Challenging ‘He Said, She Said’ Journalism

A 2009 story in The New York Times about a dispute involving Fox News described the cable network as "a channel with a reputation for having a conservative point of view in much of its programming."

Really?

That phrase "with a reputation" put the reporter, and the newspaper, at arm's length from the fact that the Fox News Channel does have a conservative point of view, and proudly so.

What was the purpose of that distancing phrase?

A 2011 New York Times article, typical of many others, referred to Jared Loughner as "the man accused of opening fire outside a Tucson supermarket." Whether the Tucson shooter is guilty of murder is a legal question, but there is no question at all about his identity as the man who shot Congresswoman Gabrielle Giffords and killed six people. We don't have to say "accused of"—he did the deed in front of dozens of witnesses.

I'm not picking on the Times—the newspaper I read most carefully as well as the place I worked for 40 years. And although it is attacked, most often from the right but not infrequently from the left, for various kinds of bias, it actually, in both its performance and its ideals, epitomizes the commitment of mainstream journalism to the goals of fairness and objectivity.‘We may not have a journalism of truth because we haven’t demanded one,’ the cultural critic Neal Gabler wrote in response to the media’s performance in covering the health care debate.

This is nothing new. Adolph Ochs, the founding publisher of the modern New York Times, whose byword was "without fear or favor," believed that a responsible newspaper should "report all sides of a controversial issue, and let the reader decide the truth," according to a reminiscence written a couple of years ago for internal distribution to the Times staff.

In this article, I will raise some questions about the assumption behind that credo, as well as the utility, in this media-saturated and cynical age, of the siren call of "fairness and objectivity."

Inside the profession of journalism, there has been a lively debate going on for years over whether the "he said, she said" format, designed to avoid taking sides on contentious issues, impedes rather than enhances the goal of informing the reader.

This debate comes up most often during political campaigns, and many press critics and commentators have pointed out how superficial and subject to manipulation that format can be in the context of a campaign. For that reason, many news organizations now publish or post "fact-check" boxes that vet the accuracy of political ads or of candidates' assertions during debates.

Loaded Words

It's more challenging to question the "he said, she said" norm in other contexts. For instance, some people—many people—consider waterboarding to be torture, and they refer to it that way. But others cling to the notion that it is not torture. What is a news organization to do?

NPR has chosen to use "harsh interrogation tactics" or "enhanced interrogation techniques" instead of "torture" when reporting stories about waterboarding and other coercive practices used to interrogate terrorism suspects. When listeners pushed back, Alicia C. Shepard, NPR ombudsman at the time, responded that she agreed with the network. "The problem is that the word torture is loaded with political and social implications," she wrote on her blog, adding: "NPR's job is to give listeners all perspectives, and present the news as detailed as possible and put it in context." Because using the word torture would amount to taking sides, reporters should instead "describe the techniques and skip the characterization" entirely, she said.

Again, that may be an easy example, because it's binary—use the word torture, or avoid it. How about a complex event or situation that requires the reporter to make a series of judgments in order to describe adequately and assign priorities to such factors as motivation, relationships among actors, or likely consequences.

Paul Taylor, a former political reporter for The Washington Post, had this to say in his trenchant book, "See How They Run: Electing the President in an Age of Mediaocracy”:

Sometimes I worry that my squeamishness about making sharp judgments, pro or con, makes me unfit for the slam-bang world of daily journalism. Other times I conclude that it makes me ideally suited for newspapering—certainly for the rigors and conventions of modern 'objective' journalism. For I can dispose of my dilemmas by writing stories straight down the middle. I can search for the halfway point between the best and the worst thing that can be said about someone (or some policy or idea) and write my story in that fair-minded place. By aiming for the golden mean, I probably land near the best approximation of truth more often than if I were guided by any other set of compasses—partisan, ideological, psychological, whatever … Yes, I'm seeking truth. But I'm also seeking refuge. I'm taking a pass on the toughest calls I face.

Jay Rosen, a press critic and journalism professor at New York University, calls the phenomenon that Taylor describes "regression toward a phony mean."

