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From AJR,   September 1994  issue

Judgement Calls   

The O.J. obsession reflects the power of live television to shape news. And it frames in the starkest of terms the age-old debate: Should the public get what it wants or what it needs?

Related reading:   Interviews For Sale
  Interviews For Sale
  he Best Defense

By Jacqueline E. Sharkey
Jacqueline E. Sharkey is head of the University of Arizona Department of Journalism and author of "Under Fire--U.S. Military Restrictions on the Media from Grenada to the Persian Gulf."     

The nation's television viewers were shocked. Los Angeles Police Commander David Gascon had just announced that O.J. Simpson was a fugitive. He had failed to surrender to police on June 17 after being charged with killing his ex-wife, Nicole Brown Simpson, and her friend Ronald Goldman. The man famous for running down football fields, then running through airports in rent-a-car commercials, was now running from the LAPD.

In the ensuing weeks, the case received more intense coverage than any event since the Persian Gulf War. The news media devoted hundreds of hours of airtime and thousands of inches of copy to exploring every aspect of the case – including why journalists seemed obsessed with it.

The public couldn't get enough. CNN's ratings shot up dramatically when it ran Simpson's preliminary hearing. The top three broadcast networks also provided gavel-to-gavel coverage. When ABC switched back to its regular programming, its ratings dropped immediately.

For television news executives, the Simpson case

was the summer's biggest hit. Television was the dominant force in deciding how the case would be covered. Hours of daily live coverage riveted people to their TV sets and gave them some of the best legal reporting ever broadcast.

¯t the same time the public was devouring the coverage, however, surveys showed that a large percentage of Americans thought the media's performance was excessive or unfair.

Two factors contributed to the saturation approach. News, which once was a loss leader for networks, is now an extremely profitable commodity. And the ability to deliver live coverage has enormous impact in a high-profile case like Simpson's.

In a climate in which ratings are of prime importance, entertainment values, traditionally reserved for sitcoms and dramas, now play a major role in news decisions. The Simpson coverage frames the time-honored debate in the starkest of terms: Is it the role of journalists simply to give people what they want, or should journalists remain gatekeepers in order to give people what they need to know?

The inaccurate reporting that resulted from competitive pressures and blatant media manipulation by lawyers on both sides have also hindered the legal process. This has prompted legislative efforts to rein in what is perceived to be an irresponsible press.

Ironically, the Simpson case may prove to be among the last of its kind to receive such blanket coverage. As technological advances and the information superhighway broaden the public's choices about where to go for information, analysts predict that news will become narrowly focused to appeal to smaller audiences with specific interests.

The technological sophistication and profitability of television news are key to understanding why the Simpson story was ubiquitous.

Television's ability to communicate "that fantastic sense of excitement, of being there" has made the medium "the major definer of news," says Everette E. Dennis, executive director of the Freedom Forum Media Studies Center. And in this case the networks made the O.J. story "the principal concern of the nation" by preempting programming to show Al Cowlings and Simpson in a white Bronco followed by more than half-a-dozen law enforcement vehicles. After that, television became a "kind of control center for decisions about news," Dennis says.

Los Angeles Times City Editor Joel Sappell acknowledges that television set the pace after the freeway cavalcade began. "We had to just sit and watch television and decide where we were going to deploy based on what was unfolding on the screen in front of us," he said on CNN's "Reliable Sources."

The television industry's decision to keep the Simpson case at the top of the news agenda by providing days of live coverage struck some journalists as excessive, and an abdication of its responsibility to inform the public about important issues.

Ben Bagdikian, author of "The Media Monopoly," a book about corporate influence on news values, says the constant coverage resulted not from news judgments but from the preoccupation with ratings.

"The only reason I can see they did it was because they wanted to keep people glued to their station, their channel," he says. " 'We are going to bring you this dramatic stuff any time, so don't go away! Don't go to any other channel! We're going to tell you about what happened with this bloody murder and this famous person!' "

Marvin Kalb, director of the Joan Shorenstein Center on the Press, Politics and Public Policy at Harvard University, says the coverage of the Simpson case "trivializes real news."

"There is a perversion of news values when a presidential visit to Eastern Europe and a presidential visit to a G7 summit cannot get..the same amount of time as a pretrial hearing of a former football player," says Kalb, a longtime broadcast journalist.

But others defend the coverage, saying the dramatic elements and compelling public interest were justification enough for the extensive play the case received.

