DWI, DWT, DWD: Keeping Our Eyes On The Road

June 13, 2014, 8:00 a.m.

It's the Distraction, Stupid!
[Now [June 16] published as, Nicholas Johnson, "Is Texting the Problem, or Just Part of the Problem?," Iowa City Press-Citizen, June 16, 2014, p. A5.]

The Press-Citizen thinks we ought to get tougher on DWT -- "Driving While Texting." Editorial, "Send Message to Lawmakers About Texting Ban," Iowa City Press-Citizen, June 13, 2014, p. A9. Apparently, law enforcement in Iowa regarding this dangerous practice can only occur once a driver is stopped for something else. [Photo source: unknown.]

OK, it's hard to argue with the paper's position.

But might we benefit by thinking about this a little longer?

One of the toughest intellectual, linguistic and analytical struggles in addressing a good many challenges is figuring out what it is we are really trying to accomplish, conceptualizing the goal -- or as I used to put it to my colleagues on the school board: "How would we know if we were ever 'successful'?"

A lumber yard owner deciding whether she or he is in the "lumber business" or the "building materials business" can make the difference between profit and loss. Costco and Walmart have decidedly different ideas about how many thousands of items such stores should stock (as well as the impact on profits of paying employees a living wage!). What should be the goal, and measure, of a junior high social studies teacher: the test scores his or her students get, the test scores they get in high school social studies classes, the number who go to college and choose social studies-related majors once there -- or the number who apply what they were taught five and ten years after getting out of college, by registering to vote, actually voting in primaries, school board and city council elections, participating in political parties and campaigns, actually running for office, or becoming what Ralph Nader has called "a public citizen"?

When I was a boy, the speed limit in Iowa was, simply, "reasonable and proper." It might be a little ambiguous, but isn't that really our goal? Is it "reasonable and proper" to drive 55 mph in a 55 mph zone when the early morning fog still hangs over a very icy road? Of course not.

Similarly, is it really texting that is the problem? Isn't texting just a part of the problem -- one that no one could have anticipated 20 years ago? If we'd like to be a little more precise than "reasonable and proper," but less specific than "texting," and we'd like a word that eliminates the need to constantly revise the law as new technology comes along, how about "DWD" -- "driving while distracted"?

Isn't that the problem? Whatever your confidence about your "multi-tasking" abilities, it is impossible to compose (or read) text on a handheld device and keep your eyes on the road at the same time. But your driving suffers the same impairment regardless of the cause of the distraction: driving while shaving or putting on makeup, reading the paper, changing stations on the radio, turning around to watch kids in the back seat, looking on the floor of the car for the quarter or toll road ticket you dropped, figuring out your location on your GPS device, even concentrating on a serious hands-free phone conversation -- or an intense conversation with a passenger in the car.

Shouldn't this be our legislative, and editorial, focus -- DWD, "driving while distracted," what many claim is as hazardous as DWI.

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Press-Citizen Above & Beyond 1st Amendment

August 11, 2007, 8:10 a.m.

Paper Publishes Criticisms of "Auditor Must Resign" Editorial
In an August 7 "Our View" editorial the Iowa City Press-Citizen forcefully argued that a local county official should resign his post because he had pleaded guilty to drunk driving. Editorial, "County Auditor Should Resign After Pleading Guilty to Drunk Driving," Iowa City Press-Citizen, August 7, 2007, p. A11.

Today (August 11) it devoted the entirety of its op ed page to readers' criticisms of that editorial ("Readers Defend Slockett").

What some readers may not know is that newspapers have absolutely no legal obligation to publish any letters to the editor -- let alone letters critical of the paper's advertisers, policies, practices, reporting and editorials. Broadcasters used to have a "fairness doctrine" obligation to deal with controversial issues and to provide a range of views in their overall programming. (The FCC repealed it.) Newspapers have never had such an obligation. Indeed, the Supreme Court has made expressly clear in the Tornillo case that, with the paper's First Amendment right to express the owner's own views goes the additional right to censor from its pages (news, editorial and advertising) the views of anyone and everyone in the community for whatever reason it chooses. (Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).)

Moreover, a forceful presentation of the views of one's critics is not a natural human instinct. Look at the presidential candidates' Web sites. How many reserve space for their critics' opinions of them? How many of us who will have signs in our yards advocating one candidate or another will -- after they have been elected and proven to be a disaster in office -- put up another sign confessing our error and apologizing to the community for our vote? Not many. (It has been my policy to permit, and leave posted, all comments attached to this blog regardless of how critical they may be -- although, like the Press-Citizen, that is a "matter of grace, not a matter of right" for those entering comments.)

