This week I’ve musing about truth and lies in public discourse.
They are quite different issues but it is ironic that as Salon’s Gary Kamiya is being castigated for his extremely honest and courageous essay about the fall of Baghdad, we see companies such as Fox News and Nike go to court to preserve their right to mislead the public.
1. Distorting the News
The courts have officially ruled that it is okay for television news to lie and distort the truth. Accepting a defense rejected by three other Florida state judges, a Florida appeals court has reversed the $425,000 jury verdict in favor of journalist Jane Akre.
Here's the full scoop: Jane Akre and Steve Wilson had produced an expose for WTVT/Fox News of Tampa about how Florida supermarkets were reneging on a promise not to sell hormone-laden milk from rBGH-injected cows. In their investigations, they also found many troubling things about the artificial hormone and its maker, Monsanto Company. Fox News had already advertised the expose, but the day before it was to air, the station received a threatening letter from Monsanto's lawyers. Fox ordered Akre to retract her story and do a slanted piece in favor of Monsanto, but Akre refused, on the grounds that it would be dishonest journalism. As a result, she was fired. Akre sued, but a Florida appeals court has now ruled that it is technically not against any law, rule or regulation to deliberately lie or distort the news on a television broadcast. [Reader Weekly, Duluth Minnesota]
First, for the lawyer types, the case is New World Communications of Tampa v. Akre, 2003 WL 327505, 28 Fla. L. Weekly D460. The issue before the court was not whether broadcasters are allowed to mislead the public. Rather, it involved interpreting 448.102, Fla. Stat. (Supp. 1998), Florida’s private-sector whistler-blower law.
In my view, the Court made its decision in the following two quotations:
Even if we agreed with Akre that the FCC's news distortion policy was a "rule" as defined by section 120.52(15), her argument overlooks the fact that the whistle-blower's statute specifically limits the definition of "rule" to an "adopted" rule. § 448.101(4). "This limitation to 'adopted' material only appears deliberate, and well serves the public by hinging civil liability upon matters of which due notice, actual or imputed, has been conveyed." Forrester v. John B. Phipps, Inc., 643 So.2d 1109 (Fla. 1st DCA 1994). We find the legislature's use of the word "adopted" in the statute to be a limitation on the scope of conduct that will subject an employer to liability under the statute.
…
First, federal law recognizes a dichotomy between rulemaking and adjudication; it does not equate the two. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (Scalia, J., concurring). Second, while federal agencies may have discretion to formulate policy through the adjudicative process, the same is not true under Florida law. The Florida Legislature has limited state agencies' discretion to formulate policy through the adjudicative process by requiring agencies to formally adopt each agency statement that fits the definition of a "rule" under section 120.52. See § 120.54. As noted above, the legislature's use of the word "adopted" in the whistle-blower's statute was deliberate and was intended to limit the scope of conduct that will subject an employer to liability. This limitation is consistent with the legislature's requirement that agency statements that fit the definition of a "rule" be formally adopted.
You might say that the Appellants (the Fox affiliate) won on a technicality. It doesn’t matter if they violated the FCC news distortion policy, because that policy had never been adopted according to the exact requirements of the Florida statute. Because of this, the District Court of Appeal did not need to decide whether the Appellants had in fact violated the FCC news distortion policy.
The Court did discuss the news distortion issue somewhat. It recognized In re CBS Program "Hunger in America", 20 F.C.C.2d 143, 150-51 (1969) as the leading authority on the issue. It also cited a journal article: Chad Raphael, The FCC's Broadcast News Distortion Rules: Regulation by Drooping Eyelid, 6 Comm. L. & Policy 485 (2001).
Much of the Hunger in America opinion concerns whether a broadcaster is liable if one of its rogue employees distorts the news – unknown and unbidden by management. The FCC wrote:
[U]nless our investigation reveals involvement of the licensee or its management there will be no hazard to the station's licensed status. Such improper actions by employees without the knowledge of th licensee may raise questions as to whether the licensee is adequately supervising its employees, but normally will not raise an issue as to the licensee's character qualifications.
