Resurrect the National News Council? p.

By: Debra Gersh

Attorney Alan Dershowitz believes lawsuits against the press can be avoided if the public has some system of redress
CELEBRITY ATTORNEY ALAN M. Dershowitz has been at the center of plenty of media coverage, and as a result believes there ought to be some system of redress for the public, short of a lawsuit.
"I'm not suggesting for a moment that you be regulated by any government or organization or body," said Dershowitz, noting the Constitution forbids such action, "but the First Amendment does not preclude you from establishing your own peer review ethics committees. I think that would help you, and I think that would help all of us."
Dershowitz, professor of law at Harvard University, spoke to publishers at the recent Newspaper Association of America convention in Boston, who spent a day at the university attending a variety of special lectures.
"I want to propose here today that the journalism profession establish an internal court of corrections, something to which aggrieved consumers of the media can go to see errors corrected on the basis of peer appraisal," the much-publicized attorney suggested. "I have to tell you, I think it's going to save you ? if you do this ? a lot of money."
Dershowitz said he gets about 10 calls a week from clients who are looking to sue the media, but he said he almost always changes their minds.
"I talk them out of it not because I love you, but because I like my clients and I want to explain to them what a terrible ordeal it is to sue you," he explained.
After talking to his clients, Dershowitz finds they usually are not looking for financial reenumeration.
"They want vindication," he said. "They want the public to understand you made a mistake, maybe even an honest mistake. They just want the record to be corrected."
Calling the court of correction "useful and constructive," Dershowitz explained that it would have no binding effect, but instead would give each side half a day to make its case before a panel of "excellent" or retired journalists who would make a decision.
Discipline for those newspapers found to be wrong would mean simply that "the world would know that a journalist had been disciplined, that something had been done to critique their ability or their role as a journalist," he said.
Complainants opting for this format would waive their legal rights, he explained, "because you couldn't give them, obviously, the right to bring this remedy, and then they win and use this remedy as a way to leverage you into a major lawsuit."
Dershowitz conceded that some cases are too complex for this forum, but said that nevertheless "many disputes could be resolved . . . . I think a lot of people would be prepared to give up any legal claim if you would just give them satisfaction."
He noted, however, that newspapers do "have a First Amendment right. You don't have to do any of this. You are free to go your own way. You are free to thumb your nose. You are free to say, No, we will accept no constraints either internal or external.
"But," he warned, "the very First Amendment that gives you that freedom potentially gives you the kind of arrogance and the kind of ability to hide behind your own mistakes and proclaim that your mistakes are the dues that we pay for the First Amendment.
"I think we can have it both ways," Dershowitz added. "In fact, I think we should have it both ways, where the government treads not one inch onto your freedom, but where you yourselves constrain your irresponsible reporting and give us, the consuming public, the ability to see what rules you operate under, to see whether or not we can challenge those rules, to give us a forum in which to challenge those rules."
A self-proclaimed First Amendment absolutist, Dershowitz also cautioned that "can be a knife that cuts both ways."
The First Amendment provides "protection, but it surely doesn't guarantee excellence," he said. "Indeed, it is not the office of the First Amendment to have anything to say about excellence.
"I don't think government should be talking about the quality of the media. I think the quality of the media is for the media and for the marketplace of ideas," Dershowitz continued, "and as a First Amendment advocate, in some respects, I have no right to care about your excellence or lack thereof. I have to worry about your freedom, your right to be wrong, your right to make mistakes, the most fundamental right that any media outlet can have.
"It's your job to think about excellence, but that's too abstract a proposition, because if excellence is diminished to the point where the people's confidence in the media is shaken, then the First Amendment is also placed in danger and all of us are placed in danger," he said.
Recounting a sampling of the times mistakes about him or his clients have been made ? and some not corrected even after the publication was made aware of the error ? Dershowitz chided the "arrogance of some journalists in refusing to correct those errors."
Court decisions, with which Dershowitz agrees, have said newspaper owners "control the letters-to-the-editor columns. You have a right not to publish letters.
"It doesn't mean you should exercise that right all the time," he added. "You also have the right to be wrong, but there's no virtue in exercising that right as well."

