Journalism’s Legal Liability Unless it Claims Objectivity it Can’t Have

Journalism offers objectivity. But, at its strictest, objectivity is not possible for most topics. The truth in most journalistic content created and consumed, at least in the United States, is relative. Yet a great amount of the relativity-laced journalism is trustworthy, boldly created, reliable, and useful by immediate consumers and by society at large.

So are we missing something because of the journalists’ mistaken belief in their total objectivity? Ultimately, no, emphatically no. They can describe their journalism with any adjective they like. What’s really crucial is that they should continue producing their work, and more of it. We need it.

Practice of Journalism

It’s worth examining this conflict and why it practically doesn’t matter to consumers.

Geniuses Among Sources

Let’s go to the top. Science and other scholarship depend on more objectivity than probably does any other field, so the epitome of objective journalism should be journalism on scholarship, including on science, especially on the newest peer-reviewed published work. But it’s not alone. Almost all journalism claims the same. It’s said for politics and industries and it’s likely said for Hollywood divorces and backyard gardening advice.

If reporting on, for example, architecture is objective, then objectivity is relative. If reporting on any topic, even arithmetic, is objective, then objectivity is relative. But it can quickly confuse a reporter’s claim of objectivity to aver relativity of objectivity. The confusion can damage the credibility of the correspondent, the editors, the publisher, and the work product, so they likely will deny it. Notwithstanding what they say, for any journalism it’s impossible to argue that journalism does not introduce subjectivity into whatever it covers, no matter how objective a reporter’s source.

Consider reporters’ sources. While some are lay people (formerly the so-called “man in the street”), often the sources are sources because they’re experts. How the experts do their own work matters to objectivity, to the experts’ objectivity and thence to the reporters’ objectivity. The fundaments of the experts’ work apply across all kinds of expertise. Those fundaments, at least some, are well known.

All of what we consider truth, even the absolute, is either mediated or invented by humans. Our brains almost certainly bring a variety of influences to bear on the inputs of our senses and, even more so, on our memories of those inputs. To prevent our brains from doing so, we’d need a neurosurgeon to cut parts of our brains apart. No matter how careful the surgical slicing, I don’t think anyone’s volunteering to go under that scalpel. We usually want what one sense tells us to be tested against what we learned from all of our senses. If a forest mushroom tastes toxic, we’d want to remember what it looks like before we bite another one and die. After someone tells you why you should stay away from a porcupine, when you see one for the first time you should keep your distance, so you don’t get your face punctured. Our brains pour those influences in because they usually help our survival and our ability to thrive in society. We’ve likely depended on our brains since we were kicking inside wombs. Our brains are good to us.

We chase many endeavors, science among them. Our scientists pursue scientific discovery and produce scientific knowledge. For that, they need facts. Facts exist (putting aside the solipsistic view of the world, such as that explained by Bertrand Russell). Facts are data. The total of all data in the universe is almost infinite, too much to count, too much to write up, too much for all the ink and paper in the world, quantitatively too much for even all of the human beings on Earth to uncover, never mind understand, too much even if the collecting is by only the smartest, most brilliant, humans.

Since no one can know all of the data in the universe, only known data is considered. Of the data we try to know, not all of it is trusted. If we’re not sure we know a datum, we consider it unknown. Subtracting the unknown and the uncertain leaves known data as a smaller data set. Known data, and no other data, will be applied (arguably minus redundancies) so we form a theory that best explains the known data. Known data is vital to science. (A theory, in this usage, is proven; if it were not, it would be just a hypothesis.)

If this is conservative, the liberal approach would be by reliance on unknown or uncertain data; but that is best left to speculation, not a bad thing if it is so labeled but still speculative. Liberality can be consistent with solid science provided that curiosity leads to searching for new data or new appreciations of existing data and the particular curiosity is fulfilled.

Data that is absent represent questions that have not been answered and efforts may be made to ask and answer those questions with data that may be new. Data that seems already to exist but is not trusted enough to be considered known is preserved or discarded for the purpose of improving on the data, such as by compiling new observations to confirm, discard, or replace the data deemed improvable. As answering and observing for new data may happen at any time, a theory may be revised, erased, or added at any time. However, science does not wait because a better result may obtain later, or science would never have content. If we can’t have perfect content, and we certainly can’t have it yet, we have to decide if we need to settle for imperfect content. It turns out that we do, as long as it is good enough to be helpful until better shows up. So we develop scientific content and we do the best we can with the data we have that will help us develop. The data we have includes known data.

