Guests: Abrams, Floyd; Rosenblatt, Roger
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THE OPEN MIND
Host: Richard D. Heffner
Guest: Floyd Abrams with Roger Rosenblatt
Title: The Press’ Need for Self-Criticism
I’m Richard Heffner, your host on THE OPEN MIND. The last time that Floyd Abrams, the distinguished attorney who has fought so many First Amendment battles was here, I pressed him on what many consider to be his profession’s deficiencies. Then when Roger Rosenblatt, Time magazine’s brilliant essayist was here last, I quoted journalism’s detractors. Now, needless to say, I won no battles with such accomplished adversaries, even as I noted Chief Justice Warren Berger’s comment about their profession’s public standing, “In current polls, lawyers and journalists rank roughly near the bottom of the barrel. Perhaps neither likes the company they find themselves in”. Anyway, we’re friends. And even if today I give attorney Floyd Abrams and journalist Roger Rosenblatt a chance to gang up on me, I know they’ll be gentle and generous, and they’ll ignore an old saying that Floyd Abrams recently quoted, “Where you stand depends upon where you sit”.
Gentlemen, thank you for joining me today. I like that bit, Floyd, “Where you stand depends upon where you sit”. And I was fascinated that in this speech I made reference to, the Third Annual Kenneth Murray Lecture that you gave at the University of Michigan. You said that “The press is in grave trouble with itself”. You raised the question as to whether it’s really in as much trouble with the American people as some people have assumed. You say, “The press is in grave trouble with itself”. And you seem to be implying that the press is quite self-critical. And I wonder what evidence there is of that when something like the National News Council goes out of existence when it tries to be critical about itself.
ABRAMS: I suppose I mean it mostly anecdotally. I spend a lot of time with journalists, editors and the like, sometimes clients, sometimes not. I don’t remember a time in the last ten or fifteen years when there was so much introspection on the part of the press, so much talk about whether they should be more critical about what they should be doing or the like. I don’t mean necessarily that they’re doing all that much better a job because of it, although I think it’s a good first step. But I think that there has been a loss of self-confidence in recent years of the press about itself, about its own product.
HEFFNER: Yet we know, we’re friends, and we know that when you gentlemen are here, as a lawyer who’s very much involved with press questions, Roger, who is a journalist, that at least the feeling I get is that there’s nobody in here but us chickens, and that journalists first place, say, “We don’t have the power you attribute to us”; in the second place, they say, “We don’t use it with evil intent”. Is that fair? Unfair?
ROSENBLATT: One of the things about nobody being in here but us chickens, makes the chickens, as Floyd was saying, a little more nervous lately than they might have been before. I think it’s for the good that journalists don’t have a supervisory society such as the American Bar Association or the American Medical Association. I think such things would cause more damage than good. But as a result of not having those things, then all the questions that are leveled by the public or leveled inside the press or leveled by circumstance, such as the press being barred from Grenada, hit home that much more deeply and also allowed to rattle around much more. So nobody being home but the chickens, the chickens feel those questions more acutely.
HEFFNER: Do you subscribe to Roger’s notion that it’s a good thing there is no equivalent for the press of the American Bar Association?
ABRAMS: Yes. I think…I don’t think it’s a bad thing to have an American Bar Association. But I think for the press to have it would likely result in a lot of almost social distinctions, journalistic…
HEFFNER: What do you mean?
ABRAMS: I mean that larger, more powerful newspapers would make what I believe are essentially journalistic judgments which are taste judgments for smaller, more radical, less affluent publications. But I don’t think that’s good for their business in a collegial body. I think if they want to do an editorial saying so and so did something terrible, I wish there’d be more of those editorials. But that is fine. I really think there should be more of that. But to have the press sort of sit together in judgment on the propriety of press conduct seems to me more likely to suppress and inhibit what we should be encouraging than simply to get rid of bad journalism.
HEFFNER: Yes, but when I read your speech you seem to be saying, indeed, let the journalists stop saying, “We’re just like everyone else”, because journalism isn’t like anything else. In a sense, if I read you correctly, you were saying journalists, like lawyers, should have a kind of privilege, privilege that you have perhaps in relationship to your clients. They have that privilege, but they have to have the responsibility too that goes with an ABA or that kind of organization.
