19 December 2014

Journalism Jamboree

9:22 AM (46 minutes ago)

This is has been a tough month for journalists:

Let me count the ways:

1.  Rolling Stone

The magazine published its shocking University of Virginia rape story, only to later say they i) did no fact checking beyond speaking to the source, and ii) now they have no confidence in the source. Bummer.  My own view is that once again, journalists have demonstrated that "journalistic ethics" is an oxymoron. Rolling Stone decided that, in the circumstances, it had no ethical responsibility to speak to other parties involved in the rape story. The result is that the publisher, in a heedless rush to win a Pulitzer, or at the very least spike circulation,  has seriously set back the cause of rape reporting and prevention on and off campus. 

So what is the punishment?  Does Rolling Stone get sued? By whom? Does the Society of Professional Journalists put em on probation?  Would that there was such a group and that it had such power. Other "professions"  e.g, physicians, lawyers, etc, do function under the watchful eye of disciplinary organizations that have the power to sanction, and even defrock ethical violators.  But then again, how does one violate an ethical code that does not exist?  I know, I know, the journalists scream they are free to make mistakes, violate moral principles, etc, because the First Amendment says so.  I must have an outdated edition of the Constitution because I cannot find those words in my copy of the document.

2.   The Sony hack.
Somebody hacked into Sony's computers and stole the company's proprietary information.  Financial data, employee's social security numbers, emails, everything. In this instance, the thief apparently was North Korea, but put aside for the moment the question of who did it. What is clear is that this was a theft, every bit as illegal as a physical burglary--you know, the old fashioned kind involving picked locks, broken windows, jackhammers, whatever, all in the dead of night.  We have all seen the movie.  

The Sony thieves then made the private stolen information available to the press, and, tadah! the press published it.

Is that okay?

Some years back the Twentieth Century Fund published a piece I wrote called "The Myth of the Muzzled Media"  (Yeah, already you know where I stand!)  In it I wrote about a significant judicial decision, Pearson v Dodd. Briefly, thieves broke into Senator Dodd's office, stole his papers, and gave copies to Drew Pearson who published them. The court, in slavish obeisance to the press, said this conduct was just peachy, as long as Pearson had not aided in the theft beforehand. In my essay, I suggested that i) Pearson was a "fence" for the stolen property and in Criminal Law 101 we were taught that knowing possession of stolen property is a felony, and ii) Pearson did effectively aid and abet the theft because the thieves knew he would publish it. The only value of the stolen property was the beforehand knowledge the fence would take it and publish it.

(I had just won a big verdict in a libel case against CBS and was a frequent speaker and panelist at First Amendment programs, at which my heretical views were regularly challenged by so-called "First Amendment Lawyers." My  definition of a member of the "First Amendment Bar" is a lawyer who earns his or her fees from publishers.  Anyway, you can just imagine the thrashing about and foaming at the mouth of my colleagues when I referred to their clients as "fences."  I loved it!)

The Pearson-Dodd decision was not predicated on personal privacy vs. government secret information. Presumably, the press would argue that exposing the latter is more important than the former, and deserves more protection.  Stick a pin in a publisher's lawyer and he bleeds the "Pentagon Papers" case--which by the way, does NOT stand for the proposition they most frequently advance, i.e.,  that one can publish stolen government documents with impunity.  But that issue is for another rant. 

What is important with reference to the Sony hack, is that the Dodd court's opinion makes no distinction between hacks of private vs. public information. Indeed, the court wrote that if a self-motivated criminal were to secretly and illegally install a recording device under the bed of a married couple, and were that "eavesdropper to the marital bedroom" to hear material that "is of public interest", the press was free to publish the stolen private content. Yikes. 

Bottom line: a publisher has a free pass if it decides the material is "of public interest."  Some ethical standard, huh? Obviously, some publishers thought stolen private pictures of a naked Jennifer Lawrence were of sufficient public interest as to qualify them as "newsworthy" and they published them.  Others abstained, but then published s private emails among Sony artists and executives. Yuch.

Bottom line, this week, the press played North Korea's game by publishing the content of the stolen information. Was the publication illegal?  Making out that case would be pushing a big rock up a steep hill.  Is it unethical?  I don't know how one could tell without a set of clear ethics rules.  As it is now, each publisher decides for himself, on a case by case basis. So if some publishers believe naked pix of Jennifer Lawrence and/or the social security numbers of Sony employees are "of public interest", they are free to report that "news." And remember please, the word "publisher" is very amorphous these days. It includes the New York Times, The New York Post,  Rolling Stone, Gawker, TMZ, Drudge, and maybe even moi.  Scary stuff.

3. The Hillary Photograph:

Now, down to the real important stuff.  Yesterday, the New York Times published a color photo of an attractive young woman at a dinner party. In case you missed it, it was in the Style section.  Here is the photo:

Talk about irresponsible journalism: The Times ran a caption identifying this hottie as Hillary Clinton!  Either the Times made a mistake or Hillary has had a punim transplant.  Either way, this is newsworthy, non?  The Times was silent on both questions.

We do not have these problems in St. Barths, mainly because the two daily free eight-pagers are in French and I don't know what they say.

A bientot.

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