Joan Didion, way back in 1996, referred to "fairness" as a "familiar newsroom piety" and "benign ideal" that operates as "the excuse in practice for a good deal of autopilot reporting and lazy thinking." What it often means, she wrote, "is a scrupulous passivity, an agreement to cover the story not as it is occurring but as it is presented, which is to say as it is manufactured."

In that same year, 1996, the Society of Professional Journalists dropped "objectivity" from its ethics code, a development understood to reflect the fact that there had ceased to be, if there ever was, a common understanding within the profession of what objective reporting consists of.

A leading commentary on the modern practice of journalism, "The Elements of Journalism," by Bill Kovach and Tom Rosenstiel, omits "fairness" and "objectivity" from its list of the 10 basic elements of journalism, described as "clear principles that journalists agree on—and that citizens have a right to expect." Why the omissions? "Familiar and even useful" as the idea of fairness and balance may be, the authors say, the very concept "has been so mangled" as to have become part of journalism's problem, rather than a solution to perceived problems of bias and partiality.

But Brent Cunningham, deputy editor of the Columbia Journalism Review, has observed that despite this discontent and self-reflection, "nothing replaced objectivity as journalism's dominant professional norm." In fact, he notes, "a cottage industry of bias police has sprung up," leading to "hypersensitivity among the press to charges of bias," which in turn reinforces the problematic adherence to a standard of "objectivity" that "can trip us up on the way to 'truth.'"

Truth. How about truth for a goal? "We may not have a journalism of truth because we haven't demanded one," the cultural critic Neal Gabler wrote in response to the media's performance in covering the health care debate. He noted that by simply reporting the latest guided missile from Sarah Palin or Rush Limbaugh, the media "marshal facts, but they don't seek truth. They behave as if every argument must be heard and has equal merit, when some are simply specious."

Why is it just so difficult to make the search for truth the highest journalistic value?

Well, for one thing, the notion that there exists one Truth exists in some tension with core First Amendment values. After all, "the First Amendment recognizes no such thing as a 'false' idea," the Supreme Court tells us. The familiar image of the marketplace of ideas suggests ideas competing freely for public favor, unvetted, unranked and unregulated by some superintending power.

For another thing, the word "truth" lacks a single definition. To report, without elaboration, a politician's charge concerning the "death panels" in the health care bill is—assuming the politician is quoted accurately—certainly to report the truth. Does such a report convey a more useful or meaningful truth, the contextual truth of the situation? Obviously not. But just as obviously, it would not require a correction.

In "The Elements of Journalism," Kovach and Rosenstiel make a distinction between two kinds of truth: correspondence and coherence. "For journalism, these tests roughly translate into getting the facts straight and making sense of the facts." They call for a "journalism of verification" to replace a "journalism of assertion": "A more conscious discipline of verification is the best antidote to being overrun by a new journalism of assertion."

Fairness and objectivity should be regarded as tools to that end, they maintain, rather than as ends in themselves.

The 'Other Side'

The following is a case study in what I regard as the perils of the journalism of assertion, as practiced by our finest newspaper.

Over the last few years, the name David B. Rivkin started showing up in the columns of The New York Times. For example, in August 2006, when a federal district judge in Detroit declared that the Bush administration's warrantless wiretapping program was unconstitutional, Rivkin had this to say in the Times: "It is an appallingly bad opinion, bad from both a philosophical and technical perspective, manifesting strong bias." Rivkin was identified as "an official in the administrations of President Ronald Reagan and the first President Bush."

There was no indication of what might have given him the "philosophical perspective" to criticize this court decision so forcefully, or of what evidence he possessed of "strong bias" on the part of the judge, Anna Diggs Taylor.

When another judge ruled that some prisoners held by the United States at the Bagram Airfield in Afghanistan had the right to petition for habeas corpus, Rivkin "warned that the ruling 'gravely undermined' the country's 'ability to detain enemy combatants for the duration of hostilities worldwide.'" This time he was identified as "an associate White House counsel in the administration of the first President Bush." Since that administration had ended 16 years earlier, I wondered what current expertise Rivkin possessed that led him to make such a harsh assessment of this new decision.

