Is Anyone Ever Off Limits?

THE OPEN MIND
Host: Richard D. Heffner
Guest: Steven Brill
Title: The Media: Is Anyone Ever Off-Limits?
VTR:9/21/99

I’m Richard Heffner, your host on The Open Mind. And I always get a kick out of thinking of my very first program with today’s guest, and of the sly, rather delighted look that crept over his face when I asked whether he wanted to be Peck’s Bad Boy all of his life.

That was in the early 1980s, of course, and by the time this program is aired we may be into the next century. But that question would still be legitimate, and might still elicit the same delighted smile if put to Steven Brill, gadfly extraordinary, indomitable tweaker of the law, of the media, of their most often not very appreciative practitioners … and, of who knows what or who next. You’d better watch out!

Well, nothing has ever been sacred to my guest. Not when he published and edited The American Lawyer of which many, whom he chanced not to skewer, would say he did good, and certainly he did well.

Not when he created and ran Court TV … of which many (not I, to be sure, but many) would say he did good, and certainly he did well.

Not now that he has created and is Editor-in-Chief of Brill’s Content, which he calls “the independent voice of the information age” … and which, Lord knows, many media mavens consider too loud and perhaps even too clear in its criticisms of the press, print and electronic alike.

Now, in a recent issue, Brill honed in on the media’s curiosity and our privacy, asking whether anyone — even the youngest among us — isn’t ever off limits to the press.

He reports that the public supports restrictions that protect privacy, but that even voluntary measures seem anathema to the media’s masters.

And so I want to begin today by asking Steve Brill — who feels so strongly about the conflict between media professionals’ curiosity and our privacy — what should happen next? Steve, what would you have happen?

BRILL: What that article tried to spell out and it began as sort of an innocent question … which was, to various people who run large and small media organizations … after the death of John Kennedy, Jr., when you had cameras peering through the hedges in Caroline Kennedy’s backyard at her home in Long Island, and when you had paparazzi staking out her apartment to try to get pictures of her little children, I asked these media people “Don’t you think that was going to far? Wouldn’t you agree that there should be voluntary restrictions?”. Voluntary, not the government. Voluntary restrictions that say that as a general matter, with some exceptions, you’re not going to take pictures of kids, without their permission or their parents’ permission and you’re not going to take pictures of grieving families, without their permission. With some exceptions. Again, voluntary. The public thought that was a … that was a good idea. I mean it’s a no-brainer, actually. And the press said, “No. We won’t agree to, we won’t entertain, we don’t want to talk about any guidelines of any kind at all, other than the guideline that says we use our good judgment, if and how we want to use it”. And I think that’s just wrong. I think that any industry, any profession has a set of guidelines. In this case, the government can’t and shouldn’t impose those guidelines. But why can’t the press say, “you know, having a cameraman try to shoot through someone’s hedges into their backyard, while they’re waiting to find out if their uncle or their brother has been killed. That’s wrong, and we’re not going to do it. And if we do it, if we make an exception, we’re going to explain to people why we thought that was newsworthy. And if we’re “Time” magazine and we publish a picture of Caroline Kennedy’s little kids, or if we’re “People” magazine and we have a paparazzi stake them out on the sidewalk, we’re going to explain to people why we think that’s newsworthy. Why we think the news value of that balances against the privacy value in leaving those people alone. That’s all. Just a simple request … explain that. And the press doesn’t think they have to. And our magazine’s in business to … in part to try to embarrass them into thinking that they should And in part to raise these questions, and in part to educate people … consumers. This is not a magazine for people in the media. This is a magazine for consumers of the media. We’re in business to raise these issues and maybe to effect that kind of change.

HEFFNER: Suppose you were in another business.

BRILL: MmmHmm.

HEFFNER: Suppose you were to take … I’m, I’m calling for empathy now, perhaps … put yourself in Walter Isaacson’s position …

BRILL: Yeah.

HEFFNER: … perhaps. Put yourself in the position of any of the …

BRILL: Sure.

HEFFNER: … media masters.

BRILL: Easy to do cause I have been, as you know …

HEFFNER: MmmHmm. And what would you do?

