Deborah Howell, Newhouse News Service, presiding: E.R. Shipp is the moderator. Call her Shipp. She probably has more degrees than anyone in this room: three degrees from Columbia, a master’s in journalism, a master’s in history, a law degree; and she is working on her doctorate. She has worked at The New York Times and the New York Daily News, and won a Pulitzer Prize in 1996 for commentary. Now, she is practicing ombudsmandry at The Washington Post, while on leave from Columbia, where she teaches at the graduate school of journalism. Basically, understand this: Don’t mess with Shipp.

Hal Fuson loves newspapers and defends them every chance he gets. As he once said, “I defend those awful people who killed Princess Diana.” He is the chief legal officer for Copley Newspapers. He has worked as a reporter for The Register-Mail in Galesburg, Ill., his hometown paper, and as a copy editor and news editor at the late Houston Post. He also taught journalism at Texas Southern University and the University of Illinois.

Karla Garrett Harshaw has been the editor of the Springfield (Ohio) News-Sun since 1990 when she moved from the Dayton (Ohio) Daily News. Karla started her career at 13, writing for a community newspaper. She worked for the Daily News while she was in high school and got a full-time job while she was hardly wet behind her journalistic ears. Karla is an active member of ASNE, she is on the board, and these are the last few days she will be having any fun because she is next year’s convention chair.

Robert Post’s resume almost broke my fax machine, pages after pages of honors, books, publications, law degree from Yale, doctorate from Harvard. He is the Alexander F. and May T. Morrison Professor of Law at Berkeley. He practiced law in Washington where his clients included The Washington Post. He was a law clerk to Supreme Court Justice William Brennan. He has written books about censorship and affirmative action and numerous articles and publications, ranging from the New York Review of Books to commentary to the L.A. Times. He is a specialist in the First Amendment and he loves contemporary conflict — privacy, pornography, hate speech, outrageous speech. He likes almost anything controversial.

Shipp, take it off.

E.R. Shipp, The Washington Post, moderator: Thank you. In trying to describe why their trust in newspapers was waning, readers told researchers for the ASNE Journalism Credibility Project such things as they, meaning journalists, like to see adverse things happen to people; they don’t care if they are hurting people; as soon as someone is a hero they think it is their duty to show an underside. Those surveys said that newspapers go after and publish information without enough attention to the potential harm that could be caused by its publication. Younger readers, especially, saw privacy as a civil right, generally speaking. Most readers were concerned that newspapers don’t show enough respect for personal privacy.

In some respects it may have been reaction to how the press covers public people’s private lives. From O.J. to President Clinton, readers and viewers have been treated to or assaulted by the most intimate details of those lives. A few newspapers have tried to set guidelines. For example, the San Francisco Chronicle’s code of ethics says about privacy, “We treat people with respect. This means having a high regard for personal privacy. Ordinary citizens have a greater right to privacy than public figures.” It goes on to say about public figures “Personal conduct may have a bearing on public roles and public responsibilities. The degree to which a public figure voluntarily conducts his or her life in public or the degree to which private conduct bears on the discharge of public responsibility should guide the publication of personal information.” The Society of Professional Journalists admonishes its members to “recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone’s privacy.”

In this session we will examine the extent to which these principles are still guiding newspapers, or whether they are no more respected than the Ten Commandments. We’ll start with Robert Post, who will give us an overview and tell us where we stand in terms of the law of privacy.

Remarks by Robert Post

Thank you. I’ve been asked to give you an overview of the law of privacy, but in the short time that I have to talk what I can do is sketch out for you the social tension within which the law negotiates the issue of privacy and publicity. To do that I want to start out by telling you that, generally speaking, the law has two different images of the press.

One image of the press is that of a representative of the public, the fiduciary of the public, you stand in for all of us and are our representative in teaching us what is happening in the world. That image of the press is what you appeal to when you, for example, ask for constitutional privilege for your confidential sources, but, paradoxically, it is also the image of the press that justifies the regulation of the broadcast media under such doctrines as the fairness doctrine, etc.

