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April 5, 2007

JURIST Conference: Law & the media: Convergence or collision?

“As a matter of process, the law and the web are a wonderful blend of content and technology, perhaps one of the best examples of the merit of the Internet: The law is vast and the Internet is endless,” said Emmy Award-winning former CNN broadcast journalist Charles Bierbauer.

Now dean of the College of Mass Communications and Information Studies at the University of South Carolina, Bierbauer capped off the day-long conference celebrating 10 years of the Pitt law web site JURIST with a keynote speech titled “Law and the Media: Convergence or Collision?”

“My caveats are these: I am a journalist by trade and by inclination,” Bierbauer said. “I’m an academic by the grace of my good colleagues in South Carolina, but I still think like a journalist.

“I’m also not a lawyer,” he added. “But there’s a lot that we have in common, starting with a shared enthusiasm for taking a whole bunch of disparate facts, throwing out the bad ones, keeping the good ones and weaving them together into a fabric that constitutes either a coherent news report or a legal argument.”

In preparing his March 29 speech, Bierbauer pondered what he could contribute to the discussion of the theme, “law as a seamless web site,” — “especially since I’m supposed to have the last word,” he said.

“Forgive me, but I don’t see the law itself as all that seamless. I see it as often contradictory. That’s why cases come to the U.S. Supreme Court because the lower courts decide something that is appealed. Courts don’t agree. And I certainly don’t see the web as seamless. I would suggest there are multiple web iterations: There are certainly the good, the forgettable and the utterly disgusting. Where the two meet, there are certain rifts and rents, and more questions than answers,” said Bierbauer, who was part of CNN’s original news team when the groundbreaking cable network was launched.

How times have changed from his early news reporting days of typewriters and carbon paper, he remarked.

“When I started at the AP bureau [in the 1960s] we had a telex operator who was taking stories and punching them onto teletype to transmit them to New York over the telegraph,” he said. “Even when I became CNN’s White House correspondent in 1984, I still carried a portable typewriter, then a word processor. Finally in the late ’80s we got laptop computers, but they had tiny screens, limited word capacity, no graphics.”

Now his phone, calendar and email are all in one device that fits in the palm of his hand, he said.

“Today, I’m going to focus on two points: the media and the law and how we co-exist; my other point is about media law, which is not the same thing at all,” Bierbauer said.

Drawing on his CNN experiences covering the U.S. Supreme Court — the legal forum of most resistance to new technology, he said — Bierbauer noted that the first instance of audio tapes of Supreme Court arguments was only as recent as December 2000 in the Bush v. Gore election case.

Soon after the Bush v. Gore decision, Chief Justice William Rehnquist made an unexpected foray into the press room at the courthouse.

“He was surprised that there was so much public interest in these broadcasts,” Bierbauer said. “Well, Rehnquist was never that interested in the way the rest of us got our information about the court.

“Even as recently as the late ’90s when I began my stint [covering the Supreme Court], there was a lot of paper and briefs and copies to be made. Almost all of that information now can be obtained online. The files are still massive, you still have to wade through the arguments, but the Supreme Court quickly makes the information available.”

Are cameras in the country’s highest court next?

“Justice [David] Suter unfailingly says, ‘Over my dead body,’” Bierbauer said.

Justice Antonin Scalia also opposes cameras, worrying about “sound bites, comments being chopped up into six-second units rather than anything more eloquent,” Bierbauer said. “And he knows whereof he speaks, because he’s the one who delivers six-second sound bites.”

There’s also the shadow of Judge Lance Ito, infamous for the televised out-of-control O.J Simpson trial, that hangs over any discussions about cameras in the courtroom, Bierbauer said.

“But the truth is it’s becoming much more commonplace and that will continue,” he said.

Turning his thoughts to media law, Bierbauer said, “I don’t have to tell you there is much unsettled law and much that’s likely to remain unsettled well into the future.”

For example, an Internet search yields dozens of case citations involving law and the Internet. In academia, Law and Internet courses are oversubscribed. There is a spate of cases about online issues such as pornography and free speech. Online commerce such as eBay is rife with legal issues, he said.

“So, clearly, law students, this area will be big from here on out, for your entire generation, I would suspect,” Bierbauer said.

He cited other areas of legal concern:

• What constitutes unreasonable search of Internet exchanges?

• In a Fourth Amendment context, is there a difference between hard drive, zip drive and flash drive? If one can put information in a pocket is that different from having it on a machine?

