Former head of United Press International
“For the press of this country, the mission of defending the individual against excess–whether from government or his fellow citizens–can be second to none. “
Abraham Lincoln, who shared the same convictions with equal vigor, was 28 at the time of Lovejoy’s death. It was to be another 26 years before Lincoln would stand in a distant field at Gettysburg and rededicate this nation to what he called a “new birth of freedom”–a rebirth that emphasized as never before the worth, the dignity, and the overriding importance of the individual in a society committed to freedom and equality.
For the press of this country, the mission of defending the individual against excess–whether from government or his fellow citizens–can be second to none. We hear and say much more about its role in serving the general public interest as the adversary of government. Obviously, in serving the public interest in that more general way, the press is also serving the individual citizen.
But the press is not alone in scrutinizing the various levels of official activity. Our governmental system itself contains internal checks and balances. The press serves there as an all-important extra layer of protection.
When it comes to defending the rights of the individual, the press can have a more solitary role. It is often appealed to as a last resort, after other avenues of redress have failed. Time and again it has proved the only friend of the individual citizen in exposing a miscarriage of justice or a case of bureaucratic arrogance. More than anything else, it is this role of the press as the last line of defense for the individual that justifies its special position within our constitutional system.
What I would like to do tonight is to suggest that this special position is being confused with special privilege by the demands and practices of some within the profession. There is a difference between special position and special privilege and the fact that this distinction is being blurred should be of concern to us all.
Before I become more specific, permit a personal note. I have spent most of my adult life in the practice of journalism, and I remain as convinced as ever that despite the occasional lapse that afflicts all human institutions, the American press serves the public well. But I must confess that some of my perceptions of the press, its responsibilities and its performance have altered since I ceased being a daily practitioner and entered the academic world.
Here I encounter dangerous waters. Journalists who take up teaching are sometimes regarded as unrealistic, finger-wagging scolds when they discuss the problems of the profession. I can only hope this is not necessarily always true–that it is also possible for a more detached view to yield a more realistic view of some situations.
In any case, I do not come to voice disillusionment. I believe American journalists by and large can be proud of their record of performance. And I believe the criticism they incur often simply confirms that what they wrote or what they said needed to be reported and needed to be said.
But there are some journalistic positions and procedures that deserve re-examination because they are capable of doing harm not only to the image of the profession but also to rights of individual citizens. If I dwell on these few questionable areas tonight, it should not be taken as any general indictment.
As a journalist who now finds himself more detached from the daily fray, I am more struck than ever before by the power and influence of the news media. The daily practitioner, it seems to me, takes his duties so much for granted that he does not always see himself for what he is–the supreme, self-appointed arbiter over which of his fellow citizens is to gain fame and which notoriety, which acclaim and honor, and which embarrassment or disgrace. The routine, day-to-day journalistic task of deciding which event or deed is to be given public notice, and which is to be ignored, can have far-reaching consequences for countless individuals. So can even the most casual word of a reporter or editorial writer or TV anchorman. And if the consequence is a negative one, no subsequent correction, retraction or rectification is very likely to undo all the harm.
Even TV’s instant replay cannot alter the truth in the message from the Rubaiyat of Omar Khayyam that “The moving finger writes, and having writ, moves on;
“Nor all your piety nor wit shall lure it back to cancel half a line,
“Nor all your tears wash out a word of it.”
“The routine, day-to-day journalistic task of deciding which event or deed is to be given public notice, and which is to be ignored, can have far-reaching consequences for countless individuals. “
A more detached perspective has helped me better understand why so many in both public and private life regard the press as a rather forbidding, somewhat remote and often inaccessible or unresponsive institution that is seemingly accountable only to itself in wielding an awesome measure of influence and power.
This self-accountability is without question the basis for the mixed emotions with which many Americans today regard the news media. And this reaction is only nourished when journalists are seen to demand privileged positions enjoyed by no other group of citizens.
One such position involves shield legislation to protect a reporter’s sources. This is seen by many outsiders as the application of a double standard. Here, it is said, is the same institution that proclaimed in Watergate that not even a president is beyond the law, now claiming for itself the privilege of a certain measure of immunity from prosecution.
That the press is entitled to a special role in American life is beyond dispute. The late Justice William O. Douglas put it in these words:
“The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment of the public right to know.”
Unfortunately, the distinction between a “preferred” position and a “favored class” is lost upon the advocates of shield laws. These statutes have the laudable aim of safeguarding the investigative role of the press. This they do by granting immunity from prosecution to journalists who refuse to reveal their sources of information.
But the difficulty with any immunity is that there can be no assurance it is invoked solely for good and noble purpose. It can as easily be invoked with ignoble motive–if not by journalists, then by sources bent on using the journalist as a vehicle to attack some other individual. Advocates of shield laws are urging Congress to extend this same privilege to the federal system. I know there are many others who share my satisfaction that Congress is showing no eagerness to comply.