A second image of the press that the law has is of a member of the public, simply a person who is talking or a speaker who is talking in public about public matters, like any other speaker. Generally speaking, the law has viewed newspapers in that category. To understand the meaning of that category, to be a speaker about public matters, one has to understand what a public is.

A public is a social formation. It is a way of people gathering together, which didn’t exist 300 years ago. It emerged in the late 18^th century in response, in fact, to the creation of newspapers. A public is a group of people who are otherwise unrelated, who come together by reference to a common purpose, like a market or a democracy, and have in common the information provided by a common source, say a newspaper. To understand for our purposes the meaning of that public, we have to contrast it to a different way of people relating together, to a different form of social structure, which we might call that of a community.

We heard a lot about community here, but if you look at a community sociologically, what it means is a group of people who are socialized into a common set of norms or standards. We all grow up in families. They teach us what’s right and wrong. They tell us you don’t bite your friend; they tell us you don’t scream at your friend; and all of our lives we conduct ourselves according to these norms. These are the norms that mark our respect for each other as human beings. Our dignity, our sense of self-worth comes from the fact that people treat us according to these commonly socialized norms.

If an institution wants to change you, unhinge your identity, the very first thing it does is strip away all the markers of dignity that come from these standards. Think of the way, for example, a monastery or the military can make a new person. They shave your hair, they invade your privacy, they take away all the things that make you have a sense of yourself as having dignity and being special. Privacy is one set of norms by which we accord other people respect and dignity. We mark them as really human beings.

These norms have two functions. First, they are part of our personality. When they are broken we feel endangered, degraded and threatened. Second, they define who we are as a community. The law often has the function of enforcing community norms, and typically in the privacy area what the law will do is say to a jury, “How would a reasonable person respond to this? Would they be offended?” What they are asking the jury to do is stand in for you and me and any member of the community and ask, “Is this a norm that we want to use to force to uphold?” And that’s what privacy law does in its broadest sketch.

Contrast that notion of a community to the notion of a public. The key notion of a public is not that of norms. It’s not that of us having in common these shared standards. The key notion of a public is that of accountability. We come together as a public because we have something in common to accomplish. The notion of a public enters American thinking in the 1920s and the 1910s out of the Chicago School of American Sociology. The sociologists looked at Chicago with all these different communities, all these different norms — little Italy, little Poland, the black community, the rich community, the Jewish community — and they asked how do all these different communities get together to govern a city. The answer is the people come out of their communities into a common public space. The public is the universe in which there are different communities, so these standards don’t govern the public. What governs a public is making the right decision. The question becomes one of accountability, of information, of critique, of knowledge, of rational exchange. That is the logic of a public.

Typically, American law, by reference to the notion of the First Amendment and to the need to get together in a public to make a democratic state, has ceded authority to the public over the community, and our law is different from any other county in that regard. In most other countries, like France or England or Canada, community norms cabin the public. Why they don’t in the United States is an interesting question. I take it because, unlike other countries, we don’t have a hegemonic community, one community whose standards can encompass the rest of us. We have competition among different community standards. And, typically, the law’s metaphor here is that of eminent domain, the seizure of property. It is said that the lives of public persons are public property. We own you if you are public, and we look at you in the full glare of publicity, and we strip you naked, and we want to have every bit of information about you that is relevant to making a decision about you. That’s dehumanizing. It’s dehumanizing because it deprives you of the dignity that comes from community norms, and it’s answered with the logic of reason and accountability. The broad picture of American law is that, on the whole, it has ceded to the public its demands. The question is how far should the public go, how far into the ranks of non-public figures?

I’ll conclude with one statement. This tension is a tension that we all bear in a democracy, which is also a community. In your newsrooms, you also face the tension between yourselves as newspaper editors, as members of the public who want to understand, and yourselves as members of the community who want to do the decent thing.

Shipp: Thank you. Now, speaking of those newsrooms, Karla, you are there. You have to make some of these decisions about how far we delve into private lives. Tell us what you do.

