Saturday, September 13, 2008

Rumors, Reporting and Reputations

September 13, 2008, 11:30 a.m.

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Rumors, Reporting and Reputations

[And note today's updates to "A Strategy for PUMAs" and "University of Iowa Sexual Assault Controversy -- 2007-08."]

Throughout its reporting about the events since October 14, the Press-Citizen often includes a line similar to that in Hermiston's September 12 story, below: "Because it is the Press-Citizen's policy not to identify alleged sexual assault victims, it has not named the mother."

Many media organizations follow that policy. It reflects a sensitivity toward the alleged victim. It reduces at least one of the many disincentives that discourage victims from reporting assaults. And it doesn't really interfere all that much with the ability of the media to tell the story.

The question is, why not apply a similar standard to the accused? There may be a reason. I'm not saying there's not. I'm just asking, what is it?

A person's reputation is a very fragile -- and valuable -- thing.

There are many elements of "defamation," but it is, in general, the utterance or repetition of a falsehood that is damaging to the subject's reputation. (Related "causes of action," as lawyers refer to theories for law suits, might include "false light," "public disclosure of private facts," and "intentional infliction of emotional distress" -- in short, personal harm that can sometimes come from truth as well as falsehood.)

Clearly, for the mass media to spread far and wide that someone has committed a crime, or other disreputable act -- let alone one that is as highly charged emotionally as "sexual assault" -- when the subject of the charge is innocent, or before it can be known whether or not they are innocent, is to inflict a form of punishment that is often far more severe than the punishments handed down by a court. It is a way of holding up someone to shame and ridicule in a community; although different physically, in its effect on one's reputation it is something not unlike the earlier use of stocks for public humiliation (a wooden structure, in a public place, in which an offender's arms, legs and head could be held in place).

Once one's reputation is besmirched it is almost impossible to redeem it. As Mark Twain is credited with saying, "A lie can travel halfway around the world while the truth is putting on its shoes." Or as I sometimes quote, but cannot now find the source for: "The truth is a notoriously slow runner in its race with the lie."

Indeed, in many countries for a newspaper or broadcast station to engage in the kind of reporting we've had about this alleged assault would constitute a form of contempt of court for which the media's reporters and owners would be punished with fines and imprisonment. (The concern is not just for the reputation of the accused, but for the legal process itself, since pre-trial publicity may so taint the public's understanding of a case -- before any evidence has even been marshaled, not to mention admitted during a trial -- as to make it virtually impossible to find that "impartial jury.")

I suffer no illusions that we'd ever adopt such a policy here. But considering it as a theoretical matter, why not? There are good reasons for the media to report on what various aspects of our government -- from the military to the judiciary -- are up to. After all, "checking value" is one of the basic values of, or reasons for, the First Amendment (i.e., the media's ability to look for, investigate and report on institutional abuses -- not just governmental units, but corporations, trade unions, hospitals, and so forth. Other values include "marketplace of ideas/search for truth," "self-governing," "safety valve" (i.e., an alternative to violence), and "self-actualization.") A self-governing democracy requires that the citizenry have the opportunity to know what its government is doing.

So I don't think we'd want to bar the media from reporting about the courts, judges, trials and accused defendants. But that doesn't answer: how much would we, the public, lose if the media (a) could investigate and gather information about courts/trials whenever it wanted, but (b) could not report what it knew until either the conclusion of the trial, or at least after it was started, and (c) could not reveal the names of accused defendants until they'd been found guilty?

For purposes of monitoring the operation of government, does the public really have to know these details any earlier? Maybe they do. But, if so, why?

The folks least able to reply, or otherwise protect themselves, are those who are not in the public eye, with easy access to the mass media. But I've discussed elsewhere the need to do something about the latter as well. We've seen it during this presidential campaign. Is there nothing that can be done to prevent, or at least minimize, the lies and deliberate misrepresentations that pollute the public's participation in elections -- as well as whatever harm they may do to the personal reputations of candidates and others? See, "Defamation of Public Figures: Rethinking New York Times v. Sullivan" in Nicholas Johnson, "It's Biden -- for 'Experience'?" August 23, 2008.

The consequences from gossip and serious, unproved assertions, are complicated by the fact that few among us, it seems, are able, or if able, inclined and willing, to apply the distinctions between an allegation and proof, an inference and a fact, an hypothesis and a theory, an assertion and data, ideological faith and policy analysis, a rumor and a report, rhetoric and research. My sense is that if we're spending time on such distinctions in our K-12 curriculum they're not being applied by a good many graduates years later.

Secondly, if the lie could travel halfway round the world in Mark Twain's day, today's Internet makes it possible to cover the world with lies in a small fraction of the time he had in mind.

As it happened, I came upon a couple of authors' efforts to explore these issues recently.

Here are excerpts from the first, written by someone who seems able to truly internalize "innocent until proven guilty":

"Those vicious thugs brutally raped that poor girl and left her bloody and beaten!"

So I remember one caller confidently proclaimed on a local talk show in reference to the alleged sexual assault in a university dormitory. After what seemed like a long pause, the host stated, "Well, remember these allegations are still unproven and we should refer to the accuser as alleged victim."

Left unchallenged were the words "vicious thugs," "brutally raped" and "bloody and beaten."

I never read those descriptions among the few details that have been released to the public by the police. Yet, even though the start of the defendants' trial is a long way off, the caller, and apparently the host, were confident in their condemning judgments extrapolated from unproven allegations. . . .

I close with my own opinions of others' guilt.

Given that the trial concerning the alleged rape has not even started, I currently think the two defendants are innocent.
The entire op ed is well worth a read: Jay Christensen-Szalanski, "Presumption of innocence," Iowa City Press-Citizen, September 11, 2008

The other is a book that will be published next month: Daniel J. Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, 2008), available October 6, excerpt (Chapter 1) now available.

From that excerpt and the table of contents it looks like Professor Solove is struggling -- perhaps with some success -- in addressing what possibly can be done to moderate the potential harm to reputations that's been exacerbated by the Internet, while retaining its open access, diversity and wild west character.

There are no obvious answers -- at least they're not obvious to me. But we'd all better be looking for some, because it's going to get worse before it gets better.

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1 comment:

Nicholas J. Johnson said...

What a fantastic blog. I must admit, I only came upon by googling myself (a secret shame we all share I think.)

In the "Nicholas Johnson" stakes I've clearly been out classed!

Was it you who said "A viewer who skips the advertising is the moral equivalent of a shoplifter."

http://www.conman.com.au