BRILL: I would do what I did at Court TV. When we were covering the O. J. Simpson trial, and doing news reports about developments in that case, we had a simple rule, we were not going to show pictures of O. J. Simpson’s little kids. And I remember, we were sitting around a table, round like this one, but a lot bigger with 15 or 20 people, and they all said, “Well, all the other networks are doing it. Everybody else is doing it. This is like stock photos to see little Sydney (and I forget what the other kid’s name was), everybody’s doing it. So we have to do it. Or we should do it. Or doing it doesn’t do any harm, because everybody else is doing it anyway”. And I said, “that’s like saying it’s okay to sell drugs in a school yard cause someone else is doing it”. And if we don’t do it, someone else is going to sell it to those kids. We’re not going to do it. We’re going to take a stand and we’re just not going to do it. We’re not going to proclaim our stand. We’re not going to lecture to other people. We’re not going to say, “you’re a bad person” for doing it. We’re just going to have our own standards, and we’re going to keep to them. And we did.

HEFFNER: But that’s a far cry from … well, put yourself in the position, Steve …

BRILL: Well, what does it … well, let’s come back to Walter Isaacson, who’s the …

HEFFNER: Yeah.

BRILL: … who’s the Managing Editor of “Time” magazine. Tell me what Walter Isaacson loses by not running a picture of Caroline Kennedy’s six year old son.

HEFFNER: I don’t know …

BRILL: … do they lose subscribers? Do they lose anything? I think he gained something. I think he makes a statement in his newsroom that we have this standard, we’re just not going to do it.

HEFFNER: Steve, I don’t think it’s a question of what I think Walter loses, I think it’s a question of Walter’s concern that this comes in a request from Steve Brill, from the outside, not from the inside. Walter is perfectly capable of making that judgment …

BRILL: MmmHmm.

HEFFNER: … and when you say, “why not”, Walter can make that judgment. But it seems to me that back when …

BRILL: We’re not requesting … we’re not saying that we’re setting a guideline. I wrote that article as a reporter asking a question … which is … here’s, “would you agree, in your newsroom, to this kind of guideline?”. We didn’t go around saying “will you sign this petition and agree to this, and then we’re going to be the, the guideline police and we’re going to enforce it”. We’re a magazine, we asked a question. And his answer was “No”. Now Walter … who you say have empathy for … I have great empathy for Walter, he happens to be a good friend of mine, I see him all the time. He’s a close friend of mine. And I like him and respect him and think he’s a fabulous editor.

HEFFNER: And his answer?

BRILL: His answer is … “we don’t …”. His answer was the same as The New York Times and Newsweek and everybody else … “we make these judgments on our own. We’re very sensitive, we balance the news value against the privacy value. And we want to make our own decisions”.

HEFFNER: What did …

BRILL: … so I said, “Walter, when you were balancing the news value and the privacy issues, tell me how you made that balance when it came to those pictures of Caroline Kennedy’s kids. Tell me the news value of those kids.”

HEFFNER: What did …

BRILL: He said, “I don’t want to talk about that”.

HEFFNER: What would you have him say?

BRILL: And we don’t like to talk about our individual judgments. Now name another profession or another business that says that when, when the public asks you “why did you make this decision?”, we say, “No, we don’t want to tell you”.

HEFFNER: Well, let me ask you … as a press person …

BRILL: MmmHmm.

HEFFNER: … what might the answer to your question …

BRILL: The only honest answer is “curiosity”. The only honest answer is that when it comes to competing, commercially, curiosity is synonymous with news value. The only honest answer is that we know people rubberneck at car accidents. And we know they shouldn’t do it, but we’re going to show a car accident anyway because people are going to watch it. Ah, showing her kids or something like that, is the magazine print equivalent of doing a cable channel that shows car accidents. That’s what it is.

HEFFNER: Isn’t that a sufficient answer? Not sufficient to your sense of the responsibility of an editor.

BRILL: It’s a perfectly valid answer. It doesn’t make him a bad person. It simply says that when it comes to this little area of responsibility … which editors of magazines I think have … to make the society a little less coarse and have a little higher standards, he hasn’t met the test. I believe strongly in personal responsibility. And the flip side of personal responsibility is personal embarrassment. Which is why I’m having fun using my friend Walter’s name in this thing. But we should use Jerry Levin’s name and Ted Turner’s name because they’re the ones who are responsible. Jerry Levin paid someone to stand outside on Park Avenue, a paparazzi to take a picture of Caroline Kennedy’s little children for “People” magazine. And if you … when you put it that way, then that kind of embarrassment I think has an effect. And I don’t have any compunction … I think I should be embarrassed by the stuff that businesses I control do. I think I should be if there’s anything to be embarrassed about, I deserve to be accountable for that. Doesn’t mean I should be put in jail, it doesn’t make me a bad person. It just means in this one area of my professional life, I may be making a mistake, I may be doing too much for the sake of commerce; that if I stopped and thought about it, I’d say, “You know, it’s not worth it”. I mean how much more money does “People” magazine make because they have that paparazzi on that sidewalk? I don’t think they make a nickel more.

