Journalism 101

The Third Corollary to Borenstein’s Law states:

A lawyer who loses his credibility by making unsupported assertions ruins his case. The same is true for “journalists.”

The movie, Truth, is about a blunder that CBS news committed in 2007. Sloppy reporting led to a loss of credibility and firing of Dan Rather. The subject was an investigative piece that claimed to have found documents that proved that G.W. Bush, then running for president, had used influence to avoid service in Viet Nam. The rush to air the news meant poor vetting of the documents, which turned out to be false. A smug W was elected.

This month, CNBC botched its questioning of Donald Trump and Marco Rubio by lazy preparation, fumbling the sources related to the queries. These “reporters” left themselves open to visceration by Republican politicians to whom this was blood in the water. They tore into the red meat for their base for which the news media is an old and common enemy.

Now, Ben Carson has been “investigated” by multiple media snifferes seeking to verify or debunk his “stories” about his own biography. Politico reported that his claim of a scholarship to West Point was wrong. Carson replied that the co-author of his book used that word instead of “grant.” So what? CNN “investigated” his claim about his wild and violent youth (before he found religion). They reported that they couldn’t find victims of his assaults, inferring that he it was not true. He answered that he hadn’t used the real names to protect their privacy. Easy rebuttal. Another search failed to find a Yale class and photo that he mentioned. He answers: so, I forgot the real name of the class after forty years? This is merely a typical witch hunt by media. His supporters cheer, and more are drawn to him because his assertion that the media is out to get him is credible.

The lesson is that when the journalistic media shoots a silver bullet, and it turns out to be a blank, it does far more harm than good.

I don’t remember very many things I was taught in high school. Most of the science, math, poetry, and Victorian novels I had to memorize, analyze, parse, and cram into my addled teen brain have vanished along with my acne. But I did learn a few valuable lessons in those classrooms. For instance, I credit my journalism class with preparing me for my future life as a lawyer and as a citizen.

The discipline of writing paragraphs for news articles helped me to write legal briefs. The basics of the five w’s translated well for judges whose patience was as limited as that of morning newsreaders. I learned to get to the crux of an issue at the top (whether arguing orally or in writing), and then to complete the thought in coherent order of relevance.      

I found that those principles were also helpful in considering public issues. When listening, watching or reading news reports, I was better able to separate known facts from speculation. It helped me to distinguish evidence from beliefs.

The classic rules of journalism that I learned are simple. A newspaper is supposed to be divided into separate sections: News, Features, Editorials. There is a bright line between news, feature stories, and opinion columns. Opinion is for the editorial section. Features include “human interest” stories, investigative reports, and follow-ups to earlier news. Outside of the editorial / opinion pages, bias should be avoided, even if a story has to have a “slant,” which really means that it is told from or with a point-of-view. 

The essential and traditional function of newspapers was to report the news. The first American newspapers mimicked their English counterparts; they were blatantly biased. In politics, each party had its own trumpet that did what modern parlance would called “spin,” informing partisans of their version of any issue. When the daily press became “mass media” the editorial policies of each publisher infected their reporting. The goals were pushing an agenda, defeating opponents, and of course, selling more newspapers than the competition. All was fair by those principles.   

Thomas Jefferson has often been quoted as the source of the dictum that a free press is essential in a republican democracy because such a government demands an “educated and enlightened” electorate to function. The People have to be informed of the facts in order to make the decisions that a democracy requires of its citizens. Newspapers exist to serve that purpose. (Jefferson, as we all now recognize, had trouble living up to his own beautifully articulated principles, such as “equality.” The same is true of his ethics regarding news: he was suspected of spreading the “news” of his rival Alexander Hamilton’s adultery to a scandal sheet.)

Like most ideals, the journalistic standards have been more theoretical than practical. Tabloids have dominated the industry; readers have always preferred the flamboyant style of The Daily News to the dry reportage of The Times. Yet The Times has been considered the journal of record for the elite class: government, academe. Other periodicals follow the lead of The Times, and rely on its sourcing for its own reporting.   

But we are now in a new era. The internet is now the source of information for the computer literate generation. My son, 35, although he was the editor of an award winning prep school newspaper, never reads a newspaper in print. Most people his age or younger get their news on line.

The power of the print press began to erode as early as the 1950’s with the coming of television news. Before long, most people got their “news” from the rapid “bulletins” of live TV rather than “Extras,” special editions of newspapers that used to supplement the usual morning and evening editions. When I was in high school (class of 1961) there were seven major papers in New York and that was down from as many as fifteen at times.