ABRAMS: I think journalists ought to have certain types of privileges because of what they do; not because of who they are or because they do it especially well. The privilege, as the lawyers call it, the privilege not to disclose confidential sources, for example, is, I think, essential to doing a good journalist job in a lot of situations. I don’t think that would be helped if we had the equivalent of an American Bar Association for journalists. I don’t think that would be helped at all. What I think we have more is, in that area, is journalistic self-criticism. And I think we are having more of that all the time. I don’t think that’s a cliché. I really do believe that if you look at our newspapers today and our television stations today, they have far more self-criticism and criticism of others in the field than you possibly would have seen five years ago or ten years ago.
HEFFNER: And you seem to think that that’s almost a failure of nerve on their part.
ABRAMS: The fact that they criticize is not a failure of nerve. The fact that they sit around and talk with each other a lot about, you know, what their role is in American life is, I think, a sort of failure of nerve. I think they’re getting nervous at the perception that they’re not like, that they’re not loved, that they’re too powerful, all the things that a lot of people say about them. I don’t think they were nervous about that ten years ago. I think they are now.
ROSENBLATT: Maybe it’s a casualty of the power, a casualty of the place in society where you suddenly realize who you are and where you sit. And these elements of self-scrutiny have to come in. All of a sudden you get a little anxious about it. Particularly thanks to television, which has hoisted journalism to such size as a profession as nothing else. Probably no other profession associated with television has been so hoisted. Then there’s the other element, going back to the professional society question that Floyd was talking about before: What sort of profession is journalism? It doesn’t have the educational standards that medicine and law have, or teaching in public schools has, for example. I’ve never been sure what distinguishes a profession from a business exactly, but one of things must be a kind of set hierarchical education that leads to examinations and then bar or medical examinations, and then entrance into the profession, internships and so forth. These don’t…I mean, there are internships, but they’re hardly of the same stripe. These don’t occur in journalism. You enter a profession whose business is to tell people as much as one can, to get knowledge, because getting knowledge has something to do with being human. And I think that’s how the profession came into being, just as a lawyer works for the civilizing of society based on laws, a doctor cures people, a journalist works to get people to know. But there are no professional standards for these things and entering the profession. And therefore I don’t know what body could work to establish such standards or enforce them.
ABRAMS: I remember an affidavit I was working on some years ago that Richard Wall, who was then the president of NBC News, had written. And he described journalism as a trade. And I, with my light pencil, crossed out “trade” and put in “profession”. And he, with his much heavier one, crossed out “profession”, called me up, let me know the nicest way and the most gentle way who the client ws, and that he meant trade. It was not the spoken word or the like. Maybe he was right.
HEFFNER: Well, when Roger said, “It’s a profession whose business is…” too, I was thinking that it’s a business that professes to do all of this. You said, “What’s the nature of the profession?” I couldn’t help but think that it is the oldest. And I just wanted…
ROSENBLATT: Well, it’s not the oldest profession.
HEFFNER: Well, I couldn’t help but think that, Roger, though I know that just indicated what you’ve considered my hostility. But I, look, when journalists – you included, Roger – are at this table, generally they don’t make the concession that you just made. It’s a function perhaps of power and the recognition of power. Mostly when you’re here there is – that’s why I use this “Nobody in here but us chickens” thing – that there’s an insistence we don’t have that kind of power.
ROSENBLATT: I’ve changed my mind on that. We had an earlier discussion on this program about the, demonstrating the type of the program by exhibiting an open mind. I’m beginning to realize what the limits of that power may be.
HEFFNER: You mean the outer limits?
ROSENBLATT: Yeah. I don’t think that’s the kind of power that is, you know, that is ruthless, and the kind of power that is tormenting or manipulative except in the worst examples of the trade. But surely there’s a power. And the question then is how one uses that power and stays within the proper limits of the trade. But I’m considering this, and then reading Floyd’s speech to which you referred before. I think it’s right. So the question is: What scruples apply to that power?
HEFFNER: Well, what scruples apply to that power, but how do you develop that without the sense of profession or without the sense of hierarchy that you were saying you thought was absent from journalism? How do you work this out? Or do you ever?
ABRAMS: Well, I’m not sure you can work it out in a totally satisfactory way. Within our large media organizations, the ones that come to mind the most quickly, they’re working it out internally. They’re either by taking much greater care, I think, in responding to criticism, dealing with criticism, apologizing much more often, much more often than they used to. I’m reminded so often of an aunt of mine who once called me up to tell me that the New York Times was not at all as good a newspaper as it used to be because they didn’t used to make mistakes. (Laughter)
HEFFNER and ROSENBLATT: (Laughter)
ABRAMS: And The Times is filled now with corrections and editors’ notes and the like. It’s marvelous. It’s something that one may say should have happened a long time ago. But, I mean, those are major changes. They’re not little things. And they are handled in different ways by other institutions. But they’re all beginning, I think, in a far more serious way than they ever did, to deal with those problems.
