Category Archives: Ethics

Ginsburg and ethics

There’s ethics, and then there’s ethics.

Ethics of the first order – legitimate ethics – have a solid philosophical basis. Ethics of the second order often have little to do with ethics, but instead are client and/or financially driven.

True ethics often center on Immanual Kant’s “categorical imperative,” or duty, to be true to one’s self — to tell the truth. This approach emphasizes action. Often included in this discussion is John S. Mill’s “utility principle,” focusing on the greatest good for the greatest number, an outcome-driven concept. Kant’s and Mill’s ethics concepts are usually at odds with one another. But occasionally they converge.

In the case of U.S. Supreme Court Justice Ruth Bader Ginsburg, there is such a convergence. Justice Ginsburg was impelled to tell the truth about Donald Trump for the greater good of American voters. As such she was acting with the highest of ethical intent. (She subsequently apologized Thursday for earlier being quoted in the media by saying Trump was egotistical, inconsistent and a “faker,” saying he says “whatever comes into his head at the moment.”)

While her earlier remarks produced a conflict of interest, that does not mean her comments to the Associated Press or the New York Times were unethical.

It’s not surprising “legal ethicists” might disagree. After all, “legal ethics,” a subject taught at most law schools in the United States, focuses primarily on how attorneys should represent clients, irrespective of ethics per se or the ethics of a case. Genuine ethics? Hardly.

As the Los Angeles Times said in its July 14 story, “…the prospect of a President Trump is so upsetting to Ginsburg that she felt compelled to set aside the usual traditions of justices staying out of politics.” In other words, she thought her ethical duty to warn Americans against a possible GOP presidential victory in November trumped a SCOTUS judge shying away from a political issue.

For that she deserves media laurels, not darts from “legal ethicists.”

A call for responsible reporting of irresponsible speech

For generations, American journalists have been fooling themselves – and their audience. Unwittingly perhaps, but still fooling themselves.

On the one hand reporters – whether print, broadcast, cable, or social media – have trumpeted their U.S. Constitutional, First Amendment “right” to have the personal, individual freedom to report on and publish virtually any and every thing they like. To this end they are cheered on by living attorneys and, from the grave, by John Locke and Rosseau, practitioners of the European Enlightenment advocating a “marketplace of ideas” for all readers, listeners and viewers.

On the other hand these same journalists maintain they are gathering and reporting news and information designed to be of the greatest good to the greatest number of their audience. Such a Utilitarian approach, advocated by Jeremy Bentham and John Stuart Mill and popularized by J.K. Rolling’s Albus Dumbledore character in her Harry Potter books, justifies sacrificing individual freedom so society might be safeguarded and better served. Ethicists applaud this approach.

Exercising the freedom to produce whatever information the journalist deems important can lead to censure as it harms the greater good. Journalists focusing only on the greater good can in turn justify censorship.

And nowhere has the freedom v. harmony conflict been more noticeable than higher education, where instances of racially insensitive speech and political correctness increasingly are coming to the fore. As a result, the vigor of intellectual freedom is threatened by actions on campus and in society that stifle intellectual freedom in the name of racial and ethnic sensibilities.

Recently, the University of California system considered a proposed statement on intolerance including anti-Zionism as a “form of discrimination.” According to the Los Angeles Times, 130 faculty members signed a letter that supported naming anti-Zionism an expression of anti-Semitism, and saying students needed guidance “When healthy political debate crosses the line into anti-Jewish hatred, bigotry and discrimination, and when legitimate criticism of Israel devolves into denying Israel’s right to exist.”

Nearly twice as many faculty members, the Times reported, “expressed fear the proposed statement would restrict free speech and the academic freedom to teach, debate and research about the complex and tumultuous history of Israel and the Zionist movement.”

U.C. Berkeley Professor Judith Butler told the Times, “To include anti-Zionism as an instance of intolerance and bigotry is actually to suppress a set of political beliefs that we actually need to hear. It saddens me and strikes at the heart of the task of the university.”

In contrast to Berkeley, where the university is trying to restrict speech critical of Zionism – speech that is defensible – Oberlin College’s president recently defended academic freedom after a professor, whose speech was not only anti-Jewish but false and venomous, posted comments on social media claiming Jews and Israelis control much of the world and were responsible for the 9/11attacks and the Islamic State.

A Los Angeles Times editorial from June, 2015 began,

“It’s troubling when any institution tries to squelch debate or discourage controversial ideas, but it’s downright alarming when this occurs at a university — and even worse when it is the University of California, whose Berkeley campus was at the center of the Free Speech Movement in the 1960s. Yet that’s exactly what’s happening thanks to heavy-handed sensitivity training about so-called microaggressions.”

Nor is this something new. Nadine Strossen in 1996 discussed these issues in Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties. Strossen, former president of the American Civil Liberties Union, deals with hate speech codes, which attempt to restrict bigoted or offensive speech, punishing those engaging in it. Strossen and others in this anthology argue that speech regulation designed to protect minorities is, in the final analysis, destined to be used against them. In this 20-year-old book the author maintains “it is difficult, if not impossible, to draw the line between unprotected insults and protected ideas.”

At Princeton University, for example, U.S. President Woodrow Wilson helped the university expand into a full-scale institution of higher learning. To honor him the university subsequently created The Woodrow Wilson School of Public and International Affairs. Last fall, however, posters appeared on campus quoting some of the former president’s racist quotes, including one where he said “segregation is not humiliating, but a benefit.”

The posters, put up by a newly formed student group called the Black Justice League, led to a walkout by some 200 students, and the presentation by members of that group of a list of demands, the top of which called for the university to “publicly acknowledge the racist legacy of Woodrow Wilson” and to rename its public policy school.

As Atlantic magazine recently reported, “A movement is arising, undirected and driven largely by students, to scrub campuses clean of words, ideas, and subjects that might cause discomfort or give offense.”

Last fall University of Louisville President James Ramsey felt obliged to apologize for a photo of him and his staff wearing ponchos, sombreros and fake facial hair at a Halloween-themed party that turned “cultural stereotypes into costumes.”