CNN Executive Vice President Ed Turner says that programs about the Simpson case are among the highest-rated in the network's history. He calls criticism of CNN's intense coverage misplaced because "CNN has paid its dues with thousands of hours of coverage, live from Bosnia, and Rwanda, and Haiti and the U.S. Capitol."

Covering topics that people are interested in is at the heart of "the business of mass daily journalism," ABC News Senior Vice President Richard Wald has said. "There is an elitist attitude that because it's interesting, it must be wrong; because we do well with it, there must be something wrong."

ABC's Sam Donaldson says that although the press has an obligation to "bring people information they need," he finds it "terribly elitist" when journalists "sit around deciding what is good for the country tonight, or what is good for people to know, or what is responsible for people to learn" and use that "as the major criterion for doing something in the news business."

Ted Koppel, anchor and managing editor of ABC's "Nightline," says the fact that business decisions drive news decisions is a "virtue" because it gives the public a significant voice in shaping the news agenda. "If people are really tired of it, don't watch it, turn it off. You will be amazed at how quickly the networks will get the message," he says. Koppel and Turner point out that not all television news is the same, and some programs are less ratings-driven than others.

Some major newspapers, such as the New York Times and Washington Post, were less influenced by the television coverage. They gave the story occasional front page play, but often ran only one story a day on an inside page.

Because of the volume of television coverage, however, papers that traditionally play major roles in setting the nation's news agenda didn't make much difference. "The noise level of TV on a story like that is so high and so all- pervasive," says New York Times Managing Editor Eugene L. Roberts Jr., the fact that some newspapers are more prudent in their coverage "doesn't carry all that much weight out in the general public."

The debate relects the conflict between news as commodity ?nd the idea that, because of its First Amendment protections, the news business also has a public responsibility.

Kalb says that when he looks at the Simpson coverage, "I see two worlds in collision. I see a world of competitive values struggling against a world of enduring professionalism." This raises painful questions, he says. "Are we here only to make money? Are we here only because we're in competitive wars with other networks?"

Everette Dennis says that although journalists "get very angry" when news is described as a product, "news is always, to some extent, driven by money."

Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, says this is far preferable to the alternative – having the government control the media – and adds that one advantage of this system is that the public has "a powerful voice" in deciding what's news.

One of the shortcomings, however, is that television industry executives expect news to compete with entertainment for audiences and advertising. That means news has to be exciting or sexy. As a result, news programs have adopted some of their competitors' characteristics, and stories with drama, conflict and celebrities receive proportionately more air time than many hard news pieces because they draw higher ratings.

Because of the titillating elements of the Simpson case, this trend in television newsrooms was brought into dramatic focus. Los Angeles Times Washington correspondent Sam Fulwood III says sardonically that the Simpson case "is the perfect news story... [It has] race, sex, money, power, athletes, beautiful women, layabouts, police, courts, chase, mystery weapons. I can't think of any theme or subplot in any movie that has all this."

­ut while the media focused on the celebrity aspect of the case, treating the Simpson story as entertainment, the victims sometimes seemed forgotten.

New York Times columnist Bob Herbert criticized the early coverage, which he said "had no focus whatsoever on the hideousness of this crime and on the impact on the people who are close to the people who were killed."

ýBC News commentator Ira Reiner, a former Los Angeles district attorney, said testimony about the graphic photos of the knife wounds inflicted on Nicole Brown Simpson and Ronald Goldman had an impact even though they were not shown on television during {he preliminary hearing. "Finally," he says, "we were brought back to the reality, that this is about a horrible killing."

Neal Gabler, author of several books on popular culture, wrote recently, "The real sea change in American journalism over the last decade – and the one the Simpson coverage dramatically illustrated – has been the extent to which the story function in the news has eroded the information function. Where once the network evening news routinely reported items of national and international import and little else, sordid tales and feature stories now as often as not shoulder aside that hard news."

Some media analysts say ratings – especially for programs involving dramatic, high-profile stories – don't take into account the public's complex underlying expectations of the news business. Fostered in large part by the print media, these expectations arise from the fact that the press is the only business given explicit constitutional protection.

Stephen Klaidman, a former Washington Post and New York Times staffer who has written an influential book on media ethics, says the press has ethical obligations "that flow from the privileges that the Constitution provides....

"The public has very clear needs for certain kinds of information to be able to make political, social, moral judgments... The news media operate under an obligation to provide it."

Los Angeles Times reporter Fulwood thinks many journalists are confusing what is popular with what is important. He says it is a journalist's job "to define one from the other."

The public holds similar views, says Lee Daniels, a former New York Times staffer who is now a fellow at the Du Bois Institute at Harvard. This explains why people will watch the coverage, which appeals to the voyeuristic tendencies that everyone has, but will also condemn it.