HEFFNER: Suppose they make a nickel more?

BRILL: They shouldn’t do it.

HEFFNER: Suppose they make fifty dollars more; five thousand … five million dollars more.

BRILL: They should make …

HEFFNER: Is there a line that you would draw?

BRILL: Everybody has to make their own decisions about that.

HEFFNER: But isn’t that what they’re saying, “we’ll make our own decision, thank you very much …

BRILL: Fine.

HEFFNER: … Steven Brill for bringing this to our attention.

BRILL: And I’m supplying a service because what I’m injecting into the marketplace with this magazine is giving their customers the ability and the incentive to think about those decisions that they’re making and to decide, do I want to buy those products, do I want to support those products, do I want to hold those people accountable?

HEFFNER: Do you think that as long as, to use the word you just brought into the matter, the marketplace is really the home of contemporary journalism. Journalism isn’t a profession, is it?

BRILL: No. Well, I don’t think those two are contradictory. I think the marketplace has always been the home of journalism. If you’re Tom Paine and you’re standing out on a street corning handing out leaflets, if, if in the marketplace of ideas nobody’s reading them, you don’t have very much of an effect. And you’re ignored.

HEFFNER: Yes, but you talk about medicine … suppose doctors refused to respond …

BRILL: MmmHmm.

HEFFNER: … isn’t that the profession and that contemporary journalism, at least, is a business.

BRILL: Again, I don’t think they’re mutually exclusive. I think the difference between a profession and something else I’ve always thought … and I though a lot about this when I was running “The American Lawyer” because there was always a developing controversy of whether law was a business or a profession. And the way I sort of thought that through is that the difference between a profession and a pure business, is that a profession is someone or a group of people who say and in fact, do, have values in addition simply to maximizing profit. Now that does not necessarily make it quite the exclusive club you might think it is. The person who made this table might be someone who … I kind of doubt it, looking at the table … but might be someone …

HEFFNER: Thank you very much …

BRILL: … who … who said “I want to make a lot of money making tables, but I really care about my craft, and I won’t just make any old table and sell it. I care about … I want to be proud of my work, and I want to make really good tables. And I’d like to make money doing it”. By the same token, someone who edits … and I know this is true … “Time” magazine says, “We don’t simply want to make money, we want to make a product that we’re proud of. We want to do something for the world. We want to be a good publication”. That person, in that sense is engaged in a profession. Where it gets interesting, however, is that when you take a profession … person making this table, if he’s in business for himself, he’s allowed to decide that he doesn’t want to maximize profit, and he’d rather make a slightly better table and make a little less money. It’s perfectly okay to do. In fact you’d admire him for doing that. If he becomes the CEO of a publicly held corporation and your pension fund is invested in the stock of that corporation, when your pension fund manager writes to you, at the end of the quarter and says, “We trailed the Dow Jones Industrial average by 10%, we didn’t do as well as the Dow did, but that’s because the stocks I invested in are run by these really good people who don’t just worry about making money, but they’re also involved in all these community activities, so you, Mr. Pensioner, who’s in my pension fund, relax about how much money we made. We invested in some really nice people, doing some really nice things”. You’d fire your pension fund manager. My point is that once you have companies that have public shareholders, whose interests are divorced from the making of the product and have invested in a stock for the reason people invest in stocks, which is to make money, to maximize shareholder value, then you have a set of very different tensions. It’s almost as if the only ethical thing for the CEO of a journalism company that is a publicly held company … the only ethical thing for that person to do is to maximize profit. Cause that’s what he’s promised the shareholders, when he took their money. He said, “that’s what I’m going to do for you”. When you get an annual report from Time Warner, or the Tribune Company, or any company … just about any company, the first sentence of the annual report, written by the Chairman and CEO, is “our goal is to maximize shareholder value”. And sometimes that may mean compromising on the product, or yes, it may mean having a paparazzi wait outside someone’s apartment.

HEFFNER: Steve …

BRILL: That’s a big problem.

HEFFNER: Steve, but that’s … at the point I say to you, “Well??”

BRILL: The answer is if you can make the marketplace work in a way that it no longer makes it a maximization of value …

HEFFNER: But doesn’t that …

BRILL: … for doing that stuff.

HEFFNER: … but doesn’t that …

BRILL: … part of what our magazine is trying to do …

HEFFNER: Yeah.