Remarks by Karla Garrett Harshaw

Well, certainly, we have always been more liberal in decisions about how we handle information about public figures than about private figures, but we have to also consider how we are handling public officials in a construct of how that could apply to private lives. I think the more liberal we become in what we say we can do with a public official, over time, we become more liberal with a person who is not in the public eye.

Some of the questions that we ask as we go through these debates have to do with the relevance of the information. Obviously, in an Information Age there is more available to us than in the past. You can get all sorts of information off the Internet about individuals. There are databases available to us that are used in computer-assisted reporting. We have to look at that and say how relevant is it to the issue at hand. Does this affect the way a person could conduct business or carry out their duties and functions? Is it relevant to the debate? Is there a hypocrisy here in how someone is deciding issues, for instance? Also, is this information that pertains to the commission of a crime? Are people being hurt? Is there a significant impact that these actions are having? We go through that kind of debate and then decide whether or not we will use the information. Now, I will say that we always press first to get the information, always upholding First Amendment right, but once having the information, use discretion and apply our own ethical values and moral judgments to it.

Shipp: Are those ethical standards and moral values codified somewhere at your paper?

Harshaw: We don’t have a code of ethics, per se, but certainly we have policies, like many papers, on whether or not we use the names of people before there are charges or other issues relating to juveniles and crime and that sort of thing. But even with those policies in existence, we do look at things on a case-by-case basis and will ferret out the peculiar nature of a certain instance over another and make a decision.

Shipp: And when those decisions have been made, often you will hear from members of the aggrieved public, won’t you Hal?

Remarks by Harold W. Fuson

Yes, sometimes quite vociferously. I should begin by confessing that I first attempted sex in 1966, apropos of what Mr. Shribman was saying earlier. I would have attempted it sooner, but I couldn’t find anybody who was willing to participate. I should also say that I did not inhale, and that’s the truth.

Privacy is motherhood and apple pie right now. It’s meaningless. The term is used to cover legal issues as diverse as whether a woman has a right to an abortion, whether a married couple has the right to use contraceptive devices, whether it is permissible for the officers of the law to barge into your house in the middle of the night waving their sticks, busting up your furniture and going through your underwear. It even has to do with whether it’s OK to keep secrets about your dress and what your preference is in bourbon.

I have to approach the legalities of this both from the standpoint of people who complain to us and threaten lawsuits. Our agents say I represent a relatively mainstream newspaper publishing organization that doesn’t get a lot of that kind of problem. Most of the problems seem to come to organizations that publish tabloid-style newspapers, organizations that operate in very difficult legal environments, like the state of Pennsylvania, organizations that are involved in other kinds of technology than the traditional print, although the cameras you see flashing away in front of us are primarily to derive information for use in the print media. And photographers in our business are as much the subject of these kinds of things as anyone else.

I would like you to focus on two things, two motives — the word motives has been used earlier — that are at work in almost all concerted advocacy of government enforced privacy rights in this country. The argument, the discussion that Professor Post so eloquently sketched in very few words, is an argument that is at the height, as I think he acknowledged, of the agenda in Europe, having to do with communities and the integrity of individuals and sociological developments and all that. In this country, there are two motives, profit and deceit, behind almost all attempts at government-enforced rights of privacy. Now, that doesn’t necessarily mean that’s bad. Profit is not such a bad thing in this world. I’m not opposed to it. I’d like to have a little more of it. Deceit is also not quite so bad. White lies are white lies.

Let me tell you the story of my mother. Mom lives in Galesburg, Ill., where my company today publishes the Galesburg Register-Mail with a circulation of about 16,000. The Galesburg Register-Mail runs very complete police and court data each day, right down to addresses. Mom had a little problem a few weeks ago. She made an illegal left turn and crashed into someone else. The result was damage to her car. In fact, it was totaled. No one was hurt, fortunately. She was pretty shaken. She called me, her son, her oldest son, the lawyer in the family, (actually my brother is a lawyer, too, in Kansas originally although he is now in Iowa). She called us to tell us about it, seek our advice, and assure us that she was OK. And we all thought that was fine; we’re sorry; and what kind of new car should she get; and then my grandmother found out. She read it in the Register-Mail, complete with Mom’s address, complete with the information about the ticket Mom got for making an illegal left turn. She was somewhat stiff with Mom about this problem. And when Mom told me about it I said, “Mom, haven’t you always taught me that if I get a ticket I should tell my mother?”