So when a paper does what the Press-Citizen did this morning it is going above and beyond the First Amendment's requirements -- as interpreted by the Supreme Court. It is living by the spirit, rather than the letter, of the law. It is showing by its actions a willingness to promote a wide open, robust community debate of issues -- even when doing so involves investing time, money and valuable space in the paper to views contrary to its own, views critical of the paper's judgment and opinions. It is functioning as something more than an unrelieved instrument of propaganda for the self-serving positions of its owners and advertisers -- a role it would be legally entitled to play were it to choose to do so.

Enough already. You get the point. But I do think it a point worth making from time to time -- even though I acknowledge, of course, that other papers do this as well, that the letters sections are popular with readers, and that controversy helps sell papers.

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Here are links to today's comments of readers, followed by the full text of my own op ed column on the page:

Barbara Beaumont, "Alcohol Problem Has Not Interfered With Job," Iowa City Press-Citizen, August 11, 2007, p. A17.

Edward Brunner, "Editorial Presented Too Simplistic a View of County Elections and Licensing," Iowa City Press-Citizen, August 11, 2007, p. A17.

Rhonda Case, "Slockett Has Been Honest About Drinking Problem," Iowa City Press-Citizen, August 17, 2007, p. A17.

Lois Cox, "Editorial Understates Exemplary Record," Iowa City Press-Citizen, August 17, 2007, p. A17.

Polly Nichols, "City's Problem Can't Be Solved By Scapegoating," Iowa City Press-Citizen, August 17, 2007, p. A17.

(The page also contains a sidebar explaining the responsibilities of the Auditor's office, "Mission of the Auditor's Office," Iowa City Press-Citizen, August 11, 2007, p. A17.)

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My own first reaction to the August 7 editorial was contained in an entry in this blog. Nicholas Johnson, "The Press-Citizen vs. Auditor Tom Slockett" in "Public Officials and Private Actions," August 7, 2007.

That blog entry received a number of comments from its readers. Indeed, I had not even considered writing and submitting an op ed about the editorial to the Press-Citizen until the paper's opinion editor submitted a comment of his own, responding to some of the other readers' comments, in which he included the line, "As Nick knows, if he wanted to trim down his post to guest opinion length, we most likely would make space for him." (The entirety of his comment is, so far as I know, the best and only public response from the paper to its critics of this editorial.)

My op ed joins the comments of the other Press-Citizen readers whose letters are linked, above.
Nicholas Johnson, "Public Officials and Private Actions," Iowa City Press-Citizen, August 11, 2007, p. A17. It reads as follows:

Saturday, August 11, 2007

Public officials and private actions

Nicholas Johnson

Guest Opinion
A recent Press-Citizen "Our View" argued the Johnson County auditor should resign ("County auditor should resign after pleading guilty to drunk driving," Aug. 7). Among the issues it raises, for me, is the proper role of the media.

There is universal agreement that drunk driving is dangerous behavior that warrants the social opprobrium it receives. (A friend suggested we throw rotten fruit at drunk drivers tied up in the Ped Mall.) Moreover, it's a serious crime.

There's also little question the media has a constitutional right to attack and to embarrass any of us, for whatever reason it chooses -- especially public officials. (They get less protection from defamation than the rest of us.)

And alcohol is, by any measure, our nation's No. 1 hard drug: tens of millions affected; domestic violence; roughly half of all crime and prisoners; deaths, injuries, permanent brain and other organ damage; and multi-billion-dollar economic losses.

Indeed, the paper occasionally notes the absurdity of permitting anyone under 21 in bars -- given how many are illegally served alcohol. It could also have had (but has not) an ongoing campaign to reduce the number of bars (multiples of those in Ames) and cases of drunk driving -- counting and reporting the costs.

But the editorial wasn't part of such a campaign.

Indeed, this may well be the first time it's demanded a public official's resignation for drunk driving or any other offense unrelated to job performance -- notwithstanding its many prior opportunities to do so. (The P-C's call for Michael Gartner's resignation was performance related.)

No, given its lack of an anti-drunk driving campaign, and the editorial's failure to show a direct relationship between the county auditor's driving and his performance in office, it appears to be little more than a personal attack -- for reasons we can only guess.

Voters are free to consider many matters, however irrational, when selecting candidates -- including personal qualities. Behavior they consider immoral. Past criminal convictions -- including drunk driving. Their marriages, religion -- even their children's behavior. We'll be doing that soon for candidates from president to school board.

But the Society of Professional Journalists' Code of Ethics holds the media to a higher standard. Journalists should "show compassion for those who may be affected adversely by news coverage, be sensitive, recognize that reporting may cause harm or discomfort, and that people have a right to control information about themselves." In short, "show good taste." (I'm not charging the editorial was unethical; that's for journalists to judge. But these standards do reflect some of my concerns.)