• What is the protection on cell phone conversations? Should there be warnings about this?

“The U.S. Department of Justice has launched a public service ad campaign called ‘Think before you post,’” Bierbauer noted. “I tell our students, ‘Don’t put anything on the Internet that you don’t want your future employer or spouse, let alone your parents, to see, because employers are looking to see what’s on the Internet and they don’t care about privacy all that much. In effect, if you put it on YouTube, you abdicate your privacy.”

Perhaps the most important question is, What are American society and democracy and its courts willing to accept as curtailments or infringements to surveillance and search? he said.

“Flying here, it struck me as it has often, that we’re a surprisingly acquiescent people. We take off our shoes, take off our belts, put our jackets in plastic bins, shuffle through the [screening devices],” he said. “We grumble, but we don’t joke about this, do we? We cannot say, ‘This has been a blast!’

“How much are we willing to see the screening device virtually strip-searching us, and what will the courts say about that?”

Is it enough justification to say this is keeping us safe from terrorism? he asked. “What’s to say that this type of surveillance is other than wire-tapping of a higher technological order? J. Edgar Hoover revisited. We have legal safeguards against abuse, such as habeas corpus. We also have extra-territoriality that undercuts habeas corpus: We have still nearly 400 people at Guantanamo. We round up illegal aliens — when we feel like it. We police our borders — selectively,” he said.

The so-called war on terrorism has created new legal and ethical problems, Bierbauer maintained. What American soldiers are facing in Middle East battlegrounds “is Hobson’s choice,” he said. “It’s the defense of necessity where, the argument goes, the results would be worse if you don’t take this action, even if it is illegal.’”

Referring to the Abu Ghraib prison abuse photographs that many media outlets ran, Bierbauer noted, “A lot of people said printing those pictures was unwarranted on the part of the media. I would argue that story demanded to be told.”

In addition to what the public understands the role of journalists to be, there is tension between media and government, Bierbauer said. “The Scooter Libby trial fits that category,” he said. “Pick any side you choose and there is plenty of hubris, ambition, arrogance and deceit to go around. The trial devolved into a whisper-and-snicker scandal inside Washington of who talks to whom, rather than about Valerie Plame. That raises issues of how close do the media want to get to the people they cover?

“I’m all for sunshine laws throughout the country. Temptation lies where the sun does not shine,” he said. “I’m less certain about shield laws for journalists, because the same temptation is there. A journalist must be willing to live with the consequence of her actions. But sending Judy Miller to jail for a story she never wrote is a little like nailing Al Capone for tax evasion.”

Journalists also are adjusting to “a cosmic reversal of working on the Internet,” Bierbauer said. “Time was when an editor who looked around the newsroom and saw reporters wondered why they weren’t out getting the story. Now that editor is just as likely to look around the newsroom and wonder why the reporters are not at their computers getting that story.”

The availability of vast amounts of information is not necessarily creating better news stories, however, he said. “It’s really more plastic, clean-shoes, antiseptic, no-sweat journalism. You have to get your feet dirty once in a while. Yet there are a lot of new stories that benefit from the computer-assisted data mining that lead reporters to solid background,” Bierbauer conceded.

Is a blogger a journalist? If not, what’s the difference?

The practice of blogging has its roots in an American tradition, Bierbauer noted. “In our revolutionary days Tom Paine would have been a blogger.

“But bloggers scare me,” Bierbauer said. “There is far too much vitriol passing as commentary and even trying to pass itself off as journalism. The problem with blogs is that, the Media Bloggers Association notwithstanding, they’re unchecked, they’re unregulated, they’re unaccountable. Most blogs are ignorable. I would like to believe that really bad writing defeats itself, that people will recognize it for what it is. And we do need more good writing, and not only on the web but in our classrooms.”

Marshall McLuhan famously said in the 1960s that “the medium is the message,” Bierbauer said.

“But I think the medium is the delivery system and it has changed from day to day for years and years, the pace is so dramatically different. Editors still want writers, they want critical thinkers, they still say content is the key. Content requires exploration, exploration involves uncertainty.”

The same is true of today’s media: It’s on an uncertain, unstable path, he said.

As an admirer of Lewis and Clark, he said, “Every day they thought this would be the last mountain range before they’d see the Pacific. Then they found yet another mountain range, and it’s that voyage of discovery that we’re really on.”

—Peter Hart

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