In a November Yale Daily News article, early childhood education researcher Erika Christakis emailed why “offensive” costumes might be permissible: “Free speech and the ability to tolerate offence are the hallmarks of a free and open society.” She recalled that her sociologist husband Nicholas had said, “If you don’t like a costume someone is wearing, look away, or tell them you are offended. Talk to each other.”

This language-, costume- and racially fueled controversy at Yale University was heightened with news in March of the firing of Melissa Click from the University of Missouri. Click, who taught in the university’s Department of Communication, was caught on video calling for “muscle” to help her eject a student journalist from a protest site on campus last November. At the time, the university faced protests over the administation’s handling of racial protests

The Click episode can be seen from two First Amendment points of view.   From one perspective, the professor was blocking student journalists exercising their First Amendment rights. From another perspective, the University of Missouri was firing her without due process because her support of protesters had angered university donors and state legislators.

In either case, this episode brings the free-speech debate issue on college campuses back to the very industry most benefitting from First Amendment’s protections – journalists. While it’s true the First Amendment was ultimately penned for the protection of Americans, the most direct beneficiaries of the Amendment’s press and speech freedoms are journalists.

So how best might the media report on the apparent rash of instances of free-speech abuses on university campuses – locations where one would expect free speech to not only be tolerated, but revered? Aren’t campuses, after all, places where preconceived notions and societies’ mores are supposed to be challenged, debated and revised?

Such university free-speech issues should encourage journalists to neither blindly advocate for freedom-of-speech nor for students seeking to censure that very same speech. Instead, journalists might strive to report more on how universities are attempting to encourage and promote respectful, responsible discussions on race and other hot-button issues.

No matter how distasteful, such constitutionally protected speech deserves a constant, contextualized airing at all colleges and universities. A perfect solution? Of course not. But encouraging ethical reporting of such divisive issues, rather than sweeping them under a politically correct rug, isn’t a bad place to begin.

Is environmental reporting improving?

Are the media doing a good job of covering the environment?

Answering this question is not as easy as it might seem.  Following Earth Day in 1970 the media ratcheted up their environmental coverage. But many legacy media today, nearly a half-century later, no longer have environmental reporters, or if they do, such journalists often have the environment as only one of the issues they cover. And increasingly, environmental stories are being covered by free-lance journalists.

Public concern about the environment is one aspect of “good” coverage.  In other words, are the environmental issues the media cover and those that the public thinks are important, one and the same?  If, for example, the media spend more time covering issues of water pollution than they do land pollution, and if members of the public consider land pollution more timely and important than they do water-pollution issues, there is a disconnect.  When this occurs the public will consider the media’s coverage inaccurate and thus unbelievable?

Words, too, become hot buttons.  While Democrats tend to favor the term “global warming,” Republicans usually refer to “climate change,” even though the two terms are essentially one and the same.  Thus, depending on what term the media use to describe this phenomenon, a portion of the audience will inherently disagree and consider the news inaccurate.

In addition to the public’s concern over pollution, the reported quality of the environment as measured by soil, water and air pollution, is an issue. For example, one might expect the media to focus more on areas of environmental deterioration than on areas where there was little change or where there indeed was improvement.  Were the media – local, statewide, regional, national and/or international – to not have such a watchdog focus, their coverage likely would be considered off-base if not downright irresponsible.

Finally, the United States’ federal government has obligations and expenditures for pollution abatement and control. Ideally, these should square with the media’s environmental reporting, and when they do not, such reporting is, understandably, questionable.

But even when there is a symmetry between the public’s concerns, quality of the environment and expenditures for pollution, there are the added issues of what media are being discussed – traditional, social, online, a combination – and for what time period.

While answering the “good” reporting question is difficult, the “accurate” reporting question, though, can be at least in part addressed by applying the same three criteria.

  1. How do the media’s environmental issues coverage square with the issues the public considers important?
  2. Do the criteria the media apply in their environmental reporting mirror that of the actual state of the environment?
  3. Are the media “following the money” in their reporting of environmental issues?

In the final analysis, are the media accurately covering environmental issues? The best answers thus would seem to be “yes,” “no” and “it depends.” Amid such uncertainty, the good news is that there are today many more institutions, private organizations and individuals monitoring both the environment and environmental reporting than was the case April 22, 1970.  And even journalism reviews sometimes get involved in the monitoring.

Ferguson – An Arab Spring moment

The Ferguson story was an Arab Spring moment when social media inspired social change. It rejuvenated the civil rights movement and started a new national conversation about race and policing.

In remarks to the Ethical Society in St. Louis on Oct. 25, GJR publisher William H. Freivogel looked back at the impact of social media on Ferguson.

I’ve been a reporter for almost 50 years, covering free speech, civil rights and the First Amendment most that time.  I’ve covered the U.S. Supreme Court, presidential campaigns, the attempted assassination of Ronald Reagan, police brutality in the Maplewood police department, dioxin contamination of Missouri and the successful effort to keep the St. Louis-St. Louis County school desegregation program alive.

But Ferguson is the biggest, most important story I’ve covered.

We may look back on Ferguson as the beginning of the rebirth of the civil rights movement.  We may also see it as America’s Arab Spring when it comes to social media setting the agenda and spurring political change.  It’s safe to say Ferguson would not have played out as it did had it not been for Twitter.

The subject of the Ferguson story is the most important story of this nation’s life – our effort to escape the sins of slavery and segregation and to perfect our imperfect experiment in equality.  The Justice Department’s report on Ferguson’s police and municipal court system demonstrates there are a lot of imperfections.  It found racist, unconstitutional police practice in Ferguson – practices that most likely exist in thousands of Fergusons around the nation.  Those other towns just haven’t been under the Department of Justice’s microscope.

The reform of the municipal courts in St. Louis County is also a reminder that practices fair in form – say the issuance of a bench warrant when a traffic violator fails to appear in court – can wreck poor people’s lives and turn our municipal holdovers into something approximating debtors’ prisons.