HEFFNER: How much do you think your profession, Floyd, the legal profession, has been responsible for the adversarial approach? You quote here, you quote Tom Wicker as embracing that approach. How much do you think the lawyers’ insistence upon arriving at truth – which I gather the journalist wants to discover too, as you say, Roger – how much is due to the patterns set by your profession?
ABRAMS: You mean by way of analogy?
HEFFNER: That it comes from a battle? You do battle?
ABRAMS: I don’t think journalists learn a lot from lawyers. I don’t think they turn to lawyers or the practice of law as a place from which they get a sense about what they ought to be doing. No, I really don’t think that that’s so. I think that, what Tom Wicker was talking about, the notion of a demanding sort of adversary press, comes from a decade of government lying to the press. I mean, that led journalists to be much more suspicious – much more cynical, if you will – but suspicious is, I think, a fairer word. And that had an enormous effect on a whole generation of American journalists.
HEFFNER: All right. That’s where it began. Begat by the, perhaps, the Nixon years, by Watergate, by Vietnam. Where does it end? Can it end? Does it fulfill its own prophecies now? And you’re explaining it. Explanations we can find and maybe agree upon. But what happens now when you have this adversarial relationship between the press and much of the rest of society?
ABRAMS: Well, it’s a part of the press and the government. My view is that it is rarely adversarial enough. I don’t fault the press for being too adversarial; I fault the press much more for continuing so often simply to print what some government official says. That is one valid purpose of a press, but it is not the only one. And it seems to me that the bland products that we too often get are a function of a journalistic ethos which doesn’t give us enough, it doesn’t demand enough of itself, and which doesn’t look with sufficient hardness at what government is saying. Do you think, Roger?
ROSENBLATT: I think it’s…I’m not sure that Dick was talking solely about a governmental relationship. In a different context, you have to go back to this odd way of pursuing a living, which is the journalist’s way. He has to catch up with facts in such a way as to see patterns that are not revealed to him except after a period. He follows a story, but he really follows it in a sense of running after it and getting piece by piece. He can claim that power that is, as we were talking about before, to be able to transmit that, the sense of that facts to the public. But as far as the truth that we were talking about before, his truth is a limited truth. He only knows what happens Monday, Tuesday, Wednesday, Thursday. Maybe after a while he’ll get a larger sense of picture. What better attitude, whether we’re talking about adversarial relationship or a suspicious relationship, I prefer a skeptical attitude there. What better attitude with which to apprehend reality than skepticism? Not only when reality has lied to you, as in the case of the government most recently, say within the last decade, but as a general attitude, Because then, only through such a way are you going to, you’re likely to get the facts straight and perhaps arrive at some semblance of the truth over a period of time.
HEFFNER: You know, you say “skepticism” rather than cynicism or the adversarial hostility. But skepticism within an economic structure in which one medium is competitive with the other, in which one branch of one medium is competitive with all of its brothers and sisters. Doesn’t the competitive aspect of newspapers, televisions news, etcetera; doesn’t this put all of this into a somewhat different light? That skepticism plus the profit motive plus the need for ratings plus the need for numbers leads to something perhaps not quite so desirable?
ROSENBLATT: I can speak with a little more authority about the printed media than I can about television. But I’m sure it applies to television too. I think it’s exaggerated. The case made suggesting that aspects of the media are simply out there to sell papers or to sell this or to sell a magazine. Most of the journalists I know, their relationship is strictly with the elements of the story, the importance of the story. Now there may be, the business side of any publication obviously I going to have its say. But the meat-and-potatoes business of journalism is really between the writer and the story and to establish some priorities among the stories and some idea of the relevant importance of that particular story, and not a burning desire to compete with Brand X or Brand Y.
ABRAMS: Could I just add that very often at least what gets the press most in trouble with the people or with our courts are stories which by no stretch of the imagination could be said to be economically motivated. In legal terms, for example, certain types of investigative journalism of organized crime have led to an awful lot of lawsuits. Those don’t sell newspapers. They just don’t.
HEFFNER: Investigative reporting doesn’t?