If the facts in New World Communications of Tampa v. Akre are correct, it seems pretty clear that the Fox affiliate engaged in the “top down” management-mandated distortion which the FCC was concerned about here:
Rigging or slanting the news is a most heinous act against the public interest -- indeed, there is no act more harmful to the public's ability to handle its affairs
Violations of this news distortion policy are only relevant when the FCC is deciding whether to renew a broadcaster’s license. There are no other legal consequences for distorting the news and misleading the public. And can anyone imagine that the current FCC, headed by Michael Powell would give a Fox affiliate even a slap on the wrist for distorting the news?
The law is an ass – as indicated by the result of the New World Communications of Tampa v. Akre – but politics is worse.
2. Nike's Right to Mislead
The Christian Science Monitor has a good summary of the facts and issues involved (thanks to Howard Bashman for that cite ):
The case, to be heard Wednesday, centers on Nike's ability to participate in public debate over its foreign business operations - which critics call dangerous and immoral - without being held liable for any false or misleading statements. The question is whether Nike is engaging in commercial speech, which is subject to civil charges if found to be false, or political speech, which enjoys greater protection under the First Amendment.
The US Supreme Court is reviewing Kasky v. Nike, Inc., 93 Cal. Rptr. 2d 854 (2002), which reversed Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002).
I will be pleasantly shocked if the Supreme Court does not rule in favour of Nike. It has been very interesting to skim through the amici briefs, most of which have been filed for Nike.
I do not want Nike to win this case. Maybe it’s because I’m not American, but I do not think that free speech trumps every other right – especially the idea that companies should have the same freedom of speech as people! Freedom of speech becomes meaningless when money=speech. This means that although the poor have de jure freedom of speech, they have no de facto freedom of speech. Sorry to slip into legalese, but a legal right on paper is meaningless if there is no social or economic ability to exercise that right.
So freedom of speech means the freedom to lie? Even in this country, it is not OK to use dishonesty to defame another person’s character.
Corporations already have way too many rights – especially when considering their wealth and clout in media and politics. It is time to start scaling back, not expanding the legal personhood of corporations.
I think that all corporate speech is advertising of some kind – whether to consumers or investors. In the company where I used to work, public relations was actually inside the marketing department. When the news about Nike’s sweatshop practices first came out, I decided to avoid Nike products. But if I heard convincing information from them that they had cleaned up their act, I’d be inclined to consider them again. In fact, I’d be more likely to trust information that did not obviously appear to be advertising.
The point is that these statements do have an effect in the marketplace, therefore they should be regulated according to the rules of the marketplace.
3. Honesty will be distorted and used against you
The treatment of Gary Kamiya’s article is different from the two court cases which I’ve mentioned, but it is also concerns distortion and the place of honesty or dishonesty in public discourse.
O'Reilly-a-rama
Here at Salon, we're used to having our arguments ripped out of context and turned into fodder for the right-wing media machine, but the feeding frenzy of distortion and lies surrounding the selective quotation from Gary Kamiya's "Liberation Day" op-ed over the past few days set a new standard for disingenuousness. You can read more about it in this Salon editorial. [Scott Rosenberg's Links & Comment]
Kamiya’s main argument was that the fall of Saddam Hussein was something which everybody could feel glad about – whether they were for or against the war in Iraq. Because Saddam Hussein was a very nasty man – and whether or not the war was justified, or that it will open a Pandora’s Box of ethnic and religious hatreds in the Middle East – it is good to see him gone.
In reaching this position, Gary Kamiya addressed his opposition to the war in the first place. He very honestly wrote:
I have a confession: I have at times, as the war has unfolded, secretly wished for things to go wrong. Wished for the Iraqis to be more nationalistic, to resist longer. Wished for the Arab world to rise up in rage. Wished for all the things we feared would happen. I'm not alone: A number of serious, intelligent, morally sensitive people who oppose the war have told me they have had identical feelings.
Of course, Bill O’Reilly and other right-wing commentators immediately jumped on these sentences, ignoring the point of Kamiya’s article – that as the war progressed, his position had evolved from that secret wish for things to go wrong.
The moral of this incident is that as corporations extend their rights to lie and be misleading in public discourse, individuals will be punished for being too honest.
The equivalent honesty would be if Bill O’Reilly admitted to that for a moment he really wanted to tear Jeremy Glick into “f**king pieces” for daring dispute the Right’s ownership of the 9/11 tragedy.
4:38:42 PM 
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