tobacco products.

Courts or the media: which is the catalyst for social change?

This issue of On Balance has examined three cases on which the Supreme Court ruled in 1995, and which received substantial television attention. The three cases have profound public policy implications. In all three cases the courts ruled against social change. In all three cases television news argued for social change. What has been the legislative effect? In all three cases, the government has became more active in regulating the relevant policy areas than they were prior to the decisions.

In the federal budget handed down in March 1996, the government announced that it would no longer require divorced parents with custody of their children to pay tax on child support payments from their ex-spouses. The old rules were said to perpetuate poverty among single parents, of whom the vast majority are women. The non-custodial parents would pay the tax instead. According to the Globe and Mail, this legislative change was a direct result of the Thibaudeau case: "The overhaul arises from the long court battle waged by Susan [sic] Thibaudeau, who went to the Supreme Court of Canada to argue, unsuccessfully, that having to pay taxes on child-support payments unfairly penalizes custodial parents" [Tu Thanh Ha and Anne McIlroy, "Tax on child support to die," Globe and Mail, March 5, 1996, p. A1.]

In the Egan case, the Liberal government fulfilled its promise to add sexual orientation to the Canadian Human Rights Act in May of 1996. While the federal government is still looking at ways to limit the sale of tobacco products, local governments are cracking down on smoking in an unprecedented manner. The smoking bans in Toronto and Vancouver are severe limitations to smoking in public places.

Did television news create a climate for opinion change which facilitated the government to take action in the policy areas implicated by the three court cases discussed? Were the arguments made in the "court of public opinion" ultimately more effective than those made before the Supreme Court? Certainly, commentators have suggested that "publicity generated by adjudication places its sponsor in the public eye and can provide a legitimate way for the organization to place its issue on the public agenda." [Karen O'Conner, Women's Organizations' Use of the Courts, Lexington: Health, 1980, p. 229.]

Common sense indicates that Thibaudeau would not have made a legislative impact had it not been for the publicity generated by the Supreme Court case. Similarly, the high-profile nature of Egan helped to galvanize support for the Liberals' human rights bill. What is less clear is the link between media attention to the RJR MacDonald case and municipal smoking bans. Apart from legal challenges, tobacco products have had negative media coverage for some time. The attention given to this case is merely consistent with smoking news stories in general. In other words, the RJR case did not bring an unknown case to the forefront as did Thibaudeau and Egan. Perhaps the lesson from this exercise is that positive media coverage of an otherwise obscure issue can affect legislative change.

Summary

One might argue that the media gave Thibaudeau's arguments about child support more attention than RJR's because she was the party who initiated the legal challenge. A comparison of Thibaudeau with the other two high profile constitutional challenges of 1995 reveals, however, that positive media attention is not related to whether the party in question initiated the case. Rather, positive media attention seems to depend very much on the issue itself.

Are there any factors that might explain the discrepancies in the way RJR was reported compared to Thibaudeau and Egan? One factor might be that Suzanne Thibaudeau and Jim Egan were individual Canadians who brought a human dimension to their cases in a way that the RJR MacDonald tobacco company could not. Peter Mansbridge alluded to this in his opening statement on May 25, 1995, the day the Egan and Thibaudeau decisions were released: "Good evening. Two very public cases. Two very personal battles lost today in Canada's highest court." And while Thibaudeau and Egan were profiled individually, the only advocate of RJR's position was Robert Parker of the Canadian Tobacco Manufacturer's Council.

A more systematic difference in the media coverage was in the selection of sources. Experts were used extensively to analyze Thibaudeau and Egan but hardly at all for the RJR case. This suggests that the legal aspects of the equality cases were highlighted in a way that the freedom of speech aspect of the RJR case was not. This is confirmed by the fact that an assessment of the political context accounted for the majority of the RJR discussion, whereas the legal principles involved formed the majority of the Thibaudeau and Egan coverage. What this means in the context of the RJR coverage is that the legal reasoning of the Court in supporting RJR's claim against the government was forgone in favour of criticisms of the policy outcome and the predicted impact on the health of Canadians.

In presenting the arguments the way that they did, television news provided a rather deterministic portrayal of the issues. It could seem as though reporters are attempting to place themselves on the progressive side of history, encouraging the state to socially engineer society in ways that liberal conventions would support. This type of coverage is not objective journalism. Rather, it is self-serving and proactive. By providing such simplistic and one-sided portrayals of complex legal issues, television denigrates the debate and attempts to fix social issues to a "progressive" perspective.

[This study was made possible by the work of summer intern Avril Allen. Ms. Allen is a second year law student who worked for the National Media Archive during the summer of 1996. The internship program is made possible by a generous grant from the Hunter Family Foundation of Calgary. Ms. Allen's knowledge of the law and legal issues provided significant input into this project. The National Media Archive is grateful to both the Hunter Family Foundation and to Avril Allen for their assistance with this project.

Methodology on Courts and the Media

Results are based on 36 CBC "Prime Time News," "Magazine," and "Sunday Report" news stories, as well as 37 CTV "News" stories about Supreme Court cases from January 1, to December 31, 1995.

Further information or details on the coding design and methods used may be obtained by contacting the National Media Archive.

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