One of the main points I would like to make this morning is Ferguson is complicated, with a capital C.

It’s like many ethical questions that don’t have clear right and wrong answers.  Answers aren’t found rushing to conclusions based on ideology and group affiliation, divorced from facts.  Instead, judgments should be based on core values, historical context and a search for facts.

 Let me give you a dozen examples of how complicated Ferguson is:

1.   Social media broke almost all of the news about Ferguson but they also spread most of the myths and hate speech.

2.   Social media became a way for protesters to reach out to a national and international audience, but the national media often got the story wrong.

3.   At the same time that social media became a way to reach out for a broader audience, they also spread early, inaccurate rumors and stories spread, leading to unreliable statements from supposed eyewitnesses to the shooting of Michael Brown.

4.   The Hands Up, Don’t Shoot story quickly took hold in the nation and the world, but it turned out not to be substantiated.

5.   Although a myth, Hands Up Don’t Shoot became a powerful force for addressing a long, festering problem of white police officers shooting unarmed black suspects and of police allowing minor stops to escalate into life-or-death situations.

6.   The powerful call for civil rights that emerged from Ferguson often failed to recognize Officer Darren Wilson had civil rights too, most specifically a constitutional right of due process.

7.   Ferguson may have been the rebirth of the nation’s civil rights movement, but this isn’t our generation’s civil rights movement. This is a movement of young people who have little regard for the Al Sharptons and Jesse Jacksons of the past.  The same is true across racial lines.  One of the most viewed tweeters about Ferguson, Sarah Kendzior, tweeted recently, “All around me people of my generation drowning, while boomers toss out useless life vests of their memories.”

8.   Ministers in St. Louis were among the most outspoken leaders in the protest, but they too may have gone overboard in chanting for police officers to “repent.”

9.   St. Louis County Prosecuting Attorney Bob McCulloch inspired little confidence that the investigation of the shooting would be fair and complete; but McCulloch’s release of grand jury testimony and his inclusion of exculpatory evidence addressed the most common civil rights criticisms of the grand jury process.

10. Even though there wasn’t enough evidence to convict Wilson on criminal charges, that doesn’t mean Wilson handled the encounter with Brown properly; he didn’t.

11. Even though the killing of Michael Brown had nothing to do with municipal courts, the reforms in the municipal court system that followed are among the most important reforms that have grown out of Ferguson.

12. That said, even though the legislation passed by the Missouri Legislature last year to reform municipal courts was called the Ferguson reform bill, it has little impact on Ferguson and its greatest impact may be to put out of business the tiny municipalities with African-American leadership.

13. Just as the press was slow in recognizing the myth of Hands Up, Don’t Shoot, it also failed to recognize the magnitude of the unconstitutional policing in Ferguson until the Justice Department revealed it excruciating detail.

Ferguson – symbol for injustice

The question I’m asked most often is why Ferguson went in a few days during the summer of 2014 from being the obscure name of a quiet, residentially integrated suburb to a word known around the world as a symbol for everything wrong with America.

Here are some of the key factors that turned the shooting of Michael Brown from a small story that probably wouldn’t have made the national news or the local front page into a national crisis.

1)   Leaving Michael Brown dead on the street for four hours.  The Justice Department after-action assessment released this September stressed the role this four-hour period played in angering the crowd – although the report also pointed out that shots were fired at the police performing the forensic analysis and that the results of the forensics were crucial to the resolution to the case.

2)   The failure to immediately name the police officer who shot Brown. Did the press have a right to the name?  Probably not. But in Cincinnati officials have learned from past shooting like Ferguson and name the officer right away and release any video.

3)   The similar deaths of other unarmed black men at the hands of police, creating a critical mass of tragedies of this kind – Staten Island, Cleveland, North Charleston, Tulsa, Baltimore.

4)   Police with dogs, reminiscent of Bull Connor.  The Justice Department after action report stressed the role of dogs in angering demonstrators and urged that police departments not use dogs in crowd control.

5)   Police in military gear with military vehicles and red lasers pointed at protesters’ chests.

6)   Failure to respect the First Amendment rights of citizens and journalists.  Police tried to ban night-time protests, tried to force protesters to keep walking, overused tear gas and arrested reporters, hassling and threatening others.

7)   A whirlwind of social media, cable and national and local media, often failing to check out facts before they were tweeted or reported to the nation. #ferguson flew by on the screen faster than it could be read – and far faster than a community or nation could comprehend.

8)   Most importantly, Ferguson reminded us we haven’t solved many of the racial problems we hoped we had gotten past.  Mike Brown’s high school was broken and unaccredited.  He lived in a segregated housing project.  And the town of Ferguson was engaged in racist policing.

Violating the First Amendment

Many of the violations of constitutional rights occurred in the couple of days after Brown’s shooting. Five days after the shooting, Gregory Magarian, constitutional law expert at Washington University law school put it this way in a story for St. Louis Public Radio: “Police and officials in Ferguson have declared war on the First Amendment. Since Sunday’s police shooting of an unarmed student, Michael Brown, local officials and law enforcement have blatantly violated three core First Amendment principles: our right to engage in peaceful political protest, the importance of open government; and the freedom of the press. In the space of one evening, police in Ferguson conducted a master class in destroying the freedom of the press.”

Reporters from the Washington Post and Huffington Post had been arrested in a McDonald’s restaurant when they did not quickly obey a police order to leave.  St. Louis alderman Antonio French, whose blogs from the protests have been journalistic, was arrested for not leaving a protest that had been declared an illegal assembly. And police fired tear gas close to an Al Jazeera America crew setting up for a report.

PEN America released a report in October documenting 52 instances of infringement of journalists’ rights, including 21 arrests. The other instances of interference included 13 incidents of journalists threatened with guns or bodily harm, 7 who faced tear gas, rubber bullets and bean bag rounds, and 11 instances where police obstructed reporters. PEN noted freedom of expression and the press are not just rights guaranteed by the First Amendment but universal rights guaranteed by Article 19 of the International Covenant on Civil and Political Rights

The main abuses of the rights of protesters and the press were:

1)    Trying to enforce a rule that required protesters to keep moving instead of stopping to assemble – the so-called 5 second rule.   A federal court ruled that policy unconstitutional after a suit by the local ACLU.