Newspapers realized they couldn’t compete with the immediacy of news reporting on TV. The civil rights movement, the Cuban missile crisis, the Vietnam War, political campaigns, all were visually powerful stories that TV covered more vividly. Newspapers began to evolve: producing in depth analysis of stories, investigaitions that went beneath the headlines.

  

The internet revolution has even eroded the domination of the broadcast media today. With the possible exceptions of satire on SNL, the Daily Show, John Oliver, and youtube clips of late night monologues and local news bloopers, TV news is ignored by everyone 35 and younger. 

Eventually, “journalism” became an academic subject, guided by a rigid set of ethical standards that were deemed to be necessary to legitimize it as a worthwhile career. They included: accuracy, objectivity, and impartiality in reporting the discernable facts. Facts were reported as true only when proved by reliable sources. Gossip, innuendo, opinion and spin may be reported, but with clear labels to distinguish from facts.

Just as newspapers groped to find new uses when TV usurped the “news,” TV now struggles to keep its audience. The commercial mass medium depends on advertising, subscribers for cable networks, and sources willing to feed items. Entertainment is a goal that vies with the duty to provide information (thus, the pejorative term “Infotainment”).

As in all forms of entertainment, charismatic star power draws an audience. Newspapers always had star columnists who became powerful personalities: Walter Winchell, Drew Pearson, as examples. TV had Murrow, Cronkite, Brinkley. Walter Cronkite was a trained print reporter who brought his writing skills and reporting ethics to CBS. He edited and read the news each night with a stern, steady, neutral voice. He became “the most trusted man in America” because viewers sensed his innate credibility.

Cronkite also accepted entertainment assignments — You Are There — a show that dramatized history by his “interviews” of famous people: Eg: Aaron Burr and Alexander Hamilton before their duel. Murrow did Person to Person, celebrity “interviews.” But there was a clear distinction between these amusements and their jobs as reporters of news.

Because they had built credible reputations, Cronkite and Murrow had the most impact when they crossed the line into commentary. Murrow’s famous expose of McCarthy, and Cronkite’s investigations into the Vietnam War were departures from their objective reporting and thus had even more impact than if they had been ranting on every show.

Cable “news” shows such as those on Fox, MSNBC, and CNN, are not so different from the biased, party-based tabloids of the past. They present brief summaries of a few items from the news of the day. Each segment — that is strictly timed in order to accommodate advertizers — spins the news with opinion after opinion: by professional surrogates of politicians, and spokespeople for the government. Then there are opinions from “consultants,” who are supposed “experts” in various fields. They include former politicians, former print columnists, and academics, who are willing to express views on subjects, even without full knowledge of facts. They do so because exposure equals fame.

      

I’ve seen this sort of speculation turn my profession into a spectator sport. Every “trial of the century” attracts experts willing and eager to sell their opinions about the case. You rarely hear any of them say, “Gee, I really don’t know.” I presume that any rational person who gave that answer to a producer’s call would not make it to air.

The splintering of the news business, spreading from three broadcast networks to many cable channels and then to a plethora of websites, should be good: a few closely held corporations no longer control the news. But along with the new freedom from autocracy comes a loss of confidence in the reliability of reporting.

Another lesson I learned was that loss of credibility is fatal to advocacy. Your case is destroyed if you overreach, misstate, mislead, or rely on weak arguments that are easily rebutted. The corollary is that once lost, your credibility cannot be salvaged.   

Free Speech And The Internet

The joke goes: one of the cool things about Alzheimer's is that you learn something new every day. The same is true of old people and technology. My friend has recently become alarmed about a new - to him - phenomenon: the internet. Now retired from a life competing in the bloody killing fields of high school football, Valley golf courses and various courthouses, he had discovered surfing of the browsing sort.


Inevitably, he came upon a website which disseminated Tea Party treats with arsenic centers. Reviving his vigor for combat, he used his legal skills to argue against their vitriol, lacing his inconvenient but legally correct factual revelations with his own brand of counter vitriol. He posted scathing comments responding to know-nothing blog posts and other comments without mercy to the feeble-minded.


As a result, he found that eventually, his comments were deleted. He complained to me about this and I tried to explain the concept of "moderating" comments. "Where's the First Amendment?" my friend cried.  "This internet thing is outrageous. This isn't free speech."  To no avail, I tried some logic of my own with a legalistic Socratic analogy: "Don't newspapers censor letters to the editor that criticize their articles?" He was having none of it. "This is different. The internet is full of lies and no one can challenge them."


