High crimes and misdemeanors in the press

Monday, October 5, 1998

As the House of Representatives mulls whether to hold impeachment hearings on the president of the United States, many in the public are wondering whether there should be articles of impeachment brought against the press.

In his report to Congress, Special Prosecutor Kenneth Starr leveled a number of charges against President Clinton. No doubt, some media critics would like to level similar charges against journalists covering the Clinton-Lewinsky scandal since the story broke in January. Here is what their bill of particulars might look like:

Lying during a legal proceeding: It depends on how one defines lying, of course. If it is defined as fudging the facts — that is, reporting more than one knows or casually trafficking in rumors, leaks and spin — then journalists lied both by commission and omission. Claiming that such reporting was justified at the time because it turned out to be true months later is tantamount to saying that it is all right to wrongly report someone’s death today because it will be true someday.

Obstruction of justice: Again, it depends on how obstruction is defined. If it is defined as withholding information about who leaked secret grand jury information, or just being curiously uncurious about who passed what to whom and when, then a number of journalists hold the key to the investigation into whether someone in the Office of the Independent Counsel violated Rule 6(e) of the Judicial Code.

Intimidation of witnesses: Subjecting witnesses to trampling by media mob or to crippling injury from flailing limbs and thrusting microphones, not to mention wholesale invasion of their personal privacy … if that isn’t intimidating to ordinary mortals, then what is?

Abuse of office: Too many of the journalists covering the Clinton-Lewinsky scandal were guilty of conduct unbecoming a member of the Fourth Estate and reckless abuse of their constitutional privilege.

And while articles of impeachment will never be handed down against the press, it seems clear at this point that, at the least, the press is vulnerable to accusations of recklessness, bad judgment and a multitude of other sins in its coverage of the Clinton-Lewinsky affair.

At minimum, many of those involved in the reporting conspired to obstruct understanding. Among the ranks of those who committed hypocrisy:

  • Editors and news directors who declared themselves powerless against the lowest common denominator in reporting sleaze. “If it’s out there, we have no choice but to report it, too,” is today’s mainstream media mantra. They do have a choice, of course. That is to confirm or refute the information, then evaluate it, then use it or don’t use it based on mainstream journalistic values, not tabloid values.
  • Reporters who made much of the rise and fall in the president’s ratings in instant polls, but failed to see the need to examine the public’s opinion of the press’s coverage.
  • Journalists who inveighed against alleged criminal activity by the president but invoked the First Amendment to dismiss the relevance of known criminal activity by their sources (i.e., leaking of grand jury testimony).

No jury will ever have the opportunity to pronounce the press guilty of such a list of charges, of course. But these journalistic failings may well be the verdict of history.

The enduring value of journalists in an open society is their ability to forge ahead without heed to the consequences of what they report. But forging ahead without heed to the consequences of how they report does a real disservice to that society, not to mention putting journalists’ First Amendment franchise in jeopardy.

In times of crisis, the public should be able to look to the press for coverage that is calm and in context, coverage that focuses on the facts and is grounded in what happened — rather than what might happen, what could happen, or (worse) what should happen.

When everyone else panics and starts running, good journalists take time to find out what started the stampede, rather than joining it. When the mob becomes mindless, good journalists look at where it is headed, rather than shouting for it to hurry faster. When everyone else rushes to judgment, good journalists reserve judgment.

Whether it’s a parade or a stampede, the press must not join it, and certainly should not lead it. Journalists should report on it, based on what they observe and find out for themselves, not on what’s passed on by those who formed the parade or incited the stampede.

In the past, those rather simple but sensible practices and policies secured the First Amendment’s protection for the press in America. But that protection is less secure today because of routine violation of those tenets during the last eight months.

Fortunately for the press, there will be no articles of impeachment, no summoning before a grand jury, no hauling into the well of congressional chambers to face censure or worse, no punishment for high crimes and misdemeanors against the profession, and no need for it to secure voter approval in the November elections in order to continue to serve its constitutional role.

The First Amendment shelters the press from all of that, even though some journalists remain the unindicted co-conspirators in the impeachment of their own credibility. But support for that protection is eroding.

That’s why it is time for all journalists, the bosses and the workers, the guilty and the innocent, to pause for a moment to reflect on the fact that their current fortunes and future freedom depend as much on the exercise of their responsibilities as they do on the exercise of their rights.