1960: Newspapermen and Lawyers
[This article originally appeared in the July 1960 issue of Nieman Reports.]
I propose to speak tonight on a moderately pretentious topic, the public responsibilities of newspapermen and lawyers.…
As my concern is public responsibility in our professions, I want to focus especially on Washington. In that city, I think, lawyers and newspapermen do share a basic motivation and joy in life. Charles A. Horsky, in his book, “The Washington Lawyer,” called it “an intimate sense of participation in significant affairs.” Douglass Cater, in a book which referred to the press in Washington as “The Fourth Branch of Government,” spoke of correspondents having a “heady sensation of power and participation.”
Turning first to the press, I have no doubt that a feeling of participation in great events is the life force of many Washington correspondents. Perhaps a heady sense of power, Mr. Cater’s phrase, is more accurate. I really hate to see the press taking itself so seriously that it begins writing books about itself as a fourth branch of government. But that the press in Washington has an influence on public affairs, that it is to some degree a participant, is surely true.
A former president of the Harvard Law Review said to me last night that reporters are different from lawyers because they are not, or need not be, men of judgment. They are accountable to no one, he suggested, and so they are without responsibility. I agree that the reporter ordinarily does not bear the lawyer’s responsibility for decision; he writes for an anonymous and remote audience, while the lawyer determines the course of action to be taken by human beings immediately present. I agree also that I would trust the judgment of the best lawyer over that of the best newspaperman to decide the fate of the nation, or my own fate. But the suggestion last night was that reporters really make no judgments at all, that they just write and the editors make the decisions.
If that is anyone’s impression, it is incorrect. I start with the proposition that news stories are much more significant in shaping public opinion than editorials. Even editors will admit this, perhaps because readership surveys show that only a small portion of the subscribers ever reads the editorial page. And in my experience the reporter has very much more to do with the shape of the news story than any editor does. For the Washington correspondent, editors are a group of anonymous people at the other end of a telegraph wire. Of course they retain their power to cut the point out of a story. But usually this is done by inadvertence, because of the demands of space, rather than by design. The real decisions—what facts to report and in what light to report them—are made by reporters, in my opinion.…
Many, perhaps most, Washington events are not simple facts about which only one objective account can be written. The facts can be given more than one interpretation, and the “truth” depends on one’s point of view. I do not suggest that newspapermen live like characters in a Pirandello play, chasing elusive and changing truths. I say only that judgments are involved in writing even what purport to be straight newspaper stories.
There are many examples that could be given, but the most telling is probably the whole McCarthy situation. During much of Senator McCarthy’s career the Associated Press as a matter of high-level policy kept all interpretation out of its stories about the Senator. The stories were supposedly objective, factual, deadpan presentations of the Senator’s activities. But after a while some of the more sophisticated members of the AP began realizing that objectivity may be a little more complicated. Was it objective to report a speech by Senator McCarthy without pointing out his own internal contradictions? Was it objective to report his account of the spies uncovered at a closed session of his investigating committee without checking others who had been in the committee hearing and had seen no spies unveiled? The McCarthy issue deeply troubled American newspapers because, I think, it drove home to them the necessity of interpretive reporting. The idea of reporters exercising judgment worries many editors, just as some judges prefer to find absolute commands in the texts of statues and constitutions because, they say, it is inappropriate for judges to weigh these things in the balance. I am not going to get into the judges’ disagreement, but it seems to me that there is no way for newspapermen to escape making judgments.…
I have been talking about the process of deciding what goes into a story—setting the facts in the necessary framework of interpretation. There is also the simple question of what is news.…
The other day Senator Kennedy accused the press of creating the religious issue in the presidential nominating campaign. He argued that hordes of reporters combing through Wisconsin and West Virginia, asking the citizenry whether it would support a Catholic for President and then reporting the existence of religious bloc-voting, had in effect made the citizens think of religion for the first time as a factor in politics. I believe there is some accuracy in the picture; the press has at least sharpened the religious issue. But given history and the political realities in this country, could the press really have failed to wonder whether primary voters would cast ballots along religious lines? Was it not appropriate to remind the readers of Senator Kennedy’s speech, as my Bureau Chief, James Reston, did, that the Senator had argued to the professionals in l956 that he should be nominated for Vice President because his religion would win more votes than it would lose?