2)    Overuse of tear gas.  A federal court ruled police did not follow strict protocols for when tear gas is appropriate, failing to give proper warnings and failing to consider whether the crowd had ways of escaping the gas.

3)    Threatening to arrest reporters and demonstrators who recorded the officers’ actions. Police don’t have the authority to make that threat.  It is uniformly improper for police to stop photography, tell journalists to turn off their cameras or try to make journalists erase photographs.  The public is entitled to see with its own eyes, through media photography, whatever is happening.

Press’ Mistakes

I’ve dwelled so far on the mistakes made by law enforcement.  But there also were mistakes by the media – both traditional and social.  Here are a few examples:

–      First example: Fox misreported Brown had broken Officer Wilson’s eye socket.

–       Second example: Ferguson was portrayed as a symbol of segregation and white flight – a ring of fire around St. Louis, the New York Times said – when Ferguson actually is one of the most residentially integrated suburbs in an otherwise residentially segregated St. Louis area.

–       Third example: The New York Times committed journalistic malpractice by reporting the name of the street where Darren Wilson had lived and then refused to admit to the ethical breach.

–       Fourth example: ProPublica published an influential data analysis concluding young African American men were 21 times more likely to be killed by police than their white counterparts in the past three years.

http://www.propublica.org/article/deadly-force-in-black-and-white

 Most of the mainstream media picked up the report as gospel.  Few paid attention to the work of Peter Moskos, a criminologist at John Jay, pointing out the disparity was so large partly because of the way ProPublica sliced the data.

Looking at the bigger, 15-year picture, Moskos found black youths were about 6 times more likely than white youths to be killed by officers – still too many but far from the 21 times.

http://www.copinthehood.com/2014/10/racial-disparity-in-police-involved.html

–       Fifth example:  When the press showed up at McCulloch’s press conference the night of the decision not to indict, reporters put on the most pitiful performance I have ever seen.  Three reporters asked the same unanswerable question – what was the vote of the grand jurors.  One reporter began his question with a polemic about the law not protecting African-Americans. Reporters were offended McCulloch blamed social media for distortions, but the DOJ report released in March proved him right.

–       Example 6:  I had a personal window into one of the press’ failures.  I reported for St. Louis Public Radio that McCulloch had changed the legal instructions to the grand jury at the last minute – making it easier to indict Wilson, not harder – MSNBC’s Lawrence O’Donnell picked up the story, distorted what had happened, injected factual inaccuracies and claimed it was a reason for a new grand jury.  O’Donnell’s distortions were picked up as gospel by a liberal echo chamber.

Hands Up, Don’t Shoot

Overall, much of the national media followed a narrative trail that prejudged Wilson as guilty based on initial, unreliable eyewitness accounts to the media.  The story of the gentle giant on his way to college who had his hands up in a don’t shoot surrender mode and who was supposedly shot in the back by police – didn’t hold up under scrutiny.

The same day the Justice Dept. issued its stinging indictment of the unconstitutional police practices in Ferguson, it issued another report effectively clearing Wilson in Brown’s death.  It turned out not one witness had heard Brown say “don’t shoot” and none of the 22 witnesses who said Brown’s hands were up when he was shot was found to be credible.  Eight admitted lying, another admitted hallucinating. Others said they just wanted to be part of something important for the neighborhood.

http://news.stlpublicradio.org/post/why-did-justice-department-conclude-hands-dont-shoot-was-myth

The DOJ report described the way in which the media contributed to the creation of this myth. The story of the Jefferson County contractors is a good illustration:

A month after Wilson killed Brown, CNN broadcast what looked like a blockbuster “exclusive.” It was a videotape of two white construction workers who said Brown had his hands up when killed.  CNN reported the video was taken in “the final moments of the shooting.” One worker even gestures with his hands up.

http://www.cnn.com/2014/09/11/us/ferguson-michael-brown-shooting-witnesses/

At MSNBC, Chris Hayes carried a long report and Lawrence O’Donnell followed up. Vox had a story as did the Washington Post. Glenn Greenwald’s The Intercept included an account of the workers in its summary of evidence against Wilson entitled, “Down Outright Murder.”

But instead of a game changer or evidence of a crime – as Jeffrey Toobin put it on CNN – the contractors turned out to be two of a score of unreliable witnesses and the clearest example of how the media helped create the “Hands Up, Don’t Shoot” myth.

The video was not taken in “the final moments of the shooting,” as CNN reported.  Nor were the accounts of the contractors credible.

The man who thrusts his hands in the air told a TV station that three officers were at the scene when only Wilson was there. That was the tipoff error that convinced the Justice Department the men hadn’t seen what they claimed.  The other tipoffs were that the men’s view of the end of the encounter was blocked by a building and no one else heard Brown say over and over, OK OK OK.

It turned out that the person who shot the video of the contractors put down the Ipad and it picked up the conversation of people talking right after the incident who claimed to have seen the shooting but said things that couldn’t have happened.

The Washington Post rated the hands up don’t shoot story as 4 Pinocchios.
http://www.washingtonpost.com/blogs/fact-checker/wp/2015/03/19/hands-up-dont-shoot-did-not-happen-in-ferguson/

St. Louis’ Arab spring

Up to this point I’ve mostly focused on the mainstream media.  But that’s misleading because of the enormous impact of the social media.

I don’t think it is a stretch to say social media – Twitter in particular – had a greater impact on the public’s view of what happened in Ferguson than did the mainstream media.

Social media had many positive and negative impacts:

On the positive side:

–       Social media provided a way protesters could get their message out and not feel they were limited to what the traditional media would report.

–       Social media enabled the protesters to attract the attention of the national and international media, making Ferguson and all of the other ensuing police shootings of black men into big stories instead of small local ones.

