Privacy and the Press

THE OPEN MIND
Host: Richard D. Heffner
Guest: Anthony Lewis
Title: “Privacy and the Press”
VTR: 11/19/81

I’m Richard Heffner, your host on THE OPEN MIND. Surely free speech, free inquiry is the handmaiden of an open mind. And like all others in the media, I’m concerned vitally with maintaining intact Americans’ historic devotion to a free press, one not hampered by government, seldom burdened undeservedly by libel suits, and never silenced by those who would sacrifice press freedom to hide inadequacies that must indeed become public in the public interest. But like many others too, I’m also concerned with an abusive and inaccurate press, one that endangers us all at a time when increasingly we depend for our news and view of the world upon the journalists of our times, print and electronic alike. Some time ago The Washington Post infuriated Jimmy Carter with some gossip the former president understandably considered personally damaging, for which Mr. Carter threatened to sue, and for which The Post in time basically apologized. That episode occasioned a most intriguing article by the distinguished New York Times columnist, Anthony Lewis, in which he hoped there would not be started still another suit against even such a frivolous and damaging item in the press for the sake of the freedom of the press. Yet he quoted a landmark court decision to the effect that the freedom of the press. Yet he quoted a landmark court decision to the effect that the freedom of the press, hard won over the centuries by men of courage, is basic to a free society. But basic too are courts of justice armed with the power to discover truth, the right to sue and defend in the courts as the alternative of force. In an organized society it is the right conservative of all other rights. Mr. Lewis is with me today.

Thanks for joining me today on this subject, Mr. Lewis, that I know you feel very strongly about. And I wanted to ask you why you ended your piece by expressing the hope that President Carter wouldn’t sue The Post?

LEWIS: Well, the piece, as you know, was quite sympathetic to Carter’s view and very skeptical and scornful of the attitude The Post was then taking, which seemed to be, in a very strange editorial The Post published, that we have a right to publish gossip when gossip is going around town because it’s news, the gossip, even though we believe it to be untrue. I thought that ws an outrageous proposition, and in fact, The Post has withdrawn it in the apology you mentioned. But I don’t think that libel suits by politicians are really a very welcome or effective device. Politicians have a quite good weapon, which is to talk back. I mean, I lived for a long time in England where politicians sue at the drop of a hat. It becomes kind of a joke. And I just didn’t want us to get into that tradition.

HEFFNER: You say, “Something of a joke”. But not effective? A joke because this procedure is not effective?

LEWIS: The effect in Britain is, in fact, a deleterious one.

HEFFNER: How?

LEWIS: It is to intimidate. It is one of several things about the law affecting the press in Britain that intimidates the press from doing serious things. I don’t mind deterrence from printing idle gossip in that way. That would be fine. The trouble is, if you begin developing a tradition of political libel suits, you might deter some more worthwhile things, investigative, serious reporting, which is deterred in Britain. And I don’t like to see us slide over into that.

HEFFNER: How would you distinguish them? What’s the, where do you draw the line between that idle gossip that you find that outrageous?

LEWIS: I don’t think it’s so easy to draw, of course, as you question implies. It’s not easy to draw that line. And I wasn’t suggesting – indeed suggesting to the contrary – that Mr. Carter could not have won such a suit had he brought it. I’m afraid I rather suggested that I thought he had a good chance to win. I was suggesting it as a matter of good judgment on Mr. Carter’s part. And I may say that, I don’t know if it was my advice he followed, but he decided not to sue.

HEFFNER: Yeah, but what then, what remedies indeed are there? It was the suit and the threat of the suit alone – I say “alone”. What do I know? But I would suppose that it was the threat of the suit that occasioned the apology.

LEWIS: Ah! I don‘t think the threat of the suit was so bad. I think it was probably quite an effective device. I said that I thought in the end I hoped that suit wouldn’t be brought. That required The Post to do what it did. And I think that was an ideal solution to have The Post admit it was all wet and apologize and no suit. I think that’s a good thing. That wouldn’t work in Britain. What would happen in Britain is that the suit would go forward despite the apology. And that is just unnecessary. Mr. Carter made his point very effectively and The Post got a black eye for a bad piece of journalism. That’s a good resolution.

HEFFNER: What about the black eye? Does it in turn deter other use of malicious gossip, or of gossip, period, that can be, in terms of one individual or the other, considered to be malicious, considered to be damaging?