Well, many of the real legal assaults that are being made on privacy, and I view them as legal assaults, not as engines within the legal structure, are intended to enhance somebody’s effort to deceive, to spin the story more aggressively. And I hope that whenever you think about these issues you will think about those motives and think about how your own conduct as journalists fits against those motives.

Finally, I’d say this. Tom Rosenstiel alluded to the Hutchins Commission earlier this morning, which I thought was wonderful. Tom wasn’t even alive when the Hutchins Commission did its thing. I was. I was 3 years old, and I, of course, read every word of it. One of the things they said was that journalists should worry not just about printing the facts but printing the truth about the facts. I counsel you that you should go back to some of the other things Tom was saying and others have said this morning. Worry about the facts, folks, and let the truth take care of itself. Truth is like beauty. It’s in the eye of the beholder. And facts depend upon verifiability. Verifiability depends upon being able to get your hands on lots of information that people don’t want you to have because they want to shape their stories to suit themselves, not to suit the interests of society, and certainly not to suit your desire to inform your communities.

Panel discussion

Shipp: If a growing percentage of the public doesn’t really trust the newspaper, how can we be sure that with all of this information at your disposal you will handle it reasonably, fairly, morally?

Fuson: We can’t. And that’s OK because the public doesn’t fully trust you, but it reads what you say. When Grandma read the stuff about Mom, she believed it. It wasn’t a problem for her to believe it. If Mom said, “No, no, no. That was wrong. They got the wrong address, it wasn’t me”, well OK, maybe it was wrong. You don’t have to be the oracle of your community. You are just a newspaper. You just print the facts. People are going to trust it, or they’re not going to trust it.

Shipp: Do we turn people into public figures when they really are not public figures in the way the law was originally describing them, Professor Post?

Post: Well, the law is excruciatingly uncertain, as we all are, about what a public figure is, so it’s very hard to answer that question. To call someone, in the law, a public figure is to say you can tell about them all the facts in exactly the way I was talking about the facts.

May I make a comment about the press and just giving the facts? Before World War II, press liberty was always associated with getting to the jury. Some of you may remember Justice Black, who was the great champion of press freedoms. His great enterprise was to get cases to the jury, because press freedom was associated with freedom from the king or from the state, and the jury stood up for the press against the state. Ever since New York Times vs. Sullivan — which gave the press the privilege of making statements that were libelous, in effect, unless they were uttered with actual malice — press liberty has, for the last 30 years or more, been associated with keeping things away from a jury and giving them to a judge to make a decision. I think that’s well worth considering in this context of privacy, because in the legal system the jury is standing for your neighbors and your community and how you’re being judged according to the standards that they judge everybody else, whereas the judge is standing for this very abstract entity that we call the public or the constitutional law, this overarching legal order that is going to protect you from the wrath of your neighbors. It says something very interesting about the status of the press vis-à-vis these community norms. Almost every press lawyer I know, would do anything to keep a case away from a jury, because we know what happens when it gets into the hands of the jury. That’s a very significant fact, and we need to think about it some.

Harshaw: One of the things I thought was really interesting in the past year about the debate over the impeachment and how we handled it and how much detail we gave, is that it’s easy to be an arm-chair quarterback because it’s far away and concerns people whom we’re not going to deal with at all. When it really comes home and you’re dealing with your community, it means more. You’re going to face those people on a day-to-day basis, and the perception of a newspaper in the community is going to be based on how you handle those situations.

I think the debate of the last year is going to bring up some new questions about how we handle that person who’s in the community and now decides to run for city commission. Are we going to ask some of the questions that were asked about their ethics and values and morals and other kinds of private issues, or not? At what point does, say a person who worked within the school system who has now been reprimanded for handling of some student affairs or finance or whatever, expose themselves to more study by us about their lives in general? That’s where I think you get into some gray areas.

