A Code For Journalists

THE OPEN MIND
Host: Richard D. Heffner
Guest: Steven Brill
Title: A Code for Journalists?
VTR: 1/13/95

I’m Richard Heffner, your host on The Open Mind. And for some time now I’ve been pondering the wonderfully snide comment that one just about sums up or exhausts American journalists’ code of professional responsibility simply by parodying the First Amendment’s injunction, “Congress shall make no law abridging the freedom of speech or of the press.” Nothing more. Or the new lawyer joke: Question: Why should lawyers love the press? Answer: Because journalism is the only profession that makes lawyers look good. Or the conclusion that, quote, “Lawyers don’t come close to the press when it comes to unaccountability or self-righteousness in pursuit of self-interest and money,” end quote. All of these eminently ponderable quotes from my lawyer/print journalist guest today, Steven Brill, the redoubtable chief honcho of Court TV and of The American Lawyer, right up front, in a recent issue of his iconoclastic journal, which now seems to be giving equal skewering time to journalists and lawyers.

Well, Mr. Brill and I usually argue here on The Open Mind about cameras in the courts. He is unquestionably their most brilliant and their most successful advocate. I, on the other hand, deplore cameras in our courts, as generally, though not always, not on his channel, making of our legal system still another American entertainment. Court TV, just like MTV.

But that isn’t our subject today. What is, is Mr. Brill’s quite extraordinary proposal of what he calls a new code for journalists. Now, years ago on this program I asked Steve Brill whether he wasn’t absolutely determined to be considered Peck’s bad boy. He smiled. And I wonder if this proposal of his is simply more of the same. Are you really serious about this?

BRILL: Oh, I am. First, I should say I’m glad that you finally decided to throw in the towel on the cameras in the courts question, and give in to…

HEFFNER: Where is the towel? Have you seen it anywhere around?

BRILL: Well, you don’t want to talk about it on your own show, so you’ve obviously given up on trying to persuade me or anybody else, and I think that’s a very good decision you’ve made.

HEFFNER: Nolo contendo.

BRILL: To come back to your question, I’m real serious about this. I guess I’ve been frustrated, and I have sort of a special claim on that frustration, as someone who graduated from law school and decided to become a journalist instead of a lawyer. Initially, I would go and talk to lawyers as a reporter, and they would really look down their nose at me because I wasn’t one of them, until I let drop that I’d gone to Yale Law School, and then they realized I kind of was one of them. But there was an incredible snobbery among lawyers that someone who called himself a journalist could think he was in a profession. And I actually think I am in a profession that has standards…

HEFFNER: As a journalist you are.

BRILL: As a journalist. It has standards. And I guess I define a profession as any calling where you try to do something more than, in addition to, just making money. Now, that means that a carpenter can be a professional, because he or she may care about his work. It means a lawyer can be a professional because they care about values other than simply making a buck. And I hope it means that reporters can be professionals because they care about getting it right and they care about doing important stories. They care about enlightening people rather than simply entertaining them, which again is where you go wrong when you talk about cameras in the courts. But, I have to tell you that I think I increasingly understand why lawyers and everybody else do look down their nose at reporters, because they think it’s kind of laughable that reporters are in a profession, or think that they’re in a profession, because everywhere you look, reporters are going for the cheap shot and doing all kinds of sleazy things, and when challenged on it, they just hold up the First Amendment. And I think one of the most important things we can teach our kids and teach anybody is that the definition of what is legal is not always, and not even often, the definition of what is right and what someone should do. There are lots of things that, I think, that people shouldn’t be punished for by the government that they shouldn’t do. I don’t think Connie Chung should be put in jail for lying to Newt Gingrich’s mother; but I sure think she shouldn’t have done it. I don’t think she should be put in jail for airing that sleazy interview with Faye Reznick and just, you know, putting someone on television without doing even the slightest scintilla of checking her story. I don’t think she should be punished for that; but she should be punished in the court of public opinion, and she should be punished, as it were, by her colleagues in the profession who should really drum her out of the profession, not take away her license, but render her a much less credible person and someone who can’t, you know, get invited to the same dinner parties anymore because she’s done something that’s disreputable in the profession. But that really doesn’t happen.