Media analysts and lawyers say the coverage in the Simpson case has undermined integrity not only in the newsroom, but in the courtroom as well. This could affect not just Simpson's right to a fair trial, but the media's rights when reporting on future cases.

Washington Post Ombudsman Joann Byrd asserts that the reporting contained "every possible failing in journalism." These included:

GReporters rushing on the air or into print with stories based on rumors, many of which proved to be false;

GJournalists speculating that Simpson must be guilty because he didn't behave the way they thought an innocent person would;

GReporters showing a willingness to be manipulated by prosecution or defense attorneys if it meant being first with a story;

GTabloid media paying potential witnesses for their stories, thereby compromising their testimony. (See "Interviews for Sale," page 22.)

Other critics also jumped on the high incidence of inaccurate reporting. Los Angeles Times television critic Howard Rosenberg blames the "horrendous" TV coverage on news personnel so afraid of losing viewers that they felt compelled to start "putting things on the air that are uncorroborated and just very irresponsible."

Reports that turned out to be incorrect included: a bloody ski mask had been found at the murder scene (none had); the murder weapon was a digging tool (it wasn't); prosecutor Marcia Clark arrived at the crime scene before a search warrant had been issued (she didn't).

These mistakes were compounded because news outlets fearful of falling behind resorted to what Washington Post media writer Howard Kurtz calls "secondhand journalism," printing and airing stories without checking them for accuracy.

CNN Executive Vice President V.R. Furnad says that the network ran stories from other media without verifying them if the reports were from "first-rate" news organizations.

Another major problem was that reporters allowed themselves to be used by attorneys and law enforcement officials who were putting their own spin on the story.

Walter Goodman, a television critic for the New York Times, wrote that the lawyers "have in effect become producers and sponsors of the relentless coverage. The reporters know what is going on, but they are trapped by the expectations they have helped to excite and sustain."

The Los Angeles Times found the Simpson case such a "clinic in manipulation" that it started a column, The Spin, "as a forum to educate readers," says Metro Editor Leo Wolinsky. Written by Bill Boyarsky, the column has discussed issues such as why lawyers try to project specific public images during high-profile cases and the ways in which victims' families can affect television news coverage of crimes and court proceedings.

Los Angeles District Attorney Gil Garcetti began the war to influence the jury pool by holding press conferences and going on the talk show circuit, where he discussed the case and the possibility that the former football star would plead guilty.

But after the tape of Nicole Brown Simpson's 911 call in 1993 was released – with her pleading for help as Simpson raged in another room – criticism of Garcetti's tactics increased. The prosecutor then announced that his office would release no more information, "because I do not want this case tried in the media," a statement that made some reporters laugh out loud.

But it was too late. A Los Angeles judge took what many attorneys say was an unprecedented action and halted the grand jury's inquiry into the Simpson case, saying the flood of publicity may have unduly influenced the jurors.

When Garcetti retreated, defense attorney Robert L. Shapiro mounted a media counterattack. Shapiro is the author of the article, "Using the Media to Your Advantage," which many lawyers regard as the definitive guide to using journalists to further the goals of defense teams. In the article, Shapiro wrote that the importance and power of the media in high-profile cases "cannot be overemphasized," and that what happens in the newsroom can be "as important as what happens in the courtroom." (See " 'Speak Low and Speak Slow,' " page 23.)

Shapiro's efforts to generate publicity initially raised little concern. Sam Donaldson says this sort of manipulation is just part of the business. "The media are used by everyone," he says. "A reporter's obligation is to try to find out what the facts are, but not to say 'Well, I'm being used, and therefore I'm not going to carry this statement.' "

Then Shapiro tried a strategem that some think went too far. In July, the New Yorker and Newsweek ran stories – based on defense team statements – that the defense might claim that Simpson had been framed by a racist police officer. The defense speculated that the officer might have dropped a bloody glove near Simpson's house. The reporters found that the officer, Detective Mark Fuhrman, had made racist remarks that were quoted in a 1983 lawsuit, but they did not check to see whether the alleged scenario was plausible. (See "The Best Defense," page 27.)

ournalists did more than report rumors and float lawyers' trial balloons. Some discussed Simpson's possible guilt on the air and in columns, and news organizations hired pollsters to ask the public what it thought about the evidence against Simpson, based on information in news reports.

