I apologize for a personal reflection. It is probably off piste, but perhaps it isn’t. People frequently ask me how did a seasoned litigator with almost a half-century of trial and appellate experience morph into a talk show host. Timothy Leary said famously, “In the information age, you don't teach philosophy as they did after feudalism. You perform it. If Aristotle were alive today he'd have a talk show.” Aristotle, I’m not;
In 1995, my friend, Jim Goodale, founded a TV talk show, which he called “Digital Age.” The show runs on the New York City cable Channel 25, NYC Media every week. He had a hit on his hands. It worked. Goodale’s guests included Henry Kissinger, Tom Brokaw, Michael Bloomberg, and Dan Rather. The theme of the show was the Internet and technology, and their application to the issues of our day. As it developed, the program got into the new media,
With the advent of the digital age, we began to move from a period of relative government transparency and personal privacy to a time where the government has little transparency, and the people have virtually no privacy. Cybernetics brought us super encryption for documents marked “classified,” which might not really be classified at all but which could readily conceal the embarrassments of government, the cock-ups, and the wrong-headed decisions. Technology focused the prying eyes of government on our most intimate communications, our reading habits and our political beliefs.
The Internet enhanced the ability of the government to spy on its citizens, and on the press. We didn’t need Snowden or Holder to confirm that. We intuitively knew it all the time. A wealth of data about the personal lives, preferences and predilections of American citizens, encompassing nearly everything we read, write, watch and have any interest in, became in a sea change easier to access. The old dossiers kept by J. Edgar Hoover seem quite thin by comparison.
The Internet became a formidable tool of global dimensions, which, much like a knife, a gun or a pen, could as easily be used for good as for evil. The web has the capacity to promote Hillary Clinton’s goal of global connectivity, educate a populace, delay Iran’s sinister nuclear program, mobilize a revolution against autocratic rule, democratize the Middle East or encourage China reform. But there is a dark side as well. The Net can also offer a recipe for making a terrorist bomb from a pressure cooker or be a medium for the bizarre sexual predilections of an Anthony Weiner as he pursues his impossible dream of Mayoral office.
Human rights law issues abound on the Internet, and receive the attention of the international community. A repressive regime can use the Internet to identify and crack down on dissidents. The renowned China contemporary artist Ai Weiwei was severely beaten and later imprisoned for posting on his blog a list of 5400 students killed in an earthquake because their dormitories and classrooms were of shoddy construction. A world-class pianist in Turkey, Fazil Say, used Twitter to express atheistic countercultural ideas. Employing its control of the Internet platform to collect the evidence of unpopular political thought, the autocratic Ertogan regime convicted Say of inciting hatred, insulting Islam and offending Muslims. Although not sentenced to jail, Say is on probation for five years on condition that he not re-offend Muslims, even if he is just re-tweeting what someone else said. The pianist could have been sentenced to 18 months in prison.
The jury is still out on how the digital revolution will impact our trial courts. Will it make them more efficient in the collection of data? Will it spawn a new generation of interesting and novel litigation? Or will it undermine the courts’ basic procedural structure and time-tested methods for getting at the truth as jurors may be tempted to use Google and social media to “visit” a crime scene or second-guess expert testimony?
A decade ago, long before the issue became red hot, Goodale invited me to appear as a guest on the program to talk about the predator drone with Ken Roth, the extremely articulate guiding spirit of Human Rights Watch. All I knew about the predator drone was that it was an unmanned aerial reconnaissance vehicle operated from a booth about 700 miles from the target. Armed with a Hellfire missile, the drone became a lethal digital weapon, incinerating major al Qaeda figures in the deserts of Yemen. Already, relatives of targeted individuals have brought lawsuits seeking to determine whether family members are on the kill list. I guess I did well enough because Jim invited me back for additional guest appearances, and about a year later I became his co-host. We never appeared together, but I did about 13 shows a year, and I loved it. The material on Digital Age was fresh and timely, and the ratings were good.
Three years ago, Jim decided to give up the show to work on a book, and he asked me to take over. I was thrilled. I exploited my interest in foreign relations to interview such luminaries as UN Secretary General Ban ki-Moon, Ambassador Frank Wisner, Council on Foreign Relations President Richard Haass, Foreign Affairs editor Jim Hoge, and national security adviser Elliott Abrams.
I also used my background as a Southern District federal prosecutor to interview Police Commissioner Ray Kelly on electronic surveillance and stop and frisk, former U.S. Judge John Martin on the federal sentencing guidelines, Knapp Commission Chief Counsel Mike Armstrong on police corruption, sex crimes prosecutor turned author Linda Fairstein on the DSK affair, and premier trial lawyer Peter Fleming on his failed effort to get Arnold Schwarzenegger to grant clemency to reformed gang leader and writer Stanley “Tookie” Williams, who had been condemned to death.
I discussed terrorism with 9/11 Commission co-Chairman Thomas Kean; Obamacare with presidential adviser Joe Califano; new journalism with Columbia School of Journalism Dean Nick Lemann; Facebook and Mark Zuckerberg with Fortune Senior Editor David Kirkpatrick; financial regulation with boutique investment banker Peter Solomon; the decline and fall of Bear Stearns with its Chairman Alan “Ace” Greenberg; politics with pollster Doug Schoen; food and restaurants with bon vivant restaurant-goer Tim Zagat; theater with bravura Lincoln Center Theater Director André Bishop; the visual arts with MOMA Director Glenn Lowry; the performing arts with jazz great Wynton Marsalis; sports with iconic sportswriter Frank Deford; and marriage equality with DOMA test case plaintiff Edie Windsor. The program featured a Pleiades of amazingly talented and knowledgeable people.
One of my close friends, an English appellate judge, observed that the skills of a professional advocate are not misplaced in a talk show host. There is an opening statement of what the show is about, a period of Q&A, consisting of direct examination where you know what the guest is going to say, and cross-examination where you probe and press, pry and follow up. Then, there is the wrap-up or summation. I found it to be exhilarating, -- not quite like the drama of the courtroom, but not entirely unlike it either. The only things missing are the judge and jury, but they are out there as the viewing audience.
We don’t know quite yet how these tectonic changes in our lives will play out in the courts where I practiced. The answer will only become clear after another 100 years or so of litigation. What we do know is that I have personally traveled from litigator to talk show host. Should I accuse myself of “mission creep?” Probably so. My only defense is what Hamlet said. “There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.”
