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Slouching Towards Faux | The Nation

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Diary of a Mad Law Professor

Slouching Towards Faux

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Shortly after Dominique Strauss-Kahn was indicted on charges of attempted rape, his friend Bernard-Henri Lévy wrote a defense of him that, among other wrongheaded assertions, denounced the American justice system as one where “anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact.” What Lévy actually described is a presumption of guilt, not the American presumption of innocence. In the United States, the prosecutor—whose responsibility extends not merely to the accuser but to the general interests of justice—has the burden of proof. The accused doesn’t have to prove or disprove anything; indeed, the accused doesn’t have to say a word, as per our Fifth Amendment.

About the Author

Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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Lévy’s offhand remark came closer to describing the global media than our courts. Journalistic values like accuracy, accountability and respect for human dignity have fallen by the wayside as entertainment and titillation have prevailed. The inescapable rush to judgment that pours forth in hi-def in seemingly every public space—from elevators to taxicabs to airports to bank lobbies—is a kind of civic poison.

It’s because of the media that we find our democratic processes foundering in increasingly debased public discussion: Strauss-Kahn’s accuser is driven to suing the New York Post for its unsubstantiated claims that she is a prostitute. Pundits mock the very principled prosecutor, Cyrus Vance Jr., as a sucker for having dutifully and appropriately revealed potentially exculpatory information. Radio jocks spend hours dumping on those who believe the accuser’s history of lying has anything to do with Strauss-Kahn’s “obvious” guilt. When HLN opinionator Nancy Grace’s howling impersonation of blind Fury wins her more respect than the deliberation of an actual jury, as in the Casey Anthony murder trial, we worry for the safety of judges, defendants, accusers and jurors. We forget that the case against Anthony was circumstantial; as much as she lied to law enforcement—a crime for which she has been convicted—her child’s body was so decomposed there was no way to prove either how she died or who did it.

We are swimming in a gloop of scuttlebutt and tittle-tattle, driven by “unnamed sources” who always represent themselves as “close to the investigation” yet who speak only “on condition of anonymity.” Those deceptively anodyne descriptors have moved us down an ethical spectrum from transparent reporting to stories that are “underwritten,” bribed, extorted or outright lies.

Consider, for example, the insidious model of Rupert Murdoch’s media empire. Fox News Channel is a subsidiary of the Fox Entertainment Group, which in turn is a subsidiary of Murdoch’s conglomerate News Corporation. It’s a perfect circle, a consciously structured looping between news and entertainment, a business model premised on positing the amorality of “anything goes” as the civic equivalent of “freedom of the press.”

In Britain, Murdoch’s devouring influence is finally being challenged with revelations that his employees compromised a murder investigation by hacking into the voicemail of the victim and erasing her last messages; tapped the phones of politicians with whom Murdoch took issue; and paid police officers and government officials “in the six figures” for information about ongoing investigations. It is perhaps only in America that any enterprise of Murdoch’s labeled “fair and balanced” is still received as anything but laughable. We know, too, that paying for information has become broad practice among American tabloids like the Post; but we seem inured to the concern that tabloid sensibility is not just unreliable but corrupting.

The Anglo-American justice system constructs criminal cases as singular—as particular to named individuals and specifically delineated indictments. Social narratives, norms and values can never be entirely absent, but the system attempts to regulate their influence through mechanisms like the rules of evidence (barring rumor and unsubstantiated opinion) and standards of proof (like “reasonable person” and “reasonable doubt”). To keep from destroying reputations unnecessarily, we adhere to a presumption of innocence. Police are supposed to keep certain aspects of investigations closed until there is at least “probable cause.” Similarly, both sides screen and filter evidence for probity. In some cases, judges have the discretion to sequester juries from outside or inflammatory input. And we trust lawyers, prosecutors and judges to keep confidences as a matter of professional ethics.

But none of these structural buffers can operate as they should if a Murdoch-like empire runs the world, carelessly spitting out the home addresses of those it wishes to skewer, hacking into the phones of unlucky witnesses, pursuing stories into sealed records, private homes and bathroom stalls. Our democracy depends on a free press to discuss the issues of the day without interference from government. What that noble ideal does not account for is the existence of media monopolies able to exercise national and international control over civic spaces—even to the degree that their power vies with that of governments. Their careless, nonempirical, even fictionalized narratives invade privacy, ruin careers, mythologize racial stereotypes, exploit class divisions, exacerbate ideological discord, unleash mobs, wreak vengeance, assemble armies and annihilate the common good.

Today’s media chatter is beholden not to truth but rather to profit, fear and fantasy. What becomes of the duty to listen that is at the heart of free expression? What becomes of the shared mulling of ideas that allows us to think of one another as equals who exist in society with one another? What becomes of the measured thought exchange that is the essence of due process?

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