HEFFNER: You know, I’m not going to argue the question of Connie Chung and Mrs. Gingrich with you. You and I both know that those who decided to put that on the air and those who decided to promote it were the ones who were most responsible.

BRILL: I don’t agree. I think people ought to be personally responsible for what they do. Connie Chung is responsible for that, and Larry Tisch is responsible for that. Larry Tisch runs CBS; Connie Chung did the interview. Either one of them could have stopped it. They’re both responsible.

HEFFNER: Well, look, you and I know that probably if we went back over the transcripts of programs that we have done together over the years, there have been times when I’ve said, I’ve asked you a question, then said, “Steve, tell me, what’s the answer, just between us?” Joking about the fact that there are so few people who watch it.

BRILL: Well, that may be true. But…

HEFFNER: There, there was someone watching.

BRILL: …if I know it’s a joke and it’s a figure of speech, that’s very different. I mean, we shouldn’t get bogged down in a debate, but it is just crystal clear that she couldn’t have expected that this woman knew that that was a figure of speech. And if its even close, you don’t do it.

HEFFNER: But that, of course…

BRILL: The definition of ethics is that if you think it’s close, you don’t do it.

HEFFNER: Now, do you do things as a journalist that are close?

BRILL: I try not to. If I get to a point where I’m defining something as “close,’ I don’t do it. But then you could say, “Well, how do I get to the point where I’m defining it as ‘close’?” But I try not to. More importantly, or as importantly, if in retrospect I think I made a mistake, I say I made a mistake. I don’t give some mealy-mouthed clarification of it and some, you know, justification that makes you look dumber than you looked making the mistake in the first place.

HEFFNER: I don’t ask that question to put you on a spot. I asked the question because I assume that you, as I and everyone else, have been, at points in your life in which you’ve been on that borderline.

BRILL: Oh, sure. And it’s all a matter of opinion. I mean, you used to be in a business where you had to render, by a lot of accounts, the most, you know, subjective kinds of opinions in the world. And they were always challenged. And maybe if you looked back, you know, a year or two later, you might say, “Gee, you know, that was right. You know, I shouldn’t have given that an R rating. I should have done a PG or something like that.” But that’s not the question. The question is whether you go through a thought process where you’re really worrying about the ethics of what you’re doing or whether you don’t go through that process at all except after the fact to, you know, to justify what it is that you’ve done based on trying to get high ratings, in this case.

HEFFNER: But you see, what I’m aiming at is asking the question as to what would lead you, what in this code of press responsibility that you’re urging — and it’s extraordinary that you should do that, extraordinary smart of you and extraordinary brave, Is that the word? Whatever — what do you think would lead you to think, three times rather than twice, in a code of responsibility, of press responsibility, what do you want to see this code do, how should it be formulated?

BRILL: Well, it starts out, the premise of it goes back to my definition of a profession. Which is that your obligation is to worry about higher values than simply making money. That doesn’t mean you run a non-profit organization. That doesn’t mean that you don’t care about the business viability of what you’re doing. It means that the way you think about what you’re doing is, you say, “These are the things, this is the kind of story I want to write, or these are the kinds of things I want to deal with. Now, how can I make that a viable business decision?” Not the reverse, which is, “My goal in life is to, you know, maximize profits being a reporter. What are the ways I can do that?’ I mean, you know, I don’t want to sound like a martyr, but the fact is that if Court TV thought that way, we could do a, you know, a mutilation trial every day, or a rape trial every day. And, sad to say that we might get a larger audience doing that. I don’t know, but I have no intention of finding out. It’s a mindset. And what bothers me is that journalism has become A) so unaccountable, and it shouldn’t be to the government, shouldn’t be accountable in the legal process; it should be accountable internally and in the world of public opinion. But it’s so unaccountable, so arrogant. And B) so concerned with profit maximization. And when you put those two things together you get the kinds of decisions that we’re talking about. You get decisions… I mean, there’s, the best place to see this at work is in how journalism promotes itself. The kinds of press releases that people put out when they’ve done stories, or the promos on television. For example, NBC has been running a promotion about its coverage of the Simpson trial that is the sleaziest, most disgusting thing in the world. Jack Welch ought to be ashamed of that. And I say Jack Welch because he’s the CEO of General Electric; he’s responsible for that. He should be responsible for that.