I was watching with intrigue as this poor soul got thrust into public life today who is hanging on the edge of that crane in Georgia. This is a person who has probably never been on TV or in print before, who all of a sudden is hanging over this inferno and being rescued, and every news organization is carrying this story, and everyone is trying to get to them to find out more about their lives and who their mothers are, in one case. I think we really do have to step back and think about how we are handling those people who happen to be thrust into a situation, did not purposely put themselves there. What are we asking, and how are we treating them?

Post: The law has certain categories. Public officials are always public figures. Candidates for public office are also public figures. And there are two ways the law thinks about the category public figure itself. One is if you gave out a poll, would people recognize the name? There have been cases where there have been polling data. Do you recognize the head of General Motors? And then a second notion of a public figure is should people know who the head of General Motors is even if they don’t, because most people probably don’t. Yet that person is very important in their lives, so that is another criteria. And then the law also distinguishes between voluntary public figures — people who seek public attention, about whom you can say just about anything — and involuntary public figures. These are people caught in an automobile accidents or who were in the train that got bombed out in Kosovo. They were in the wrong place at the wrong time and got involved in a public event. If they are such people, then their privacy is more or less forfeit to the extent that it is relevant in understanding the event. Then the real argument is what about the person who is not in such an event, but you want to make that person into an event. That’s really where the play in the joint is.

Shipp: And what would you advise a newsroom with questions about involuntary public figures?

Fuson: First, I would emphasize that the categories that Professor Post very accurately described are primarily recognized for purposes of libel law and not for purposes of privacy law. Privacy law focuses on the “newsworthiness.” It is not whether somebody is a public figure or public official or a private person but whether the facts that you are reporting are newsworthy. Newsworthiness, like what is a public figure, is a very difficult thing to ascertain at deadline. It’s very difficult to argue about in court. It is, ultimately, in the mind of the editor who made a judgment that this was information that the community had “an interest in.” Not just an interest in the sense that they were idly curious. We publish things, occasionally, just because they fit someone’s definition of interesting to the idly curious, but we use the word “interest” in the sense of the public interest. It’s a decision newsroom people make every day, and under very difficult conditions sometimes. If they are in the Internet business or the broadcast business, they publish it minute by minute. The old book was about a deadline every minute. There are many, many news organizations in this world that have deadlines every minute. They don’t have the time to sit back and focus on whether this person is really a public person or not a public person. They just want to know if it’s news. Maybe, that’s the best word of all. Is it news? That’s the question I have for the newsroom people who come to me with problems. Is it news? Is this something we want to publish? If it is, let’s find a way to do it. And we can almost always do it.

Shipp: But the definition of news is changing. So, what are we saying?

Fuson: The definition of news changes primarily based on the size of the news hole.

Shipp: To go back to the example of the man who was rescued in the construction site in Atlanta and the firefighter who rescued him, how far would you go to explore their life stories?

Harshaw: To some extent, it depends on how far they want to go. One of the things we’re frequently criticized for is when we’re at the scene of a fire or at some unfortunate accidental death asking questions. On the one hand, people have a perception that we’re callused and rude for invading this private time. On the other hand, frequently we find that families really do want to put this in perspective and give you another side of their loved one who’s gone on, whether they were a criminal or not. There is some other perspective they have of what’s going on, and to some extent we follow their lead in how far they’re willing to go. For us, to press beyond the limits of where someone wants to go gets into a questionable situation. Is this something that we really need to know because it’s news, or is this something we just want to get. I do see a distinction there. I also see a distinction between is it legal or is it just something that we want to get in the paper. We can say that it’s legal, but there need to be other judgments that come to bear on whether or not we’re going to use information. That helps to feed the public perception of whether or not we are a callused organization that cares very little about the individuals we report on. There does need to be a sensitivity in what we do.

Shipp: Now, you all have pretty much said that when it comes to public figures, however defined, voluntary or involuntary, almost anything goes, I suppose. But the question becomes how far into those private lives of those public figures do we go. How many affairs are too far gone to remember or happened too long ago for us to be recalling in the press or providing about a public figure? Where do you see us going?