BRILL: … is to sensitize consumers and educate consumers so that we may be able to change the dynamics of that marketplace. And take some of the profit out of doing things that now seem to be the most profitable.

HEFFNER: Are you succeeding?

BRILL: Well, so far the magazine’s doing very well. Whether we’re succeeding in that long term process, it’s going to take a lot more than us. And maybe we’ll lead the way, but that is going to be a long-term process. However, there’s not … there’s a lot of reason to be kind of optimistic about this because if you step back and think about it … coming back to my, my analogy about the stock market … if you … if I asked you to write down on a piece of paper on the left side of your folder there, the names of what you consider to be the five highest quality newspapers in the country. And then if I asked you to write down on the right side of the paper, your guess … or if I wrote down for you if you couldn’t guess … the five most valuable newspapers in the country … if they were sold today … the highest asset value newspapers … those two lists would be almost exactly the same, or arguably the same. New York Times, high quality paper, great newspaper, probably the most valuable. Wall Street Journal, Washington Post, Los Angeles Times … the people, at least at the up end of the scale, who do what, by general agreement, might be considered to be the most professional work, to come back to your term, have done the best in the marketplace. So it’s not like, you know, The New York Post is not worth more money than The New York Times. So you’d be hard pressed to make the argument that always going down scale, always doing the not as professional thing is the way to make money. Sometimes it’s longer term to make money doing the right thing, but I think, I think it makes a lot of sense.

HEFFNER: So you list The New York Times, you list The Washington Post, you list The Wall Street Journal … the LA Times?

BRILL: Yeah, I mean I’m just making up …

HEFFNER: …for the most part (?)…

BRILL: What I’m saying is you wouldn’t have …

HEFFNER: … reply to Brill’s request …

BRILL: … you would not list … just to complete the thought, you would not list The New York Post, you would not list the National Inquirer, you would not list The Globe … I mean …

HEFFNER: Did you get different responses to your request from those on the left hand side of my list, and those on the right hand side?

BRILL: Ahmmm, slightly different, but not radically different … no.

HEFFNER: Well …

BRILL: But the fact is … leave my request aside, look at it as a general matter, their practices. I mean move past this relatively narrow issue to their general approach to news, and I think you could argue that you’re getting generally higher standards from the newspapers that have generally higher asset values.

HEFFNER: Generally higher, but you were very specific in your request.

BRILL: Yeah. In this case, this … because this is a matter that I think really pinpoints a certain kind of arrogance that everyone in the press has. I don’t think The New York Times ran, as it did, one picture of Caroline Kennedy’s kids to make more money or to sell more newspapers.

HEFFNER: Well then, shame on them. Why would they invade the privacy if …

BRILL: I don’t think they thought they were invading the privacy. That … the pictures they ran were of the kids at the funeral.

HEFFNER: Say that was okay?

BRILL: No, it wasn’t okay with me. But that is a very defensible proposition. As an editor, my taste is such I wouldn’t have done it, they decided to do it. That is far different, going down a continuum, by anyone’s measure that would be far different than taking pictures through the hedges, you know, in someone’s backyard, or, you know, staking out their apartment for when they try to, you know, leave their apartment the day after the funeral. It’s a little different.

HEFFNER: Steve … all in all, in all the discussions we’ve had over all these years and all these different programs … would you say that media opinions have changed about this question of “don’t fence me in. Don’t tell me that I should make my pledge here…”

BRILL: I don’t … what always interests me and the only thing sort of consistent about the discussions we’ve had and about where I’ve been when we’ve had the discussions, is that I’m interested in large kinds of institutional power that is relatively unchecked. Unchecked by journalism. And the first place I think I arguably identified with that was true was the world of big time law and law firms. I came to believe that when it came to power and arrogance and lack of accountability, reporters were actually the only people on the planet who made lawyers look good. Because they have more power. At least as arrogant, if not more arrogant. And they have a lack of accountability that we all revere. I mean we love the First Amendment. I do. So their lack of accountability is sort of ingrained, as it should be, in our whole tradition of law and society. So that combination says that, to me, when you have that kind of unaccountable power, the best antidote to that is really good journalism. And that’s what we’re trying to do.

HEFFNER: Were you disappointed? Surprised? Not at the response to your request.

