United States: Media self-regulation: A questionable case of American exceptionalism?
By Bill Orme
The British saga of parliamentary inquiries into news-media excesses — featuring something with the airport-potboiler title of the “The Leveson Inquiry” and the proposed replacement of a “Press Complaints Commission” by an even more oxymoronically named “Independent Press Standards Organisation ” — can seem bafflingly alien to journalists on the other side of the Atlantic.
Most peculiar of all from an American media perspective is the apparent underlying presumption that some form of collective ‘self-regulation’ is the only alternative to state regulation of the proudly free press that John Wilkes proclaimed 250 years ago to be every Briton’s ‘birthright.’
That British tabloids routinely flouted privacy laws and paid bribes for news leaks and did many other nefarious and probably illegal things — that is understood in US media circles. That those politicians and their constituents would be angered and demand punishment for this behavior — this we also understand.
That a socially plausible response to all this would be a system of state-endorsed regulation of the press through an ancient Royal Charter seems borderline bizarre, however, and profoundly distressing.
After all, the British tradition of a feisty, free-spirited press is our legacy as well. The combative colonial-era press of which the founding fathers of the United States were so zealously protective was an overseas extension of 18th century British journalism, with its parallel legal battles against seditious libel and in defence of editorial independence.
But Lord Justice Leveson’s tribunal could never be convened here, we tell ourselves.
And we are right.
To the few Americans who follow such things, Britain’s media-regulation debates seem like further evidence of the colonists’ wisdom in severing their ties to the crown in the first place. This attitude could be dismissed as just another self-satisfied assertion of ‘American exceptionalism.’ But in this area, in fact, the United States is objectively exceptional, legally and culturally.
The United States is hardly alone in having a long tradition of a free and vibrant press. Sweden, for example, can claim an even longer history of independent journalism. So can the Netherlands. And so, without question, can Great Britain as well. But the United States is unique in enshrining press freedom as a founding principle of the nation-state itself, with an unambiguous constitutional prohibition against state regulation and censorship. Its language is clear and direct: “Congress shall make no law … abridging the freedom of speech, or of the press.”
As a consequence of this unusual First Amendment legacy, the very concept of ‘self-regulation’ is anathema to most American journalists, because it is read to imply that government regulation is the understood alternative. The very term ‘self-regulation’ can sound dangerously akin to the mandatory guild-like oversight of lawyers through bar associations and doctors through the medical associations, which are in effect deputised by government as licensing authorities.
Yet nobody in the United States needs a government permit or a journalism degree or any other sort of credential to publish a newspaper, or to write a news story, or, now, to post a blog update or an online video report. This is also the tradition in most other established democracies. But in the United States it is something more than that — it is a firmly established principle of constitutional law. That is not a trivial difference.
The one true self-regulatory tradition in American journalism is collective opposition to official regulation, backed by the firm belief that they had the law on their side. For two centuries private US news organisations have sought to defend and extend protections of media independence by recourse to the courts, not to legislatures or the executive.
(The recent proposal for a ‘shield law’ protecting journalists from becoming forced evidence-providers in federal prosecutions is a significant and, to some, worrisome departure from that tradition, as it opens the door to a statutory definition of ‘journalist’ as a condition for that protection.)
The First Amendment alone was never a guarantor of that independence. Journalists and publishers — and their lawyers — had to fight for those rights. There were as many setbacks as there were advances, especially in wartime, with censorship imposed or encouraged even by the greatest and most progressive US presidents, Abraham Lincoln and Franklin Roosevelt.
The most significant Supreme Court victories for press freedom came just a half century ago, most notably Times v. Sullivan in 1964, requiring public figures filing libel suits against news organisations to prove ‘actual malice’ and willful disregard for the facts, and the Pentagon Papers case in 1971, which recognised the implicit constitutional prohibition against pre-emptive ‘prior restraint’ censorship of news reports. That tradition of adversarial litigation continues: media companies are now preparing for new court battles to keep their reporters from being jailed for refusing to disclose their notes and the identities of their sources to Obama Administration prosecutors.