He decided to do more legal research. Having learned the magic word: "Google", he now spent his life in research. So he sent me proof. An article in "The Atlantic" online edition by Garrett Epps, a legal journalist and law prof at the University of Baltimore.


Epps reported on the Supreme Court oral argument in the so-called funeral-picketing case, in which a church picketed and on their website ridiculed the funeral of an American soldier, in protest over some perceived lack of religious education his parents had provided, involving gays in the military or some stupid notion. The parents were offended by the action and sued the church members for "intentional infliction of emotional distress." One problem for the plaintiffs was an element of such torts: that the "victim" has to be confronted by the action. Does posting on the internet meet this test. The statute and older case law never anticipated this issue - is the internet different from Hyde Park corner, or radio? If so, is the difference legally significant.  And, hey, what about the First Amendment? The traditional refuge of scoundrels like Neo-Nazis, Daniel Ellsburg, and others. 

So, here's what I wrote back to my friend.

Thanks for forwarding Garrett Epps’ opinion piece in The Atlantic. It is an interesting if superficial analysis of some of the issues presented to the law by internet speech. Although he makes a few cogent general points, I disagree with his tone, which is a bit hysterical and with his conclusions, which are speculative and argumentative with insufficient factual support.

The author’s citation of the Prop 8 case is inapposite. There, the court censored broadcast of the gay marriage trial proceedings on Utube. But that was well within precedent. The rationale was to prevent intimidation of potential witnesses. This is traditional balancing: fair trial vs. free press.

The reference to Breyer’s concerns about the potential need for new rules in the funeral picketing case is weak support for the case for “radical change” (i.e., reduction) of First Amendment protections. Breyer himself recognized that televising was not significantly distinguishable (in this context) from the internet publication in this context:

“So now we have two questions. One is, under what circumstances can a group of people broadcast on television something about a private individual that's very obnoxious? . . . And the second is, to what extent can they put that on the Internet, where the victim is likely to see it? Either on television or by looking it up on the Internet. Now, those are the two questions that I'm very bothered about. I don't know what the rules ought to be there.”

Breyer’s voiced worry about the Koran burning video disseminated to the world on the internet is also an issue that can be treated within the traditional context of First Amendment analysis. Breyer himself acknowledges this with his reference to Holmes’ fire in the theatre example, which has been a hypothetical bright line in the law for more than 100 years.

That doesn’t mean the internet doesn’t pose new and difficult issues for consideration by the law. It certainly does. As a source of unauthorized, unedited and unverified information, it is a dangerous weapon in the hands of advocates of any persuasion, left, right, lunatic.

But civilization has faced similar challenges many times. With the invention of the printing press the law had to alter its notions about slander, recognizing the greater danger of the written word, upping the penalties for libel. When technology permitted cheap publication, allowing access by all classes to “The Press”, its power was seen as frightening, even potentially disastrous by the elite educated leaders who previously held a monopoly on ideas and arguments. Eventually, the process became so cheap that anyone with a mimeograph machine in the basement could foment revolution, on paper at least.

Concerned “journalists” decry the lack of editorial control over content of blogs and other sites. This is true. It is also, as the author writes, “instantaneous,” “ubiquitous,” and “persistent.”

These issues create problems, but are they unique in the history of the law? Do they require reduction of our First Amendment protections? I am still a “free market” conservative when it comes to the “marketplace of ideas.”

I believe the time has long since past when people assumed that whatever was printed must be true. Of course there are some who will, either out of ignorance, or wishful thinking. The internet has not (yet) altered human nature. Humans often choose to believe and to act — based on faith rather than reasoning. Hatred or fear of Obama leads to “birthers” and this rumor is of the kind that would have thrived at any time in our history.

For example, Lincoln was widely reported to be and believed by huge portions of the public, north and south, to be part “Negro” - there was no Gallup poll back then but penny newspapers gleefully spread the rumors.

Frets about the accuracy of information on the internet seem to me to be not any different than what appeared in biased American newspapers for 200 years and more. Pro Hamilton / Federalist publications printed rumors about Jefferson’s love life. Jefferson even financed print reports about Hamilton’s scandals. The lies published about Lincoln keep historians employed. Fox News need not be on the internet to carry enormous influence in its biased reporting.

I am dubious about the ability of the nine members of the Supreme Court, especially those currently sitting, to define universal rules for internet censorship that would be effective and unharmful. Their “conservatism” may lead them to favor the “individual” over the “police power” of the state, whereas the “liberals” as exemplified by Breyer, are even more dangerous to individual liberties because they tend to look to government for rational regulation of behavior. But I don’t trust either side to be intellectually honest or intelligent in deciding such issues.