For example, a CNN/USA Today/Gallup poll in late June found that two-thirds of respondents believed he is guilty. The New York Post ran an "O.J.-ometer" that calculated the likelihood of his guilt based on the news of the day. "A Current Affair" organized an electronic jury whose members indicated whether they thought testimony at the preliminary hearing was good or bad for Simpson as they heard it. A thermometer on the side of the screen moved up or down in response.

University of Southern California law professor Susan Estrich says the "danger of a conviction being reached in the court of public opinion" is a real concern.

In the opinion of some lawyers and journalists, however, the controversy has been exaggerated.

There is "no basis whatsoever that pretrial publicity undermines the ability of the defendant to get a fair trial, because we've seen time and time again that they're acquitted," says Kirtley of the Reporters Committee, pointing to acquittals in high-profile trials such as those of William Kennedy Smith and the police officers in the Rodney King case.

Nevertheless, the coverage has had repercussions for the press. The pretrial publicity prompted California lawmakers to act. Bills in the state legislature, which are being seriously considered, would call upon the California bar to adopt an American Bar Association rule that governs lawyers' pretrial statements; would restrict witnesses in criminal cases from being paid for their stories before trial (expert witnesses are exempt); and would penalize jurors for accepting payments or offers of future payments during a trial.

Independent State Sen. Quentin Kopp said he wants to introduce measures to limit attorneys' pretrial statements because the "publicity frenzies" surrounding the Simpson case have led to a "perversion of justice."

Nationally known defense lawyer Gerry Spence says he expects numerous state legislatures to consider similar bills in the wake of the Simpson case.

Kirtley believes California and other states may tighten open records laws to bar the release of tapes of calls to 911, like the one made by Nicole Brown Simpson in 1993.

Kirtley also predicts the case will lead judges to issue more gag orders on attorneys, law enforcement officials and defendants. Judges may try to issue these orders earlier in criminal cases, she adds, rather than taking the traditional position of waiting to see whether a case generates too much publicity.

This won't stop the flow of information – prosecutors and police are "still going to leak," Kirtley believes – but it means journalists increasingly could become "subject to subpoenas that will demand that they disclose their sources, because the court will want to find out who to hold in contempt."

The press can expect little support from the public in its efforts to keep legislatures and judges from restricting its access to information, some media analysts say. Several polls showed many respondents believed that the coverage had been excessive, and many thought it had compromised Simpson's right to a fair trial. In a July "Nightline" poll, 44 percent of respondents said they could not be impartial jurors.

The Simpson Fase also raises other issues about media responsibility. Polls and pu)lic responses to the coverage indicate phat women and racial minorities do not believe the press accurately portrays their experiences or perceptions.

Some saw subtle sexist bias in the Simpson coverage.

For example, early stories about Simpson's arrest referred to him sympathetically as a "fallen hero," while mentioning his slain ex-wife only in passing.

ýBy my count, O.J. Simpson has been called an American hero about 4,392,979 times since being charged with murdering his wife," Time magazine columnist Margaret Carlson wrote in July. "I have not heard Nicole Simpson referred to as much of anything at all. A victim you say? She has become even smaller in death, as her ex-husband remains larger than life."

Some media analysts believe the frequent references to Simpson as a hero are especially inappropriate in light of his 1989 no-contest plea to wife-beating.

Why should someone who "battered his wife repeatedly be considered a hero?" asks Barbara Johnson, a media critic in San Francisco who recently completed a study of how the San Francisco Chronicle and San Francisco Examiner covered four domestic violence cases that resulted in death. She says "misogyny in the media" contributed to the lack of coverage of Simpson's 1989 case, even on sports pages.

Howard Kurtz of the Washington Post says the 1989 coverage "was a complete and total fumble" that occurred because the media didn't want to mar "the good-guy image of this very popular sports star."

Newsweek's Jonathan Alter says the minimal coverage points out "how lightly we've taken wife beating in this country," pointing out that if Simpson had pleaded no contest to a drug charge, Hertz "would've dropped him."

Similarly, media analysts say that domestic violence has been recognized as a serious problem for years, but received relatively little coverage until a woman formerly married to a famous man who had beaten her was murdered.

Fairness & Accuracy In Reporting, a liberal media watchdog group, published an article on the lack of coverage of domestic violence as part of a 1992 report titled, "Missing Voices: Women & the U.S. News Media." The report, which now seems prescient, sayÌ "domestic abuse remains a gravely undercovered story," and when it is reported, the "media describe abuse in ways that mirror the batterers' own rationalizations" and foster stereotypes about victims.