But the self-image of US journalists as neither self-regulated nor state-regulated is also something of a myth. There are powerful peer-pressure mechanisms in place — and never more so than today, when the news business is under acute economic pressure and the purportedly “liberal media” is a constant target of conservative grassroots and boardroom hostility.
It is widely recognised in the profession that there are many areas of legitimate concern over media conduct, which remain, properly, outside the jurisdiction of any courtroom. As a result, there are many significant self-regulating mechanisms in American journalism culture, most of them focused on issues of ethics and accuracy. These include the voluntary but influential codes of ethics promulgated by peer groups such as the Society of Professional Journalists, which are mirrored in turn by the codes of ethics adopted by individual news organisations.
Many reputable American news media had to dismiss staff journalists for well-documented cases of plagiarism, or outright fabrication, or failures to disclose clear conflicts of interest — and the editors and producers overseeing those journalists were often collateral damage as well.
The names of now-infamous serial fabulists like Janet Cook (formerly of the Washington Post), Jayson Blair (formerly of The New York Times) and Stephen Glass (formerly of the New Republic) remain widely known in the US media years after their transgressions were first exposed, their case histories studied as cautionary tales in journalism schools. The cumulative effect of these media-ethics scandals has been profound, permanently altering internal editorial oversight procedures and external public-accountability practices in newsrooms across the country.
It is a rare news organisation today that does not provide online forums for readers’ comments for all to read, including direct challenges to the accuracy or fairness of the news reports in question, on online platforms provided free by those very news organisations. Journalists’ personal email addresses are routinely appended to their news stories in many online publications, and responses to readers’ email inquiries are increasingly considered a mandatory aspect of journalists’ jobs.
Internet news sites are also increasingly adopting ethical and editorial guidelines. The Radio and Television Digital News Directors Association recently updated its ethics code. The Online News Association is encouraging its members — including self-employed bloggers — to develop their own codes of behavior.
Over the past decade, most major American newspapers have also adopted the growing practice of designating semiautonomous media ombudsmen or public advocates who receive, investigate and report to the public on complaints and questions about their own news coverage. Many have also begun covering the US news media as a regular business-journalism beat.
Reinforcing this informally self-regulating ecosystem are peer-review academic publications that subject US journalism itself to scrutiny, such as the Columbia Journalism Review and the American Journalism Review, and more mainstream-oriented radio and television news programs focused on the news business and journalism ethics, such as National Public Radio’s “On the Media” and CNN’s “Reliable Sources.”
As has often been noted, none of these changes in American media self-regulation or self-examination have been externally imposed or collectively managed.
Broadcast journalism: An exception to the exception
This is all a bit too neat, however. There is one clear exception to the non-regulated US media norm and it is a rather big and fundamental one: broadcast journalism, which even in the Internet area remains the most important source of news for most of the public. Radio and television programming has been federally regulated since the broadcast industry’s inception.
Indeed, the main reason almost all American radio and television stations have regular news programs at all today is the original requirement by government regulators that broadcast companies provide public-service content as a condition for retention of their radio frequencies. That requirement was usually preemptively fulfilled by some combination of occasional educational programming and regular public affairs shows, including hourly news bulletins.
In contrast to most European broadcasting, the American radio dial was occupied from the start almost exclusively by advertising-financed commercial stations, which were heavy on popular music and sports and light on public affairs. (Nonprofit, federally subsidised but donation-dependent National Public Radio — now the only America radio network with a well-staffed commitment to original news reporting — is a relatively new phenomenon. To protect its hard-won editorial independence, NPR has hired its own ombudsman to receive and respond to public queries about accuracy and perceived political bias.)
From the beginning, US radio news reports were usually scrupulously non-ideological as well, in conspicuous contrast to the rambunctiously partisan ‘yellow’ press of the era. This just-the-facts professional neutrality was not mandated by law, but was seen by media owners as a politically prudent exercise in self-preservation — or self-regulation. Terse wire-service bulletins provided ideologically colorless text for most news reports, as is still the case for US commercial radio news programming today.