–       Social media became the means by which a new generation of civil rights leaders began organizing and assuming power.

On the other hand:

–       Social media and citizen journalists created a chaotic scene where police couldn’t tell who was a reporter and who was a demonstrator.

–       The sheer volume of the tweets added to the chaos. Five days after the shooting of Michael Brown. Twitter users had shared 3,648,032 and another 3.5 million on the 6th day.

–       The rumors about Hands up don’t shoot were magnified by social media.

–       Although the main impact of social media was to promote the protesters’ cause, there were also many racist posting on sites like yic yack.

 

Anonymous was one of the most poisonous of the online media – misidentifying the shooter and then claiming to name the officers in the offending department – but naming the police in Florissant, not Ferguson.

Livestreaming video became especially important, but once again could distort.  Bassem Masri was identified by the Sunday New York Times as one of the citizen journalists most prominent in recording what happened in Ferguson.

One would think livestreaming would be the most objective way of reporting on a story – live video can’t lie – right?  The problem is the Masri and other live streamers would inject their own interpretations and sometimes diatribes.

 In one of Masri’s livestreams he is recording a shoving match at the St. Louis Board of Aldermen last winter when the board considered a civilian review board.  On the video someone is shouting a stream of profane, racist invective at Jeff Roorda, a white police union official.  It turns out the invective was coming from Masri himself.  Some citizen journalist.

https://www.youtube.com/watch?t=19&v=GpgPyp7K6Ew

In Baltimore lst spring, there was a replay of the way false rumors can spread like wildfire from angry demonstrators, careless reporters and livestreamers. Mike Tobin, a Fox correspondent broadcast having seen a police officer shoot a fleeing black man in the back.  Hannah Allam, a seasoned war correspondent, also sent out misleading tweets of what she thought she saw. Then a livestreamer, recording a chaotic Baltimore street scene, began repeating over and over on Ustream.

Baltimore police shot a man in the back and they’re macing people – Tweet it out.

http://www.salon.com/2015/05/04/breaking_baltimore_police_shoot_black_protester_according_to_reports/

http://www.mediaite.com/tv/fox-news-crew-witnesses-baltimore-police-shoot-man/

Yet the police didn’t shoot anyone and the alleged victim in dire condition wasn’t shot.

De-escalation

Just because Hands Up Don’t Shoot was a myth does not mean there is no problem with police shooting unarmed blacks and Hispanics.

The killing of Michael Brown shouldn’t have happened.  Darren Wilson didn’t commit a crime, but he didn’t use the best police tactics either.  Many of the cases where black citizens are killed by white police officers are the result of officers confronting citizens over minor infractions and allowing the situation to escalate.

Wilson should have called for backup before confronting Brown, police experts say.  The Cleveland officers who killed the young man with the starter pistol drove up too aggressively and closely.  The confrontation with Eric Garner did not have to play out as it did.  The same can be said of the shooting in North Charleston, the confrontation with Sandra Bland and the Texas swimming pool confrontation.

I don’t believe I’m overstating things when I say Ferguson has helped revitalize the civil rights movement nationally, has focused new attention on the need for better training and discipline of police and has reminded the nation and the community that they haven’t come close to solving the problems of race.

–       The recommendations of the President’s Task Force on 21st Century Policing are promoting more training on community policing and de-escalation and more cameras on squad cars and officers.

–       The Justice Department’s detailed studies of the way law enforcement responded to the disturbances in Ferguson provides lessons for police – don’t use police dogs to control demonstrators, don’t use military equipment to shine laser sites on demonstrators, don’t use flashbangs, warn protesters before using tear gas and allow them a way to escape it and finally have a unified command structure.

–       The Justice Department’s review of St. Louis County policing also makes important recommendations for better training in de-escalation and community policing.

–       And the Ferguson Commission’s 100-plus recommendations provide a challenge to the St. Louis community to improve more than just policing but also housing and education.

No, we’re not in a post-racial society.  I don’t think any of us here will experience such a society.  The challenges that face us in St. Louis and as a nation are monumental.  The recommendations of the Ferguson Commission aren’t suddenly going to provide students with an equal education.  Brown v. Board outlawed separate but equal education 60 years ago, but the students in Normandy and so many other school districts are attending separate but unequal schools today.  Similarly, St. Louis remains one of the five or six most racially segregated places in the country when it comes to housing.  Remedying that is the work of decades, not years.

But there is quite a bit of evidence that one very good thing that grew out of Michael Brown’s tragic death is that St. Louis and the nation have woken up and recommitted themselves to equality and justice.

Scandals will fade but lobbying still drives the Missouri legislature

A series of sex scandals that revealed tawdry affairs among top officials in Missouri’s state capital made for titillating reading this summer and stirred up a controversy about journalistic ethics.

Sex scandals in Jefferson City are nothing new, say veteran statehouse reporters. Bad behavior by lawmakers and lobbyists has plagued the legislature for a century.

What is new is the social media technology that ensnares straying legislators and the willingness of the press to name names. The decision by the Post-Dispatch’s veteran and highly regarded statehouse reporter, Virginia Young, to name a female former aide of the governor’s who was involved in a night of hard drinking, attracted national comment and criticism.

The business of lawmaking – and it often is controlled by business – has always involved politics and money – gifts by lobbyists, and campaign contributions. Many lawmakers, cajoled by the lobbyists into thinking they are hot stuff, take all the freebies they can – tickets to sporting and cultural events, free meals, liquor, travel, you name it. All they have to do is vote the way they’re told.

Add to that the sexual affairs some lawmakers think they are entitled to when they are away from home four days a week when the legislature is in session. They figure they’ll behave again when they return home.

Two legislators who resigned this summer were attracted to legislative interns – college girls — in their offices. Both were middle-aged and married family men.

The first, who resigned in July, was Speaker of the House John Diehl, a Republican from St. Louis County. An intern saved text messages from him and said he had propositioned her. The messages made for juicy reading in the Kansas City Star and then in the St. Louis Post-Dispatch.

