The “Rathergate” Incident: Remembering Why Separation of Press and State Is Vital

Attached is the text of a new Cato Institute newsletter I released today on the possibility of a congressional investigation into the “Rathergate” controversy. Fellow TLF blogger James Gattuso has also been sounding off on this in recent blogs. My take on it follows…

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The “Rathergate” Incident: Remembering Why Separation of Press and State Is Vital
by Adam Thierer

Cato Institute TechKnowledge
Issue #88
September 30, 2004

Should government police the quality and integrity of television journalism? That question has come to the fore recently as members of Congress consider investigating Dan Rather and CBS News’ admission that they relied on questionable documents in a report critical of President Bush’s military service record. The controversy–now referred to as “Rathergate” by many–has led some Republicans in Congress to suggest that hearings are needed into this matter. Rep. Joe Barton (R-TX), chairman of the House Commerce Committee, originally rejected such calls, but has apparently relented and now says that hearings will likely occur sometime after the presidential election.

What’s wrong with that? Nothing, if you live in Russia. Government investigations or intrusions into the newsgathering business are routine in countries like Russia, which has never held the separation of press and state to be inviolable. While no journalist in America will go to jail or lose the right to report because of the Rathergate incident, the idea of Congress investigating newsgathering scandals is troubling because it could have a subtle but real chilling effect on reporting.

While some lawmakers will label this a simple effort to “get to the bottom” of a colossal journalistic blunder, who says that’s any of their business to begin with? The First Amendment was pretty clear about Congress not making any laws abridging the freedom of the press and, by extension, lawmakers have no right poking their noses into the way the press does business, even when they screw up as badly as Rather and CBS News have in this case.

Checks and Balances on Media

Importantly, this controversy has shown the remarkable effectiveness of media to police itself and, in particular, the ability of new media outlets to act as a check on the old guard. Dan Rather’s original 60 Minutes II report wasn’t even a few hours old before many Internet websites and independent web blogs were buzzing with critical commentary. Soon, the trickle of online criticism turned into a flood, and everyone was debating the issue online, on the radio, on cable and satellite TV, in newspapers and magazines, and, eventually, even on CBS itself. The amazing diversity of modern media outlets has allowed investigative journalism to become a full-time sport and given the media unprecedented ability to police itself. The credibility of Rather and CBS News has been damaged potentially beyond repair because of such scrutiny and criticism.

Consider, by contrast, how this incident might have played out thirty years ago when just three networks dominated television news and no cable, satellite, or online outlets were available. Newspaper and magazine journalists were the most reliable (and perhaps only) check on suspect reporting by TV news organizations at the time. But many errors were probably never caught. Today, thanks to the relentless march of new communications and media technologies, citizens have access to hundreds of other outlets and can, on occasion, even help break news themselves. This is a truly remarkable development that many in government still fail to appreciate, but it has ushered in a veritable revolution in the way news is gathered, delivered–and as we see with the Rathergate controversy–reviewed and verified.

It is unlikely that any other society has ever had such a diversity of checks and balances in place to guard against misrepresentations or misreporting of the facts. Indeed, what is most remarkable about the Rathergate controversy is its duration. Rather and CBS admitted their mistake just 11 days after the original report aired. Thirty years ago, it would have likely taken much longer for the facts to surface, if they did at all.

The Never-ending Game of Congressional Media Bashing

Still, some members of Congress and even the general public will be hungry for a more “official” investigation into the matter if for no other reason than to stick it to Rather, CBS, and the media in general. Media bashing is an old sport for many members of Congress, who constantly deride what they regard as biased reporting or objectionable content. And 2004 has been a banner year for those in Congress and at the Federal Communications Commission who have been hungry for a renewed censorship crusade. Legislation to increase fines for “indecent” content and “excessively violent” programming is pending in Congress. And the FCC has stepped up censorship efforts under pressure from Congress.

The Rathergate incident plays right into the hands of those who want to take another shot at “cracking down” on the media. While most members of Congress realize that the First Amendment limits their ability to directly censor media, they have become skilled at the art of “regulation by raised eyebrow.” Sometimes just hauling a few people before a congressional committee and haranguing them is enough to send a message: if you don’t play ball with Congress and change what you air, you might end up facing regulation on some other part of your business, like media ownership controls or re-imposition of the Fairness Doctrine.

Such indirect forms of censorship through regulatory blackmail are every bit as insidious as direct forms of regulation. In the Rathergate case, even if some members of Congress say they just want to “get to the bottom” of the incident, we must not allow the wall between press and state to be breached. It could open the door to subtle forms of censorship and result in a loss of press freedom and independence.

Congress must resist the temptation to sit in judgment of media performance precisely because public officials are armed with the coercive power of government. While journalists are supposed to play a watchdog role and serve as independent check on public abuses and errors by public officials, the reverse is most definitely not the case.

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