Campaign Lies: How Should Reporters Expose the Liars?

From the Executive Director’s Desk

Presidential campaigns inevitably give rise to many journalistic issues. The current campaign raises more questions than most, the most significant – and under-covered – being how the media should deal with candidates who often lie. That is no small issue, whether you call it a lie, a deliberate falsehood, or as some too diplomatic journalists euphemistically call it, a propensity for exaggeration. And this issue has legal ramifications as well.

In 1988, when George Bush 41 campaigned in Boston harbor, he presented himself as “the environmental president”. Pictured against a backdrop of a gleaming blue oceanfront, Bush laid out his alleged agenda to protect the environment and criticized his opponent Gov. Michael Dukakis of having presided over a “harbor of shame.” He didn’t mention – and the pieces reporting on the event barely included – that his campaign had largely been funded by oil interests and that as Vice President he had done, to be kind, perilously little to help the environment. In some reports of the campaign stop, a few quotations were included which questioned his dedication to the environment; in some, perhaps a few sentences, way down in the piece, suggested his party’s legislative record on ecology had been poor. But most readers, and certainly all but the most sophisticated and thorough ones, would come away with his hoped-for result: that the electorate would believe – as it turned out, totally incorrectly – that, if elected, he would work for the environment.

How have the media handled this situation? Roughly speaking, there are three alternative strategies.

First, one can simply report what public officials and figures say, with little context or interpretation. This was the generally accepted principle until the 1970’s when the lies of Vietnam and Watergate caused the media to be far more skeptical than they traditionally had been. It was this tenet which allowed Sen. Joe McCarthy to get away with his demagoguery, at least until a brave and revolutionary Edward R. Murrow actually analyzed and drilled down into his accusations. Indeed, back then, a typical New York Times would contain countless articles uncritically rehashing reports of the Department of Agriculture and other bodies of government, since informing the people as to the official duties and reports of government was thought to be the press’ prime function.

Of course, the problem with this approach is that it allows public figures to get away with whatever they want to say, without a questioning or skeptical eye being cast their way. While it hews to the traditional principle of objectivity and the press not inserting itself into an issue, it really provides a disservice to the reader. It gives no context and allows the reader to be easily misled. Indeed, one could easily say that the media abdicates their responsibility for truthfulness by this approach.

A second and opposite strategy is for the media to tell it like it is. Follow the false statement with a declarative statement: “That is untrue” or, perhaps more colorfully, ” the candidate is a lying s.o.b.” That is a strategy which American media have never subscribed to; even the partisan cable channels usually don’t go as far as to employ that approach. While it brings the truth home and might even deter lying, it has some weaknesses: first, it would subject the media to the drumbeat of criticism that they are too subjective and biased. Worse, this attack could be made by the lying candidates themselves, thereby perhaps deflecting attention from their falsehoods. In addition, many statements aren’t all that black and white, and woe to the media outlet which asserts that a candidate was lying only to receive a thoughtful pushback supporting the original statement.

Therefore, the media has settled on what I would call a compromise approach. It doesn’t do nothing and it doesn’t outright call the speaker a liar. Typically, the formula is to allow the candidate to make his statement or accusation and then have third persons – not the reporter herself – question it. By putting the criticism in someone else’s voice, the media feigns – if that’s not too strong a word – that it is not taking sides; it simply is reporting on what other people have to say about the original assertion.

But not only is that to some degree a cop-out, the reporter or editor is choosing what responses to give the statement. Presumably, it could find five commentators who would vouch for the truthfulness of the statement. Or it could include in the article five responders who will waffle. Or it can follow the statement with five quotes clearly shedding severe doubts on the speaker’s veracity. Or it can decide on a mixture of the above. But that selection and the placement and weight of the quotes are clearly editorial decisions which less visibly but just as clearly do inject the publisher into the mix and into the ultimate signal it is giving the reader as to the credibility of the original statement. Moreover, by the very act of balancing, the media often gives the false premise more credit than it is due (see the global warming “debate”).

So why not end this charade and allow the publisher or broadcaster to weigh in on the key issue of truthfulness. It could say “we have researched the matter and found no support for x’s accusation.” Or it could say, in its own voice, “this statement totally contradicts the candidate’s speech (or position paper) of four months ago.” An assertion from the media entity itself certainly would be a stronger way of leading the viewer to the truth. Though it would result in the same criticisms of subjectivity and bias as described above, those empty accusations are made anyhow, and the current formula, in fact, inserts the journalist into the truth-falsity balance to essentially the same degree. (In certain limited instances, some newspapers have fact-checking staffs which do point out clear falsities, but these are not everyday articles.)

And all this matters. Perhaps because of candidate Trump’s rhetoric about lying Hillary or crooked Hillary, the public, in general, seems to believe that both candidate tell untruths in roughly equal amounts. But when there still were 7-8 candidates in the mix, and their truthfulness was analytically measured by experts who researched their statements, of all the candidates, Ms. Clinton was found to have lied the least and Mr. Trump the most – by a whopping margin. This false equivalency could be trumped (sorry) by a more direct approach.

And all this has legal ramifications as well. The legal rules surrounding this paradigm are more muddy and make even less sense than the journalistic guidelines. Thus, what happens if candidate x makes an accusation about candidate y which the news outlet believes is untrue? It can omit it, but journalistically that would be heresy, as the accusation itself is newsworthy. Or it can repeat the statement and then follow it with some third person quotes shedding doubt on the truthfulness of the accusation along with candidate y’s denial. Or, if it follows my suggestion, it could more frontally aver that the accusation is untrue.

But what if candidate y sues the media for republishing the false accusation about him. In the last iteration, the plaintiff could then argue that the media republished an accusation it believed was false – an easy case of actual malice since the passage saying the accusations are untrue would be Exhibit A in plaintiff’s case; the same argument could be made, perhaps not so easily, but still strongly enough, if the accusation were followed with denials and statements shedding doubt on it from “neutral” observers. The plaintiff would have a relatively easy time arguing that the publisher had serious doubts about the truth, or else why include those critical rebuttals?

As readers of this publication certainly are aware, the answer to this dilemma lies in the neutral reportage doctrine, formulated by the 2nd Circuit in 1977. Yet almost 40 years later that doctrine has been adopted by no other Circuits and only Florida and perhaps a few other states. While broad recognition of neutral reportage would solve the legal enigma, it probably wouldn’t have much effect on the more important journalistic issue raised above. But the need for wide recognition of the neutral reportage defense seems self-evident, and will be the subject of a later column. And this issue, as well as a broader panoply of questions raised by the current election campaign will be the subject of our Fred Friendly hypothetical with Washington insiders on the first night of our Virginia Conference, and also our Forum on Nov. 9, the day after Election Day, immediately before our Annual Dinner.

We welcome responses to this column at gfreeman@medialaw.org; they may be printed in next month’s MediaLawLetter.