By Bruce W. Sanford
260 pages; $25
Tensions have long existed between sensationalism and service, of course, and the public has long vacillated between condemning press smarminess and scooping up every juicy tidbit. But veteran First Amendment lawyer Bruce Sanford is here to argue that the public-press relationship has plummeted to an ominous low point.
Increasingly, Sanford contends in his new book, the public and, more menacingly, the courts punish the press for such perceived sins as disrespectfulness and incivility. They see the news media more as profiteering predators and less as allies and civic servants.
Sanford memorably quotes one juror explaining a huge damage award to a seemingly disagreeable plaintiff: "Well, we didn't much like that little shithead, but we liked the newspaper even less."
The moral, according to Sanford, is that "the aristocrats of the media better get ready for a ride to the guillotine." He sees "a full-scale crisis" in which the media, "loathed and distrusted by the public they hunger to serve," face $100 million libel judgments and rollbacks in First Amendment protection while "the U.S. Supreme Court maintains a stony silence."
Sanford amply documents public contempt, citing polls that show a tripling of unfavorable ratings for TV news, with 71 percent agreeing that "the news media gets in the way of society solving its problems."
Where once the courts might have shielded journalists from short-term public rancor, now they seem to join in. "A slow drumbeat of dull defeats has accumulated in the body of First Amendment law," Sanford writes. He cites case after case in which the media have been penalized for controversial but once-protected practices: accompanying police on raids and ride-alongs, using hidden cameras in investigations, misrepresenting themselves in pursuing wrongdoing.
Sanford mounts a brave, persuasive defense of such beleaguered reporting techniques. "Used sensibly," he writes, "they promise public-interest journalism at its most gleaming--exposing hypocrisy, fraud and deceit."
On top of all this are trends toward secrecy, prior restraint and sealing public records and proceedings for ostensible reasons of privacy. Sanford shows the media themselves, sensing their vulnerability, are quicker to compromise and cave in rather than stand and fight.
What accounts for the anti-press momentum? In part, according to Sanford's analysis, it is "the celebrity blur," which makes it hard for the public to distinguish "entertainment royalty" such as talk show hosts from "serious bishops of the journalistic temple." In part it is the media's escalating trampling on taste and privacy boundaries.
But the chief factor, Sanford believes, is a growing public view that chasing profits has overrun public service.
Little of this analysis is new, but Sanford uses it to make an alarming point that hasn't been adequately discussed: When it comes to speech and press interests, the courts are retreating from friendly to hostile. Hoisting this matter onto the media agenda is a notable service.
Unfortunately, too much space is devoted to rehashing standard anti-media complaints, leaving too little for two vital areas where Sanford is especially positioned to contribute.
First, the book underplays one of its most intriguing insights, that "mainstream scholarship is moving away from the marketplace-of-ideas concept of the First Amendment." This "doctrinal shift" tends, for example, to encourage higher levels of regulation, such as speech codes, anti-pornography rules and product-protection laws. It is an insidious intellectual undermining of free-speech philosophy that could deeply infect academic, judicial and, ultimately, public thought and action.
Second, the book fails to suggest any overall strategy, legal or political, for reversing the developments it deplores. From Sanford's first-rate legal mind, one at least would expect recommendations for a muscular, aggressive and cohesive legal counterattack. He floats some modest suggestions--that reporters behave more civilly, for instance--but the book ends abruptly, as if Sanford had to hurry off to a meeting.
Still, this is a well-timed work, an immensely important alert. I hope it isn't too muffled to be heard.
Journalists tend to think of themselves as the Good Guys doing the Right Thing for a Better World, even as they lie their way through undercover investigations, corner grief-stricken parents after school shootings and stake out politicians' love nests. So they're often shaken when people treat them as vultures and parasites.