Wednesday, April 14, 2010

You're Busted!

I've been an advocate of freedom of the press all my life.

And let me tell you, it hasn't always been easy. Because if you're going to support something like freedom of the press, by definition you just about have to be opposed to censorship.

But then we get into something of a gray area. You see, even the most ardent supporters of freedom of the press will agree that there are times when censorship is necessary — and, so, certain concessions had to be made.

We've tried to be careful, even grudging at times, about the restrictions we as a society impose on the press — and we expect publications to honor the restrictions we do deem necessary.

Within the sometimes vague framework our lawmakers have created to govern the behavior of the publishing business (which, for the interests of this article, include broadcasting outlets and any other news gathering/writing outfit), I have found myself supporting some groups I never thought I would support — all in the name of protecting freedom of the press and freedom of speech.

I have always believed those freedoms were essential, but they are not absolute. Certain things are not in good taste. Certain disclosures really could jeopardize national security. People's lives can be unnecessarily threatened if you inject chaos into a previously calm situation — for example, standing up and yelling, "Fire!" in a crowded theater.

There tend to be very good reasons behind the restrictions that exist, and most newsgathering organizations make an honest effort to follow them. Most of the time it works out pretty well. Credibility is very important to most newsgatherers. Things may have been different when "Mr. Smith Goes to Washington" was made, but I have never worked for a newspaper that did the kinds of irresponsible things portrayed in the attached clip.

So I would applaud Jimmy Stewart — to an extent — for his defensive response. But his character was a public figure, and he would be sure to attract some attention for it.

Which brings me to today.

I was taking care of some personal business this morning, and, while I was driving around, I heard the end of a radio report about a new publication that currently appears to be available only in Michigan and Oregon, but the goal seems to be to make it available from coast to coast. It is called Busted, a tabloid–style newspaper.

Busted apparently publishes the names and mugshots of people who get arrested for anything and everything.This publication, we are told at its website, is printed weekly and can be found at "convenience store(s), liquor store(s), independent market(s) and gas stations."
"Each week BUSTED publishes hundreds of Mug Shots of Local People throughout your community who were arrested during the previous week.

"Murder to Misdemeanors, Possession to Prostitution. Each week the Busted Crime Investigation Team scours the files of county courthouses across the country, Searching For the Truth!

"Was your neighbor Driving While Intoxicated, Is there a Registered Sex Offender living around the corner; What about that Rapist you heard about on the news; BUSTED Lets You Know!

"Who tops your communities
(sic) Most Wanted list. Have you seen a list of Missing Children lately — BUSTED Keeps You Informed!"

I don't know how this publication presents these police reports. But I know that, when I was a student and then when I was a reporter and an editor, the usual procedure was to say — if it was even deemed necessary to report that someone had been arrested (and if the person was not well known, the tendency was to say, "Who cares?") — that So–and–so was arrested or charged with an offense.

We never referred to anyone in a way that suggested, directly or indirectly, that he/she was guilty. If the case went to court and the defendant was convicted, then we would use that. But we never presumed that an arrest was the same thing as a conviction.

Yet, that is what it seems to me that this publication does — perhaps not so much by design as by implication.

What happens if the charges are dropped? Or if the person who was arrested contests the charges in court and wins?

If that scenario seems far–fetched to you, I can tell you that I was once selected to serve on a jury in a case in which a middle–aged woman had been charged with driving while intoxicated and entered a plea of not guilty. The prosecution had a video tape of the defendant failing field sobriety tests (although other tests revealed no alcohol in her system), but the charges were dropped midway through the prosecution's presentation when her doctor arrived and verified, in a closed–doors conference involving only the judge and the attorneys, that what she had been telling the officer repeatedly on the night she was arrested was true — that she was driving in an unfamiliar area, that she hadn't been drinking and that she was on a prescription medication.

Why hadn't the woman's doctor been consulted before the case wound up in court? I don't know. No one ever told us. Perhaps the doctor had been consulted, but the medication was fairly new and little was known about it when the woman was arrested — and now, the doctor had the results of recent studies that shed new light on the drug's effects. Perhaps the woman had been specifically instructed to take the drug before or after eating and she had done the opposite. Or maybe she had been told not to operate any kind of vehicle after taking the drug.

No such details were provided to us. We were just told that the charges had been dropped, and we were free to go.

Before her arrest, the woman was not a public figure. As I recall, she worked as a secretary. Somehow, her employers found out about her arrest and she was dismissed. I don't think her initial arrest was publicized in any way, but, if it had been, that might have opened the door for a lawsuit against the police (and the media outlet that reported the arrest) that could have been very costly, in more ways than one.

You see, private citizens are entitled to their privacy. Police departments — and news departments — are staffed by people. And people can and do make mistakes.

It's different with public figures. The mayor of your town was willing to trade the privilege of privacy for the honor of serving the public. A star athlete or a rock musician or a popular actor will know he/she cannot go to a restaurant or a bar without somebody noticing — many somebodies if he/she engages in objectionable behavior of any kind.

And if the mayor or a quarterback or the lead singer for a popular band or the star of a popular movie gets arrested for driving while intoxicated, the news will be on TV, radio, internet and the morning newspaper. Then, if it turns out to be a mistake, those outlets will run retractions.

Juries also are staffed by people, and it is possible for a jury to make a mistake as well. But it seems less likely that 12 people will make the same mistake than it does that a reporter and a couple of editors — or a police officer and a couple of his superiors — will make the same mistake.

In other words, when it comes to matters involving criminal justice, we can usually trust the judgment of juries more than we can trust a policeman or a reporter, either of whom may have an ax to grind. Jurors are summoned to a place they seldom visit to hear the facts of a case involving a person whose name they have never heard. They might make a mistake, but, theoretically, they have no prejudice, no agenda.

If Busted is prepared to run a retraction every time an arrest turns out to be unwarranted — and that could be a lot more frequently than anyone bargained for — the editors had better be prepared to set aside a lot of space for that purpose. That shouldn't be a problem in cyberspace, but what about the printed product?

But is a simple retraction enough? Some people may feel that the damage to their reputation and their privacy was so great that the retraction should take as much space and be as prominently placed as the original report.

It may sound like a good idea to publicize every single arrest — maybe it satisfies some internal need — but not every arrest is justified. Busted does post a disclaimer that says, "Any indication of an arrest is not intended to imply or infer that such individual has been convicted of a crime," in the fine print beneath the mugshots, but will that be sufficient as a CYA? Or will those who feel their good names have been smeared by Busted demand that as much space be devoted to the retraction as was dedicated to the report of the arrest?

And which side will justice's scales favor?

We'll find out when the first test case comes up.

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