LEWIS: Well, I think we would be very optimistic indeed were we to conclude that there was not going to be any more gossip printed in the American press or any other press. Gossip is gossip, and it’s going to appear. There are whole newspapers – I won’t mention any names – that sell a lot of copies in this country on the basis of gossip. I think it’s different when a serious newspaper with a political impact retails gossip of a crude character about serious people. And I hope and believe that the Carter affair will deter that. I think it will. I’m sure it will.

HEFFNER: Do you find here in this country – not in Britain now, but here in this country – that there is sufficiently, sufficiently for your purposes and your concerns, a sense of responsibility when it comes to the purveying of news and views?

LEWIS: Yes, on the whole I think there is. I think we have a more serious press than we used to. I’m aware, as all people in the press are aware, that there is a good deal of public skepticism and public resentment of what it sees as the power of the press these days. That’s a fact of life. But as to responsibility, I merely call to your attention that historically this country began with an absolutely rabble-rousing press in which most, virtually all of the papers of the late 18th and early 19th century were owned by political parties, didn’t print what we would recognize as news at all, but just broadsides and denunciations. So that even Jefferson, that great believer in freedom of the press, after he’d been president for a few years, wasn’t so sure he was right. (Laughter)

HEFFNER: One always says, “What if Jefferson, Jackson, whoever were alive today”. I won’t. But I’ll ask the question as to whether we weren’t better able as a nation to tolerate that kind of outrageous scribbling that we are today as a nation, so that the historical argument may not hold quite so much water.

LEWIS: What do you mean? Why were we better able to tolerate it? I don’t understand.

HEFFNER: The question I raise is as to whether the power of the press…

LEWIS: Ah!

HEFFNER: …at that time was minimal.

LEWIS: Yes.

HEFFNER: …compared to the power of the press today.

LEWIS: To that, I would answer, “Yes, but…” Indeed. But everybody’s power was less. And I think we need a more powerful press today to deal with greater accumulations of power at the center. The power that federal government has today would appall Thomas Jefferson. He thought that we had a constitution which would never allow presidents and congresses to do the kind of thing they do today in running the national economy, in raising vast armies and spending billions for weapons. The framers of the Constitution thought that they had created a tiny little federal government that hardly anybody would ever notice. So I think it’s very important to have counterbalanced powers.

HEFFNER: You want to hold these other sources of power accountable.

LEWIS: Indeed. That’s the function of the press.

HEFFNER: All right…

LEWIS: One, I mean, not only the press. We have three branches of government who hold each other accountable. But we also have the press holding all of them accountable.

HEFFNER: And there is the press, the gatekeeper.

LEWIS: No. I look at the press as the arm of the public. I don’t think the press is better than anybody else or has any rights that other people don’t have. Not at all. I think the press is the citizenry up close. We live in a country of 220 million people. Not everybody can ask the president questions. Not everybody can be at the scene of a fire. A court can investigate corruption in the mayor’s office or whatever. The public has to have an arm, and that arm is the press.

HEFFNER: At a time when there are fewer and fewer newspapers, when the power is concentrated in fewer, fewer, and fewer hands, and the population is larger than ever before, you see the press as a reflection of the public?

LEWIS: I share entirely your sense of concern about that concentration of press ownership. There is a great danger in that. I hope that the advent of cable television and what may be the multiplying of access that way would have some good effect, though I have to still be persuaded that it will happen. But the danger is there. You are right. The only counter balancing point is the one I really made earlier, and I’ll make it with an example: Watergate. Watergate we had a situation in which a president exercised vast power in an abusive and, on occasion, criminal way. If we had had a lot of little penny papers as in Jefferson’s day, the chance of doing anything about it would have been approximately zero. Instead, the newspaper that started the investigation of Watergate was The Washington Post, part of a vast, concentrated media complex, owns Newsweek, television stations, etcetera, etcetera. And I think it’s only the fact that we had the concentration of power that allowed The Post and its editors to stand up to what were open threats from the Attorney General and the president to do something to it if it pressed on.

HEFFNER: Mr. Lewis, are you as sympathetic to the concentrations of power, let’s say, in industry? It was certainly the concentrated power in industry that permitted us to arm as we did in World War I and then again, let’s say more importantly, in World War II. It was that concentration of power. It was the fact that we had reached a point of, let’s say monopolization. Not total, but reached a point at which we could produce that way, so that there was a salutary result of bigness. Are you as sympathetic to bigness in business as you are in the press?