ABRAMS: Not very much. And certainly investigative reporting in the area that I’m talking about really doesn’t, no. People…And I fear, by the way, that we may have less of that sort of reporting in the future for some legal reasons involving legal protections or their absence. But I mean I think it’s a false notion to suggest that at least in that type of story that that’s why it’s done. Look back at television. I think most people who study television think that the story which first got television news in trouble with the American public was the coverage of the Chicago Democratic convention in 1968. Whatever one thinks of that, it wasn’t a ratings battle. There were cameras in the street watching police beating up kids. It was an unacceptable picture, an unacceptable story. I’m not just talking about punishing the messenger for bringing an unpleasant bit of news. It was very unpleasant to watch, very disagreeable, and totally disbelieved by a good part of the American public, notwithstanding that a White House commission later said that what went on was a police riot. Whatever else is true about all that, that wasn’t done for ratings. There were cameras there. There were cameras available because they were covering the convention itself. It was a great news story. And I think television paid dearly for doing that story well. I think it really got them in trouble with an awful lot of people.
HEFFNER: You know, I remember sitting at this same table some years back when an assassination attempt was made upon President Ford’s life. And the question then was: How do we protect the president? And a very distinguished newsman from one of the networks came here. And he and I had discussed subjects like this, as we three have, at different times. And he had always been concerned about what was done in the name of competition. Well, he came on the air, and there was some discussion of the showing again and again and again of this same attempt, and what it showed to every kook out there watching: How to get on network television – try to assassinate the president. I was shocked at his traditional defend-the-institution – not the institution of the presidency, but of the press – that point of view. After the program I asked him about it. I said, “You know, it doesn’t conform to what you’ve said otherwise”. He said, “Look, if you can promise me that…” and then he named a rival anchorperson, “wouldn’t use those same shorts, I wouldn’t. And that’s why I thought so much about this competition questions. If you say it’s not so, fine.
ROSENBLATT: I think the reason is specious and exceptional. Maybe even exceptional for the fellow who was espousing it then. There are questions now, live questions, that pertain to the same thing. The showing of the rape trial. And now they’re going to televise, I understand, the trial of a child abuse case at that school.
ROSENBLATT: I didn’t know it was still a question. By say they do, and we’ve already seen the rape trial. This is very rough stuff to look at. And questions of taste and questions of propriety apply. I, with a gulp, think those things ought to be on.
HEFFNER: Why? Why with a gulp?
ROSENBLATT: Well, I suppose the gulp is the reflex gulp of saying, “I don’t way my, I want to make sure that they show this in such a way that if my children happen to be turning the dial that they are not more terrified than educated”. But it happens. It’s a terrible thing in society; but it happens. The gang rape happened. And such things happen again. And we’ve paid too many penalties for saying things don’t happen, or pretending they don’t happen and look the other way. We’re more afraid of the other things. You know, we grit our teeth. And there are going to be mistakes along the way. Names are going to be revealed, shots are going to be given on television. You know there’s going to be sloppiness in this; it’s not going to be perfect. But we’ve paid severe penalties, I think, for saying, “No, let’s keep it off. We can show it, we’re legally able to show it, but let’s not, and let’s hold back”. Somebody sometime is not going to hold back anyway. So the question is to put it in the hands of the responsible before it gets in the hands of the irresponsible. But I think the people are getter off in the long run, the long, difficult run knowing than not knowing.
ABRAMS: I’d like to add that I think that the other thing that happens is a trial. I think since we’ve had extended use of television in a courtroom that our fellow citizens who wanted to get a real feel for what happens in a courtroom have had a better chance than they have ever had in their history. I mean that quite literally. You consider the New Bedford case, for example. The duller parts were on tape.
HEFFNER: No, no, no…
ABRAMS: Television is criticized whatever it does. If it puts on the highlights, it is said to be sensational. If it puts on everything, it is said to be worse, because, my God, you never know what’s going to happen.
HEFFNER: Which do you choose?
ABRAMS: I would choose everything because I sort of like to watch trials. But then, I’m a lawyer. I don’t get bored earlier.
HEFFNER: You mean your choice there would be based upon the theater that you would enjoy?
ABRAMS: I’m sort of interested in how good the lawyers are, too. But that’s my thing. I’m not saying everyone ought to like it for that reason. But I’m saying everyone profits from, genuinely profits from, in a democratic society, see…How does a courtroom work? What does a judge really do?
HEFFNER: How did we know how a courtroom worked before the first trials?