HEFFNER: And do you think that in this day, in our time, there’s very much of a possibility that one could put what should be done, what’s right, above what is more profitable? As you say…

BRILL: Yeah, because I actually think there’s sort of a back-door way to make it better business to do it.

HEFFNER: What do you mean by that?

BRILL: And what I mean by that… There’s sort of an indirect way to get at what I’m talking about that actually is a belier way to run a business. What I mean by that is, as I say in that article, if journalists belong to a professional organization and were certified by this organization, not by the government, but by this organization, as members in good standing, and then if you lost that certification because you didn’t adhere to the various rules of the organization, the ethical rules, the fact is, especially in television, it’s very important for the advertising community to look at you as a higher-level type of program than, let’s say, the tabloid TV shows. So that if you actually had a kind of a quasi-official distinction that you’re this kind of programming and the other stuff is this kind, you’d do better selling advertising, and you’d probably attract more viewers who want to know that they’re watching something that is more likely to be reliable because the people involved are members in good standing of a group of professionals called journalists, they’re not just people, you know, who showed up with a camera one day. So I think that, in our case, I mean, you said something before about whether my writing this was brave. And the closest I’ll come to saying it was brave is that retroactively it might look brave because it’s so unpopular in the rest of the press to be talking about this stuff. But I don’t think it was brave at all. I don’t even think it… I think it’s very good business for us to conduct our publications and Court TV according to these standards. I think it is terrific business for us to do it. I think it makes a lot of business sense to do it. If it didn’t make business sense to do it, I would do it anyway. But I think I have figured out a way that it makes business sense for us to do it too.

HEFFNER: Interesting that you say if it didn’t make business sense you would do it anyway. Do you think there is a chance in Hell that, when you say about this code of press responsibility, it will help you make more money, but even if it didn’t…

BRILL: Yeah, it might. Sure. And I think that’s a good thing. I don’t believe in non-profit news organizations. I, frankly, don’t believe in public broadcasting. I think it’s kind of dangerous, because the government is even indirectly in control of information that people are getting. And I don’t think there’s a need for it anymore.

HEFFNER; And you don’t think that it is the profit motive that has made for the kind of sleazy journalism that you deplore?

BRILL: Oh, it is. Exactly. It very much is. But I think the profit motive can take us out of it too. Let me give you another example. All the news organizations, the broadcast news organizations, CBS, NBC, and ABC, spend God knows how much money on advertising and promotion trying to convince people that they are the best and they are the most reliable. Now, how do they do that? They put up big billboards of Dan Rather or, God forbid, Connie Chung, or they, you know, they put up a, you know, another billboard of Peter Jennings, and they have some catchy phrase, you know, ‘News you can trust,” or “Reliable,” or something like that, If they actually set out to distinguish themselves by having a special, separately articulated, clearly articulated code of professional responsibility: “These are our standards. These are special standards. These are the things we do, and the others don’t do it,” I think that would be very good business. I think they would be establishing a brand name at a time when there are hundreds, now, of television channels, and they’re all kind of fungible. They’d be doing something different.

HEFFNER: Consider this for a moment, Steve. When I got into broadcasting – because I’m so much older than you are –

BRILL: Yeah, I know.

HEFFNER: And it’s true. I know you know, and I know you’re ready to say that you know. (Laughter)

BRILL: (Laughter)

HEFFNER: Back in the Fifties, it was clear then that, want to call it image, you want to call it reputation, those things were deemed to be important in terms of dollars and cents. I must say now, 40 years later, I don’t think we see as many signs of that kind of or those kind of cudos being valued in quite the same way.