That non-partisan, non-confrontational Associated Press and UPI ethos then shaped American network television news at its onset in the 1950s. Edward R. Murrow’s acerbically critical CBS News coverage of Senator Joe McCarthy and his communist-conspiracy Senate hearings was hardly representative of television news, either then or today, which is precisely why it is still so widely remembered. Many local CBS affiliates at the time complained privately to the network’s owners about the CBS News decision to openly challenge McCarthy — not because they questioned the veracity or importance of the reporting, but because they feared that they could lose their valuable broadcasting licenses in reprisal.
They didn’t lose their licenses, however. It was and remains extraordinarily rare for owners of local commercial television and radio stations to face any serious legal or political challenge to the routine renewals of their broadcast frequency allocations. And in the 1980s, under the Reagan Administration, the Federal Communications Commission relaxed or eliminated many longstanding if rarely enforced strictures on broadcast news, such as ‘equal time’ guarantees for opposing political opinions and candidates and ‘right to reply’ provisions giving free television air time to the protests of the aggrieved subjects of critical local news stories.
Yet that federal regulatory authority — even if never punitively exercised — remains a powerful influence on US broadcasting culture and news content today.
That regulatory legacy can be seen starkly today in the contrast between local television news and the cable and satellite news networks, which do not rely on federally assigned VHF and FM and AM frequencies. Take the two Fox News outlets in New York City, for example: The flagship Fox News cable channel is the unapologetically right-wing scourge of the Obama Administration, with its hosts excoriating all things liberal and capital-D Democratic 24 hours a day. Yet local Fox News programs on over-the-airwaves Channel 5 are politically indistinguishable from competing New York City newscasts. Though often leading with mayhem and sensation in the characteristic Murdoch manner, the Channel 5 Fox reports have no visible ideological coloration whatsoever. Nor does the news from the local CBS, NBC and ABC affiliates have any noticeable political edge.
Would American broadcasting companies point to this common adherence to long-established broadcasting norms as an example of voluntary self-regulation? Not likely. The candid might acknowledge that it is an example of collective self-preservation, with all broadcasters behaving similarly in response to the same regulatory and market realities. And some might fear that active collaboration among these companies in setting and abiding by collectively adopted broadcasting standards could be considered unlawful collusion under federal antitrust rules.
Each newsroom sets its ethical dial
In US media, self-regulation is generally accepted and understood to be professionally acceptable and practically enforceable only within the institutional confines of each individual news organisation, each with its own distinctly tailored and voluntarily adopted code of ethics for its own employees and other contributors. Any publishers or broadcasters who may opt for lax or nonexistent ethical norms or for overt political bias or for content that may be morally or ideologically repugnant to many people are seen as operating well within their First Amendment rights.
But collective, formal self-regulatory structures for news reports or any other media content are considered by most media companies and individual to be alien, unnecessary and impractical at best, and unethical if not borderline illegal at worst.
The best evidence of media aversion to collective self-regulatory structures of any sort comes from two exceptions that ultimately proved that rule: the earnestly conceived and diligently run state-level press councils of Minnesota and Washington. Both have now shut down for good, victims of public indifference and professional antipathy.
While not unique — there were similar efforts to create press councils in Hawaii, Massachusetts and a few other localities — the Minnesota and Washington were widely considered the two most successful such experiments. It is probably not coincidental that both states have long traditions of progressive political reform and unusually civil public discourse, which some see as linked to Nordic immigrant mores, and perhaps by osmosis to their borders with Canada as well. Having voluntary forums where local media reporting and ethics could be openly examined was an idea embraced by civic leaders in both states, as well as by many local journalists.
