ENVIRONMENTAL ATTORNEYS AND THE MEDIA: GUIDELINES FOR EFFECTIVENESS

Boston College Environmental Affairs Law Review, 2006 by Stanton, John M

Abstract:

It is often difficult for a public interest advocate to compete with wealthy interests that have vastly greater resources at their disposal and opposing policy preferences. In order to level this playing field, advocates can effectively employ media strategies that allow the public to participate in the public policy debate. This public awareness can often be very effective in influencing the course of the debate and sensitizing policy makers to the competing interests at stake. Accordingly, media tools and goals should be considered at the outset of strategy development, and should inform everything from a project's title to its budget. Public involvement, made possible through media coverage, can play a pivotal role in influencing policymaking proceedings in the judicial, executive, and legislative branches of government.

INTRODUCTION

Working with the media involves some of the most challenging and effective work for a public interest attorney. Currently, in Washington, where few public policy outcomes advance public health and environmental protection, there are still opportunities to make progress by devising and executing effective media strategies that bring vital attention to these issues. Attempts to implement public policy that repeals or threatens health safeguards and environmental protections are most successful when they escape media attention and public scrutiny. Therefore, the role of a media strategy is to thwart these efforts by bringing the public into the debate.

This Essay takes a clinical perspective on how to get media attention for an advocacy project. The advocate should think about media goals as a first principle and should include them in initial strategy deliberations. Media strategy should guide what the advocate does from the beginning of any matter. In some cases, it may be that media coverage is undesirable. For example, if an advocacy organization is involved in litigation and anticipates a loss, media coverage of the outcome may harm the organization's cause. Regardless of the desired attention, a coherent strategy to establish that end is required.

I. MEDIA ADVOCACY IN THE JUDICIAL BRANCH: A BALANCING ACT

Appropriate media strategies can be tailored for each branch of government. In the judicial branch, due largely to the legacy of the OJ. Simpson trial, there is increasing media coverage of litigation. High profile cases have become a popular media playground; as a result, overt media strategies are increasingly prevalent. Thus, even in a judicial branch setting, where decorum is at a premium, it is important to devise a media strategy that is considered as early as drafting the complaint.

Working with the judicial branch of government is unique because of the dictates of the Rules of Professional Conduct (Rules).1 Attorneys are "Officers of the Court" and "Members of the Bar" and, as such, must follow specific, mandatory rules regarding their conduct.2 These Rules may pose practical limitations.3

While a detailed examination of these constraints is outside the scope of this Essay, it is sufficient to state that the advocate must strike a balance between several competing interests. A lawyer has a duty to provide zealous, diligent representation to his client.4 However, a lawyer may not make extrajudicial statements that could threaten the impartiality of a judge or jury.5 Ultimately, the advocate must be aware of and comply with the limits imposed by the Rules.

II. MEDIA ADVOCACY IN THE LEGISLATIVE AND EXECUTIVE BRANCHES: OPEN SEASON

Legislative and executive branch strategies are a completely different matter. Zealous media strategies may be very effective in these branches. There are three ways to prevail in Washington: deliver cash, votes, or pain. For public health and environmental advocates, effective use of the media is essential. These advocates rarely have the means to deliver significant campaign and political party contributions. Furthermore, they cannot deliver votes because public health and environmental issues do not get most voters to choose one candidate over another. Therefore, often the most effective way to secure the support of elected officials is through "pain"-embarrass the official into doing the right thing by calling attention to an indefensible position on a sensitive matter. Commonly, wealthy corporate interests are behind these "indefensible" positions, delivering both campaign contributions and support at the ballot box.

An example of this is a recent rulemaking that the White House Office of Management and Budget (OMB) proposed.6 OMB was seeking to finalize obscure regulations that would allow a "thumb-on-thescale" approach during routine cost-benefit analysis of public health regulations.7 Cost-benefit ratios factor heavily in determining the ultimate fate of public health safeguards. OMB sought to finalize a rule providing that people over sixty years of age would be considered forty percent less "worthy" for monetary valuation purposes than younger people.8 The effect would have been dramatically less public "benefit" for the same industry cost associated with rulemakings. Because of the discriminatory nature of the rulemaking, it was crucial that the public be informed of the debate.