Newspapers have been forums for expressing opinion since their very beginning in America; in fact, many of the first newspapers were primarily created as vehicles for political speech.
Most every journalist knows about the wall of separation placed between the news content of a newspaper and its opinion or editorial pages. But unfortunately, not enough of the public does. And yet a principle at the foundation of ethical American journalism – objectivity – does not apply to opinion pages.
There the content is, of course, subjective, and yet editorial-page editors also must rely on sound ethical principles to decide on what commentary to publish. Responsible editors must balance providing a forum for robust debate while avoiding content that is improper or even illegal.
Many editorial-page editors will discard submissions that engage in name-calling or employ racist, sexist or otherwise discriminatory language. But what about a call to commit violent acts?
That’s not something you’re likely to see on an editorial page. But what about a wartime situation, in which someone calls for violence as a response to violence? Can innocent civilians feel threatened enough by such a call — even if it wasn’t made specifically to them — that they would prevail in a lawsuit against a newspaper that published it?
This is at issue in a case before the Arizona Supreme Court. According to court papers, the Tucson Citizen published a letter on Dec. 2, 2003, from a writer who suggested U.S. troops in Iraq retaliate for shots fired at them by going to nearby mosques and killing Muslims. Over the next several days, the Citizen published more than 20 letters from readers protesting the original.
Then the newspaper’s editor and publisher, Michael Chihak, wrote a column four days after the first letter was published, apologizing and saying the writer had written the Citizen again to say his remarks referred only to military actions in war zones. Tucson Muslims sued the newspaper the following month, alleging civil assault and intentional infliction of emotional distress. No allegations of actual violence against Muslims in and around Tucson in response to the original letter were made in the suit.
A Pima County Superior Court judge threw out the assault count because specific persons were not mentioned in the letter. But Judge Leslie Miller let stand the emotional distress count to be adjudicated at trial. The newspaper has appealed that ruling. The state’s highest court is expected to hear arguments on that point this spring.
While editorial pages serve their traditional role as a forum for vigorous community discussion, it’s important to set minimum standards for the content of submissions from that community, said Kelly McBride, ethics group leader at the Poynter Institute in St. Petersburg, Fla.
American society in recent years is showing increasing distaste for nuance and ambiguity and increasing insistence on the black and white, McBride said, resulting in less tolerance for reasoned disagreement that has begun to show up in opinion pages.
“There is an increasing tendency to go to sources that reflect your political ideology,” she said.
Opinion pages are supposed to foster dialogue, but McBride said letters or other submissions that contain little else but screaming undermines dialogue by turning away readers from writing responses.
“At minimum, the speech should not be racist or offensive to religious, ethnic or minority groups,” McBride said. “You can criticize issues without calling people names and without inciting violence.”
Kay Semion of the Daytona Beach (Fla.) News Journal, who is president of the National Conference of Editorial Writers, agreed.
“A good lively editorial page can focus on issues without looking at classes of people,” she said. “You wouldn’t run a columnist or editorial that said that. So why would you run a letter that said that?”
Phoenix attorney Daniel Barr, who wrote an amicus curiae brief in support of the Citizen on behalf of the Reporters Committee for Freedom of the Press, said the newspaper showed poor judgment in deciding to publish the letter – but that doesn’t mean that the plaintiffs have any cause of action.
“The letter is tasteless, offensive and absurd, but it is protected by the First Amendment,” Barr said.
He said that in our society the best remedy for offensive speech is more speech. “(The letter) was met with what it should have been met with – ridicule by the readers,” he said.
Barr’s brief cited several cases of outrageous speech, including that of Ku Klux Klansmen at a rally generally advocating violence against blacks, that the U.S. Supreme Court found to be protected under the First Amendment.
“The mere abstract teaching. . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action,” the high court ruled in the KKK case, 1961’s Brandenburg v. Ohio.
Similarly, the letter at issue in the Tucson Citizen case advocated violent and unlawful activity, Barr wrote.
“But such advocacy is protected by the First Amendment unless it is directed to the incitement of imminent lawless action and likely to produce such action.” The letter in the Citizen falls short of that test, Barr wrote.
Letter writers with incendiary opinions should be contacted by editorial-page editors to ask them to rewrite their submissions to provide a more reasonable discussion, said Jonathan Holman, editorial page editor of the Denver Post.
Editors have to consider the legal ramifications of publishing anything, he said.
“The first question before us, ethics aside, is, what’s the law?” Holman asked.
Holman said whether a newspaper might be liable for something it publishes is a question that has to involve sitting down with one’s attorney.
Dennis Joyce, editorial-page editor of the Arizona Daily Star of Tucson, which is owned by a different company than the Citizen, said he hopes Barr’s and the Reporters Committee’s views prevail because having the courts make editorial judgments would endanger the free flow of information.
“There are limits, and the industry usually recognizes them,” Joyce said. “Because of one or two questionable judgments, we are letting the courts come in and be the editor.”
The courts often have been the editor, Semion of NCEW said. One case she recalled involved leaving the word “not” out of an opinion, which left it actionable for libel, she said.
Steve Scauzillo, editorial-page editor for the Pasadena Star-News, San Gabriel Valley Tribune and the Whittier Daily News in California, is preparing his master’s thesis at California State University, Fullerton, on the subject of how letters to the editor are selected for publication.
He said one of the best ways that editorial pages can avoid legal entanglements from letters content is to be careful about submissions’ recitation of facts.
“The facts have to be accurate,” Scauzillo said. “If there are no facts, you’re less exposed.”
Semion said editors chafe at judicial intervention in their decisions, but that intervention can and will occur if editorial-page editors don’t exercise caution or apply ethical principles.
“Nobody likes a court decision telling them how to run their papers, but the line is a subjective thing,” Semion said, “and if we cross that line, we know what the consequences are.”