BRILL: Well, there were some people who said “Yes” and the public said “Yes.” And, I was surprised, I’m sort of continually surprised and amused at the, the arrogance and the way journalists live in a different world. Journalists do not see the irony that every man on the street sees of journalists being angry, pissed off, just indignant about us asking them exactly the kinds of questions that they ask everybody else. I mean it is just … it’s just funny, at this point. You know, they go, “on the record”, “off the record”; they squirm, they call back to change quotes … they negotiate, they do everything that they make fun of politicians for doing and worse. And here, the ones who wouldn’t respond. You know we got some letters that you know, looked like they were written by Casey Stengel. You know I’d send a very simple question and get this two page response that if someone … you know, if some politician gave them that response on “Meet the Press” or at a press conference, they’d laugh at the guy. And they just wouldn’t answer the question. And they … journalists just don’t see the irony in that. And everybody else does, I mean it takes … I mean you don’t even have to explain that to our readers. I mean you just can take out all the kind of parenthetical nasty remarks that I might otherwise put … I’ll have put in there because it’s just so obvious.

HEFFNER: And what do you think the future will bring? More of that? Less of that?

BRILL: Less of that. I mean they’ll get used to us …

HEFFNER: Because of your kind of pressure …

BRILL: Yeah. I mean it’s the same as when I started The American Lawyer. I mean you’d call lawyers up and say, “we heard you lost this client because the client thinks you did a lousy job arguing in the Supreme Court” … or something. And the lawyer would say, “How dare you write something like that”. Or, “No one’s interested in that”, and hang up the phone or threaten you or something. And after a while, they understood that was legitimate news. It is news. You know, how lawyers do in the Supreme Court is news. And they got used to it. And reporters are slowly getting used to us.

HEFFNER: Steve …

BRILL: We’ve also, by the way, created a lot of jobs in, in this town and in Washington. The networks … every single network and news show, not just the network, every show, individual show now has a spokesman whose principal job is to, is to try to talk to us instead of letting, you now … the, you know, the Tim Russert’s of the world talk to us.

HEFFNER: What about a National News Council? What’s your opinion today?

BRILL: An organization that would take complaints and deal with them. Again, it’s so obvious that people should do it. We’re … we’ve also … in the issue just after this one, we’ve made a proposal that the very biggest media conglomerates … Disney, Time Warner, CBS, Viacom, the others where you have all these suspicions and complaints about their favoring one part of the company in their newscasts to help the other part of the company where, you know, they’re sort of treating themselves too nicely. It’s in the interests of those companies, who by and large, I think are honest about how they deal with their sister companies. It’s in their interest to create, at least an ombudsman or a council within the big conglomerates to take complaints about that kind of stuff and deal with it, that would be independently financed. We have done it … you know, we have an ombudsman with our magazine who is on a contract where he’s paid, you know, separately by us. It’s a two year deal, he can’t get re-hired, he can’t get fired, he takes any complaint from anyone about our magazine, he investigates it independently and by contract he has the right to write in the next issue of our magazine anything he wants at any length he wants.

HEFFNER: The only trouble …

BRILL: And it makes sense.

HEFFNER: The only trouble with that, Steve, is that that’s to your interest. Synergy would demand that it not be to the interest of the giant corporations that you’re talking about …

BRILL: I don’t agree. I think long term if you’re in the news business, when there are so many alternatives out there, what … it is simply not just a cliché, and it is simply not just, you know, rhetoric, it is actually true that the most valuable thing you have is your credibility.

HEFFNER: Let me get back … we have less than a minute left. National News Council?

BRILL: I think it would make a lot of sense. And it’s always stunned me, but now it doesn’t stun me as much cause I’m sort of used to this kind of knee jerk arrogance that news organizations didn’t do it. And they all have same … they’ll say, “well, there’ll be complaints about us and it will hurt morale in our organization”. Well, hello, I mean when, when, you know, when a news organization reports about the Pentagon or about City Hall, it hurts morale at City Hall, it hurts morale at the Pentagon. So what.

HEFFNER: When The New York Times and others washed the National News Council down the drain, the response to it were pretty much like the responses you got to your request.

BRILL: Yes.

HEFFNER: Philosophically.

BRILL: “We don’t want outsiders telling us what to do”.

HEFFNER: That’s it.

BRILL: We don’t want to be accountable to anybody. And there are now … the media is now too important, there are too many alternatives, and I think because we live in an information age, the whole idea of our magazine is that the world is much too savvy and too sensitive … that the jig is up.

HEFFNER: The jig is up … I’m told we have to say, “good-bye”. Good bye, Steve Brill, and thank you for coming here today.

BRILL: Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send four dollars in check or money order to: The Open Mind, P. O. Box 7977, F.D.R. Station, New York, New York 10150

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

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.