LEWIS: (Laughter) You may guess the answer to that question. I am not sympathetic to bigness, let me make that clear, in either the press or other forms of business. I don’t like concentration. It makes me uncomfortable, as it seems to make you uncomfortable.

HEFFNER: Concentration of power.

LEWIS: Concentration of power. I don’t like concentration of power in governments, in business, in the press, or anywhere else. I merely say that we happen, willy-nilly, to be living in an age in which there are greater powers. And since there are, it may be that we have to accept the reality of the counterbalancing power of the press.

HEFFNER: You would accept the role of the press, the responsibility of the press to be the watchdog over the Congress, the government, the presidency, business, etcetera. Who in turn watches the press?

LEWIS: Who guards the guardians, as the old saying goes.

HEFFNER: Precisely.

LEWIS: It’s a very fair question. And I myself have never been a believer in claims of the press for absolute immunity. For example, I disagree with a lot of my colleagues about the claim that members of the press should not be required to testify in, shall we say before grand juries when they have crucial evidence of criminal conduct. I don’t believe in that kind of immunity for the press. And so that I think the press should be subject to the same kind of scrutiny that other people are subject to. I don’t think we are immune. Not at all.

HEFFNER: When it comes to revealing sources too?

LEWIS: That’s the very example I’ve given. I think that if a journalist is in a position of knowing through a source evidence which is crucial to a criminal case and he’s the only person who knows, I see no ground for granting immunity. I wouldn’t do it.

HEFFNER: All right. Now, you’ve limited your statement when you talk about a criminal case.

LEWIS: I’ll say the same thing as to a libel suit. And indeed I said it in that very piece about the Washington Post. I believe that if President Carter had sued The Washington Post and demanded to know the source for its gossip item about him, I think that under the law The Post would have had to disclose, or if it had refused to disclose it would have lost the libel suit, it would have had to pay him the damages. There’s an ironic footnote to that, I have to say. This made me chuckle quite a bit. The New York Times has just printed a very interesting article exploring what actually happened in that whole gossip matter. How The Post got the item, how the lawyers dealt with it, and so on. And at one point when they thought they were going to have a libel suit, the executive editor of The Post, Ben Bradley, went to the source, who was a freelance journalist named Dodson Raider, and asked him in turn for his source. And when he said he wouldn’t tell Mr. Bradley, Mr. Bradley said, “We’re going to subpoena you, Mr. Raider, and make you tell!”

HEFFNER: (Laughter)

LEWIS: And this is the very journalist who would say, “You can’t make me tell my sources”.

HEFFNER: Now let me ask, from the other side, what’s the downside of the position that you are taking at this point?

LEWIS: The downside from the point of view of those who think sources should not be disclosed?

HEFFNER: Yes.

LEWIS: The downside is a real side, and I do not regard it as weightless. The downside is that on occasion in important matters journalists must accept and seek information on a confidential basis. The classic example is that of corruption in government. If you know there is a criminal president or a corrupt mayor or whatever, you’re only likely to find out about it from some underling or associate of that very governmental official. And of course the underling knows he’s going to be fired or worse if he’s found out. So there’s no alternative to getting that kind of source, and you may have to give the promise. And then very often the effort to find out the name of the source is not a genuine legal proceeding; it is a form of pressure simply to expose the source and prevent the investigation. And if that is so, then it is not a genuine grand jury investigation, a genuine libel suit, and I think the courts will not require the name to be disclosed, should not require it. I think that the forced disclosure should only occur if it is beyond a doubt a genuine case, not one brought for political purposes, and if the evidence is essential, if it goes to the heart of the case, as Justice Steward said in that past case you mentioned, and there’s no other way to get it.

HEFFNER: You said that you believe that the courts should. Do you think that they will? Do you think that they will limit themselves in that way?

LEWIS: They have limited themselves in practice. There are many cases in which courts have declined to make a journalist disclose because they say either that the evidence is not really necessary or it is simply a device to put pressure on the newspaper to stop its investigation. Judges have done that quite often, and I think we can trust the judges to be sensitive on these issues without trying to have an absolute rule, which I think would be very bad, absolute immunity for the press. We can trust them – of course, nobody is absolutely trustworthy – but in the end I prefer to place that kind of confidence in judges rather than anyone else.