My examples should suggest that these newspaper judgments may involve moral considerations. Nothing raises more acute problems here than the leak. The leak is the great weapon of the Washington politician. Most of the stories that are called scoops probably result from a calculation by some official that publication of the material at this time will be advantageous to him and the interests he supports. The idea may be, for example, to start building public support for a program which has not yet won approval within the Administration. Or it may be a leak designed to frighten Congress out of heavy spending by, say, painting a horrifying picture of the gold outflow from this country. Sometimes the reporter’s initiative is vital; many good stories are obtained by asking the right question at the right time. But other stories are presented on a silver platter. In both cases there may be ethical concerns. When a law professor frustrated with the limitations on his role as a congressional committee investigator of the regulatory agencies offers a newspaper his memorandum making sweeping and unconfirmed changes against many persons, should the paper print it? Suppose the Secretary of the Treasury returns from a European trip, calls in a reporter, and tells him of deep concern in European financial circles about possible weakening of the dollar as a currency if a Democrat devoted to easy money is elected President. The reporter is not allowed to identify the Secretary by name as the source of the story; he can use a disguise such as “high financial circles in the Administration….” Should he write the story?….
It is evident that there are dangers in the power of the Washington press to create public images of men and events. There is a strong temptation on some correspondents to play God. After all, it is so much easier to determine foreign policy without going through all the trouble of becoming Secretary of State and without being subject to the limitations that the political system puts on him. Newspapermen are not responsible to a constituency, or even to a client. They are used to haste and superficiality, not to reflection; depth is a quality not normally found among them. For all these reasons irresponsible journalism is a serious concern.
I am as critical of newspapers as anyone, but I do not think the Washington press corps is predominantly irresponsible. Individually, and collectively with his editors, the reporter does tend to impose on himself the restraint, the responsibility of concern for the public interest.
Mr. Cater, in his book, quotes a well-known Washington correspondent on the difference between reporters and officials. The reporter, he says, decides whether to print something he learns on the basis of only two considerations: Is it news? Is it fit to print? The official, weighing disclosure, must also consider the effects of publication on policy—on the interest of the country.
I think that distinction is overdrawn. Certainly officials and newspapermen approach differently the question of whether something should be published. But no responsible reporter ignores the possible effects of publication. One of my colleagues has said to me that he thinks a newspaperman’s ability to achieve rapport with an official depends on the official’s confidence that the reporter is interested as he is in the good of the country. The reporter interested only in tomorrow’s headline is not likely to keep the respect of those in government—a respect he needs to do his job properly.
Finally, let me raise the most difficult question of all for Washington newspapermen, the extent to which they can properly become participants in events—doers instead of observers. Reporters, like lawyers, have opinions. They are naturally interested in public affairs. They are not eunuchs. Almost inevitably they find themselves rooting for one side or another. Along with this comes the frustrating feeling that they could do things so much better than those who are the participants. Every reporter who covers congressional committee hearings finds himself full of questions that the congressmen don’t have the sense to ask.
But there are limitations on newspapermen. I do not know precisely what they are, and so I shall simply raise some questions. One of my newspaper colleagues in Washington, a lady, was much concerned two years ago about the effects of what I can refer to here in shorthand as the McNabb-Mallory doctrine—the Supreme Court’s rule that unnecessary delay in arraignment of a federal prisoner voids any confession made during the delay. This lady thought the doctrine was filling the streets of Washington with criminals, and she wrote a great many tales of horror designed to encourage Congress to overrule the McNabb and Mallory cases. I sat next to her in the Senate the day a bill to accomplish that purpose was defeated by two votes. Her eyes filled with tears, and she rushed downstairs to talk to some senators and see if she could rally her forces. Newspapermen are not responsible to a constituency, or even to a client. They are used to haste and superficiality, not to reflection; depth is a quality not normally found among them. For all these reasons irresponsible journalism is a serious concern. The reporter interested only in tomorrow’s headline is not likely to keep the respect of those in government—a respect he needs to do his job properly. I have been a little sarcastic in describing the episode, but is that justified? If she was wrong, what are the proprieties of a newspaperman calling to the attention of some senators a little-noticed bill that would have restricted an important area of federal court jurisdiction?
What about a reporter who was praised by the Senate Rackets Committee for bringing in adverse information on Jimmy Hoffa? How does his position compare with that of the reporters who fed tidbits to Senator McCarthy? If they were wrong, what about the reporters who opposed Senator McCarthy, discussed strategy with his enemies and, I think, had a good deal to do with bringing him down?
There is no sure guide for all situations, but I think it is clear that the reporter must not become entirely committed—an obvious special pleader. His instinct should be all the other way. If he has a concern for the public good, as I think most Washington reporters do, he must reconcile himself to satisfying that urge by uncommitted reporting. Justice Frankfurter has put it that the reporter is an educator, not a reformer. I accept that definition, with the proviso that the educator be allowed to harbor within him just a little of the spirit of reform.…
Anthony Lewis is in the Washington Bureau of The New York Times, reporting on the Supreme Court. He devoted a Nieman Fellowship in 1957 to studies in the Harvard Law School. This is from a talk at the Harvard Law Review dinner.