‘A journalist by any other name’ ... should just report
June 2, 2016
By Gene Policinski
Inside the First Amendment
Donald Trump is mad at the press. Many in the press are mad at Donald Trump. And much of the public apparently is mad at both.
Whew. Welcome to the “marketplace of ideas,” 2016-style. Lots of heat. Occasionally, a little bit of light. And this year, all taking place at the hyper-space speed of social media.
It’s not like we haven’t seen this before — long before — in the heady air around the presidency, just slower. Revolutionary War writer and activist Thomas Paine and second term President George Washington traded insults of “hypocrisy and treachery” and “careless, ungrateful, virulent” in a Philadelphia newspaper in 1796, near the end of Washington’s second term.
And as Theodore Roosevelt’s time in office was ending, he directed government attorneys in 1909 to sue newspaper publisher Joseph Pulitzer for libel because of stories and editorials questioning the purchase of the company building the Panama Canal and Roosevelt’s claims about the decision.
Of course, both of those involved presidents after election. Trump, and other candidates for offices high and low, now may feel more empowered to lash out at reporters and news operations during campaigns because they no longer need the “press” to reach voters.
To be sure, television, political talk shows and newspaper articles still count, but can be countered as never before with instant viral tweets, and more. And the web’s direct reach doesn’t need — or permit — the press-as-gatekeeper of information.
The spark for the latest brushfire on the campaign trail was — as we know from a rush of online and televised chatter —Trump’s anger at being asked to provide evidence on the occasion of Memorial Day that he had indeed raised and distributed $6.5 million to various veterans’ groups, as he claimed earlier. Questions in, insults out, and so it began — again.
The nation’s Founders regularly faced political and personal criticism and harsh questions —much more vulgar and regular than what we see today. But they still placed strong protection for a free press among our core freedoms.
Our governing system of checks and balances relies on give-and-take, with an unfettered — and often unruly and imperfect press — to inform us so that we may make the hard decisions required for self-governance.
We ought to be concerned when “checks” — most recently, a large one written by Silicon Valley billionaire Peter Thiel — have the potential to distort a long-standing legal balance protecting those who report or opine about elected officials and other public figures — whether full time or in the occasional tweet or post.
Granted, the case at hand involving Theil, who apparently financed a libel action brought by former pro wrestler Hulk Hogan against the sensational web news provider Gawker, is tawdry and not one on which a free press would like to hang constitutional hopes.
A jury awarded the wrestler $140 million in damages over Gawker’s post of a sex tape involving Hogan. Jurors apparently found persuasive the argument that writing about the tape probably was a First Amendment protected act of publishing — but that showing the actual video was unwarranted and invaded Hogan’s privacy.
The specter of billionaire-funded lawsuits against internet startups or financially pressured traditional media would seem enough of a threat in itself. Throw in Trump’s campaign-fueled, vitriolic promise to work to weaken libel law protections for the media he disdains, and that combination is a lot scarier than a few outbursts and insults.
A landmark United States Supreme Court decision in 1964, New York Times Co. v. Sullivan, set out that public officials (later extended to public figures) had to prove a writer or publication had knowingly or recklessly disregarded the truth before being able to win a defamation lawsuit. In the unanimous decision, the Court said it ruled that way because of a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
A long-held view among working journalists is that they are not the story — but increasingly it’s clear that in the 2016 presidential race, they are, after years in which polls show the public’s view of the news media as an unbiased, accurate source of news has declined dramatically. And that lack of public trust, not sparring matches with politicos over personal characteristics, is where a real threat to freedom of the press resides.
While the Gawker trial’s salacious sex tape details and Trump’s tantrums deserve to be reported, journalists ought to keep in mind that challenge from the Founders was to be both a smart surrogate for citizens and a thick-skinned watchdog on government.
Issues, not insults, should be the stuff of campaign reporting — regardless of what candidates say. Reporters should ask tough questions and ignore the personal attacks. Focus more on what the candidates will do if elected and less on what they’re saying as tactics of diversion or distraction.
Over time, “accurate” and “fair” will prove more lasting labels than some momentary verbal slap from a politician. It would be a shame to see the mighty protections of Times v. Sullivan — indeed of the First Amendment itself — rolled back because the nation simply saw no need to protect “click-bait” journalism.
Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at email@example.com. Follow him on Twitter: @genefac.