Post: Judges have a very awkward time because one very important criteria is, as Hal says, newsworthiness. Newsworthiness is as newsworthiness does. If you’re going to make it news, what is a judge going to say? It’s not news? People aren’t reading it? You are making it up? On the whole, judges have been very deferential to press judgments about what is news. From a legal point of view, the criterion is, is it relevant to something the public needs to know or should know, or is it relevant to public understanding. The classic case came out of New York in the ’30s, where you had this child prodigy who, at age 11, was lecturing in the Harvard mathematics department, and then self-destructed. He became an eccentric recluse who collected Metro tickets. The New Yorker ran a series, “Where are They Now?” which was described as a merciless dissection of the crumbling of a once-promising young career, and they were sued for privacy. The judge said, “Look, we’re not in the business of second- guessing the news media.” Some decisions have second-guessed the news media, particularly in California, but on the whole I would say they don’t.

Shipp: Hal?

Fuson: I don’t think we should let you off the hook here, Shipp. You’re the moderator, but you’re also a Pulitzer Prize-winning columnist who writes about people You wrote about a woman named Tucker once in one of your columns. Mrs. Tucker sued 135 newspaper organizations because they reported on a lawsuit she brought. Mrs. Tucker, I’m not sure what her first name was, had decided to mount a campaign against rap music. Remember her?

Shipp: Yes.

Fuson: These were libel suits that she brought, but her problem was that she first brought a suit against Tupac Shakur. Tupac was, as you know, a rap artist of considerable, I won’t say merit but renown, whose lyrics are a source of considerable controversy. He finally got himself shot in some kind of an incident, I think in Las Vegas or somewhere not too long ago, but Mrs. Tucker sued Shakur for coming up with the lyrics. This is a woman named Mrs. Tucker who decides to go mano a mano with Tupac Shakur. Now, what do you suppose happened to Mrs. Tucker’s name in the rhyme scheme that Tupac came up with? She sued him. She’s a prominent individual, in Pennsylvania, of all places, and she brought this lawsuit against all these news organizations, the second lawsuit, Tucker No. 2, because many news organizations picked up an AP story that reported that one of the claims in her lawsuit against Shakur was for loss of consortium. Loss of consortium is generally believed, although there was a lot of debate generated about this, to do with the impact on one’s sex life. If you’re involved in an automobile accident, you sue for loss of consortium because you can’t perform. The count’s often included. Many news organizations chose to focus on that count. Now, she is not a public figure, she is not a public official, but she is taking on certain public ...

Shipp: She had been the state treasurer or something like that of Pennsylvania. She was a public figure. What was she?

Audience member: Secretary of the ...

Shipp: Right, so she had been a public figure.

Fuson: So is it fair to go after her? The AP story was fairly straight, but it still got played. It ended up getting picked up in a lot of little people collections, you know, those brights about prominent people, it had a certain ...

Shipp: She actually would fit the category of public figure both because of her political role and also she’s the head of an organization that is ...

Fuson: She brings a lawsuit about damage that she has suffered.

Shipp: That will be reported, but I don’t see that as what we are talking about here as delving ...

Fuson: Why not?

Shipp: Really delving into the private lives ...

Fuson: She is a 70-year-old woman with a happy marriage.

Shipp: If she asserts that she has lost consortium, I suppose that’s an issue, but she placed it out there.

Fuson: Her lawyer, I’m putting words in her mouth, but her lawyer came up with that count. She didn’t write the complaint. And all of a sudden her sex life is on display.

Shipp: I think as will soon be the police commissioner of New York, whose wife was involved in a car accident, for the same issues you’re raising, but I think that in this case if they are asserting this in a lawsuit. That’s a bit different from the press actually going to find out who they may have had an affair with 20 years ago, which is what we saw in Washington more recently.

Fuson: There was talk at the end of the last session about where the religious right fits in all this. Well, I’ll tell you where the religious right always is, they care about a person’s sex life if they are going to elect him to public office, or her.

Shipp: They don’t care about everyone’s sex life with equal interest, we’ll put it that way.

Let me wrap this up before we seek a few questions from the audience. The main question we were to address is has the press gone too far? Hal, I’ll start with you.