The self-accountability of the press is a natural product of its freedom, but it is a position that is at times perceived as arbitrary and arrogant. It leaves the journalist free to use his own definition of the public interest in deciding what to print and when to print it. He asks or should ask: Will publication of this startling, though unproved, allegation reflect badly and unfairly on this or that individual? Possibly, comes the answer, but the public interest requires publication; therefore, concern for the individual may be relegated to a secondary position. We must ask ourselves whether the cry of public interest is too easily or too casually invoked.
I am certain that I myself would have bridled a few years ago had someone else voiced those opinions in those terms. Yet that is precisely the position the journalist takes in reporting certain legal proceedings.
I am not speaking of the effect of pretrial publicity on potential jurors. That debate is a long-standing one, and I believe the press over the past decade or so has demonstrated increasing awareness of the problem. I speak instead of legal proceedings in which juries may or may not be involved but where pretrial publicity can inflict other kinds of harm on the individual.
In a few states, anything alleged in a legal suit, however false, however fanciful, however exaggerated, can be published without fear of libel the moment the legal papers are filed. But even where no such formal privilege exists, it is not unusual for some in the media to pounce as soon as an exciting allegation is filed. So things like this can and do happen frequently:
A doctor is the object of a multi-million dollar suit for malpractice, and a teen-age girl accuses the male band teacher at the high school of sexual molestation.
Both cases, complete with name of the doctor and the band leader and details of the allegations, are immediately published. The doctor’s case goes to trial and the charges against him are found groundless. Four weeks after the girl brings her charge against the band teacher, before a trial ever begins, her story is found to be fabricated and the charge is dropped, This too is published but by its very nature, fails to attract the same notice largely because people are more likely to repeat scandal alleged than scandal disproved. No one, I think, can argue with great confidence that the good name of either the doctor or the band leader can be soon or easily restored so that they are no longer the object of lingering suspicion and speculation.
The question to be asked here is this: In what way would the public interest have suffered if the local media had published nothing about these unfounded allegations unless and until they had come to trial? The question is all the more relevant because of the logjam in most court calendars and the long delay in final disposition of so many cases.
It is not enough in instances like this to protest that when the media publish an allegation, they vouch not for its truth but only for the fact that it was formally made. In investigative reporting, most editors want at least two sources to support a major charge of misfeasance or malfeasance. Why then should the word of a single plaintiff, by definition a biased source, be accepted for a major assault an the person, character or competence of another individual? Obviously, there will be times when immediate publication can be justified. The important thing is that it be the result of careful and deliberate reflection. The fact that it would make a highly readable story is not enough.
Publication of information from closed grand jury proceedings is another area where it is easy to proclaim public interest in justifying piecemeal and premature publication. Evidence given to grand juries is subject to none of the challenges that characterize a courtroom trial and can be seriously tainted. Again there can be little doubt that publication of this kind of information can cloak an individual in a cloud that lingers even if an eventual indictment never materializes or is disproved.
In cases destined for jury trials, publication of evidence given for the first time at preliminary hearings can have a similar effect. A preliminary hearing is not a trial, and evidence presented there can also be incomplete or unfounded. Yet it is privileged matter and can be published without fear of libel.
” Fifteen media organizations are asking the Court to rule that a defendant’s sixth amendment rights to a fair trial are not impaired if, despite his objections, the proceedings are opened to camera and microphone coverage. “
I do not argue for closed preliminary hearings. The press is right to contend that as a general rule these proceedings must be kept open to guard against overzealous or lax procedures. But the press, it seems to me, can better discharge its role as the champion of the individual with more stringent monitoring of its reporting in the pre-trial period.
It is too easy to argue, as some do, that while harm may result to individual citizens in reporting proceedings such as these, it is the regrettable cost of a wider purpose–of keeping the public spotlight on the administration of justice. That is a noble purpose, but it can be debased if it is invoked too readily to justify reports that may be exciting but hardly important to the public interest.
Into this very questionable category I would place the current demand that courtrooms be open to TV coverage. Surely, few ordeals can be greater for the ordinary citizen than to be the defendant in a trial–to be led, at times manacled, into a courtroom and there to undergo the most devastating attack that the resources of the state can bring against him.
While no one can be at ease when exposed to the stares of the curious, a courtroom at least is a confined space, and the size of the audience limited. How then can it serve our professed concern for the rights or the dignity of the individual to demand, as some in the profession do, that the ordeal of this embattled citizen–who is to be presumed intensified by making him the subject of a Perry Mason-type spectacle for the TV audience far beyond the courtroom?
That basically is the issue involved in a Florida case now before the Supreme Court of the United States. Fifteen media organizations are asking the Court to rule that a defendant’s sixth amendment rights to a fair trial are not impaired if, despite his objections, the proceedings are opened to camera and microphone coverage. The individual himself, it seems, is to have no rights in the matter at all, no matter how much he may dread the known presence of the hidden microphone and hidden camera, no matter how ill at ease it may leave him at a time when he should be able to think more calmly, more coolly and more carefully than perhaps ever before in his life.
Surely it is not expressing hostility to the First Amendment to hope that the Supreme Court will reject this pending request. Surely the individual deserves some right over the psychological environment in which his property, his freedom and perhaps even his life are to be adjudicated. To feel otherwise, it seems to me, is to foster the impression that a profession that prides itself on championing the individual has turned callous and insensitive.
