I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, December 14, 2006

Media as adversary to the government

(updated below)

The Iranian President convened a convention this week to "debate" whether the Holocaust occurred, whether it is exaggerated, etc. In reporting on this event, The New York Times did not simply convey the views of both sides, but instead, declares definitively that one side of the "debate" -- the side of the Holocaust deniers -- ignores evidence, uses discredited sources, and relies upon false claims:

Iran’s so-called Holocaust conference this week was billed as a chance to force the West to reconsider the historical record and, thereby, the legitimacy of Israel. But why would the Iranians invite speakers with so little credibility in the West, including a former Ku Klux Klan grand wizard and disgraced European scholars?. . . .

The two-day meeting included no attempt to come to terms with the nature of the well-documented Nazi slaughter, offering only a platform to those pursuing the fantasy that it never happened.

By pointing out the reality that the Holocaust denialists are making false and unsupportable claims, the Times is not reporting this incident in a "biased" or subjective way. It is not being unfair to the holocaust deniers by siding against them. To the contrary, even though it is clearly siding with one side over the other in terms of whose statements are truthful, the article is reporting on this issue objectively, because it reports the objectively verifiable fact that the arguments advanced by holocaust denialists are simply false.

That is what objective and meaningful reporting requires -- not merely uncritically conveying what statement a person makes, but scrutinizing that statement for accuracy and clearly reporting if it is false. That is what the Times did here by labelling the denialists' claims "fantasy" and pointing out the fact that their claims are contradicted by abundant documentation. And it would be hard to find many people who would object to how the Times reported on this "debate."

But in general, journalists are willing to engage in this sort of meaningful reporting only when doing so is completely uncontroversial and risk-free, usually because the person whose statements are labelled false is universally reviled. National journalists virtually never subject statements from government officials to this sort of scrutiny, and virtually never label such statements as "fiction," or point out that they are contradicted by all available evidence, even when that is plainly true. That, of course, is why government officials lie with impunity -- because they know that journalists will not report that they are lying.

All of this is the by-product of the well-documented and much-discussed journalistic myth that "objectivity" requires mindless recitation of both sides's claims, and that it is improper and "biased" to take sides. But as the Times article above documents, objectivity and meaningful journalism often requires taking sides, particularly where one side is making objectively false statements.

Journalists are not the only ones laboring under this misconception. In response to my post yesterday regarding the adversarial function which a healthy press performs, several Bush followers equated a belief that the press ought to be "adversarial" to the government with a desire for "agenda journalism" (Bush followers have a handy cliche for every issue), i.e., with a belief that journalists should be "partisan" by siding with one side of a political debate over another.

That just isn't what "adversarial" means. An adversarial press does not mean that the media automatically and reflexively contradicts what the Government says or does. That is called being a mindless "contrarian," not "adversarial."

An adversarial process is designed to uncover deceit and falsehood by ensuring that claims and arguments are subjected to meaningful scrutiny by some opposing force. An adversarial press means that it views its function as a watchdog over the Government, as a check on its power. It fulfills that function by viewing Government statements and actions skeptically and with the intent to scrutinize them and determine their truth, rather than mindlessly convey what the Government asserts. It means that there is a difference between a free press and Pravda.

The media abdicates its function, and becomes a propaganda arm of the government, when it simply repeats verifiably false Government claims without pointing out, as the Times did with respect to holocaust denial arguments, that the statements are false and objectively contradicted by clear evidence. And our media does that all the time.

It fails in its function to report objectively when it simply conveys claims from the Government that we invaded Iraq only once Saddam refused to allow U.N. inspections, that Democrats oppose eavesdropping on terrorists (rather than oppose eavesdropping without warrants), that Saddam Hussein worked with Al Qaeda, that Denny Hastert forced Mark Foley to resign once he learned about his IMs with pages, that the President only decided to fire Rumsfeld after the midterm election, etc.

Such Government claims -- like Holocaust denial claims (but without equating them) -- are all examples of: (a) factually and verifiably false assertions by the Government (b) for which there is no reasonable basis, yet the media repeatedly recites these statements without pointing out the fact that they are false. Adversarial reporting would mean not that the media sides against the Government in every case, but only that they scrutinize and investigate the Government's claims and then clearly report when they are false. The only "agenda" being pursued is a refusal to allow the Government to mislead citizens.

This is not some exotic new theory of the media's function. There is a reason that the Founders included in the First Amendment absolute protections of a free press. It's because a free press plays an indispensable role in imposing checks on the Government. But it does so only when it is adversarial, not when it uncritically recites the Government's views. Thomas Jefferson explained that long ago in a letter to George Washingon:

No government ought to be without censors, and where the press is free, no one ever will. If virtuous, it need not fear the fair operation of attack and defence. Nature has given to man no other means of sifting out the truth whether in religion, law or politics. I think it as honorable to the government neither to know nor notice its sycophants or censors, as it would be undignified and criminal to pamper the former and persecute the latter.

The Founders viewed the press as a "censor" of the Government, as an opposing force, not as some mindless vehicle for reciting and disseminating the Government's claims. It serves as a check on government deceit and abuses of power only when it sees itself as something more than a microphone for the Government to use to amplify its statements.

The view of Bush followers and most journalists has become that it constitutes improper "agenda journalism" for the press to report when government officials are making false statements or engaging in deceitful acts. But there is no such thing as objective or meaningful journalism where the media turns itself into nothing more than a venue for government claims to be broadcast without scrutiny and critique. Really, none of these propositions should even be controversial, let alone systematically ignored by the media.

UPDATE: There were many times, in 2002 and 2003, when I read The New York Times in hard-copy form delivered to my door, where the entire front page would be nothing but articles which began with "The Bush administration yesterday said" or "A senior administration official told The New York Times yesterday that . . . " And the story wasn't just that "the Government said X." The story was "X" itself, reported as fact, with the only source being what the Government said (a classic case of such "reporting" is here, from the Post). That is when the media is indistinguishable, by definition, from Pravda.

And, via Capt in Comments, here is Justice Hugo Black's Concurring Opinion in New York Times v. U.S. (the Pentagon Papers case) (emphasis added):

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government.

The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

There are some exceptions still, but that description of the core function to be performed by the press is indescribably distant from what the press actually does.

UPDATE II: Gator90 re-writes the Times article on the Holocaust denialists in order to make it comport to our modern rules of journalism.

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