Law and the Fourth Estate: Endangered Nature, the Press, and the Dicey Game of Democratic Governance

Abstract

Building upon the story line of a current book project on the Tellico Dam case, this Essay explores a challenging reality of modern public interest lawyering – the critical role of public perceptions and of the Press’s role in shaping them. Most public interest attorneys come to realize that their lawyering must move simultaneously on two different tracks that determine outcomes – law and public opinion. This double task can be difficult and sometimes impossible. Both tracks require the organization and presentation of facts, but the two contexts can be quite different. A legal case requires proof of each technical element of the cause of actions. On the other hand, the public’s perception of the controversy is instead likely to be shaped by common sense facts that are selected and given meaning by the “perceptual frame” context in which the Press delivers them. The way information is initially presented shapes the frame through which it will thereafter be perceived by the public and the Press itself. Once established, frames tend to hold. New facts contradicting the frame are more likely to be unperceived than to change the frame. The central case study in this Essay is the notorious “snail darter” litigation. Farmers and environmentalists in Tennessee, outsiders to the political marketplace establishments, tried to use preservation of an endangered fish species as leverage to block the Tennessee Valley Authority’s Tellico Dam project. Over a period of seven years of extraordinary efforts, the environmental plaintiffs were successful in the legal process, but in the realm of the Press and public opinion were disastrously unsuccessful in getting across the dramatic facts that would have shown that good ecology made good economic sense. From this frustrating experience the Essay offers some analytical conclusions and some wistful suggestions for possible systemic improvements.