Let me return to the question of shield laws and professional confidences. I believe firmly that a journalist must keep his word. Steadfastness to a pledge is the basis of trust, but this is a pledge that must not be lightly given. When the journalist pledges confidentiality for information that is likely to have grave consequences for himself or others, he must first of all decide whether this information is in fact essential to the public interest. If it is, publish he must. He must take scrupulous care that he is on solid ground, and he must be consciously aware that he may be inviting a writ for libel or for contempt. He must be prepared to convince a jury, at the risk of his personal liberty if it comes to that, that his work was truly important and clearly in the public interest. I regret to say that the California shield has been invoked in situations that hardly involved matters of great public importance.
With the cozy safety of a shield law, of course, the importance of the information need not be a factor. It can be trivial. It can even be untrue. No matter. With a shield law, both the source and the vehicle for an irresponsibility can sit easily in a privileged sanctuary.
No segment of society should be above the law. Advocates of shield laws argue that no precedent is involved here because the same principle is involved in the doctor-patient, lawyer-client. and priest-penitent relationship. This argument is superficially attractive but collapses quickly under scrutiny. Doctors, lawyers and priests do not rush into print or put on the 6 o’clock news the information they receive in privacy. The sole reason for a reporter to receive confidential information is to make it public. Only when the others begin broadcasting their information to the community at large can their role be equated with that of a journalist.
Journalists take it for granted that there are dishonest or incompetent doctors, lawyers, plumbers, accountants or government officials. Are journalists alone to be presumed to be free of those frailties? It would require a heroic measure of arrogance to assume so. And yet shield laws extend the same immunity, provide the same sanctuary to the dishonest or irresponsible journalist as they do to the good one.
“No less disturbing is the fact that shield legislation accepts the principle that the limits of First Amendment rights are negotiable in 50 state legislatures and the Federal Congress. “
Moreover, there is the troublesome question of just who is entitled to call himself a journalist and claim this legal privilege. Any citizen, after all, can become a publisher by buying a piece or two of carbon paper and expounding his views to friends. Is he, simply because he circulates only a few copies, to be denied a right that is extended to those who circulate a few thousand? Is the full sweep of the First Amendment to be limited to those who have made publishing a commercial success? Here we must remind ourselves of Justice Douglas’ admonition that the preferred position of the press in the constitution is not to enable it to make money. The rights and privileges inherent in the First Amendment must apply equally to all–and anyone with access to a typewriter and a copying machine can with logic lay claim to the privileges of shield legislation. The effect that such wholesale application would have on a system of law is not difficult to imagine.
No less disturbing is the fact that shield legislation accepts the principle that the limits of First Amendment rights are negotiable in 50 state legislatures and the Federal Congress. If the press concedes to legislators on any level the right to give it something in this area of free expression, it must also concede them the right to take something away. That is a concession that at a later time could be invoked against the press with much mischief. If we do not relish the latter, we must not covet the former, for we cannot have one without the other.
I believe as firmly as advocates of shield laws that the First Amendment gives the press a special role to probe, to question, to goad and to deflate. The exact limits of that role have remained somewhat uncertain during most of our 200 years of history. For the most part, press and government have not known precisely how far they could go against each other without encountering the wrath of an aroused public, which must always be the final arbiter. By seeking to strengthen its own position in this relationship with special legislation, the press can only encourage countermoves from its natural adversaries. A contest of codification can only serve the cause of restriction. I believe it is far better that a degree of uncertainty and risk remain, for both breed caution, and caution is the best preventative of excess by all who wield power. On balance, I believe it is far wiser for the press to take its stand simply on the First Amendment–and to count, not on special privilege, but on a record of responsible performance, to give it the public support that is the most effective source of strength.
Those who hear that the press can be emasculated by the government and the courts without shield legislation forget the force of public opinion and support. The Lovejoy story reminds us how the public can rally around a beleaguered journalist if it feels his cause is a worthy one. Not once, but twice, you will remember, after anti-abolitionist mobs destroyed Lovejoy’s press and he appealed nationally for support to replace it. Twice the response from the public was quick and positive.
Happily, the modern journalist is not likely to encounter the vigilante mobs that in the end silenced both Lovejoy and his press. Today’s adversary is more likely to be some branch of government. Whatever the source of pressure, I believe the press can withstand it far better with a record of accomplishment and solicitude for individual rights than it can by soliciting special privilege.
Obviously, taking a stand simply on the First Amendment cannot be a guarantee against overzealous prosecution. At times, journalists may be asked to pay the price of principle and to endure jail terms, as journalists have in the past. But I am confident that even that risk can be minimized if confrontation is risked only on demonstrably important issues. In the long run, the best shield is the shield of public support and respect, and that cannot be legislated. It is far better, I think, to face up to an occasional risk rather than to seek legal shields behind which the irresponsible can indulge in excess with impunity. That can only dishonor us all and heap disrespect on the profession, and without respect, we can have nothing at all.