Media Behavior Erodes Public Confidence, Undermines Press Clause Purpose

by Joseph Jerome

America’s confidence in the news media has hit an all-time low, a recent Gallup poll reveals.

Today, a mere quarter of Americans holds much faith in the press. It is difficult to pinpoint exactly what is responsible for this precipitous decline. But a good place to start may be the media’s transformation from watchdog into, as Glenn Greenwald puts it, “inept stenographers.”

The New York Times, for instance, recently admitted it grants politicians, campaigns, and senior policymakers final editing power of on-the-record quotations:

From Capitol Hill to the Treasury Department, interviews granted only with quote approval have become the default position. . . . It was difficult to find a news outlet that had not agreed to quote approval, albeit reluctantly. Organizations like Bloomberg, The Washington Post, Vanity Fair, Reuters and The New York Times have all consented to interviews under such terms.

The revelation comes after The Times sought reader input on whether it “should challenge 'facts' that are asserted by newsmakers.” Readers had evidently become “fed up with the distortions and evasions that are common in public life,” The Times wrote in January.

Six months later, The Times has demonstrated just how far distortions and evasions seep into its own reporting. Modern political reporting has embraced what press critic Jay Rosen calls “The View from Nowhere.” 

“Something happened in our press over the last 40 years or so that never got acknowledged,” he writes. “[T]ruthtelling was surpassed by other priorities the mainstream press felt a stronger duty to. These include such things as ‘maintaining objectivity,’ ‘not imposing a judgment,’ [and] ‘refusing to take sides.’”

Forty years ago, the American press arguably reached the peak of its power when The Times and The Washington Post published the Pentagon Papers over sharp opposition from the Nixon administration. In the aftermath of the Supreme Court's decision not to bar the papers’ publication, Justice Potter Stewart presented a powerful vision of our freedom of the press that contrasts sharply from a world where reporters function like stenographers.  

Justice Stewart described a country where government actively used the press “to promote contemporary government policy or current notions of social justice.” He conceded that such a society could well thrive but that it was decidedly not the society that our Founding Fathers had envisioned.  He rejected any notion that our press was to serve merely as “a neutral conduit of information” between people and politicians.  Rather, quoting admirably from Justice Louis Brandeis, Stewart portrayed the struggle between the press and government as necessary to “save the people from autocracy.” Absent the First Amendment’s Press Clause, government could take over media like any other public utility.  

The historical and legal significance of the Press Clause is muddled. While the high court has endorsed the structural importance of a free press, it has rarely recognized any explicit right or protection arising out of the Press Clause.

But Columbia Law School professor Vincent Blasi has suggested that the press’s ability to function as a watchdog over government abuse, a concept he termed the checking value, was the underlying premise of those press behaviors the Court has endorsed in its Speech Clause jurisprudence. This checking function was given its clearest expression by Justice Hugo Black in his Pentagon Papers opinion. “The press was to serve the governed, not the governors,” he wrote. “The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government.”

Today, however, major press outlets routinely present front-page stories that read like press releases, complete with anonymous sources and uncritical coverage.  In 2009, The New York Times then-Public Editor Clark Hoyt noted that the paper failed to follow its own rules when granting source anonymity nearly 80 percent of the time. In a three-month period, anonymous sources appeared in the paper more than 240 times. “Times journalists daily face unpleasant choices: accepting information without being able to name the source, or refusing it at the risk of shortchanging readers and seeing it reported elsewhere,” Hoyt explained.

Are doctored quotes from named sources the lesser of two evils?  “No, it's not,” explains Jeff Jarvis, professor of journalism at City University of New York. “When journalists give sources the opportunity to fix up what they've said, we become complicit in their spin," he writes. "When we do so without revealing the practice, we become conspirators in a lie to the people we are supposed to serve: the public.”  

Part of the problem is that while we conceive of the First Amendment as protecting the news media from government, it cannot protect the news media from itself. The Supreme Court’s hesitation in protecting the press has always been due to the inherent difficulty in defining the "press," a problem compacted by the explosion of news sources created by social media and the Internet. Chris Edelson, assistant professor of government at American University, suggests redefining the press to include only those who “can advance the First Amendment value of truth by providing the public with accurate information and rejecting the currently widespread journalistic practice that values false balance over truth.” He builds upon a theory of "democratic competence" advanced by Yale Law Professor Robert Post last year to improve the “cognitive empowerment of persons within public discourse,” a notion that American University Law Professor Stephen Vladeck has observed “could well provide the missing theoretical justification for reinvigorating the First Amendment's Press Clause.”

In the meantime, The New York Times and its peers have been shamed once more into reevaluating their policies for sourcing our news. No matter the history or future of the Press Clause, Justice Stewart's vision of a vigorous contest between the news media and the government remains compelling. “Embracing the adversarial nature of the reporter-subject relationship makes everyone's job harder, but it's the reader who wins,” New York's Joe Coscarelli writes. “And isn't that the idea?”

[image via michal_hadassah]