No, this is NOT a case of an attack on free speech. Remember that old saying regarding the freedom to say anything: “You can say anything, but, you cannot cry ‘FIRE’ in a crowded theater?” I think we’re getting to that point in “politi-speak.” Let me explain.
“Attorney Lanny Davis says he was an anonymous source in a July CNN story that reported his client, Michael Cohen, had privately claimed that President Trump had advance knowledge of the infamous Trump Tower meeting between his son and Russians — contradicting Davis’s own words on CNN’s air last week. Davis, Michael Cohen’s lawyer and spokesperson, said he also regrets lying about his involvement in the story on CNN last week.”
Lanny Davis is a well-known attorney who for decades has kept close ties to the Clintons. He has been the media “go-to guy” for both Bill and Hillary throughout Bill’s two terms as President and Hillary’s term as New York Senator and as Obama’s Secretary of State. Davis — a staunch Democrat — has appeared often on FOX News on the “Sean Hannity Show.” Hannity has maintained an amicable friendship with the Clinton sycophant and their on-air banter had become commonplace.
But this latest from Davis has exposed the dangers of “anonymous” sourcing for news stories of every kind. It’s time to take a look at this practice, its purposes, and its dangers. And — at least in the opinion of this writer — it’s time to make some changes.
The Essence of Free Speech
In a nutshell, here is the core and guarantee of free speech: “Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Heretofore, this Amendment has been broadly defined as it pertains to the media, allowing members of the media to say anything, claim anything, quote anyone named or unnamed, without any accountability for the truthfulness of what any source states as fact. Further, members of the media have had no accountability for what they say or write being truthful or not, nor is there any requirement for the media to divulge who those sources are.
But does the guarantee put into the First Amendment grant any American the right to lie with no accountability for doing so? That’s the question driving today’s discussion here at the TruthNewsNetwork.
What Does the Constitution Actually Guarantee?
Let’s make one thing perfectly clear: no one here is a Constitutional attorney. But everyone here has the ability to think reasonably through topics such as this. It makes no sense for anyone to be allowed to purposefully tell lies, shield unverified sources who provide unverified information that could (because of their being reported to the World as they are today) damage national security, purposely defame individuals, impact financial markets, and even affect election results! That may seem a bit over the top, but it really isn’t. In today’s 24/7 news cycle environment in which anyone and everyone has instant access to news, how can any person believe what is being reported? Think about it: no reporter is required to tell the truth. No reporter is required to disclose sources of what they report. No reporter is required to verify that the content obtained from sources is accurate. Heretofore journalists have had carte blanche to say anything they so choose, quote “anonymous” sources, and can even make-up stories and report those to the world even knowing that their content is either false or unknown and verified to be truthful. And in the case mentioned above of Lanny Davis, he not only made up (lied) about the “news” he presented, HE LIED ABOUT THE SOURCE!
What types of speech are NOT protected by the Constitution? Scholars will agree and disagree on that. But most will agree the following categories are NOT Constitutionally protected as Free Speech:
- Obscenity
- Fighting words
- Defamation (including libel and slander)
- Child pornography
- Perjury
- Blackmail
- Incitement to imminent lawless action
- True threats
- Solicitations to commit crimes
Plagiarism is also not protected.
But the one thing that has become glaringly obvious during the 2016 election cycle and since is that truth in reporting is missing. Should “Untruthful/non-factual” reporting be added to that not-protected list?
Shouldn’t the general public have a right to receive accurate information from the Press? Is it unreasonable to feel that purposeful untruth in reporting should bring accountability to those who are guilty of that? Should there not be some price to pay for the media lying to Americans?
“Self” Policing
The Society of Professional Journalists has published a handbook for journalists to use as a template for preparation and reporting of news. The handbook addresses this issue this way:
“Ethical journalism should be accurate and fair. Journalists should be honest and courageous in gathering, reporting and interpreting information. Journalists should: Take responsibility for the accuracy of their work. Verify information before releasing it. Use original sources whenever possible.”
Regarding the controversial policy of using anonymous sources in news reports (a practice I personally detest) NPR (National Public Radio) offers this about their reporting:
“Is the source credible, reliable, and knowledgeable?”
We use information from anonymous sources to tell important stories that otherwise would go unreported. This is not a solo decision – the editors and producers of these stories must be satisfied that the source is credible and reliable and that there is a substantial journalistic justification for using the source’s information without attribution. This requires both deciding whether it is editorially justified to let the person speak anonymously, and being satisfied that this person is who the piece says he is and is in a position to know about what he’s revealing. We should never be in the position of having to verify these things after a story has been broadcast or published.”