ABRAMS: I don’t think we did. I really don’t think we knew at all as well. Those of us that have been there, the journalists that have covered it, the people that have been in the courtroom, had some sense. But most people had no sense at all.
HEFFNER: Then in balancing the equities here, you’d opt in favor of widespread coverage?
ABRAMS: Yes, I would, definitely.
HEFFNER: And you obviously would, Roger.
ROSENBLATT: I would. I also…I never thought of it until Floyd mentioned it, but you are watching in a trial a process of civilization, not a process of chaos. You’re watching chaos restricted by civilization in a crime held in a courtroom. I think that’s profitable.
HEFFNER: I think perhaps we should take our cameras not into the courtroom after rape has been committed but to the event itself. What is this business about having to be there, having to see everything to know that it happens?
ABRAMS: Well, that would require either a prescient camera or an odd rapist.
HEFFNER: To know whether it’s true? …quite so prescient. Seriously, why this emphasis now? Have we done so badly? Or let me put the question to both of you in another way. Are you both so convinced that it will be a boon to civilization to, without drawbacks that would diminish that boon, to show these moments on television or the whole trial?
ABRAMS: Oh, I think that there are necessarily drawbacks. There are drawbacks in terms of some sense of civility in the sense that we’re seeing ugly, unattractive things which may diminish the world to the extent that we see more of them rather than less of them. But we’re also seeing, as Roger said, real things. We’re not seeing the rape. We’re seeing real things in terms of a trial and a description of what occurred.
HEFFNER: How would you feel if you were a defense attorney in such a case?
ABRAMS: In which sense? In the sense of how my client would fare as a result of it?
HEFFNER: In terms of how your client would fare during the trial, after the trial.
ABRAMS: I think I would be concerned about the fact that my client would become especially well-known, that the fact of who he or she is…
HEFFNER: Convicted or acquitted?
ABRAMS: …would become magnified. And that, I think, is a legitimate thing for a defense attorney to be concerned about. My view is that that’s not something that we ought to factor very highly as we decide whether to allow this magnification to exist. It seems to me bizarre to say that anyone can walk into a court – I’m assuming an open courtroom now – anybody can walk in, anybody can write about it, and the cameras do not in my view at all distract people. But that’s not what we’re talking about anymore. They don’t move. There are no lights. There’s no problem like that. It’s just a question, as you rightly put it, of the effect, in a rather psychological way I think, at least on the defendant in the case. And my view is that this is a public affair. A defendant is not, even if he’s innocent, sometimes particularly if he’s innocent, is not someone who happened into a courtroom. The state, with all its might and majesty and whatever, has accused him of something. That’s a public act. The trial is a public act. I think to say that we should have less of that, less publicity, is to take away from us…
HEFFNER: No, no, no. I’m not saying that; you’re saying we should have more. And I gather that means that you’re perfectly satisfied with what print journalists have done with trials in reporting them. Therefore, why not expand the opportunity to the electronic media too?
ABRAMS: Well, I’m not perfectly satisfied in the sense that all print journalists have been either accurate in their reporting or restrained in their reporting. Television particularly, when it broadcasts the whole trial, is both. It is accurate and it is precisely accurate.
HEFFNER: Roger, you feel the same way?
ROSENBLATT: Yes. I haven’t thought about it very much, but clearly it is if you can see everything you can make your own discriminations. I must say I was fascinated by watching the rape trial, at least parts of it. In the process of the trial…
HEFFNER: If you could see everything…
ROSENBLATT: …the instructions of the judge to the jury, for example.
HEFFNER: But who sees everything?
ROSENBLATT: Well, you see more. You see more than you would through the interpretation of a writer.
HEFFNER: But you both are satisfied that more is sufficient, even though what you’re really saying is that if, as a juror, you say everything, you could reach a rational conclusion of your own. You’re satisfied to let that view…
ABRAMS: I’m not satisfied that people at home can pass a perfectly intelligent judgment – certainly not as much as a juror – about guilt or innocence. Not at all. They can pass a judgment on the system, sort of a systemic judgment. Is it working? How do judges behave? What rights does a rape victim have? And the like. And those are good things.
HEFFNER: You know, the trouble is I’m getting that signal to end this. And I don’t want to end it, so I’ve got to get both of you to agree to come back again.
ROSENBLATT: With pleasure.
HEFFNER: Thanks so much for joining me today on THE OPEN MIND.
And thanks too, to you in the audience. I hope that you will join us again next time. Meanwhile, as another old friend used to say, “Good night, and good luck.”