Helen Thomas was writing for UPI when newspapers still used linotypes and when teletypes delivered her stories nationwide at speeds we would no longer accept for devices we carry in our pockets. It was this explosion of connectivity that ultimately ended her career: an intemperate remark made into a pocket video camera, amplified by the international reach of the worldwide web.

Helen Thomas

She was a veteran of the gatekeeper days of media; when JFK could philander in the White House and the press corps would give him a free pass. People could say intemperate things as asides and expect to do so with impunity; the gatekeepers would keep the snarky one-liners on background. As media became more prolific, and connectivity became ubiquitous, everyone suddenly became a press photographer merely by owning a phone with a camera; everyone with a camcorder and a website is their own TV news operation.

I had a vested interest in seeing Helen Thomas in the emeritus seat at press conferences. I think all of us who are refugees from dying or dead media took comfort in her longevity and perseverance; she provided at least a tenuous link with our shared journalistic past.

Just as she has outlived most of the ink-stained wretches from newspaper’s late golden age, she outlived the old media she once wrote for. She resigned from UPI when it became the mouthpiece of Sun Myung Moon; finally ending her career as a columnist for Hearst, which today sees its newspapers as only a small part of a diversified media company buying its way into the digital age.

It is symbolic that Helen Thomas ended her career in a way being mirrored by the institutions she spent her life working for; she didn’t see the subtle changes in the way information permeates society until it was too late to change. Public figures are always tempted to say intemperate things and in another day, the gatekeepers would laugh then suppress the direct quote. Now that we’re all journalists, that’s a courtesy that died with the linotype and the slow news ticker.

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Liberty Counsel, the right wing religious legal group famous for amicus briefs in “10 commandments in the courtroom” cases, says they’ll back George Rekers should he decide to sue, reports today’s Washington Times. The article quotes Matthew Staver, dean of Falwell’s Liberty University School of Law. Since Mr. Staver’s private practice took place primarily in Orlando, Florida there is a distinct possibility should there be an action, he’d be involved.

I’m not an attorney, just an old news guy fascinated by communication law, but I see two problems here.

First, there is a strong possibility that George Rekers is a public figure. Since New York Times v. Sullivan, public figures have had a tough time suing for defamation. The theory is that robust public debate trumps the rights of an individual who is an actor in that public debate.

“Sullivan” was the police commissioner of Montgomery, Alabama and though he wasn’t even explicitly named, he believed he was held up to ridicule because of an advertisement in the NYT Times that attempted to raise funds to defend Dr. Martin Luther King against a trumped up Alabama perjury indictment.

Rekers was a founder and member of the board of a high profile organization that took an extreme position in an area of great controversy. Much of his income came from expert testimony in widely publicized cases that were extensively written about in the press. In two of these cases he was excoriated for testimony that was worthless and biased. This too was widely reported in the press.

When his activity, most of which he does not deny, became public knowledge, he was further elevated to prominence as the subject of the opening monologues on nearly every late night show, from Colbert to Craig Ferguson.

Should he file a case, that too will be newsworthy, and will have the additional protection that, because it’s litigation, it can be publicly discussed with impunity.

Second, we are now starting to see “he called me queer” cases being thrown out of court on the grounds that an imputation of homosexuality is not defamatory.

So once again, “poor” Mr. Rekers finds himself in the damnedest position. If he sues, the very defense in the case is going to highlight the struggle of a minority to even find a level playing field to argue its oppression against the person fueling that oppression. Rekers will find himself compared with the police commissioner of racist Montgomery, Alabama in the day of MLK.

In claiming he’s injured by being called gay, he will unwittingly call his own life’s work into question, because the very injury he’s claiming is one he has spent his professional life fostering.

He’ll serve himself up on a platter for every op-ed writer in the country that needs to fill 14 paragraphs with topical edginess, and they’ll be able to do it under the doctrine of qualified privilege.

Wouldn’t surprise me if he does sue. It’s the worst possible thing a man in his position can do, and he’s never failed to take the worst option before.

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It breaks down into three major categories:

1. The Former Media Monopoly — This includes the New York Times and MSNBC. You’ll find their exemption under U.S.C §431(9)(B)(i). Their howling has included some great moments in hypocrisy.

   The New York Times (whom you’ll recall as the petitioner who claimed the first amendment rights of its corporation had been violated in New York Times v Sullivan) opined: “Most wrongheaded of all is its insistence that corporations are just like people and entitled to the same First Amendment rights.” Since this was an unsigned editorial, this is a corporation complaining that corporations shouldn’t have first amendment rights. Of course, they’re exempted.

   Keith “You Sir” Olbermann, in a special comment assailed the decision with the personhood argument. His comment is actually a work for hire, the property of a corporation and disseminated by it; but of course, they’re exempted. If they weren’t exempted, they’d  be first in line with an amicus brief for Citizens United.

