Networks should shun congressional hearings on election coverage
Commentary
By Douglas Lee
Special to freedomforum.org
11.22.00
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Don't go.
Decline politely, if possible. Maybe a "thanks, but no thanks" will be
enough. But if not, don't back down. Just say no. And, if necessary, tell 'em
to go to hell.
This probably isn't the public relations advice the television
networks will receive as they determine their response to Congress' hearings
into the botched reporting on election night. But this isn't about public
relations. This is about the First Amendment and, yes, the media's absolute
right to look like idiots.
Justifiably embarrassed by their flip-flopping on election night, the
networks already have launched internal and external reviews of their
projection procedures. Some Republicans in Congress, however, aren't satisfied
with this approach. We need hearings, they say. We need to get to the bottom of
this.
No, they don't. Congress has no right to regulate how the networks
report election returns. If a network wants to project a winner based on early
returns and exit polls, the First Amendment guarantees it the right to do so.
If a network wants to project a winner based on pre-voting polling, it can. And
if a network wants to project a winner based on a call to a psychic hotline, it
can do that, too.
Rep. Billy Tauzin, R-La., the instigator of the hearings, knows this.
As chair of the House Commerce Subcommittee on Telecommunications, he knows
Congress can't restrict the media's right to project election winners. "I don't
intend to violate the law or the spirit of the First Amendment," Tauzin said at
his Nov. 10 press conference announcing the hearings. "The intent is to find
out what went wrong in this system."
The networks, however, aren't obligated to answer to Congress for
their reporting and projection errors. If legislation cannot and will not
follow, the only purposes for investigating the projections are to intimidate
the networks and to extract the political gain associated with beating up the
media.
Indeed, the political gamesmanship started even before the hearings.
Less than a week after announcing that the hearings would examine the flaws in
the projection system, Tauzin upped the ante.
"I think there is now a presumption of bias in the reporting," Tauzin
announced to a news conference on Nov. 16. "The networks will have a duty when
they do come before us in our hearing to overcome that presumption."
According to Tauzin, the networks' bias in favor of Vice President Al
Gore was evident in projections of several closely contested states. When Gore
held a small lead, Tauzin claimed, the networks called the state for Gore. But
when Texas Gov. George Bush held a small lead, Tauzin said, the networks said
the state was too close to call.
Not surprisingly, the networks immediately defended the objectivity of
their coverage. From a public relations perspective, that's the right response.
The networks, however, should resist the temptation to defend their honor on
Capitol Hill. Just as Congress has no right to require accurate election
projections, it has no right to insist on objective election coverage.
Even if unstated, the messages that would be sent by congressional
hearings into the networks' accuracy and objectivity would be chilling: "If we
don't like your coverage, we'll investigate it. We'll haul you before panels of
inquisitors, analyze your editorial decisions and question your ethics. We'll
hold you to our standards of accuracy and objectivity, whatever they might be.
And we'll do this because we can."
If they voluntarily participate in these hearings, the networks
necessarily will legitimize an illegitimate inquiry. If Congress needs to do
something, let it try to craft workable legislation requiring all 50 states to
close their polls at the same time. Let it attempt to tell the states when they
can report their returns. Let it try to calculate the odds of an election this
close ever occurring again.
Maybe the networks' 1985 agreement, under which they do not call
elections until most of the polls in a given state are closed, needs tweaking.
Maybe the Voter News Service, upon which the networks rely for exit polling
data, needs a major overhaul. Maybe the networks need to re-examine the way
they balance speed and accuracy.
But even if the whole process of projecting elections needs to be
dismantled and recreated, there's no role for Congress in that endeavor. The
First Amendment guarantees the media's independence from the types of
governmental interference and scrutiny now being proposed. No matter how
embarrassed they might be, the networks shouldn't attempt to soothe their
public consciences by participating in a process that ultimately would be more
humiliating than anything they suffered on election night.
So forget public relations. Remember the First Amendment. Don't
go.
Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.
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