The Minnesota Press Council was founded in 1970, after the model of what was then the British Press Council, in order to “promote fair, vigorous and trusted journalism by creating a forum where the public and the news media can engage each other in examining standards of fairness.” After four decades and 155 public hearings on cases of alleged local media misbehavior, the Council closed its doors in 2011.
The Washington News Council emulated Minnesota’s example, with a self-assigned mandate of “holding this state’s news media publicly accountable for accuracy, fairness and ethics” and a similar program of hearings on public complaints of media transgressions. It ceased operations just recently, after 15 years. Announcing its closure in May 2014, the Washington Council said it had been “the only news council left in the United States that reviews citizen complaints against media organisations and holds public hearings to review and vote on the quality of print, broadcast or online stories.”
This obituary was objectively accurate. Yet the council’s demise was little lamented locally, and little noted elsewhere, even among US journalists.
The Minnesota and Washington Councils received hundreds of formally submitted complaints over the years from private citizens and others — corporations, public institutions, elected official — about alleged political bias, uncorrected factual errors and other ethical breaches in news reports. Some of these cases were then aired publicly in quasi-judicial hearings presided over by local judges. (“a sitting justice of the state supreme court chaired the Minnesota Council’s hearings” it proudly reported.)
Many local news organisations refused to participate, contending that council hearings aired what were in effect civil libel allegations that would not survive judicial scrutiny. The aggrieved citizens filing complaints were often subjects of news stories that were unflattering, or worse, but not demonstrably inaccurate nor beyond the bounds of legally protected commentary.
From the start, the Minnesota and Washington Councils were dependent on two things that ultimately proved undependable: public interest and private funding. Requests from the public for hearings on alleged media misconduct plummeted in the Minnesota Council’s final years, from 142 in 2003 to 50 in 2008, 35 in 2009, and 25 in 2010, according to Tony Carideo, the council’s president.
Carideo, in one of his final web postings as president in 2011, blamed the Internet: “The proliferation of blogs, which allowed news consumers their own distinct voices, email and comment sections to online news stories, provided an instantaneous outlet for complaints, concerns and commentary on the news. Our hearing process, which was both thorough and, as a result, time-consuming, couldn’t measure up to the instant access allowed by electronic media.”
John Hamer, the Washington council’s long-serving director, posted similar comments in 2014. “We had a great 15-year run, and we helped a lot of people who were damaged by media malpractice,” Hamer wrote. “But the news media have changed tectonically since we began. The eruption of online digital news and information made our mission of promoting high standards in journalism much more difficult, if not impossible.”
The rise of Internet media also relentlessly reduced the profit margins of the Minnesota Council’s chief patron, the Minneapolis Star-Tribune, the state’s leading newspaper, which ended its once-generous philanthropic support.
While the Minnesota Council’s biggest funders were private media organisations, the Washington News Council relied heavily on corporate donations from such leading Seattle-based businesses as Boeing, Microsoft, and Puget Sound Energy, the region’s private electric utility monopoly — all constant subjects of local news coverage. The Microsoft-derived Bill & Melinda Gates Foundation was a major donor, as was Bill Gates’ father, Bill Gates Sr., who sat on the council’s board. Several council board members were also contributors to city and state political candidates, raising further conflict-of-interest questions. The state’s two leading newspapers refused to participate in council hearings on their own reporting, with their editors questioning the council’s objectivity and legitimacy.
While the former heads of the now-defunct state press councils understandably lamented the demise of their cherished institutions, they should perhaps have declared victory instead: Newspaper readers and radio listeners and television viewers are now doing their work for them, on line, every hour of every day, and the journalists and the companies that employ them are paying close attention.
At the same time, the increasing power and civil-liberties encroachments of the post-9/11 national security state — from the CIA and the NSA and the FBI to hundreds of state and municipal police departments — has properly refocused U.S. media industry attention on the specter of government obstruction and surveillance of independent journalism. And once again, the American media’s preferred approach to collective self-regulation will be in the form of collective-self defense, with further jointly waged legal challenges to government constraints and intrusion on free media and free speech.