Press increasingly a player in events it covers

Tuesday, March 17, 1998

Where is the boundary line between the news and the media that cover the news?

That question underlies some of the unease that many inside and outside of journalism feel about the frenzied coverage of President Clinton's alleged affair with Monica Lewinsky. It is clearly a story that the press, exercising its First Amendment role as watchdog, has a duty to cover and pursue. But when the press becomes a pervasively important part of the story it is covering, as it has been since the scandal broke, is it still a watchdog or has it crossed a line it should not cross?

The question is not merely abstract; in a different context, that of media ride-alongs with law enforcement officials, judges are reining in the press and questioning its independence. That hasn't happened yet in the Lewinsky case, but judging from polls showing that the public dislikes the role of the media in the affair, restrictions might be popular.

Leaks emanate from everywhere, it seems, including from inside the room in Washington, D.C., where Kenneth Starr's grand jury calls witnesses and deliberates. Grand juries were always meant to operate in secret, to protect the privacy of people investigated but not indicted. But in the current coverage, that privacy has proven impossible to maintain.

Grand jury witnesses are comprehensively interviewed before cameras parked just outside the grand jury room while, behind the scenes, journalists eagerly receive leaks from all sides, report them, then report the controversy over the leaks. The media turn up new sources of information-former friends of Lewinsky, former White House guards and the like-and soon thereafter, Starr's investigators come knocking on their doors as well.

Meanwhile, both sides in the negotiations over immunity for Lewinsky move their chess pieces in public, quenching the thirst of the endless news cycles of the media.

The appearance of Lewinsky's attorney William Ginsburg on the talk shows becomes as predictable a part of Sunday morning as the peal of church bells. It is hard to see how Ginsburg is helping his client by making himself into a media star, but the media go along willingly with his mystifying agenda.

At every turn, the media are playing roles which, while not unprecedented, place the press in the middle of-rather than on the periphery of-the developing story. The press floats trial balloons for both sides, finds witnesses and serves as an intermediary between parties before a grand jury-all roles which sometimes help the government's probe and sometimes hurt it. Watergate had its aggressive reporting, but even then the press did not seem to be such a direct participant in an ongoing grand jury legal process.

It used to be taught in journalism school that the media should never-or almost never-report that a named individual “is about to be indicted by a grand jury.” Not only could a reputation be unfairly ruined and the tradition of grand jury secrecy be broken, but such a report could be flat-out wrong, because so many unknowable factors could intervene to make it wrong. In the current climate, however, the media display no such inhibitions.

Meanwhile, the media head to appeals court to seek the lifting of the gag order on participants in the Paula Jones civil lawsuit against Clinton. Noting that the gag order has done nothing to prevent the spread of rumors and innuendo, the media argue it ought to be lifted so that jury selection later this spring can begin “in an atmosphere in which facts, not rumor, have dominated the public discourse.” Because inaccurate information has been so pervasive since the Lewinsky allegations first broke, the media argue, the gag order “is not presently likely to advance the interests initially articulated by the court.”

To some – including, apparently, Judge Susan Webber Wright, who rejected it-the argument seems akin to suggesting that a bank, once it has been robbed of some of its money, might as well give away the rest. But it is an important argument to make nonetheless, to register the media's continuing objections to the rising number of gag orders placed on trial participants by judges-especially in high-profile trials. “It is their role, on their own behalf and as surrogates for the public as a whole, to present the arguments against restrictions on speech and dissemination of information,” the media's brief reminded the judge in the Paula Jones case.

But the presumption in that argument, and in the media's general plea for access to court and law enforcement proceedings, is that the press is the public's “surrogate” in a place where the public cannot always be. When the press takes on a different role in the process, is that argument weakened?

It certainly has been when it comes to media ride-alongs. In the latest of several rulings adverse to the press in this area, the U.S. Court of Appeals for the Ninth Circuit ruled recently that the press had become so closely intertwined with law enforcement that it actually was acting “under color of law.”

The case, Berger v. CNN, arose from a 1993 raid on the property of two elderly Montana ranchers carried out by the U.S. Fish and Wildlife Service to determine if they had poisoned bald eagles. Just before the raid, CNN and the government agency made a formal agreement to allow CNN crews to film the raid. The ranchers, Paul and Erma Berger, sued the government and CNN, claiming the joint raid violated their Fourth Amendment right to be safe from improper government search and seizure. The court agreed, asserting that “This search stands out as one that at all times was intended to serve a purpose other than law enforcement …. The media wanted footage of the discovery of evidence showing that Paul Berger was poisoning eagles, and the government wanted the publicity.”

Significantly, the court also held that because of the close involvement of the media in the raid, the CNN crew became “government actors” as surely as if they had donned law enforcement uniforms. “The inextricable involvement of the media with both the planning and the execution of this search, the government's active involvement with the media's news gathering activities, and the mutually derived benefits, is more than enough to make the media government actors,” the court said.

The ruling has triggered alarm among the media, who fear they will be held liable along with the government for improper searches. The ruling “overlooks the media's important role as the public's auditor of government activities,” according to an appeal brief filed by CNN's parent company, Turner Broadcasting “The news media have a constitutionally recognized role in monitoring government activities. Doing so effectively requires access.”

A friend of the court brief filed by other media groups also makes the point that it can be legitimate for government to seek publicity for its law enforcement activities. “Such publicity most certainly advances legitimate goals of the criminal justice system,” according to the brief.

Permitting the type of search involved n the Montana case, the brief also suggests, serves legitimate news-gathering goals as well and does not turn the media into adjuncts of government. It also puts forth the argument that the media serve as the public's surrogate in covering the justice system.

But as the Montana case proceeds toward the Supreme Court, and the coverage of the Lewinsky story continues, that media reliance on the surrogate or watchdog role may increasingly be called into question.

In a recent paper criticizing the involvement of the media with law enforcement activities, the conservative Washington Legal Foundation argued that basic freedoms and privacy interests are “being undermined by the national media's intimate involvement in law enforcement activities …. Reporters' and television producers' involvement similarly undermines the media's reputation and role as the citizens' watchdog over government.”

Tony Mauro covers the Supreme Court for USA TODAY and is legal correspondent for the First Amendment Center.