2. Those in Under The Wire — In 2005, the chilling effects to first amendment speech was clearly seen by the blogosphere. The Internet isn’t even mentioned in the media exceptions of BCRA, but the blogosphere wound up almost entirely exempted by an administrative decision of the FEC. As such, the FEC under another board, could change its mind. If it had decided otherwise in 2005, bloggers would have fought for first-in-line position to deliver amicus briefs along with legacy media.
3. The Exempted Political Idea Industry — This howling appears the loudest to those of us on a myriad of political action lists. This is another monopoly seeing itself lose power. Their exemption came through their ability to navigate the complicated work-arounds that resulted in the lawyered-up’s ability to express political opinions on behalf of the people paying them to do so. They’re the middlemen now cut out because anybody can go to a media distributor and buy time, or go to a computer store and buy DVD blanks and fill them with political commentary.

Poltitical contribution laws were out of step with the way media is changing. It resulted in Citizens United not being able to spew a load of crap, while Fox News does essentially the same thing every day.

It causes folks like Margaret McIntyre to be fined a hundred dollars for expressing her speech, while the Swiftboaters get awards.

The politically protected pundits can’t seem to agree what the effects of this will be. Perhaps we’ll hear nothing but corporate shills morn ’til night, perhaps we won’t.

But one thing it will do is change the game in a big way, because this decision gave a lot of freedom to a lot of people, and took away a lot of monopolies from a privileged few and its been those privileged few responsible for most of the noise that’s being made.

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The folks at ceasespin.org are angry, and they have good reason to be. The media lie and even when you catch them at it, the government seems powerless to stop them.  They’ve got a plan to change things, but like so many plans that arise from anger, they haven’t thought things through. Much of their outrage is tied to the reversal on appeal of a wrongful termination verdict in 2003 stemming from a case in which reporters for WTVT, Tampa, refused to air the statements of Monsanto employees that they personally knew to be false.

This is a sad commentary on the nature of the media, but its also a case where hard cases make good law, and the ceasespin.org site should be a great resource for journalism schools everywhere, because in just a few web pages, the site illustrates the conundrum of how objectivity can be achieved and who decides what is fair.  For instance, they’ve not yet been able to come up with a standard:

Note: this prototype is for informational and educational purposes only. It demonstrates what quality criteria might be used in an actual news quality rating system and how that translates into a quality rating score. The actual news quality standard is still in development and will be published on this and other websites further into the development cycle.

This is not surprise to any third or fourth year journalism undergraduate who has considered the difficulty of who decides. There is a clear danger in any system that places the government in control of media content, and while there are today few first amendment questions for licensed broadcast media (NBC v. United States 1943 pretty much decided that), government regulations must be reasonable and necessary.

So, after a lot of hue and cry, ceasespin winds up posting a self-policing system that is essentially what should be taking place in any good newsroom and has been taught in j-schools at least since the 1930s. Other suggestions like the fairness doctrine and media deconsolidation are much better solutions, but they’re hardly the province of ceasespin. In fact, the fairness doctrine probably is not necessary if there’s diversity of ownership, which was the original concept behind getting rid of it.

In fact, if ceasespin were to apply the standard it wants to see in others to its own coverage of the Fox news decision, it would have to check “no” to at least 6 of its criteria, and probably more. There are reasons that the FCC policies are not laws, but those aren’t cited in the ceasespin story, because it would undercut its own movement. So its own score on its own test: FAIL.

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They’re scared. The newspaper crossownership restrictions that the FCC loosened in late 2007 may be an early target of the Obama administration’s desire to help return some diversity to legacy media, and the arguments are already beginning.

Broadcasting and Cable posted their “Open Hopes” yesterday in a pleading editorial that would have made George Orwell proud:

“Diversity can mean helping preserve TV and radio stations by allowing those in smaller markets to combine resources and ensuring that the government does not try to silence its critics.”

That’s got to go down with “less is more” and “obedience is freedom,” as a truly great oxymoron, so let me make this real simple for the obviously confused guardians of our public airwaves. Diversity is more people owning fewer media outlets. That means the local newspaper does not get to buy the local television station.

In the 1930s this was newspapers' biggest fear

In some cases, that is going to result in newspapers going out of business, sometimes the very same newspapers that tried to run radio stations out of business in the 1930s, until United Press threw in the towel and started putting wire services in radio stations.

The Broadcasting and Cable “Open Hopes” editorial tries to finesse its point by talking about “stations in midsized markets” and then changing the subject as quickly as possible to Bush’s embedded reporters and wholesale classification of embarrassing government reports. That’s not the point, in fact its counter-intuitive. If we had more diversity, somebody might actually have called Bush out on those issues at the time!

Broadcasters: you have two choices. Either start providing a range of opinions on your properties so that you can point to diversity on your own outlets, or get ready to be forced to divest them or to face that dreaded “fairness doctrine.” If you had been doing your jobs, there’d be no reason for any of this.

And stop trying to play this off as being somehow driven by troubles at midsized stations in small markets. It was the Chicago Tribune sale that caused FCC Chief Kevin Martin to ram this through, followed by Rupert Murdoch’s acquisition of Dow Jones.

And if you’re looking for “synergy” (meaning you get to buy the local television station), think again. The public airwaves are not there to pay for your red ink. If you need a new delivery medium, look to the Internet.

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