Having studied the history of the 4th Amendment, you know as well as I that it is always in times of crises and in extreme cases that our panic results in diminishing our rights. Once forfeited, these rights are difficult to regain. 

[NOTE: My friend was able to gain a measure of revenge against the nutso webbies. One blogger or commenter suggested to his readers that our president was a usurper who deserved the fate or all such usurpers.  My friend called the Secret Service, asking whether athreat against the life of the president was something they might be interested in knowing about. He received a cordial response and felt that he had succeeded in striking a blow against the blowhards in the war in cyberspace.]

Who says all wars are fought by the young.  

Bullshit

The reason for global warming should be obvious: the world is full of bullshit. There is more in the world now than there has ever been. We now have entire fields of study which are founded on bullshit, obtaining grants to collect and disseminate bullshit. We are now inundated with “information” which we call “data” but which is mostly bullshit. We have a proliferation of Art, 99% of which is bullshit. How much of the internet is bullshit? Are you kidding?

Even before the internet, there was already so much bullshit on television, radio, in newspapers and magazines that it was nearly impossible to discern what was not bullshit. Now, the static of bullshit pervading cyberspace boggles the brain.

All advertizing is bullshit. Large chunks of serious institutions have been taken over by bullshit. Government, The Law, Medicine, Sports, Literature, Art, Business, Education from top to bottom are infested with bullshit.

Religion, philosophy and “serious thought” are pervaded by bullshit. There are entire bullshit sciences: psychiatry, psychology, sociology, anthropology. Most history is bullshit. Take away the bullshit and you have a slim volume of commons sense known to anyone with an I.Q. higher than an imbecile (and, oh, the I.Q. test is also bullshit).

What do I mean by bullshit?
I mean garbage, waste, lies, dissembling, poses, self-serving nonsense, sentimental wishes, statistics, anecdotal evidence, anything said in a political campaign, most medical tests, all local news programming.

When the little boy in Hans Christian Andersen’s story saw the emperor parading naked, he should have cried, “Bullshit!”

Andy Warhol was a “bullshit artist” in both senses. So are all the cable talking heads, the Sunday pundits, the PBS experts (including Deepak Chopra, Suze Orman,). Talkradio is the font of more bullshit every day than was produced in all the books of every century before the Twentieth.

The Twentieth Century was the bullshit century. The greatest figures of the era were bullshitters of the highest magnitude: Mussolini, Hitler, Churchill, FDR, JFK, Nixon, Reagan, Clinton. Our heroes are mostly made of bullshit (“bravado” = bullshit). Bullshit is the definition of acting and accounts for most of what we are fascinated with about celebrities.

The cure for bullshit is simple. Skepticism — a state of mind which stands uncomfortably between cynicism and apathy — is the antidote. When you see it, doubt it. When it moves you to tears, proceed from the assumption that you are being manipulated. When it makes you angry, ask who wants you to feel that way. Who benefits from the news stories about crime? How did the latest subject on the gossip shows become an “issue.”

It is true that there has always been bullshit. Bullshit thrived throughout history. Myths, legends, superstition, the Middle Ages (the Age of Bullshit). The start of every war can be traced to bullshit, and most were won or lost by bullshit.

But we were led to believe that the modern age would distinguish itself by overcoming bullshit. In science and medicine, truth would triumph over ignorance for the betterment of mankind.

The Founding Fathers were products of an era historians call The Age of Enlightenment, when bullshit was recognized as the enemy of man. Having seen through such bullshit notions as “the divine rights of kings”, they hoped that an idea like democracy might work. The hypothesis was: “You can bullshit some of the people some of the time and some of the people all of the time, but not all of the people all of the time.”

The plan required that th people would be educated and informed of the dangers of the bullshit-riddled future. It assumed that the people would choose to be guided by an enlightened and intelligent elite — a group not unlike, oh say, the Founding Fathers. They would be a cut above the people in the ability to reason, the eloquence to lead, and mostly, possessed of just enough independent wealth to allow them the luxury of expressing selfless wisdom to act for the common good occasionally — on the really important issues. Parenthetically, it should be noted that this has worked during our history. Noblesse oblige, the duty of enlightened wealth and upper classes to govern wisely and selflessly has provided many of our best leadership: the Roosevelts, Kennedys, Adamses, Byrds, Rockefellers, etc.