Anonymous sources

Aside from corrections, or lack of them, Dershowitz pointed out a number of other ethical issues the newspaper industry should discuss.
"There is a dispute within your profession as to whether or not anonymous sources of personal criticism should be printed in the paper," he said. "I understand why you have to do it sometimes; you're not going to get people to make statements on the record.
"But your public can't evaluate the credibility of a source if it doesn't know who that source is, if it doesn't know whether that source has an animus, if it doesn't know if the source has a history," he added. "It seems to me, that's worth debating and worth having some rules about ? not enforceable rules.
"If certain newspapers persist in continuing to publish anonymous, unsourced negative statements about people, fine, as long as the public is aware that that's a violation of a journalistic norm, if you are to decide that it's a violation of a journalistic norm," Dershowitz suggested.

Reliance on data bases

Although it is not exactly an ethics issue, Dershowitz also took issue with the extensive use of information data bases, such as Nexis, when preparing personality profiles.
"Today, when you read profiles of people ? it especially becomes clear when you read profiles of people you know ? you read the same profile over and over and over again, because Nexis and Lexis and all these machines now give you the ability of instantaneously figuring out what everybody else in the world has ever said about that person and therefore you seem to get the same repetitive story over and over and over again," Dershowitz noted.
The system also can lead to the repetition of errors that may have been in the original story, he added, since letters to the editor and corrections do not automatically appear when a file is searched.

'Bulletin boards'

Using the current investigation into the World Trade Center bombing in New York City as an example, Dershowitz further warned against journalists becoming "bulletin boards" for the government.
"Newspapers, particularly good newspapers, newspapers that like to break stories, need to have continuing relationships with sources within the government, particularly prosecutorial sources," Dershowitz explained. "Prosecutors and government agents and law enforcement officials are all wonderful sources of information.
"I worry that they work symbiotically far too closely together. I worry sometimes that when newspapers become the bulletin boards for law enforcement officials and the bulletin boards for government officials, they help government officials and prosecuting officials make their cases," he said.
"When you play that role, even though you play it for your own purpose, when you serve as a bulletin board for the government, when you put out one side of the story, as happened in the World Trade Center case, I think you play a dangerous role," he continued.
"The World Trade Center case is a perfect example. We all know that the defendants are guilty. After all, we know how they were picked up, we know where the money was transferred, we know where the car was rented, we know what the substance of the interrogation in Egypt was, we know the entire case, because the government has used the press to present its case."
When he spoke to the NAA attendees, a gag order had been placed on those involved with the case, to prevent further leaks.
Shortly thereafter, the order was lifted. Dershowitz took exception to the government's request for the order after its side had been out.
"When you participate and cooperate in that kind of one-sided presentation of the case, it seems to me, you lose your role as the teller of truth and become an ally of advocates," Dershowitz charged.
"And, of course, then defense attorneys have to play the same game. We have to level the playing field. We have to come in and give you our side of the story, but our side of the story usually isn't as dramatic. We don't make news. We don't have as good information," he said.
"We're not a continuing source of information to you. You could burn a source or hurt a source or disregard a source on the defense side, because every criminal has a different defense attorney. But not so with prosecutors," he charged.
"It's the same institutionalized prosecutor's office that is the source of continuing information. So I think it jeopardizes the role of journalists as non-biased reporters of truth."
In addition, Dershowitz said, "journalists have not taken into account sufficiently problems of conflict of interest."
"Although I'm sure you all have your own conflict-of-interest rules, they vary from media to media and they are not easily ascertainable or easily enforceable," he charged.
A related issue of concern to Dershowitz is protection of the First Amendment and the hypocrisy of those who want it for themselves but not for those whose speech they dislike, such as pornographers.
"I think for the First Amendment to remain alive and strong, everybody who cares about it must be in the business of protecting everybody else's First Amendment rights," he explained.
"You don't win your First Amendment medal by defending freedom of the press if you're a journalist. You win your freedom of speech award if you can think of the thing that you hate the most, the thing that really presses your button . . . and unless you're prepared to get out there and stand up for those who you despise, those whose very existence makes you angry, you don't win your First Amendment award."
Dershowitz went on to explain that, because technology is changing the physical form of media and no one knows exactly what will happen to print journalism in the future, "to simply limit the First Amendment to what you do now is a tactical blunder."
He also pointed to "trends [that]) exist in First Amendment jurisprudence. When you see constraints against those you have nothing in common with, purveyors of pornography, purveyors of hate speech, every time there's a decision that has a negative impact on them, it has a negative impact on you.
"So both for selfish and for broad constitutional reasons, I urge you to broaden your own support for the First Amendment beyond just freedom of the print press and look for opportunities to support the exercise of freedom of speech and freedom of the press by those who you not only disagree with but despise."