Moreover, if the auditor's job performance is impaired, for any reason -- something I can neither know nor judge -- both the paper, and I, would be addressing another issue. But the editorial doesn't even try to make that case. And such office meetings with him as I've had left me positively impressed with his ability -- and sobriety.

Indeed, all I know of his reputation is that he has been one of the most competent and innovative county auditors in Iowa -- if not the United States. That doesn't make it OK for him to drive with an illegal blood alcohol level, but it does raise an issue regarding when personal behavior -- even illegal personal behavior -- should require a forced resignation.

On-the-job behavior that is illegal, immoral or unethical is one thing. And the list of examples is both long and well known. Some warrant firing, most produce other sanctions.

But imagine our nation's -- and newspapers' -- unemployment rates once job-unrelated stupid (even illegal) personal choices become grounds for dismissal!

Many will disagree, including this paper's editorial board. But I think the media's power to destroy a reputation and to promote the loss of an official's job should be more sparingly used. Keep it for serious job-related misbehavior -- like starting unnecessary wars in the Middle East, a matter that has yet to produce any calls for resignations by this newspaper.
_______________
Nicholas Johnson teaches at the University of Iowa College of Law and blogs at FromDC2Iowa.blogspot.com.

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If there was any organized effort to produce the response the Press-Citizen received I would think I would have heard about it. And I did not. But it is revealing the similarity of readers' evaluation of the issue. No one defended drunk driving. But all saw, as a separate issue, a distinction between (a) the need for punishing anti-social and illegal behavior, and other programs designed to prevent it, and (b) including among those punishments a public official's loss of job (forced resignation, or impeachment) when the offense involved is in no way related to that official's job performance.

In that connection, I'd like to respond a little further to one of the comments on that prior, August 7, blog entry of mine -- given how our hearts go out to anyone who's lost a loved one from a drunk driver's actions. He wrote, in part:

I think society as a whole isn't hard enough on impaired driving. I lost three members of my immediate family to someone who was a repeat offender drunk driver. I'm not so concerned that [the Auditor] resigns as I am that he not be allowed to drive a car again--ever. While driving a car is regarded as a privilege, too many of us think of it as a right. Why I would like to see [him] retired has more to do with the draconian way he manages the employees in his office. . . . Defending [him] seems to me more like a party circling its wagons to protect one of its own than an ethical problem with the Press Citizen (a paper of which I have my own list problems).

Taking the points in order:

1. Given this reader's personal loss from drunk drivers I think his comments very mild.

2. Nevertheless, even he seems able to distinguish between punishment for drunk driving and removal from office for an offense unrelated to performance in office. ("I'm not so concerned that [the Auditor] resigns as I am that he not be allowed to drive a car again -- ever. . . . Why I would like to see [him] retired has more to do with the draconian way he manages the employees in his office.").

3. My views regarding alcohol-related problems in general, and drunk driving in particular, are not significantly different from his. (From the column: "alcohol is, by any measure, our nation's No. 1 hard drug" and "A friend suggested we throw rotten fruit at drunk drivers tied up in the Ped Mall;" and, from the earlier blog entry, "[The Auditor], aware that he has real enemies (including, apparently, some at the local paper), and aware of his prior arrest for (even if not conviction for) drunk driving -- not to mention the potential real risk to the lives and safety of others -- was stupid to risk driving with blood alcohol over the legal limit.").

4. Job performance. I know nothing about the "way he manages the employees in his office" -- "draconian" or otherwise. But I've recognized that on-the-job performance is relevant to calls for resignation. ("[I]f the auditor's job performance is impaired, for any reason -- something I can neither know nor judge -- both the paper, and I, would be addressing another issue.") Indeed, there are standards and procedures in the Iowa Code regarding the removal of officials from office. I just don't think the media should arbitrarily, and inconsistently, sometimes call for one official's resignation for drunk driving (or conviction for some other class of offenses) and at other times, and for other officials, not do so -- in circumstances in which there is no evidence of any relationship between the offense and job performance.

5. He says, "Defending [the Auditor] seems to me more like a party circling its wagons to protect one of its own . . .." I don't see it that way. There may well be some Democrats who would "defend" a fellow Democrat, no matter what the offense, just because he or she is a Democrat. But not only do I not consider myself in that category (I have severely criticized Washington and Iowa Democrats for taking money from the same special interests as Republicans, and I have praised individual accomplishments of -- most recently -- Leach, Bush, Huckabee, Gingrich, and others), neither do I sense that in the comments of the other letter writers in this morning's paper. Indeed, no one seems to be "defending" drunk driving; quite the contrary. All they are defending, if defending it be, is the right of public officials (regardless of party) to continue to serve in office so long as their social and legal offenses are unrelated to their performance on the job.

