The food fight that has been going on between the Administration and the media continues. My last few blogs have addressed some of the issues, but specifically my last blog gets to what I think is the crux of the issue. To summarize, while the Trump Administration certainly deserves knocks for the way it treats the media and it’s labeling of “Fake News”, media standards have degraded due to the commoditization of the media – anyone with a microphone and a camera can hide behind the First Amendment and demand special treatment because they are “defending a free press”. It’s nonsense. What they are defending is their right to say anything they want. Trump and his followers call it “Fake News”. Guess what? They have that very same right to say whatever they want too, and they are using it. I don’t think the proliferation of less than truthful news is the problem – you have to expect that when you become a commodity (which the media is) because it’s all about cutting costs, keeping customers (which is the reason for the media tribalization of America into their respective politically safe media outlets), and generating revenue. Don’t expect the truth, or the facts, or a fair interpretation of the truth and the facts, to suddenly emerge in our current saturated media market without standards. The ‘good ole days’ of being able to trust Edward R. Murrow, Walter Cronkite, or any of the anchors from those times are gone. Time to move on.
Before we move on though, some in the media might say “We have standards. We have internal standards and ombudsmen who are tasked with enforcing those standards.” That might have been a valid argument in the days of half a dozen major media outlets, but given the plethora of media web sites and channels now, it’s hard (for consumers of media content) to believe that an approach of “Trust us – we’ll police ourselves” is really going to give us what we need – which is – factual news that we can base our opinions and decisions on.
Think I’m wrong? Just this week, the New York Times was forced to defend a recent hire – Sarah Jeong – who was caught expressing less than fair commentary about White people. The Times defense, which you can read here, was basically to admit that what she said was wrong, that the reason she said it was understandable (my words not The Times’) but “…not acceptable at the Times”. (Their words not mine.) The online media predictably broke into separate camps either attacking or defending her.
The gist of Jeong’s defense was that (I’m paraphrasing here not quoting) I was being trolled with really nasty online comments and I hit back using the same language. I regret it now. This post is not about attacking or defending her, it’s about the after effects of the Times hiring her. Let’s assume she’s telling the truth. (That’s not a small assumption given some of what she wrote.) Does anyone really think she is going to be believed by a majority of her readers? Well, I guess if it’s New York Times readers only, she’ll certainly be believed, which is the one side of the political spectrum that was defending her. It’s hard to see her being believed by the other side, and maybe the Times just doesn’t care because they are not trying to appeal to a broader audience. Fair enough. It’s their right (and supports what I am actually positing about the commoditization of the media), but this type of hiring standard doesn’t contribute to what we (both left and right) really need – which is factual news we can trust. If you can’t trust the reporter and the organization that hires them – you can’t trust what they report.
So what can be done?
I’m not a constitutional lawyer, but I think we will need to go through the constitutional amendment process to change the first amendment to something that can accomodate free political expression (which I believe was the intent of the founders) without the baggage of over two hundred years of precedent that have given us, for all intents and purposes, the ability to pretty much say whatever we want, true or not, with the one exception being that we are not allowed to express “dangerous speech”. (This was the famous Schenck decision which said that falsely yelling fire in a crowded theatre was not protected under the First Amendment.)
Think I’m unreasonable? There have been a number of recent articles, mainly from the left, that are suggesting that we need to rethink the First Amendment. Mila Versteeg, writing in the Atlantic, suggested the following about European free speech:
This system protects free speech— to an extent. European free-speech doctrine is based on the idea that free speech is important but not absolute, and must be balanced against other important values, such as human dignity.
As a result, freedom of expression can be restricted proportionally when it serves to “spread, incite, promote or justify hatred based on intolerance.” The International Covenant on Civil and Political Rights, an international human rights treaty, reflects similar principles. This balancing of free speech against other values led Germany to ban parties with Nazi ideologies and recently, to prosecute Chinese tourists who performed a Hitler salute in front of the Reichstag. It led France to outlaw the sale of Nazi paraphernalia on eBay, led Austria to jail a discredited historian who denies the holocaust, and caused the Netherlands to criminalize the selling of Mein Kampf. It is for this same reason that many Europeans could not believe the open display of swastika flags in Charlottesville.
Writing in the New York Times, Adam Liptak says that “Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.” To be fair, there is a whiff of hypocrisy (Frederick Schauer suggests naivete) coming from the left, who used to like the First Amendment until the Right started using it to defend their interests as well:
There was a certain naïveté in how liberals used to approach free speech, said Frederick Schauer, a law professor at the University of Virginia.
“Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless,” he said. “But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that. The question, then, is why the left ever believed otherwise.”
It’s not only the left though that has suggested that the First Amendment rights are overly broad.
In 1971, Robert H. Bork, then a prominent conservative law professor and later a federal judge and Supreme Court nominee, wrote that the First Amendment should be interpreted narrowly in a law-review article that remains one of the most-cited of all time.
“Constitutional protection should be accorded only to speech that is explicitly political,” he wrote in 1971 in a law-review article. “There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”
Here’s the bottom line from my perspective. We need a media we (all of us, or at least most of us) can trust, and we don’t have that now mainly due to, what I believe, is the commoditization of the media. The only way to get that trust is to put external standards on media organizations, but that can’t happen within the current constitutional framework. Changing the first amendment in a way that gives us political free speech but with controls is one way to start. If the Second Amendment can give us the right to bear arms, but we can pass laws to control that right – why can’t we do the same for the First Amendment?