HEFFNER: That’s interesting. Many of your colleagues in the press would prefer to entrust that faith in the press.

LEWIS: No, I don’t want to do that because I think that kind of arrogation of power would be bad for the press. Bad because it would give it hubris, that is that sense of self-importance that goes before a fall in the Greek tragedy. And I think when the press is arrogant it does itself harm. Furthermore, I think the rule that courts have the power to acquire information is vital to our democracy and vital to make our system work. I think, for example, the Supreme Court of the United States required the president to disclose tapes of conversations in his office. One could hardly imagine anything more confidential…Required that to be disclosed because it was evidence vital to, irreplaceable in the grand jury or criminal case. And I think it would be quite unthinkable, quite unacceptable if the press were to say, “Well, the president must disclose, but we don’t have to. Not I”.

HEFFNER: Mr. Lewis, by this time in our history and in your own, what Mr. Lewis of The Times says, or what Mr. Lewis, Anthony Lewis, commentator says is of great importance to those who watch the media, the media-watchers. I know you wouldn’t hold back any concerns that you have about the press. What are they, beyond the ones that we’ve talked about now up to this point?

LEWIS: My sense of what’s not perfect in journalism?

HEFFNER: Oh, you know that I don’t mean what’s not perfect, because it is, after all, an imperfect world.

LEWIS: Yes. I said earlier and I believe that we have a, I think, a more serious press today then we’ve ever had. At least that is true – I’ll speak only of newspapers since I know them best – that is true of a number of weighty and, I think, good newspapers. Several in this country I think rather better than virtually any others in the world. I think the lack, if anything, is in analysis. And it’s something that’s understandable. For a daily newspaper to comprehend what is happening in the kind of world we live in is very, very difficult. It’s hard for any of us.
And it may take, it does take longer-run thinking. The example that’s to hand is William Grider’s article about David Stockman in The Atlantic Monthly. That really could only have been done for a longer-term periodical. And I think newspapers must try more and more to give us that sense of what, not of the day-too-day, who’s on first, who’s on top, who’s losing, who’s winning, but where are we going. That’s hard to do. But I miss it. We get some of it, but not enough.

HEFFNER: How would we achieve that level of analysis? I remember Lester Markel always used to talk about that problem. How do you do it practically?

LEWIS: It’s nice that you mention Lester Markel. We both knew him, the great Sunday editor of The New York Times who used to say that very thing. Well, we’ve made some progress on that, and all we have to do is keep devoting more resources, which means The New York Times must have more advertising so it will have more money – I’m sorry, I’m not making a pitch – but you know, all these things involve resources, and they’re hard to do. Space in the newspaper, employees who can take the time. And it’d hard work, it takes a lot of time. Mr. Grider, who did that piece on Stockman, had 18 taped interviews over an eight-month period with Mr. Stockman before he wrote his article. You’re talking about a year in a man’s life. That’s hard to do. So we must devote more space and money and resources to it. And we have to be smarter. So we know how to do it.

HEFFNER: You know, I’m 56 years old, and I’ve spent many, many years on occasions being involved in things that somehow or other got into the newspapers. And I must say that I’ve always been shocked – shocked, not in the way that Claude Rains was in Casablanca – but shocked truly at the level of inaccuracy in terms of the reporting of events when I knew about them. And it scares me to death when I read the newspapers, even your own, Mr. Lewis, when it comments on things about which I know nothing. And I think of Lippmann in Public Opinion, 1920-21, commenting on some problem. We’re all so far away, removed from the major events of the day and even the people who write and edit the newspapers are. Now, what do we do?

LEWIS: I’ve had the same feeling, and it’s common to all of us. Anybody who has been involved in an event which is covered in the newspapers finds, tends to find the story inadequate. That is, in part, a reflection of the reality that editors and reporters are not perfect, and that space or time is very limited. And that life is complicated. You cannot hope to convey in a few paragraphs a reality that may have taken hours or whatever. You know for yourself that if there’s an automobile accident, seven witnesses will have seen seven different things. How can a newspaper hope to get it all right? But Mr. Lippmann was right when he said that journalism was just a “fitful searchlight” that occasionally illuminated things. That was his image. That’s what we are; we’re not philosophers.