The U.S. Constitution stands as the most remarkable work of protection against bullshit ever devised out of a laboratory. The checks and balances every textbook so glibly mention are an ingenious expression of the anti-bullshit political theory. No one group is to be trusted not to bullshit the others.

Even so, Jefferson and some others still smelled bullshit. They didn’t buy the argument that individual rights would be protected against the greatly increased power of the new improved people’s government. The proponents argued that it was not necessary to enumerate individual rights into the document. Those rights were well understood by the founders who were English gentlemen by birth and lawyers by training. These rights were guaranteed to every Englishman through the English constitution, a conglomeration of written documents and laws, unwritten traditions. They had incorporate these rights into the charters of their colonies and now their states’ constitutions, and the states were to be independent and sovereign.

Besides, the clever argument ran, the mere definition of individual rights was dangerous. It would lead to the conclusion that the defined rights articulated the exclusive list of rights possessed by individuals. That was contrary to their intention. They meant the powers of government to be circumscribed, clearly defined and limited, with all the other powers, rights and residue belonging to the people. The argument was somewhat prophetic as throughout much of our history parsing of the language and divining of the intentions of our constitution has become a parlor game played by Supreme Court justices and law professors.

Jefferson the scientist remained skeptical. He felt more comfortable putting it in writing. The result was The Bill of Rights, which has become the model for every constitutional democracy.

So did it work? Did it prevent or at least restrain the bullshit? Let’s first admit that the odds were long. It is in the nature of things that most everything is bullshit. It is simply part of the nature of the human animal to survive by wits, which means learning to bullshit better than the next guy. Every baby cons its mother into attentiveness by tears and tantrums. Toddlers trick their peers away from their toys, the best students learn to fools their teachers, rites of passage into manhood and womanhood involve successfully duping members of the opposite sex as well as a large dose of self-deception for survival.

In politics, democratic leadership inherently requires bullshitting the largest numbers of people, persuading them to do what is right contrary to their self-interest, usually by manipulation and promises.

Jefferson pinned his hopes for bullshit detection on the concepts contained in one cluster of clauses of the First Amendment — no state religion, unrestricted freedom of speech and press, peaceable assembly, and petition for redress of grievances. The idea was that if given access to all points of view, the people would sort out the bullshit and eventually make the right choices. There would be no state religion, no one Truth about ultimate questions. Rather, there would be a diversity of theories to choose from. The same with political truths: let everyone state a point of view, try to prove it, argue it, print it, try to persuade others, march about it, get together with others of like mind, complain to the government about it. Eventually, right choices would be made.

But Jefferson never anticipate the power of Bullshit. The mass media and now the internet have produced volumes of misinformation. He never imagined how much misleading data would bury the people trying to sort out the few nuggets of truth from the piles of bullshit. The naked emperor in our world is hidden behind blizzards of bullshit.

Jefferson, the architect, botanist, agronomist, philosopher, historian, naturalist, and lawyer could never have foreseen that there would come a time when everyone became a specialist, when the educated elite, the best and brightest that he relied on, would be so overwhelmed in bullshit about their own field of study that they could not hope to lead others in general debate over diverse issues. The most educated of us are narrow-minded and suspicious, self-interested without pause. Doctors and lawyers hate each other; scientists learn government to milk it rather than check it.

The system envisioned by the founding fathers, of enlightened leaders followed by an educated informed people, foundered on the mass of bullshit.

What does that leave us with? The only hope was to educate the people to fend for themselves. The mass media promised to inform, but it deforms, manipulates, distorts by overemphasis, creates hysteria. The free press, conceived as protectors of dissent and a marketplace of creative ideas, has devolved into just a marketplace of shabby commercialism. Since first discovered by Hearst and Pulitzer to be a profitable consumable, the News Business, pandering to the lowest tastes regarding crime, scandal, or salable issues, is an industry captured by the compulsion to SELL, not to inform.

We had the hope that public education, free to everyone, would insure that all the people would be able to recognize the bullshit. But we are failing miserably, even to insure basic literacy. Educators focus on giving information (data, bullshit) rather than teaching how to sort it out. There are so many people to process and so much bullshit to plow through that teachers become buried under it and eventually give up or become part of the bureaucracy that cultivates bullshit for a living.

The result is a public mired in cynicism and apathy. Most people don’t bother to vote, too discouraged by the weight of bullshit. Those who do vote, increasingly and understandably, do so to express a narrow self-interest — an issue or small constellation of related issues they perceive as relevant to their lives — and even then, are easily manipulated into buying bullshit.