A check of the Times database reveals that since 2006, Rivkin has been quoted at least 31 times in articles concerning the detainees at Guantanamo Bay (12 times), detainees at Bagram, executive privilege and presidential authority, targeted killing, Iraq, Abu Ghraib, the performance of Attorney General Michael Mukasey, and the Central Intelligence Agency and its interrogation policies. The descriptions of his role and his implied expertise varied from story to story, but the quote was always to the same effect: a strong defense of President Bush and his policies.

To the extent that Rivkin has any relevant expertise, the basis for it is not disclosed on his law firm's website, which contains a lengthy biography. A partner in the international law firm of Baker Hostetler, he is identified as a "member of the firm's litigation, international and environmental groups." The entry describes him as having "in-depth experience with various constitutional issues that are frequently implicated by federal regulatory statutes, including commerce clause-, appointments clause-, and due process-related issues, as well as First and Tenth amendment-related matters."

His qualifications for practicing law in these areas are not evident: During his federal government service in the Reagan and first Bush administrations, he worked on domestic regulatory issues, with a specialty in oil and natural gas. He worked in the Office of Policy Development in the Justice Department and worked for Vice President Bush as legal adviser to the counsel to the vicepresident, later becoming special assistant for domestic policy to Vice President Dan Quayle and associate general counsel in the Department of Energy.

The more I read, the more mystified I became. An article on the prospect that President Obama might transfer some Guantanamo detainees to the United States included a warning from Rivkin that classified information might be made public during trials in civilian courts—"a danger that David B. Rivkin, an official in the Reagan Justice Department, calls 'the conviction price.'"

I should note that Rivkin's usefulness extends beyond the pages of the Times. A Washington Post analysis of the release of the so-called torture memos included this paragraph: "David B. Rivkin Jr., a lawyer at Baker Hostetler who supported the detainee policies, says the memos' 'careful and nuanced legal analysis' … produced 'eminently reasonable results.' " I give the Post writer credit for identifying Rivkin as a lawyer in private practice who simply supports one side of the issue.

Rivkin even showed up in a New York Times cultural feature about the documentary "Taxi to the Dark Side," which took a highly critical stance toward the Bush administration's interrogation policies. Rivkin, introduced to readers as "a lawyer in the administrations of President Ronald Reagan and the first President Bush," becomes the voice of the "other side" in an account of the film and interview with the filmmaker. "It's pretty clear that it's not policy and it's pretty clear that these things are prosecuted," Rivkin is quoted as saying. The article goes on: "Mr. Rivkin said the military's performance by historical standards has been quite good in the recent conflicts. 'In all the good wars,' he said, 'we have had some pretty bad records.'"

How was it that Rivkin had emerged, Zelig-like, into daily journalism? I asked reporters who had quoted him whether they had called him for a quote or whether he had called them. (I omit the names of the reporters because they did not expect to be identified in an article.)

"He reached out," one told me, noting that "I've known him a long time."

Another said he had been referred to Rivkin by a conservative think tank.

"I called him," another said. "I have quoted him a few times in the weird role of surrogate for the Bush administration. … It was to the point that Bush administration officials would suggest him when they chose not to speak for themselves on Gitmo."

From another reporter: "I called Rivkin, who has been defending the Bush policies for so long (especially interrogation) that he knows them as well as the human rights folks." Noting that the article contained criticism of the policies, the reporter added: "I thought it would be unfair not to make the opposite point."

I probably don't have to tell you what I think of this kind of "reporting." I find it particularly troubling to use Rivkin to criticize federal court decisions. When a federal district judge issues a decision, there is no "other side" to the story—the decision is the decision. The "other side" is contained in the briefs presenting the argument that the judge rejected. But digging up the briefs, reading them, and summarizing them takes more work than accepting an ad hominem sound bite from someone willing to answer any call.

I actually don't mean to be critical of Rivkin, a man with whom I have a perfectly pleasant personal relationship. As a surrogate, a "go-to proxy," he is simply filling a role assigned to him by reporters and—let's assume—editors who accept unquestionably the notion that every story has another side that it is journalism's duty to present. But there is another side to that story, too—one that calls on journalists to do their best to provide not just the facts, but also—always—the truth.

Linda Greenhouse, a former New York Times reporter who won a Pulitzer Prize for her coverage of the United States Supreme Court, is the Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School.