Survey on state of press freedom shows how much work media must do

Tuesday, March 23, 1999

Talk about damning with faint praise.

“Courts Outperformed Congress and Administration in Protecting Media’s First Amendment Rights,” reads the headline in The Media Institute’s news release announcing the results of its annual survey. First place in this contest, however, is an award with little distinction. According to the survey, the judiciary earned a B-minus for its 1998 performance in cases involving First Amendment issues. The executive and legislative branches each posted a D-plus for their efforts, and state and local governments limped in with a D-minus.

While the grades are of dubious validity (the graders, for example, were members of the Institute’s First Amendment Advisory Council, hardly an unbiased group), the fact that the survey found the judiciary to be a “bright spot” speaks volumes about the beating taken by the First Amendment last year.

This is the same judiciary, after all, that spent 1998 approving subpoenas, impaneling anonymous juries, closing courtrooms and restricting newsgathering. What saved judges in the survey were their decisions striking down the Child Online Protection Act and overturning many state Internet regulations.

Whether these Internet decisions truly make up for the judiciary’s rulings in media cases is a debatable issue. What’s really disturbing, however, is that the other branches surveyed didn’t have any redeeming First Amendment actions to balance against their anti-media efforts.

We should not be surprised that those officials closest to “the people” are also those least sensitive to First Amendment freedoms. The public’s disdain for publishers is clear. Were it up to the public, the Internet would be sanitized, anonymous sources would be outlawed and invasions of privacy would be felonies. Indeed, had the public been graded by The Media Institute, it surely would have received an F.

Improving the grades on next year’s report card will not be easy, but First Amendment advocates must attempt to reverse the current trends. The most obvious challenge is to better educate government officials and the public about the importance of First Amendment freedoms.

Unfortunately, the usual response from First Amendment advocates to attacks on the freedom of the press is knee-jerk sky-is-falling rhetoric. This approach is not working. As hard is it may be, we must provide realism rather than rhetoric. We must explain that these freedoms do not affect only big media companies and snoopy reporters. Instead, we must demonstrate that these freedoms affect everyone who consumes news, advertises their business and values open government.

A much harder — but equally necessary — challenge is for the news media to acknowledge that First Amendment rights bring with them important responsibilities. We wring our hands (as we should) over plagiarized columns and fiction that is reported as fact, but what the public really wants is for reporters to let families of murder victims alone and for cameramen chasing after Monica Lewinsky to act like human beings rather than starving dogs fighting over a piece of meat. The media rightfully resist any effort to legislate journalism ethics but then often act as though no such ethics exist.

Instant news and fierce competition appear — to the public at least — to have made all journalism tabloid journalism. Rarely does the public perceive that the “mainstream” news media are taking the high road. In the course of defending First Amendment freedoms, we often plead with judges and legislators to resist public pressure and to do the “right thing.” Is it too much to ask ourselves to do the same?

Maybe it’s not possible to convince the public that most journalists have ethics and act within them. Maybe the fringe will always bring the rest of the media down to its level. Maybe the public’s contempt for tabloid journalism but demand for tabloid news puts the media in a no-win situation.

Even if these possibilities are true, the media take a great risk by retreating from the battlefield and hiding behind the First Amendment. As we learned in 1998, that bulwark is under intense attack from all sides. Maybe, with the help of a B-minus judiciary, it can withstand that attack. And maybe it can’t.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.