Some stories implied that Nicole Brown Simpson was responsible for the beatings and harassment inflicted by her ex-spouse. For example, stories quoted friends and acquaintances saying she was a "party girl" who "dressed provocatively" and "knew which buttons to push." Others pointed out that she lived on money she got from the divorce, without mentioning that Simpson had not wanted her to work while they were married because he wanted her to be available.

Johnson says some of the stories that she analyzed perpetuate the same myths about domestic violence. They imply that it was unusual for the men in these cases to treat family members violently, and intimate that the victims may have caused the problems by making their spouses or former spouses jealous or angry.

Some media analysts believe these problems result from what Ellen Hume, a senior fellow at Northwestern University's Annenberg Washington Program, calls "blindness" rather than "intentional sexism."

Hume, a former Wall Street Journal reporter, and other journalists are encouraged by the in-depth stories about domestic violence that the news media produced as spinoffs during the Simpson coverage, such as cover stories in Time and Newsweek, and network specials. But they are concerned that the issue will not remain on the news agenda.

Many blacks think that racism also played a role in the coverage. A recent USA Today poll found that 51 percent of black respondents thought the coverage would influence jurors against Simpson, while only 37 percent of whites did.

Some researchers say that such results are a reaction to the ways in which the media traditionally have portrayed racial minorities.

Professor Robert Entman of Northwestern University has done a series of studies that he says show the media, especially television, perpetuate stereotypes that African American men are violent and in some cases are portrayed as "more dangerous than whites, even when whites are accused of similar crimes."

George Gerbner, dean emeritus and professor at the University of Pennsylvania Annenberg School for Communication, found in a study released in 1993 that "African Americans make news as criminals at least twice as often as other groups."

This kind of alleged bias, much of it unconscious, leads minorities to think that the media cannot present them fairly, analysts say. When the media make unintentional errors that seem to reflect bias, it confirms this belief.

In the Simpson case, some African Americans say that numerous factors other than race are driving the story. John Mack, president of the Los Angeles Urban League, says Simpson's celebrity status was a "key issue." Joe Hicks, executive director of the Southern Christian Leadership Conference of greater Los Angeles, says, "The case is a straightforward homicide."

Some African American journalists, such as USA Today's Barbara Reynolds, originally detected no racism in the coverage. Then Time magazine ran an altered mug shot of Simpson on its cover, and this brought the issue of race to the forefront, Reynolds has said.

Simpson's skin had been electronically darkened, and he looked more heavily bearded. His prison number had been shrunk, apparently to allow space for the words "Los Angeles Police Jail Div." to appear underneath.

Washington Post reporter Nathan McCall says that when Time ran that cover, "O.J. Simpson ceased to be O.J. Simpson the individual, and he became a symbol, a symbol of this menacing black male that we hear so much about."

Time editors were taken aback by the furor. Managing Editor James R. Gaines wrote in a full page apology that the photo had been altered to give the picture a more artistic look, and that "no racial implication was intended." Later, Gaines told a journalism conference that the controversy made him realize that the cover did display "racial insensitivity" and taught him that more minorities should be involved in the decision making process.

he Simpson case became a prism through which to view racism in the news media, the courts and other elements of American society, says the Los Angeles Times' Sam Fulwood.

The reactions of African Americans to the case and the coverage reflect their experiences, which are very different from those of the white men who run most news media, he says. The media won't be open to these types of different perspectives until the bottom line pushes them to be.

Some analysts say the Simpson coverage indicates that news executives may be willing to listen to their staffs and the public. The story involved more interactive participation by the public than any in history. Executives have made genuine efforts to encourage feedback, and thousands of people have discussed the case live with CNN's prime time anchors, or have sent E-mail messages, faxes or letters to the news media.

Thousands of people also have discussed the coverage on the Internet and on commercial online services, or have responded to polls financed by news organizations.

Everette Dennis says the public's eagerness to participate in what he calls the "primitive beginnings of interactivity" in the Simpson case foreshadows "all kinds of potential changes in news decision making."

As technology enables people to fulfill the "desire for more information, the desire to ask questions, to argue a little bit," on a real-time basis, the public will acquire a greater voice in shaping the news business, Dennis predicts.

The public's influence will increase as the media diversify and news executives look for market niches that serve smaller audiences with specific interests, he says.

What will this do to the traditional ratings system, which provided such an important rationale for television's coverage of the Simpson case?

Interactive technology could enable the news business to move "beyond ratings," Dennis says. The public's voice could become so strong that instead of asking people what they think about a program that they are watching today, the news executives might be more interested in asking the public what events it would like to see tomorrow.

Executives then could use the response to decide whether to carry an event live, on a delayed basis, or not at all.