Of course, that sounds good — or at least it sounds a bit more reasonable — IF — those in the “verification” loop are credible and honest themselves. But NPR continued to justify their use of anonymous sources with the following disclaimer:
“In our coverage, anonymous or unnamed sources generally cannot make pejorative comments about the character, reputation, or personal qualities of another individual, or derogatory statements about an institution. We don’t use such material in our stories, with rare exceptions. (If an individual is blowing the whistle on significant misdeeds or making an allegation of sexual assault, we may decide to air the person’s claims.”
“Generally cannot make…..” That leaves an opening for allowing some “pejorative comments about the character, reputation, or personal qualities of another individual, or derogatory statements about an institution.” What NPR is doing with this disclaimer is stating that sometime, someone — like an editor — may feel that it is OK to allow this to happen.
Isn’t this like the inmates running the prison? The ridiculousness of this NPR position is best illustrated with this: if you hire an attorney, and in the course of that attorney’s representation of you, he or she commits an egregious act that costs you in a very serious way. That cost is directly attributable to that attorney’s actions. How can you take action to defray any losses you may have? Your only recourse for damages is to file a complaint with the Bar Association in which that attorney is associated or to file a lawsuit against the attorney. Who really thinks the complainant will receive fairness in the results of such a complaint to the Bar Association? Good luck filing a suit against the lawyer, too. What lawyer wants to represent you in a suit against another lawyer? And what judge is going to not be lenient on a fellow lawyer? Lawyers policing lawyers will almost certainly not result in fairness for the complainant. Editors and publishers policing their own reporters in no way guarantees truth in their reporters’ stories.
“Unnamed Sources:” Good or Bad?
Reporters will argue vehemently for their ability to ferret out stories using anonymous or unnamed sources for certain ones. The claim is that many investigative stories that reveal the wrongdoing by many powerful individuals in the private sector and in government would never see the light of day without the ability to give sources cover from identity exposure.
But there certainly should be some avenue to protect Americans from juicy stories based on unverified sources when those sources give-up untrue information or in those cases in which there is really no source at all. Let’s be honest: in this vitriolic political state in which we live, almost daily we discover that some story quoting “anonymous” or “unnamed” sources was actually Fake News. That’s the primary reason Americans are growing to distrust the media more and more and why the favorability rating of the media is actually lower than that of members of Congress. Who thought that was even possible!
Is there not a way to legislatively create accountability through federal law for the media creating and reporting false news? Think about it: there certainly is a process to protect the identities of legitimate news sources while holding them and the media who report that news they provide accountable for its veracity.
There will be those that viciously attack such a thought, stating that it would prevent the exposure of illegal and unethical actions by leaders, members of the government, and even important titans of industry in the private sector that are critical to the political and free enterprise system. How could such a system work without diluting the information system or keeping legitimate information hidden from sight?
Let’s try this: set up a national Journalism Integrity Fund that would underwrite the cost of a journalist verification process to assure Americans news is truthful, and nothing more. Could such a system work? How would such a system work? If structured and operated properly, it could lift the cloud of distrust that covers every aspect of American media today without losing legitimate news sources.
Why not have the U.S. Supreme Court supervise a “Media Verification Division” that would simply be always on call to verify truthfulness in news. A random system could be structured for members of this “Division” to audit the sources of news stories. That would require each news outlet to keep (in some secure setting) complete records of unnamed or anonymous sources for that “Division” to verify in a random basis. Criminal penalties would result from those media entities and persons who violated the terms of the law governing this process. Civil penalties would result from cases uncovered with these random investigations for instances of abuse of stories based on anonymous or unnamed sources that do not break the law. Complete confidentiality would be absolutely necessary and criminal penalties for violation of that confidentiality should be included in the governing law.
How should such a law be worded? Congress is full of attorneys. I think that a group of attorneys comprised of free speech proponents and those who push for protection of Americans against untruthful news could draft legislation that would protect press rights afforded under the First Amendment while protecting against news based on unnamed sources that are fake.
Summary
Here’s the bottom line for me — a journalist. I do not want to stifle the truth unearthed by reporters in every area by intimidating sources in any way IF we are assured sources will be verifiable and accountable for provided information. Reporters could in this suggested process continue their practice of writing and broadcasting stories quoting unnamed sources. The difference is that this “Division” would always have the right to secretly verify the unnamed sources and to verify the information provided. Americans would know that there would be accountability against fake news.
Of course, penalties for violating this process by a news organization, reporters, and sources who lie would certainly have to be significant. After all, the reason for this process would be to not stop reporting using unnamed or anonymous sources, but for Americans to feel comfortable that news stories will always be based on truthful information. And unlike today, lying in stories or making them up will cost the perpetrator significantly.
Lanny Davis lied about a story that purportedly came to him from an unnamed source. Not only did he lie about the story, (he made it up) he lied about the source. Imagine if Davis — who is an attorney — was fined $100,000 or 2 years in jail or both for each violation? Certainly, he would lose his license to practice law. (He could obviously re-apply for his license at a later date)
Think Lanny would have released that fake news if there had been such a penalty for his doing so?
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