6. He continues, "[This] seems to me more like a party circling its wagons to protect one of its own than an ethical problem with the Press Citizen." In the blog entry (and op ed column) I include a truncated quote from the Society of Professional Journalists' Code of Ethics. It left the impression in the blog (which I did not intend, and which I expressly disavow in the column) that I was charging the Press-Citizen with having violated its own Code of professional ethics. All I was trying to say was that the Code's recognition that papers should "show compassion for those who may be affected adversely by news coverage, be sensitive, recognize that reporting may cause harm or discomfort" and otherwise "show good taste" was some evidence that even journalists share some of the same concerns I had. A newspaper's anti-drunk-driving campaign that gives prominence in individual feature stories to every single person arrested for drunk driving (including major advertisers) would be one thing. Some might even question such a campaign, for reasons articulated in that Code of Ethics, but at least such a campaign would be applied across the board to all to achieve a social purpose. However, this editorial was not a part of such a campaign, but was rather focused on a single individual. It therefore did not possess the redeeming quality of a social benefit, but was simply an attack on a single individual.

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Public Officials and Private Actions

August 7, 2007, 5:30 p.m.

The Press-Citizen vs. Auditor Tom Slockett
[Disclosure and background: While I admire both the editorial writers at the Press-Citizen and the leadership role played by Tom Slokett in progressive innovations in Iowa county auditors' offices, I have talked with neither side regarding this matter. I have never been with Tom Slockett when he was consuming alcohol, and during every meeting I have ever had with him at the Auditor's office he has seemed to me very much on top of his job.]


An editorial in this morning's Iowa City Press-Citizen calls for the resignation of Johnson County Auditor Tom Slockett. Editorial, "County Auditor Should Resign After Pleading Guilty to Drunk Driving," Iowa City Press-Citizen, August 7, 2007, p. A11.

The editorial discusses some issues but raises a great many more.

Newspapers' Constitutional Rights to Attack Public Officials. There is no question that the paper has the constitutional right to attack or otherwise personally embarrass publicly anyone it chooses -- subject only to the remedies of defamation, which in the case of public officials is constitutionally protected up to the point that it goes beyond the First Amendment standard (New York Times v. Sullivan) of "actual malice" (publishing something knowing it to be false, or exercising "reckless disregard" with regard to its truth).

Newspapers' Standards of Ethics and Decency. According to the Society of Professional Journalists Code of Ethics,

Journalists should:

— Show compassion for those who may be affected adversely by news coverage. . . .
— Be sensitive [regarding] those affected by tragedy or grief.
— Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.
— Recognize that . . . people have a . . . right to control information about themselves [private citizens more than public officials]. . . .Only an overriding public need can justify intrusion into anyone’s privacy.
— Show good taste. Avoid pandering to lurid curiosity.

Did the Press-Citizen violate its profession's Code of Ethics with this story? I wouldn't charge as much. But the least one might note is that the editorial at least raises some issues of privacy, decency and "good taste."

Consistency and Conflicts. It would be troublesome if the Press-Citizen's past opposition to Tom Slockett's re-election, or some displeasure they have had with him unrelated to the performance of his job, played a role in its now calling for his resignation on grounds of DWI. I am unaware of a consistency in the paper's calling for the resignation of other public officials following a DWI charge -- or any other violation of law (e.g., speeding tickets (as excessive speed also potentially endangers the lives of others), a significant number of parking tickets (which would also reflect a scofflaw's approach to the law)). President George Bush has acknowledged a drunk driving arrest. Iowa legislators (as well as those in Washington) -- from the past and now serving -- have been arrested for driving under the influence or have been otherwise known to have "a drinking problem." (When I was in Washington there were some members of the House and Senate you simply didn't call on for any serious purpose after about 11:00 in the morning.) Does the Press-Citizen really believe all of these officials should have resigned? What other behavior, legal and illegal, does the paper believe should be the basis for its calling for the resignations of public officials?