BRILL: Well, I have perhaps a naive view about that. It might actually be a smart view. And that is that we’re facing – you know, it’s a cliche – we’re facing an information explosion in the world. Now, everybody talks about that as being completely liberating. That, you know, you can watch Congress, you can watch a congressional hearing, you can watch a Department of Agriculture press conference, you can go on the Internet and get a book out of a library in France…

HEFFNER: Don’t forget trials.

BRILL: …and you can watch trials. And all this stuff is available to you directly, therefore you don’t need these intermediaries, you know, these journalists that package it for you and tell you what it’s all about. I don’t think that’s true at all. I think because there’s so much information available, and because the world is so complicated, and the world is now… You have to worry about stuff going on in Europe and Africa, and not just what’s going on in your community. Because there’s this explosion of information, it’s so complicated, and it’s difficult to understand, I think that plain, regular people are looking for, more than ever, people and institutions they can trust to help them understand all that. So I think that a news organization, be it a local newspaper or CNN, has a strong interest in becoming a brand name that people trust. Stronger today than ever, ever before.

HEFFNER: Steve, that’s a theory.

BRILL: It’s total theory.

HEFFNER: Okay.

BRILL: But, actually, it seems to be working with CNN.

HEFFNER: You seem to have said before, though, that if Court TV – and forgive me for mentioning Court TV – but if Court TV were to take the sleazy way out, if you were to put on the air constantly the rape cases that you could find – I don’t know the exact words you use — but that unfortunately you think you…

BRILL: I didn’t complete the paragraph.

HEFFNER: Go ahead.

BRILL: I think, in the short term, we would. I think, in the long term, it would be a disaster for us as a business for a lot of reasons. The first is that that is easily, it’s easy to copy that. There could be six copycat networks like Court TV overnight to do that if we did that. Second, that doesn’t have nearly the appeal to advertisers that the kind of programming that we do does. Third, ultimately, I think people really would get tired of seeing just that kind of gore and sleaze every day. We are much better off as a business having part of our brand name and part of our reputation be that we pick different kinds of trials all the time and we look for trials that have something special to them, that have some special meaning, that if we do, you know, that we do medical malpractice cases so that you can see the, you know, the intern system at New York Hospital on trial, as you can this week in a medical malpractice case we’re doing. I think that that is much better business for us in the long run. It also happens that I wouldn’t want to get up in the morning and run that channel. So that’s what I mean by I wouldn’t do it anyway. But I’ve always seen my challenge as to figure out the stuff I want to do journalistically, and then figure out a way to package it and articulate it and organize it and budget it so that it makes money; not the opposite. I went to a, when we were first starting Court TV I went to some cable convention. And there was a seminar there. And some guys who were starting something called The Science Fiction Channel. They were investment bankers who decided to become entrepreneurs. And they were on the panel explaining why they started The Science Fiction Channel. I swear to God these guys said that they had done a focus group and then another focus group and this research, and they figured out that that is the channel that would make them the most money, that science fiction was the subject of the channel that would make them the most money, and that’s why they did it. And that’s, in addition to being utterly cynical and just not a way I like to live my life, it’s also a way to just, it’s a formula for business disaster. You don’t get ideas from the gut by doing that open-ended research and asking people, you know, “What do you want?” Part of communication, part of media, certainly part of journalism, a big part, is leading; not simply following.

HEFFNER: But, Steve, some years back, the National News Council attempted to lead, not in as bold a way as you’ve suggested…

BRILL: But that’s, but that’s…

HEFFNER: …but in its modest way, it failed.

BRILL: Well, that’s because one of your funders, The New York Times, just sandbagged the whole thing.

HEFFNER: Okay. Why wouldn’t one of my funders, The New York Times, sandbag…

BRILL: Well, they might. But they, and actually they had a very good reason, as I recall. There was a feeling that, by… They were afraid, I think legitimately at the time, that the kinds of stories that they were doing and the Washington Post were doing, the kinds of Watergate stories, would be shot down, maybe out of jealousy, maybe out of squeamishness, by this kind of news council. That that was the kind of, quote, “ethics” that would be focused on.

HEFFNER: So there’ll be other fears. There’ll be other fears that will lead other major players in the press?

