I'm just gonna go ahead and warn you up front: I'm about to get on a soapbox. I promise I won't tell you how or what to think, but I am going to encourage you to change your behaviour. But just a little. Now hold on tight, cuz I actually did a bunch of research.
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The world can be a cruel place. Terrorism, corruption, twisted politics and greed... people aren't always known for being good. And increasingly, it seems like the media exacerbates things with catchy headlines and obvious (and less-obvious) bias.
These days, the role of the media in America and what/how news is reported is under increasing scrutiny. Eye catching headlines, bitter debate, and heated discourse are becoming the norm. President Trump has branded news outlets who don't publish flattering things or things he disagrees with as "fake news", prohibited staffers at the EPA, USDA, HHS, and DOI from releasing press briefings or social media updates, and called for relaxation of libel laws. None of this is great. Discouraging open communication and transparency between the White House and the American people seeds distrust, which in turn polarises the media which serves as the distributer of news to Americans.
Because let's be honest, we get our news from TV, news outlets (print or digital), and the internet. Most people won't read all the speeches, bills, executive orders, interviews with experts, and then analyse and form their own opinion. We have jobs and lives and no time to do all that. The media serves as a filter that breaks things down into bite-size chunks and tells us why we should care. So when the party line of the Executive branch becomes aggressive, resorts to name-calling, and openly wants to control what and how things are reported, it should scare us. It sure as hell scares the media, which responds with increasingly biased reporting. All of a sudden only the extreme viewpoints are being presented and it becomes hard as a consumer to distinguish fact from opinion.
And all of this started because one man got his feelings hurt and threatened freedom of the press.
Which brings us to today's discussion: can President Trump actually curtail freedom of the press as prescribed by the 1st Amendment, and why is everything so biased?
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First off, the text in question. Amendment #1 to the Constitution of the United States of America. The much loved freedom of speech, press, assembly, and religion clause that is one of the pinnacles of American greatness:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the rights of the people peaceably to assemble, and to petition of Government for a redress of grievances".
When it was written, interpretation of the free press clause was in line with English Common Law, where judges applied statue and legal precedent. In short, application and interpretation relied heavily on the judges. Over time, Civil Law became the norm, and the role of judges shifted towards determination of the facts of each case and application of laws within a codified framework (e.g., laws and regulations), while the actual laws were developed by legislators and the government.
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And now for a crash course in Supreme Court rulings on Freedom of the Press.
Over the years, the Supreme Court has ruled that the 1st Amendment protects speech against the government as long as it doesn't advocate for action that presents a clear and present danger (Yates vs. United States, 1957). This means that political speech, even if it attacks the government and public figures, is protected. Furthermore, public figures and officials must prove actual malice to cry "libel" and muzzle the press, thus protecting the right of the press to publish dissenting opinions and criticism (New York Times Co. vs. Sullivan, 1964). The right of the press to criticise the government and public figures was upheld by a 9-0 decision in Associated Press vs. Walker (1967), where the Court stated that "One of the prerogatives of American citizenship is the right to criticise public men and measures... such criticism, inevitably, will not always be reasoned or moderate". Public figures can sue for libel or defamation when they can prove that the statement was false and made with a requisite level of culpability, i.e. actual malice and intent to damage the character of the person.
In its 1974 ruling on Gertz vs. Robert Welch, Inc, the Court found that "The first amendment recognises no such thing as a "false" idea". In Hustler Magazine, Inc. vs. Falwell (1987), the "actual malice" requirement for libel was upheld and the Court ruled that parody is protected under the 1st and 14th amendments, saying "The State's interest in protecting public figures from emotional distress is not sufficient to deny first amendment protection to speech that is patently offensive and is intended to inflict emotional injury...".
Even though it was based in a parody/satire ruling, I find the Hustler vs. Falwell ruling especially relevant given President Trump's claims that he is being misrepresented and maligned by the media and stated urge to gag his critics. The majority opinion penned by C.J. Rehnquist pointed out that criticism of public figures and officials may be "vehement, caustic, and sometimes unpleasantly sharp", but is protected nonetheless. He went on, writing that "The candidate who vaunts his spotless record and sterling integrity cannot convincingly cry "Foul!" when an opponent or industrious reporter attempts to demonstrate the contrary".
That doesn't mean that the 1st Amendment encourages people to say and print lies to their heart's content. Rehnquist chastised those who deliberately spread misinformation, pointing out that "False statements of fact are particularly valueless; they interfere with the truth seeking function of the marketplace of ideas... but even though falsehoods have little value in and of themselves, they are "nevertheless inevitable in free debate," id. at 340, and a rule that would impose strict liability on a publisher for false factual assertions would have an undoubted "chilling" effect on speech relating to public figures that does have constitutional value".
There are limitations to what the press can say and publish. Cohen vs. Cowles Media (1991) found that the 1st Amendment doesn't grant the press protection from laws that limit or restrict the right to report truthful information. However, there is no requirement that the press be subjected to stricter scrutiny than an individual, and "utterances honestly believed contribute to the free interchange of ideals and the ascertainment of truth". This means that journalistic integrity and reporting facts really are optional.
A notable limitation to the 1st Amendment protections concerns inciting violence. Chaplinsky vs. New Hampshire (1942) determined that a State can "lawfully punish someone for the use of "fighting" words, which by their vary utterance inflict injury or tend to incite an immediate breach of the peace". This was upheld in Brandenburg vs. Ohio (1969), where the Court ruled that "The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force, or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action".
