The Courtroom, The Public And The Razzle Dazzle

It's happened again. Just a few weeks ago, we saw it in the heart-wrenching trial of Lindsay Clancy. And now, the possibilities loom once more in the explosive rape allegations coming out of Cornell University, one of America's most prestigious institutes of higher education.

We're talking about the clash between the court of law and the court of public opinion.

In today's media saturated world knowing the difference between the court of law and the court of public opinion is vital if you want to have any sense of what's actually happening.

The most important thing to remember about the court of law and the court of  public opinion is that they couldn't be more different. 

They are almost like the two sides of the brain. One's more rational and linear. The other's more intuitive and non-linear. Think of the court of law as the verbatim transcript of a murder trial. Then, think of the court of public opinion as the same trial reported by TMZ.  That's an exaggeration, to be sure. But now, you're starting to comprehend the difference. For a better understanding, consider the following: 

1) In the court of law, facts theoretically count for something and the facts of the case are collected carefully and methodically and presented in some kind of order. In the court of public opinion, the facts may not be facts at all, and what information is brought forward is collected in a haphazard and fragmented manner and presented in bits and pieces in an often sensationalized fashion.

2) In the court of law, the rules are reasonably clear and they are presented to and known by all parties beforehand. In the court of public opinion, there really are few if any rules and besides, even if rules seem to exist, those rules can change at any moment.

3) In the court of law, the principals pretty much know who the main characters in the drama will be. In the court of public opinion, we never know who will pop up on which side and what role he or she may play.

4) Generally, the court of law is quiet and structured. People speak when spoken to. Only one person speaks at a time. Equal time is given for each side to present its case. A single presiding officer remains in charge. There is a clear sense of order and authority. The court of public opinion, on the other hand, is noisy and often downright chaotic. People do not wait to speak. Sometimes several voices are heard at once. While equal time guidelines may seem to exist, that does not mean they will be observed. No one seems to know who is in charge and the party who appears to have the "upper hand" may change many times during the course of the proceedings. There is virtually no sense of structure or order.

5) In the court of law, the proceedings have a beginning, a middle and an end. At some point, the matter is brought to a conclusion. A decision is made. In the court of public opinion, there often is no finality - no deciding moment. Just when you thought the story was over, a new chapter emerges. Today's victory can be tomorrow's debacle. The hero of 2025 is the villain of 2026. "Hot-button" issues now are "old hat" in a matter of weeks if not days.

If these contrasts seem to smack of hyperbole, think for a moment about some of the stories and characters that have inhabited the court of public opinion in recent years. The murder of George Floyd and the trial of Derek Chauvin. The charges against Kyle Rittenhouse and his subsequent law suit. The tales and travails of Jussie Smollett. Britney Spears' financial tussle with her dad. The legal journey of Bill Cosby. And, of course, who can ever forget the O.J. Simpson trial which became its own long-running daytime drama? 

And now the Clancy case and impending allegations of a gang rape.  One continues to play out in the court of public opinion following a hung jury while the other unfolds as a possible future trial. 

The court of public opinion hosts a variety of issues and personalities in a continuously chaotic, unpredictable setting. The whole show unravels in front of an often mesmerized audience that isn't always sure what it's seeing or what to think about it. 

Now, all along, of course, the audience is part of the show as the principals carry out a breakneck effort to sway the jury of public opinion. Glancing into this shrill well of public discourse, one can understand Ralph Waldo Emerson's frustration when he concluded: "The people are to be taken in very small doses."

Ideally, one would hope for a strong, sturdy wall between the two courts. But that simply is not the case -- if, indeed it ever was.

In the end, democracy demands that the people's voice be heard. That voice is what we call public opinion. And that collective opinion is monitored, scrutinized, analyzed, disseminated, amplified, manipulated and some might say magnified to the point where it is a force unto itself. 

And the court of public opinion is the collective environment in which this continuing process occurs. It is an environment inhabited by media moguls, TV cameras, cell phones, street reporters, satellite dishes, pollsters, newspaper scribes, podcasters, focus groups, social media influencers, bloggers, reality TV, marketing strategists, docudramas, packs of paparazzi, anchorpersons, commentators, talking heads, serious authors and ordinary Janes and Joes. Like it or not, it's a vital and integral part of what we call the popular culture. 

And, for better or worse, today's savvy lawyers are attuned to the court of public opinion and are adept at playing it like a fine instrument to advance their case in the court of law. They thrive within the periodic intersection of the two courts.

Or, as Billy Flynn sings in the iconic musical Chicago:

Give 'em the old three ring circus
Stun and stagger 'em
When you're in trouble, go into your dance

Though you are stiffer than a girder
They'll let you get away with murder
Razzle dazzle 'em
And you've got a romance.