BRILL: That could be. No, that could be. But I’m, you know, I’m, it is entirely possibly, arguably entirely probable, that this’ll be like a lot of ideas that have to do with the press. That it’ll, you know, it’ll be the subject of endless discussions, a lot of hand-wringing, a lot of people, you know, sort of patting you on the head and saying, “That’s a really good idea,” and nothing will happen.

HEFFNER: That’s why I raise the question as to whether BrilI is being Peck’s bad boy again. You didn’t smile this time. (Laughter)

DRILL: (Laughter)

HEFFNER: Years ago when I said that you did.

BRILL: I really believe in this stuff. And I think that it doesn’t have to happen, to be successful it doesn’t have to happen in a macro way. For example, our organization does every single thing that is suggested in there. Indeed, I would have been the ultimate hypocrite to have written this if we weren’t doing everything that is outlined in there.

HEFFNER: Well, in the history of mankind, people have been that hypocritical. You’ll grant that.

BRILL: Well, I don’t think it would have gotten past my own editors at the magazine if I had tried to do that. At least I hope it wouldn’t. And I think that some people who run news organizations will read that and say, “That’s a good idea,” or that half of it’s a good idea, or that some of it’s a good idea. Certainly the, you know, the simplest of the commandments is that it’s quintessentially logical that sooner or later everybody is going to adopt it, if for no other reason just out of embarrassment. Newspapers and broadcasters ought to correct mistakes candidly, clearly, and as prominently as they make a mistake. If you make a mistake on page one of The New York Times, you ought to correct it on page one of The New York Times. And The New York Times has actually started to do that in the last year or two. But what stuns me is that the television news organizations have apparently never made any mistakes, unless they get the threat of a lawsuit, then they admit they made a mistake. A while back I checked and asked the news organizations, ‘DO you correct mistakes on-air?” And they all said, “Well, yes, we do.’ “How many corrections did you make last year?” I think CNN said they’d make two corrections, and NBC said none, and ABC said none, which means they didn’t make any mistakes. Now, that’s impossible. I mean, Court TV makes mistakes all the time, and we just have a camera in the courtroom, and we still screw things up. But we talk about it, and we explain it. And if you make a mistake in the seven o’clock news, you should correct it in the seven o’clock news.

HEFFNER: Steve, I’m very much interested in the question of self-regulation. I think it’s our only chance to avoid censorship. I don’t get terribly much good feedback when I talk about self-regulation, whether it was in the movies in which I was, field in which I was once involved, or anything…

BRILL: But it actually worked. It actually worked.

HEFFNER: Because it was a…

BRILL: You know, the movie thing really worked.

HEFFNER: Because it was a kind of unique situation with exhibition and production and distribution set up beautifully for it. But, I’m not…

BRILL: But I can make the analogy though, that…

HEFFNER: With Print? And…

BRILL: That journalism, that there are a lot of those kinds of dynamics working there, and also it worked ultimately in the movie industry — I mean, you know this. I don’t know why I’m explaining this to you – but it really worked because it made business sense for the industry to do it. That’s why it happened, and that’s why it worked. I would argue that, if the people in journalism, in the organizations in journalism that really care about journalism want to sustain themselves as a business, and want to sustain themselves as a business not by chasing after the sleaze balls, but by doing what they really want to do, it would make sense for them to do this.

HEFFNER: Well, that’s the only trouble. I see we’ve got 30 seconds to go. The trouble I find with it is that if it doesn’t make money, if it doesn’t pay off, you don’t have anything there. Right? So it’s an act of faith on your part.

BRILL: No. The other part of the marketplace, just very quickly, is the dynamic of libel suits, which arguably do work to chill the wrong kind of speech as well as, unfortunately, chill sometimes the right kind of speech.

HEFFNER: Steve, I’m getting a signal now that we have no seconds.

Thanks for joining me today, Steve Brill.

BRILL: You’re welcome.

HEFFNER: And thanks too, to you in the audience. I hope you join us again next Time. And if you’d like to share your thoughts about our program today, about what Steve Brill is suggesting, please write: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts, send $2 in check or money order.

Meanwhile, as another old friend used to say, “Good night, and good luck.”

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