News councils seen as one more way to undermine press credibility
COMMENTARY | October 16, 2006
In Washington state, a sheriff complained that investigative stories by the Post-Intelligencer ‘unfairly disparage’ the sheriff’s office, and the Washington News Council then asked the paper’s editors and reporters to ‘explain themselves.’ Writer Jane Kirtley’s advice: ‘Don’t explain.’
By Jane Kirtley
King County (Wash.) Sheriff Sue Rahr is upset about a series of stories published by the Seattle Post-Intelligencer, which she claims “unfairly disparage” the Sheriff’s office.
Since there’s no legal basis for a public official to sue for “unfair disparagement,” you might think that would be the end of the matter. But luckily for Rahr, she lives in Seattle, home of one of the few “news councils” in the United States.
Rahr filed a voluminous complaint with the Washington News Council in late July, contending that the newspaper’s stories were “intentionally biased, unfair, malicious, and lack balance.” After attempts to resolve the dispute were unsuccessful, Rahr amended her complaint to further accuse Managing Editor David McCumber of conflicts of interest that she claimed influenced the newspaper’s coverage of her office. The News Council has scheduled a public hearing on her complaint for October 21, 2006.
At the public hearing, the News Council – consisting of 10 “media members” and 10 “public members,” plus a non-voting chair, who is a former state court judge – will listen to opening statements, then question each side. After that, the News Council will deliberate and vote to either uphold or deny the complaint.
The Post-Intelligencer has declined to participate in the hearing, citing concerns about the News Council’s ability to be impartial because of ties between several News Council members and the current and a former sheriff. Instead, the P-I posted a lengthy response to the complaint on its web site.
The News Council is determined to go ahead with the hearing, with or without the P-I. According to its own rules, “the news outlet may decline to attend and participate, but the hearing will proceed anyway.” This policy mirrors a similar procedure followed by the Minnesota News Council, which has been adjudicating complaints on topics ranging from racism and sexism to editorials and polls since 1971.
After the P-I announced that it would not take part in the hearing, Washington News Council President Stephen Silha issued a statement, urging the newspaper’s editors and reporters to reconsider and to take the opportunity to “explain themselves” at what he characterizes as an “open, public forum.”
Sounds benign, and consistent with the current mantra that the news media should be all about “transparency.” Who could resist? After all, John Hamer and Gary Gilson, the directors of the two state News Councils, insist that their organizations are essential to providing the public with an opportunity to hold news organizations “accountable.” Both argue that their enterprises pose no threat to the First Amendment, because they are entirely voluntary, have no authority to impose any sanctions, and complainants must waive any right to sue.
But how significant is that waiver, especially when it comes from a public official like Sheriff Rahr? Anyone who has read the Supreme Court’s opinion in New York Times v. Sullivan knows that it is nigh on impossible for a government official to successfully sue a newspaper for libel. There were good reasons for this decision, apart from promoting robust debate and public oversight of governmental activities. Public officials enjoy immunity from suit for defamatory statements they utter in the course of their official duties. And as a rule, they have an easy time of commandeering a microphone if they decide they want to lambaste their critics at a press conference.
So Rahr didn’t really give up anything when she signed the waiver, because she was very unlikely to prevail in a lawsuit. But she did gain an additional platform – and a veneer of credibility – for her attack on the P-I.
Rahr’s complaint is just one of the latest in a long line of disputes between the press and elected officials. News organizations have tangled with governors in Maryland and Ohio who retaliated against adverse coverage by freezing out reporters who failed to toe the line. In July, Minnesota Attorney General Mike Hatch – who is running for governor in the upcoming election – sent a complaint to the Minnesota News Council, alleging that reporters for the Minneapolis Star-Tribune had tried to “swiftboat” him by sending him e-mail questions about some “sleazy” accusations about him and his family. The complaint was typed on official stationery from the Office of the Attorney General.
Gary Gilson rejected that complaint, because, as he told the St. Paul Pioneer Press, “the news council only considers published material,” and does not evaluate questions asked during the news gathering process. But his response seemed to leave open the door to future complaints by Hatch or any other elected official who is unhappy with his press coverage.
Let’s be clear: no one is predicting the demise of the Sullivan standard, or that the First Amendment in imminent danger of repeal. But it is because of this lack of legal remedies – or, to put it another way, because of the strong tradition that the press has the First Amendment right to question government – that politicos are turning to other means to try to shut up bothersome news media. They have figured out that they can very effectively undermine press credibility – and maybe discourage aggressive reporting – by screaming “bias,” whether the assertion is justified or not. And it’s almost too good to be true, from their perspective, if a News Council takes their complaints seriously enough to demand that a news organization come forward and “explain itself.”
That’s a chilling phrase, reminiscent of language usually associated with totalitarian societies and show trials. In the United States, news organizations “explain themselves” every day by doing their work and publishing their stories. They may choose to share their decision-making process with the public, or they may not. But they owe no explanations to government officials. Ever.
No one opposes press accountability. For private individuals who think that they’ve been treated unfairly by the press – whose complaints to a news organization, or attempts to get an op-ed piece or a letter to the editor published, have fallen on deaf ears – a news council may be a terrific alternative to a law suit. But does a News Council that takes complaints from elected officials and then tries recalcitrant news organizations in absentia really promote accountability? Or does it just give public officials another cudgel to use to beat the press into submission?
Jane E. Kirtley is a professor at the School of Journalism and Mass Communication at the University of Minnesota. She has been a columnist for American Journalism Review and was executive director of The Reporters Committee for Freedom of the Press for 14 years.