The next to resign, a few weeks later, was state Sen. Paul LeVota, a Democrat from Independence. An intern accused him of sexual harassment by propositioning her. Another intern made similar accusations during the time she worked in LeVota’s office five years earlier.

In between these scandals, the Post-Dispatch reported on a possible rape case in Jefferson City involving a former aide to Gov. Jay Nixon. She said she had an affair with Diehl, though it had ended. She is a 31-year-old lobbyist who contacted police after a night of drinking and partying. She said she had a blackout and thought she had been raped, but wasn’t sure. Neither were police, who interviewed a number of people, including Diehl. Police ended the investigation due to “lack of victim cooperation.” Her lawyer later said she did cooperate with police.

The Post-Dispatch story about the alleged rape named the woman, based on the police report. The paper was criticized for naming a possible rape victim.

The Riverfront Times, an alternative weekly in St. Louis said the Post was wrong and had “shamed” the woman. The Poynter Institute ran a story saying that naming the woman made it appear she was not raped. It added: “It’s not the job of the media to judge whether someone was or wasn’t sexually assaulted.” The Columbia Journalism Review said Young should have conducted an off-the-record interview with the woman, which Young had declined to do.

A Post political editor, Christopher Ave, defended the story saying it had “political significance.” He said the Post relied on the police report which showed “no evidence of a crime.”

Young had omitted parts of the police report unfavorable to the behavior of the woman. Young declined to comment on the story except to say she did not regret writing it. Young has been a top reporter at the Post-Dispatch for decades. She recently announced her retirement.

Regardless of who is right, Young’s reporting was notable for exposing shenanigans in the legislative culture, something the media has largely ignored over the years. Many veteran reporters can recall “sexcapades,” drunkenness and other misdeeds of legislators that never got reported. Fred Lindecke, a longtime legislative reporter for the Post, put it this way: “The code was that we didn’t use it” if it didn’t affect the person’s official duties.

***

The full article will be included in the forthcoming print issue of GJR.

One year later: Media ignore their Ferguson failures

Editor’s Note: This is the publisher’s column from the current print edition of GJR.

 

The Justice Department’s twin reports on Ferguson this March raised two disturbing questions about the media:

• How did so many news organizations fail for so long to realize that “Hands Up, Don’t Shoot” was a myth?

• How did so many news organizations fail for so many years to uncover deeply unconstitutional police and court practices?

One would hope those questions would prompt soul-searching. For the most part, they haven’t. The national media are on to the next police shooting with no sign of introspection. False or misleading stories from last summer remain online uncorrected. Social media also barrel ahead, clinging to preconceived ideologies in a cyber-world that is often fact free.

Here are egregious media failures:

• National and local media fell for “eyewitnesses” who claimed to have seen Officer Darren Wilson shoot a surrendering Michael Brown. Many “witnesses” lied or fabricated stories.

• CNN irresponsibly broadcast “exclusive” video taken during “the final moments of the shooting” showing two white construction workers, one gesturing how Brown had his hands up. Legal analyst Jeffrey Toobin called it evidence of a “a cold-blooded murder.” But the video wasn’t from the time of the shooting and the construction workers’ stories were full of holes.

• Local media – KTVI and the Post-Dispatch – gave the construction workers story big play. But they didn’t make clear that one of the workers incorrectly claimed three officers were at the scene. Both workers later admitted they had not actually seen Brown fall because the corner of a building obstructed their view. Nor did any other witness confirm the workers’ claims that Brown repeatedly screamed, “OK. OK. OK.”  Those are the reasons the FBI discounted their statements.

• MSNBC’s Chris Hayes and Lawrence O’Donnell threw fuel on the fire day after day with biased reporting. O’Donnell ranted about St. Louis County Prosecuting Attorney Robert McCulloch changing the legal instructions during the grand jury, but his reports were full of errors.

• The New York Times committed journalistic malpractice by naming the street that Wilson lived on and then refusing to admit its mistake. KSDK did it too but apologized.

• Fox misreported that Brown had broken Wilson’s eye socket.

• Anonymous, the scary and inept anarchists, misidentified the police shooter and the shooter’s police department.

• The New York Times portrayed Ferguson as part of a segregated “Circle of Rage” around St. Louis, when Ferguson is actually one of the most residentially integrated places in St. Louis.

• ProPublica sliced and diced statistics in a misleading way that exaggerated how much more likely it was for a young African-American to be killed by police.

*****

Ferguson was America’s Arab Spring for social media. For that reason, their failures are as important as the mainstream media’s.

A story in the May 10 New York Times magazine uncritically romanticized the tweeters and live-streamers who made a name for themselves. It called Bassem Masri, “perhaps Ferguson’s most famous live-streamer.” Masri is the person whose live-streaming videos include loud streams of invective and hate directed at police. Masri isn’t a citizen journalist but a polemicist linking Ferguson and anti-Israeli protesters.

The Times’ piece also told how DeRay Mckesson and Johnetta Elzie, two active bloggers, joined forces with Justin Hansford, a law professor at Saint Louis University, to critique the mainstream press in its “This Is the Movement” newsletter.

But the newsletter isn’t really media criticism. It’s a movement newsletter with headlines like: “This Is NOT St. Louis County, Missouri Prosecutor Robert McCulloch First ‘Racist Rodeo.’”

Not only have the media failed to critique themselves, they have gone right ahead making the same mistakes.

During the police unrest in Baltimore May 4, Fox’s Mike Tobin reported seeing an officer shoot a black man in the back. McClatchy war correspondent Hannah Allam tweeted, ‘We’ll be back under martial law tonight!’ EMTs take body away on stretcher.” Livestream’s “citizen journalist” barked out a tweet on the shooting. The reports were false.

****

Why did the press miss deeper stories of unconstitutional police and court practices? Sometimes the biggest stories are right in front of a reporter’s face but involve conditions that are taken for granted. That’s the case with the municipal court system in North St. Louis County. It took the ArchCity Defenders and allied law professors to show that procedures fair in form devastated the lives of poor, blacks who ended up in modern debtors’ prison.