Fuson: I don’t think the press should worry about whether it’s going too far. I think the press should worry about whether it’s printing the news and whether people are reading it and not get too hung up on all that other stuff.

Shipp: Has the press gone too far, Karla?

Harshaw: This morning has rested a lot on what has gone on with the impeachment, and I thought that we suspended a lot of judgments that we would have made even on the language used in the paper and on air, in this case, and I’m not sure that was a good thing. I think we all knew what was going on. It was a damned if-you-do- and-damned-if-you-don’t scenario, because you have impingement hinging on what the facts of these matters were. So, to some extent, you had to go into more detail than you otherwise would, but on the language and on how much detail I thought we did go overboard. Most of us are still trying to ferret through the details in our local communities about whether or not we use things. And even as I advocate using discretion and applying values and morals and all those good things, there are times when we simply make a hard decision and use something that is hurtful, and at those times we should know very well why we decided to do that and be able to back it up. We hold people in the seat of power accountable for their actions, and as we hold others accountable, I think we have to be accountable for what we are using. When we’re making tough decisions, we need to know why we’ve done it and be able to explain that.

Shipp: Has the press gone too far?

Post: I think I would have said no five years ago. I think for the mainline media this is not, generally, a big issue. It is an issue for the segmented market, more tabloid-type media. You’ve seen a race to the bottom during the impeachment crisis. That is to say certain facts are taken by what would have been marginal, and because of the elasticity of the market the mainline press has sort of pushed into that hole. It’s becoming a problem for the mainline press. It’s very hard to control yourself when you’re in a market situation and you’re competing for readers who want it. You could make an intellectual case for — although many people didn’t believe it, I am guessing — a lot of the things that got said. I think there is a dynamic in place now that could make it a problem.

Shipp: So, how do we pull back?

Post: Antitrust violations. You have to. If you are in a competitive situation you have to take the hit on, or you have to get together through some code of professional ethics that binds journalism about how you make these decisions. Those seem to be the only two alternatives here.

Shipp: And we’ve heard that there is much opposition to a single journalistic code of ethics.

Post: I’m sure there is.

Howell: Open to questions? OK, folks, approach the microphones. Gil?

Questions from the floor

Gil Thelen, The Tampa (Fla.) Tribune: Professor Post, you said that press practices are violating public norms. Beyond the obvious ones of sensationalism and rudeness, are there some important ones that we haven’t been looking at closely enough in this tension that you describe?

Post: When I talk about norms like this, I’m talking about them as a legal person, which is to say their intersection with the legal system. I don’t know what the opinion polls tell you, but I can tell you that very often when the press is hauled into a court and they confront the community in the shape of a jury who are not in it for profit and who don’t generally have deceit as a motive, it’s a problem. The jury will tend to feel that the press has gone after somebody for no good reason. They will feel that the press has been indecent in its handling in what it said, and sometimes in the eyes of the community there are things more important than truth, and that’s a real conflict of mission between the press and the community, unfortunately. So it is, I think, in many respects inevitable that there be this tension. The question is how much. That’s the way I would put it.

Tom Koenninger, The Columbian, Vancouver, Wash.: I appreciate these sessions because they equip me and others with the thought process that goes into many decisions that come before us almost on a daily basis, and I want to mention one and ask you for your reaction to it. Two weeks ago, an apartment house in my community housing 30 people caught fire. The fire was determined to be arson. A 13-year-old girl and a 14-year-old boy were arrested. The Columbian printed their names and addresses. Their father, this is sort of natural, their father called me and was very angry, and he said you violated the privacy of those young people because they were juveniles. And what’s more, you put me at risk because as the father of one of them you printed my address. If someone wants to retaliate against me, he or she knows where to find me. Did we do the right thing in your opinion?

Shipp: Before one of the panelists answers, let me ask you a question, what was the thought process that went into your decision?

Koenninger: I’m sorry. I’ll add that postscript. The thought process was this was not just graffiti on a wall. This was not routine. This was a situation in which people could have died. They did not, but they could have died. Thirty people were put at risk by the actions of someone.

