Wednesday, March 23, 2016

Should Reporters for Blacklisted News Organizations Lie To Get Into Trump Rallies?

by Michael Dorf

In my Verdict column today, I invoke two studies that were recently featured on the NPR podcast Hidden Brain to ask whether boredom might explain the appeal of Donald Trump. The studies find that boredom increases feelings of nostalgia and prejudice--both key elements of Trump's appeal. I do not literally argue that Trump's attraction rests on the ennui of his target audience, but I try to connect the studies to some larger themes.

Here I want to move beyond the question of why people support Trump to ask a question inspired by his treatment of the press. Trump's best-known attack on the press was his boycott of the Fox News debate immediately preceding the Iowa caucuses based on Trump's belief that Megyn Kelly had treated him unfairly (by asking him questions) in an earlier debate. But that is hardly the only example. At his rallies, Trump routinely derides the press en masse, jeering at the reporters caged in their pen at the back.

The fact that the media have accepted this treatment is itself a major story of the current campaign. Trump depends on free publicity and, despite--or perhaps even because of--the shabby way in which Trump treats the news media, they continue to give him what he craves. My point today is not that the press have acted irresponsibly (although undoubtedly there has been some of that). As I note in the Verdict column, the press are in a bit of a bind: It seems irresponsible to permit Trump's outrages to go unanswered; yet Trump benefits even from negative publicity.

I therefore assume that the media will continue to cover Trump. The question is how. In particular, I want to focus on how to cover Trump rallies. Lately Trump has been excluding individual reporters and publications from his rallies based on his disagreement with what they have written about him and his campaign--as noted in a recent NPR discussion: Trump's campaign took away Politico reporter Ben Schrekinger's credentials for a press conference after a critical story. The same NPR discussion indicates that Trump has completely banned HuffPo, which routinely ends stories about Trump with "Editor's note: Donald Trump regularly incites political violence and is a serial liar, rampant xenophobe, racist, misogynist and birther who has repeatedly pledged to ban all Muslims — 1.6 billion members of an entire religion — from entering the U.S."

That's a great tag line, but Trump's retaliation against HuffPo and other organizations and reporters who honestly report on him puts these organizations and reporters at a competitive disadvantage. Although that has hardly eliminated negative coverage of Trump, over time it skews the coverage in a more positive (or perhaps merely less negative) direction than the facts warrant.

This is, of course, a well-known problem with news coverage of everything and everybody. Reporters need access to the people they cover. Even politicians who are not racist demagogues will tend to grant better access to reporters who give them positive coverage.

There is no perfect solution to this problem. Fawning reporters get better access, even to presidents. But norms among journalists and politicians at least mitigate the problem. As a matter of professional ethics, journalists do not promise positive coverage (even tacitly) in exchange for access. And even in circumstances where the First Amendment does not forbid viewpoint discrimination--such as nominally private events--politicians do not systematically freeze out reporters and organizations because of critical coverage.

Trump and his team of brownshirts do not respect the norms applicable to politicians. In such circumstances, it might be reasonable for journalists to loosen some of their norms. I have in mind one norm in particular. But first, a little background.

In January, Prof. Colb and I wrote a CNN op-ed about the indictment of the anti-abortion activists who used false IDs to gain access to Planned Parenthood officials. Although we condemned the defamatory claims that the activists made against Planned Parenthood, we worried that prosecuting even self-appointed journalists for using deception to gain access to targets of their investigation could chill legitimate journalism. We got some pushback from professional journalists who said that as a matter of sound journalistic practice: (1) they didn't break the law to gain access; and (2) they didn't lie about the fact that they were journalists--although most of them said that they didn't tell the whole truth either, unless pressed.

Our response (set forth anticipatorily in the op-ed) was that journalists have thus far been lucky, but that aggressive enforcement of nominally neutral laws--like trespass laws--could freeze out journalists. We argued for legislation that would give journalists (and potentially other investigators) a limited right to undercover access to privately-owned property in order to report on matters of public concern.

To my knowledge, no draft legislation has (yet) been introduced at the state or federal level that would exempt journalists or other investigators from criminal liability, but no legislation is needed for journalists to suspend the norms that they currently observe voluntarily. In the NPR discussion linked above, Ryan Grim of HuffPo said that since his organization has been denied press credentials to cover Trump rallies they send reporters in as part of the general public. Grim added, however, that if his reporters are affirmatively asked whether they are reporters, they will truthfully answer yes, even though that means they may be excluded.

Given the context, I think HuffPo and other news organizations that are denied press credentials to otherwise-open Trump events would be justified in making an exception to their general no-affirmative-deception policies--at least in states where that is legal. If a state trespass law imposes criminal or civil liability for gaining access to private property by lying about one's identity, then the news organizations' legal advisors would almost certainly nix such an approach. However, in most jurisdictions lying per se is not illegal, and I doubt that lying to get into a rally would count as trespass, fraud, or any other crime.

To be clear, I'm not giving legal advice. I am suggesting that if a news organization's legal team determines that there is no legal obstacle to instructing its reporters to deny that they are reporters when asked, any general principle of journalistic ethics barring such deception should be suspended due to Trump's failure to abide by the norms applicable to politicians.

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