The media did a good job of publicizing municipal court abuses. The one “Ferguson” reform emerging from the Missouri legislature limits how much traffic money each town can collect. But the press often forces reforms into a right-or-wrong framework, and it did with this story.

The new caps on municipal revenue hit the small predominantly black communities the hardest, with little impact in Ferguson. This take did not fit conveniently into the established media narrative and was mostly ignored in stories trumpeting the legislation as a “Ferguson reform.”

***

A personal note on former colleagues: The Post-Dispatch photo staff richly deserved the Pulitzer Prize it won for its brave, insightful, moving Ferguson photography. Tony Messenger and Kevin Horrigan, the P-D’s editorial editor and deputy, also deserved to be finalists for editorials that “brought insight and context to the national tragedy of Ferguson, MO, without losing sight of the community’s needs.”

St. Louisans sometimes don’t appreciate what a treasure they have had in the P-D editorial page as its Pulitzer commended work warned over the decades of Hitler, Vietnam, concealed weapons, civil liberties abuses and Missouri’s war on the Medicaid poor. It’s an editorial record with few peers.

Correction: An earlier version of this story stated that both construction workers claimed there were three officers at the scene. That claim was made by the worker interviewed by KTVI; the person interviewed by the Post-Dispatch did not mention multiple officers. Jeremy Kohler, the Post-Dispatch reporter, wrote in an email that he considered the worker he interviewed “credible at the time and I still do.”

Should this photo be published?

How should the media portray violent acts?

When South Africa’s largest Sunday paper, the Sunday Times, on its April 19 front page published a photograph of a man in the act of being stabbed and killed, readers took to the social media and aired their views.

Some commentators supported the move; others furiously condemned the decision claiming that the paper was only interested in sales.

It is common for photojournalists to be condemned for the job they do. Some in the industry are accused of taking photographs and walking away with Pulitzer prizes unconcerned about what became of the people in the images that earned them recognition. But that’s not the case in this instance.

Although the reporter and the photographer followed Emmanuel Sithole, the man under attack taking one bloody picture after another, they also rushed him to hospital where he later died from his wounds. Also, the newspaper established a fund to help Sithole’s family with funeral arrangements in Mozambique, the victim’s home country.

The front-page photograph helped police to identify and to capture the killers. It also humanized the horror of xenophobia. Sithole had been killed in a series of violent acts instigated against a non-South African. Also, the image, together with the story’s headline, “Kill thy Neighbor: Alex attack brings home SAs shame,” placed a mirror in the faces of South Africans to examine themselves and to recognize the brute force of their hatred for African nationals.

(The online version of the story together with the images can be found at http://www.timeslive.co.za/local/2015/04/19/kill-thy-neighbour-alex-attack-brings-home-sa-s-shame1. Readers can click on the main photograph below the headline to see all the other images. Alex, where the stabbing occurred, is a poor residential area on the north side of Johannesburg.)

For most of this century, xenophobia has been a common feature dotting the South African landscape, with regular incidents of viscous violence. For instance, in 2008, a man, also from Mozambique, was burned alive at an informal settlement on the east side of Johannesburg. The graphic photographs as the members of the South Africa police force struggled to extinguish the flames can be found at http://www.timeslive.co.za/local/2015/02/19/sa-s-xenophobia-shame-burning-man-case-shut

The hatred of Africans by South Africans has continued, in part because of a lack of strong leadership by the government. The government and other leaders in society have sent mixed messages about xenophobia and the accompanying violent attacks.

In a recorded interview with the South African Broadcasting Corporation in February following a spate of xenophobic attacks, President Jacob Zuma defended South Africans. He said, “South Africans are not as xenophobic as people say. It’s an exaggeration…it’s not xenophobia.”

Also, in March, during a public address, King Goodwill Zwelithini, the leader of the Zulu’s a South African ethnic group, also said “We ask foreign nationals to pack their belongings and go back to their countries.” On social media platforms such as Twitter and Facebook, the King’s words were greeted with a mixture of excitement and shame.

Consistent with general anti-immigration sentiment and views, some South Africans think African nationals steal jobs and are a burden on the country. Also, African nationals are stereotyped in the media as dirty and as criminals who over populate residential homes.

But, when the media cover violence by publishing a foreign national in the act of being killed, people can reflect on their ideologies, help the police with arrests and organize for social change.

St. Louis’ forgotten espionage case

Suppose you are an investigative journalist and you have a confidential source who divulges state secrets that you print. The government hunts down the leaker, arrests this person and charges him with a crime. You, the journalist, are the only person who can verify if the leak was actually this person or not. You are subpoenaed, but you won’t give up the name of your confidential source.

Eventually, the government gives up trying to make you speak and tries the leaker without your testimony. The government convicts the person on circumstantial evidence. Prosecutors claim this a victory for the government. Since you never surrendered your source, journalists claim it as a victory as well.

Except for one thing: The person convicted wasn’t your source.

As a journalist, do you have a responsibility to exonerate an innocent man, even if by doing so you expose the true source you are protecting? Or do you remain silent, knowing that you did your job.

Now consider this: The hypothetical may be true.

Former CIA agent Jeffrey Sterling, a Missourian who graduated from Millikin University and Washington University Law School,  recently was sentenced to 42 months for violating multiple counts of the Espionage Act (story).

The conviction was obtained without the testimony of James Risen, a New York Times reporter. Sterling was convicted as Risen’s source in a chapter of the book State Of War, which described a botched CIA attempt to hinder Iran’s nuclear program.  The plot involved a Russian scientist, code named Merlin, giving fake nuclear plans to the Iranians.

The government pinned its investigation on Sterling, who had previously brought a race discrimination claim against the CIA.   Sterling is black and the CIA overwhelmingly white. Sterling also talked to a Senate intelligence hearing about his concerns about the Iranian project.

Sterling fits a mold – disgruntled employee out to get revenge on the organization he thinks mistreated him. One of his lawyers even suggested he’d go public with his concerns. And Sterling had multiple opportunities to talk with Risen. Risen wrote a story about Sterling’s EEOC case in the New York Times.