The Nation's Number One Hard Drug Problem: Alcohol Although I have been blessed with the absence of any personal problems regarding alcohol, few in this community have been more critical than I of our local failure to do anything meaningful about its consequences -- including the hazards of drunk driving. Alcohol is by any measure our nation's number one hard drug: number of persons affected directly and indirectly, its involvement in domestic violence and roughly half of all crime and prisoners, the permanent damage it can do to the brain and other organs, and its multi-billion-dollar adverse economic impact. I don't claim to remember all Press-Citizen editorials and news stories, so I may be wrong. But was this editorial simply a sub-set, an example, in a long-standing anti-drunk driving campaign by the paper? I am unaware of such. Has the paper advocated a reduction in the number of bars in Iowa City (a multiple of those in Ames)? I don't think so. Has the paper campaigned regarding the absurdity of permitting anyone under the age of 21 to enter establishments the only (or primary) purpose of which is to sell alcohol (knowing that many underage -- illegal -- students are drinking there)? Not that I can recall. So as wrong as drunk driving may be, it appears that this editorial was not part of the paper's positions regarding alcohol abuse in general but was, rather, simply an attack on Tom Slockett.

Officials' Stupid Decisions. President Bill Clinton, aware that, as the saying has it, "You're not paranoid, you've got real enemies," and aware of prior charges of his womanizing, was stupid to hand his opponents the relationship with Monica Lewinsky. Similarly, Tom Slockett, aware that he has real enemies (including, apparently, some at the local paper), and aware of his prior arrest for (even if not conviction for) drunk driving -- not to mention the potential real risk to the lives and safety of others -- was stupid to risk driving with blood alcohol over the legal limit. If he knew there was a risk he might drink enough to impair his judgment regarding whether or not to drive he might even have connected a breathalyzer to the ignition of his own car. But stupidity in one's private life, even stupidity that involves violation of law, stupidity that does not affect one's performance in public office, should not be grounds for removal from office or public calls for one's resignation. If the paper's "stupidity standard" were applied throughout our economy our unemployment numbers would go through the roof.

Impaired Performance and Procedures for Removal. Clearly, if an official's performance in office is impaired -- for any reason, whether or not it involves a violation of law -- that is a matter of concern (even though it may not be a reason to call for their resignation). Iowa law provides procedures for removing officials from office. The Press-Citizen has shown willingness in the past to use the law not only in the pursuit of stories, but in the pursuit of what it believed was in the best interests of the State (such as its public records and open meetings protests regarding the Regents). For example, Chapter 262 of the Iowa Code provides for the removal of an individual Regent. Section 262.4 says that "The governor, with the approval of a majority of the senate . . . may remove any member of the board for malfeasance in office, or . . . [if] incapable or unfit to discharge the duties of office . . .." (This is true even if the senate is not in session (as it was not during some of this time). The Iowa Code expressly provides in Section 262.5 that if the senate is not in session, "the governor may suspend any member so disqualified . . . subject to the approval of the senate when next in session.") If the paper really feels Tom Slockett is unfit to serve it might wish to consider proceeding under the law, rather than merely embarrassing him publicly in an editorial. I am not in a position to know whether Tom Slockett's performance in office has been in any way impaired by alcohol -- although from my limited contact with him I have certainly not seen any such evidence, and the Press-Citizen does not even allege, let alone prove, that any exists.

Voters' Rights. Clearly there is a distinction between what is appropriate behavior for voters and what's appropriate for those with disproportionate political, economic and media power -- such as newspapers. There were undoubtedly voters who voted against Senator Jack Kennedy for president because he was Catholic -- just as there will be those who will vote against Governor Mitt Romney in the Republican primaries because he is Mormon. Others will choose their candidate on the basis of positions on "God, guns and gays" -- or some similar issues. It makes no difference that many will think them a little short sighted in doing so. It's their right as voters to select from among candidates on whatever basis they choose. Similarly, some may decide to vote against Tom Slockett next time around because of this arrest -- even if it turns out that his drinking has had no adverse impact on his performance in office. That's their right.

Bottom Line. So here are the options and comments as I see them.

1. The Press-Citizen, or indeed any local citizen, can proceed with the legal options in place for the removal of county officials, including Tom Slockett.

2. Voters are free to vote against him should he choose to run for re-election.

3. But decisions regarding "resignation" are his, alone, to make in my judgment.

4. DWI may involve a disease. The punishments for it -- both the criminal penalties, and the social opprobrium -- are significant. There is little justification, or need, for "piling on" an individual public official by the media. If that is to be done it should be done across the board for all public officials and for all illegal or anti-social behavior -- not just an individual a given media outlet may not like for one reason or another.

5. However serious DWI may be, however appropriate editorial and other campaigns to prevent it may be, I don't think it's warranted to select and publicize such an offense as a means of attacking an "enemy," and calling for his or her resignation (which the attacker would have wished for anyway, with or without the DWI) -- unless there is reason to believe the official's performance in their job has been impaired in some way.

6. I recognize that my analysis and position will be unpopular with many. It's just the way I see it.

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