Fuson: Do you routinely use addresses?

Koenninger: We routinely use addresses, yes. But in this case not routinely for juveniles.

Fuson: So it is the juvenile issue.

Koenninger: It was what we regarded as a major crime that prompted us to do that.

Shipp: What would you say?

Fuson: I’m very troubled by the use of anonymity to protect juveniles caught up in the juvenile justice process. I think juvenile justice is to justice as military music is to music, and I think one of the reasons that is so is because we don’t routinely expose it to the kind of scrutiny that we expose adult judicial proceedings to, and the result is the same. People can then operate outside the view of the public and do things they wouldn’t otherwise do. So, I’m not troubled by a decision. I certainly don’t have a legal problem under the laws of the state of California, when the name of the juvenile is used in the manner you describe. It’s always something you have to argue about among yourselves, because you don’t use every juvenile’s name in every circumstance, and I can defend whatever decision you reach.

Shipp: Have you had a similar experience at your paper?

Harshaw: One of the things that’s really tough when you talk about people coming into private life is the issue with juveniles, there are a lot of them. We, generally, say if it is a heinous crime, then we will use the name. However, even under that heading we go through a lot of debate about what age is the juvenile. At 13 and 14, are they of an age to have known better, to willfully have done a lot of things, so I’m not surprised necessarily by your decision. On the other hand, as you were talking about it, I thought of the situation in our community in the last year where there was, I believe, a 4 year old and a younger sister playing under some steps with matches. Clothing caught fire, the house burned down, all of the family, I think there were six kids, mom and the rest of the kids got out of the house, but the little girl died. There was debate in the newsroom about whether or not the child who actually set the fire should be named. We made a decision not to because of the age of the child, and still pretty much believing that the reason for protecting juveniles is to give them a chance at rehabilitation and not to hold them up to public scorn. In the case of a four-year-old, we that would have been very unfair. When we talk about codifying some of these things, I do think you still have to step back and look case by case at any number of issues where there is room for debate.

James A. Haught, The Charleston (W.Va.) Gazette: All of us in this room are always in a predicament where we never know exactly what’s the right thing to do, and all through the Clinton sex mess I kept writing over and over again that this is just an upsurge of Comstockery and prudery from the religious right that has a grip on the Republican Party ...

Unidentified: Amen, brother

Haught: ... and we know local sex messes of the same nature, and we don’t print them. I knew of one case where I had ironclad evidence on of a major politician, so I just sat down and wrote a column about his big sex affair, but I knew damn well we would never print it. I passed it around among the publisher and the owner and so forth, and we all said, no, you can’t print that garbage. Then I thought, well, I could send it to Larry Flynt and get a million dollars. Finally, I wrote a column saying, no, I wouldn’t send it to Larry Flynt and get the million dollars. What’s the answer? You just stumble around and fumble over it and come out nowhere as I did? If anybody has any better answer, I’d like to hear it.

Harshaw: The issue of relevance is an important one here. Again, in our community a few years ago there was a very prominent owner of a radio station who decided to make a run for Senate. It was at a time when the whole family values mantra was big and everyone was hanging the banner out and running for it, and this person did the same. On all the campaign literature there were these warm and fuzzy photos of the person and his family and children, adult children, and portrayed him as a very active churchgoer and involved in all sorts of civic things. However, we were getting calls from the public saying this person has had a child by someone, his secretary from years back, and it’s a messy situation. Without even knowing whether we were going to publish the information we did court checks, looked back through all of the court records, found out, indeed, there was another child that he had first denied and had denied for years. There was a paternity test that proved it to be his child. There were child support assessments made. He had refused to pay them, in fact had been thousands, tens of thousands of dollars in arrears. We made a decision to print the story, and that was with a lot of controversy in our community. Certainly, I took a thrashing from the candidate and his wife, and it was very difficult to deal with because you knew you were having an effect on people’s lives, however, what prompted us even to look into it at all was his candidacy that was hung on family values and pride and children and family and all things good.

Shipp: Any other questions?

Howell: Thanks a lot. This was a very good panel, very provocative.