Sterling has steadfastly denied he was the source for Risen’s chapter. He did not take the stand to defend himself in the trial because his lawyer thought the government had not made its case. But Sterling’s case was tried in Alexandria, Virginia, where many of the people have connections to government or government contracts.

Also, on a case that started as a racial discrimination case, no African Americans served on the jury. In fact, throughout the trial, the only blacks in the courtroom were Sterling and two employees.  The venue was perfect for the government, which secured a sentence of guilty on circumstantial evidence.

Sterling has always denied being the source. In 2012 he went on record speaking to students at Millikin University.  He said he was not a fan of Risen’s silence – even though that silence was viewed in most of the media as intended to protect Sterling.

“I am innocent,” he said. Not only that, but Sterling was quick to point out that his wife was not a fan of Risen’s either.

“I wouldn’t want to put those two in a room together,” Sterling said. “She’s not happy with him.”

Sterling didn’t realize how desperately the CIA would pursue this case and how much the deck would be stacked against him. And the only person who could clear him – Risen – couldn’t.

“One thing that the trial showed me that I really didn’t realize, was that the moment I started complaining about discrimination, a sort of machine came together at the CIA and kept me in its sights from beginning to end,” Sterling wrote after the trial. “Funny how only through the trial I learned that every step of the way I took to legally stand up for myself, there was an Agency person there (the House Committee, the Senate Committee, etc.). “I could go on, but I shouldn’t…just makes my frustration grow. Particularly with regard to a certain gentleman (Risen) who I assume either is mutedly troubled or doesn’t give a damn.”

Sterling was convicted on metadata. There was no hard evidence that convicted him, only circumstantial evidence, made stronger by the theatrics of CIA officials testifying behind screens and an appearance by Condoleeza Rice. Many doubted the government’s ability to prosecute Sterling without Risen. Not only did the government manage to prosecute the case, it got a guilty verdict without Risen.

Sterling was sentenced to Federal prison, claiming to be an innocent man. He felt persecuted by the CIA and abandoned by those who could help but didn’t, especially many in the black community who failed to step up and help in the early days of the case.

“I talked with a lot of people,” he said in 2014. “I talked to the NAACP, the Rainbow Push Coalition, congressmen, senators, you name it. No one wanted to get involved in this.”

In fact, one person, with considerable political influence, a staffer for Missouri’s Lacy Clay actually advised Sterling to move to Canada. Sterling refused.

“I couldn’t do that,” Sterling said. “I couldn’t run.”

Sterling is justifiably angry with is the press, especially mainstream Washington press. For the press, the story was strictly about Risen’s battle with the government and First Amendment issues. The media never questioned Sterling’s guilt or innocence.

“At the trial, you could count the number of media outlets there on two hands and have fingers left over,” said Norman Solomon, executive director of the Institute of Public Accuracy. “Once the Risen case was over, the media lost interest.”

Press members assumed Sterling was Risen’s source. They didn’t look at staff members of the Senate Intelligence committee (where the FBI was looking until the CIA changed its focus to Sterling) to see what they had to say. They didn’t follow up on Risen’s original story about Operation Merlin. And even though Risen said multiple times on the record that he had multiple sources for the story, some of whom couldn’t have been Sterling, the press never followed these leads. Rather, their actions were more in line with Randal Eliason, a Washington, D.C., lawyer and an American University faculty member.

I have no idea where the truth lies concerning Operation Merlin and Im certainly no apologist for the excesses of the CIA during the war on terror. But given the choice between believing Sterlings account (as reflected in Risens book) and that of the career CIA people who testified at his trial, I see no particular reason to believe Sterling. (Eliason story)

Eliason is an attorney who could easily think a reporter such as Risen would rely on one source for a story as big as Operation Merlin. The press should know that Risen wouldn’t take a story like that to press without multiple sources. The press should not have assumed Sterling was Risen’s main source for the story.

Instead, the press concentrated on Risen’s struggle against the government and his First Amendment stand. The press turned Risen into a hero. The press concentrated on the so called war between Obama and Whistleblowers (without paying any attention to the whistleblower in Sterling’s case) and the press concentrated on David Petraeus’s sentence compared to those of other leakers, including Sterling. But the press never did its job.

“Sterling could be innocent,” said Marcy Wheeler, who blogs at emptywheel.net, had a seminal story about Sterling in the Nation before the trial (story here) and was present through most of the trial. “He could very easily have steered clear of any confidential sources and pointed Risen in the direction of the story without giving away any details at all.”

During its closing arguments, the defense made just that claim, pointing the finger at defense intelligence staffers Vicki Divoll and Bill Duhnke. Divoll was used by Risen in another chapter of Risen’s book but testified she wasn’t the source. Duhnke never testified.

The defense painted a picture of a journalist doing his job, getting a piece of information and using multiple sources to nail down the (story). It makes more sense than Jeffrey Sterling as the sole source of Risen’s chapter. But the national press never picked up on this story. As a group, the press stayed on the Risen as hero narrative, leaving Sterling alone.

“I’m just a pawn,” Sterling said multiple times. “To the press, I’m nothing. This is all about James Risen to them.

“I’m still in shock that I may go to prison for something that I didn’t do.”

Sterling goes to jail and looks to Risen for the words that would at least make him feel better. Risen is hailed as a First Amendment hero, standing up for reporter’s privilege.  Ethically, Risen can’t say anything about Sterling without jeopardizing his true source, if it isn’t Sterling. But the press, the people who could have truly covered the Sterling case, avoided it. They took the easy way out while lauding a reporter who told an important story and made a stand against the government.  Sterling, who actually did the right things as a government employee by going through proper channels to tell of a mistake, heads to prison.

Risen didn’t fail Sterling – the rest of the press did.

Sterling goes to prison for 42 months, the longest term of any person charged under the Espionage Act during Barack Obama’s presidency. If he was guilty, it’s a fair term. If he was innocent…

Scott Lambert is a journalism/English professor at Millikin University.