So basically, anyone can print whatever they want, regardless of truthfulness, as long as it doesn't meet the criteria for libel, incite and encourage acts of violence, or violate State laws. And, more importantly, the Supreme Court has a long and illustrious history of protecting the right of the press to say whatever they want while limiting the power of the Government to regulate it.
The take away? President Trump doesn't have a leg to stand on when he starts attacking the press and threatening to try to control what is printed.
Sick of reading all about the Supreme Court rulings on freedom of the press?
Here's a kitty cuddle session to reward you for making it this far.
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Now on to what I consider a big problem: Sensationalism and the rise of confirmation bias.
Sensationalism focuses on emotions, rather than facts and details. It appeals to a large audience and tends to exaggerate details to make issues seem more controversial. Additionally, we can't forget that most media outlets, big and small alike, are businesses and need readership to make money. In this day and age, ad revenue from websites, rather than print subscriptions, make up increasingly large portions of profits, and media sites will do what they can to increase their traffic. People like controversy, and big attention grabbing headlines with horrifying bylines are more likely to get someone to click the link.
There are a couple issues that result from this trend towards sensationalist headlines:
1. Sensationalist reporting deprives readers of a means to form an objective opinion. Massive bias and poorly substantiated conclusions are crammed into the first couple paragraphs, while the facts and meat of the matter get buried or glossed over, forcing the reader to try to discern what is fact and what is opinion. Even better (sarcasm!), getting all your news from traditional media has been shown to result in greater misinformation on topics (this particular article focuses on scientific news, but can be directly applied to political and international reporting, as well).
That said, not all sensational headlines and news is clickbait and chock-full of bias. Coverage of the Clinton-Lewinsky scandal was extremely controversial because it dealt with a very taboo topic (ohmygod sex!). Yet it was a big deal and the scandal almost resulted in his impeachment and threatened to bring down the Clinton administration. Coverage of Princess Diana's death, however, was sensationalism at some of its worst, where events were dramatised and hyped as news outlets went after greater market shares; this wasn't news, it was manufacturing bullshit for the sake of financial gain.
2. Most of us are lazy. Like, really lazy. People don't bother to read past the byline (or headline!) and draw conclusions based on that, then go ahead and share the "news" with their friends (the Washington Post did a pretty good article on this. Which, I admit, I had to go back and finish reading, then check out the cited studies after I typed this cuz I felt like a hypocrite). This has a huge influence on what news circulates and what drops off the radar, and with more and more people using social media as their primary news source, fake and misleading news is increasingly prevalent.
This pops up in medical and scientific journals, as well as news media. "Positive" results are more likely to get published, while "negative" results disproving something and results that confirm existing studies do not. A summary of how science news gets distributed was created by Jorge Cham of PhD Comics and pretty much nails it:
You see the same vicious cycle with news coverage. Things are distilled and over-simplified, readers draw (incorrect) conclusions, and shit spirals out of control.
3. We get desensitised and skip over news that should actually anger us. It becomes hard to determine what is real and what is clickbait, and we become jaded.
4. We are swimming in confirmation bias. The articles we choose to read and permeate our social media feeds (like that lovely "things you might be interested in" feature present in basically everything) have so much bias crammed in that it's almost impossible to avoid surrounding yourself with like-minded people. Which reinforces our pre-conceived notions, insulates us from the opposing viewpoints, and makes us sound ignorant.
5. People don't like change. No issue is black and white, despite what the eye-catching headlines scream. Hillary Clinton did not say that she would ban handguns. The Obama administration passed a law requiring people on social security deemed unfit to manage their own affairs to get background checks before purchasing a gun, but did not require all social security recipients to get background checks. Obama never said that gun laws would eliminate crime. President Trump didn't order a raid on the CDC to collect data on vaccines and autism. Speaking of, vaccines do not cause autism (holy fuck, people, stop being stupid!). And Facebook has never claimed all your posts are copyrighted or that they will make all your posts public. Promise.
No issue is cut and dry. There is more to the abortion debate than everyone who is pro-choice being for all abortions, all the time, and all pro-life people having a religious objection. What about the life of the mother, rape, incest (and don't even get me started on parental consent laws), or a child that will have extreme disabilities or won't survive outside the womb? What about the right of a women to body autonomy? What about the value of a life and right of a person to decide which life is more valuable? What about someone who doesn't want a kid, did everything right and still ended up pregnant? The other side of an issue usually isn't irrational or 100% wrong. If you engage in a civil conversation and try to understand other viewpoints, maybe you can expand your understanding of an issue and even learn something.
And sorry, guys, but just because you don't agree with something doesn't make it fake.
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At the end of the day, the responsibility rests on us to sift through the bullshit and check sources to find the facts. In an age where the President is attacking the media and unbiased news is more and more hard to find, it is increasingly important to use multiple news sources (and not just ones that conform to your views. Read the other side, too. The reality lies somewhere between Fox and CNN). I've found that international news sources like BBC do a better job of reporting facts sans bias when it comes to American politics. NPR, PBS, and Reuters do a pretty good job of staying impartial, and, if you really want to get to the truth of an issue and form your own opinion, CSPAN.
President Trump isn't wrong. The media can be incredibly biased. But bias doesn't negate facts, and facts don't lie. You can't change the truth, but you can interpret things differently based on the available information.
And lucky for us, he won't be able to censor the press without overturning the 1st Amendment and over 100 years of Supreme Court precedent.
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I'd apologise for going super political on y'all, but I'm not sorry. Now go be open-minded and practice critical thinking. Maybe throw a little tolerance in there for good measure.
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