HEFFNER: Doctors have professional standards. Teachers must; they’re licensed. Lawyers presumably do. We don’t seem to have developed the same approach to the responsibility of this profession, your profession.

LEWIS: That is a dangerous suggestion, if I may say so.

HEFFNER: Certainly many doctors have said so, certainly many lawyers have said so, and certainly many teachers have said so, and yet there are those standards in those professions.

LEWIS: The difficulty is this: There are, there should be standards. I myself think that the only standard that’s acceptable and effective is to have more criticism by journalists of other journalists. And we do have a lot more. We have several hard-hitting journalism reviews, The Columbia Journalism Review, probably the most eminent, which publish very critical articles about the performance of the press, and I think they have an effect in holding people to standards. I know they have an effect. They bother editors and reporters. They don’t like to be criticized, and they try to do better next time. But if you are saying to me, “We should have a license, as we license doctors, we should license journalists”, then you are doing something which would strike at the heart of freedom of the press, because who’s going to decide who should be a journalist. We don’t want to have some judge say, “I like you; I don’t like you. You can be a journalist; but I’m not going to let you be a journalist because I think you might be anti-establishment. You might actually go and find out something about the Vietnam War”.

HEFFNER: Do doctors do that to each other?

LEWIS: Doctors, yes, but…

HEFFNER: Do they do that to each other?

LEWIS: Yes, they do. But there’s nothing in the Constitution about freedom of medicine.

HEFFNER: Are you suggesting that there needn’t be, or there could well be but it isn’t needed, and doctors can tend to their own messes?

LEWIS: I think we have decided, society, as in other countries, has decided that it is necessary to have some kind of disciplinary process for doctors because otherwise fraudulent characters would do great human damage.

HEFFNER: Think of the damage done by fraudulent reporters.

LEWIS: Ah, yes. I agree. We have left that, on the whole, to the medical profession. That’s not always wise, because that’s frequently a back-patting operation, I have to admit. But because we don’t want to intrude others into medical standards, we, on the whole, let doctors judge doctors, as we let lawyers judge lawyers. Again, it’s not the perfect…there are mistakes. But I wouldn’t want to have some outside judge telling me who can be a journalist.

HEFFNER: Fine. Now let’s go inside. What mechanisms are there inside your profession?

LEWIS: The one I’ve mentioned is generally accepted, which is tough criticism, frequent. It’s happening much more often. I think a few years ago I might not have written an article like the one I wrote about the performance of The Washington Post. It’s just simply people have come to care more within the profession, and feel freer to criticize. The other idea that is much resisted by my own newspaper, among others, though, I think I am not so resistant, is that there should be a press council, as there is in Britain. A body which is not a judicial way but, shall we say, a semi-judicial way, sites there and hears complaints. A man who has been damaged by a story, who says it’s an inaccurate or abusive story, may go to the press council in Britain and say, The Daily Mail treated me wrongly”. And they will pass on it. And the only remedy is, they can’t put anybody in jail or fine you, they publish the result and the newspapers all carry it. So it’s a kind of humiliation.

HEFFNER: Of course we do have a national press council, National News Council here.

LEWIS: That is right.

HEFFNER: And Norman Isaacs and your former colleague, Abe Raskin were here once on THE OPEN MIND talking about it. But your paper rejects it.

LEWIS: Well, that’s what I had in mind. As I say, I thought the National News Council was a quite acceptable thing when it started. My newspaper takes a different view because it regards it as a foot in the door for state control. I think the News Council has not always operated in the way I think it should. I think sometimes it’s been unfair. But on the whole I still think that it’s a good idea to have such a body.

HEFFNER: Do you see anything developing along these lines further that the National News council in this country?

LEWIS: No. I think the News Council is struggling to go on with some success, but with The New York Times and, I think, one or two of the networks not participating, it’s a hard road. There are some local news councils which are effective. The one I know about is in Minnesota, which is very, very effective.

HEFFNER: You still think the press is its own best watchdog, and I think that’s probably the point at which we end our program on THE OPEN MIND. Thanks so much for joining me today, Anthony Lewis.

And thanks, too, to you in the audience. I hope that you will join us again here on THE OPEN MIND. And meanwhile, as an old friend used to say, “Good night, and good luck”.