Since even just known data is overwhelmingly voluminous when a purpose is limited, some of the known data is selected for relevance. The selecting is done by humans’ brains, all known scientists are human, and therefore the selection implicates humans’ subjectivity. Scientists try to minimize their subjectivity, generally by compensating for it with countervailing subjective influences plus external randomness, and those compensators help reduce the influence of subjectivity, but the resulting selection of known data still must reflect some subjectivity.

If the selected known data support an explanation, they may support several explanations. Choosing one explanation and discarding the others may be useful, even necessary. To resolve a choice, the principle of Occam’s razor is applied. By that principle, the simplest of the explanations is accepted. This, often after further human review, becomes the consensus. All of the other explanations are rejected.

We remember more than the consensus. We remember the process. It’s sturdy enough, so we’re going to use the process again for something else, and to do that we remember how we came to a recent consensus. We remember our data selection process, our preference for the simplest explanation, and our belief that we can pick an explanation as simpler than another. This leads to an anomaly, an answer most laypeople will be surprised to get from top scholars, the smartest, most knowledgeable, people we’ve heard of.

Query a scientist, especially one whose word is most highly respected among the pronouncements of highly respected scientists in the same field, about whether a given theory is absolutely and unquestionably true, the premise of objectivity: The answer, from almost any, will be that it’s not.

Because it’s not, that respected scientist will contend instead that the theory is merely the best one so far, the most precise explanation to date of the known data. That contention will imply an invitation, if it’s not said out loud: If anyone has a better explanation, we want better science and we want the better explanation, so please tell it to us. That one, once proved, will displace the older one, which will pale against the news, when they find the older theory has a fatal flaw. While you’re working on the new explanation, maybe you doubt the pre-established consensus, and so, let’s suppose, most professors stop talking with you, but if you’re ultimately wrong you say so to them and if you’re right you publish your findings and they get copies in their mailboxes.

And so it has, essentially, happened. Galileo observed that, to an observer in a room, an object moving in one direction and the room being stationary is indistinguishable from the object being stationary and the room moving in the opposite direction, so the observer would be unable to tell which perspective is true. Einstein added to this his two theories of relativity (the word being somewhat of a coincidence in this context). Einstein likely considered additional data that was not considered by, perhaps not known to, Galileo. Later, Albert Michelson and Edward Morley did an experiment, developed data, and drew a conclusion about the knowledge of aether. Einstein drew a conclusion that contradicted that of Michelson and Morley. Einstein’s conclusion has been accepted as better than that from Michelson and Morley. Noam Chomsky took data that was treated as known by scientists studying linguistics, added data to the set, and developed a remarkable and strong new theory that is widely accepted. Re-evaluating what data is known for the purpose of theorizing on a question is an accepted process in science.

Is Math Different?

If any of our knowledge is objective, that’s probably arithmetic and much of mathematics (the field of interesting numbers is not and perhaps some other branches of mathematics also are not). Mathematics thus may seem to be inherently an exception.

Maybe it’s not. Maybe the exceptionalism is not inherent, but the result of a human decision, a good decision but still human. Scientists in every field apply standards for what knowledge should be trusted. Mathematicians have an especially rigorous standard that, if applied to almost any other field, would cause human distrust and dismissal of so much knowledge that we might well be stranded as unable to cope with the wild world. While for, say, astronomy or medicine investigators partly collect observations and prove a theory therefrom, mathematicians do more. In their view, what the others do is not sufficient. Someone may collect pencils, lay one on a table, lay another next to the first, conclude that one plus one is two, place two more pencils there, and conclude that two plus two is four; and that kind of thinking might be more than adequate for a geneticist curing cancer; but, in the judgment of mathematicians, it’s not proof. When efforts were being made by mathematicians to prove Fermat’s Last Theorem after Fermat died with his secret intact (he said it could be proven but didn’t say how), there were several announcements that replacing variables with various constants had not proved it but, at least, had not disproved it. Mathematicians considered those announcements interesting as pointers that success could be coming, but they still held out for a proof with satisfying rigor. After more than 300 years, the proof finally did materialize at the hands of two mathematicians who leaned on the shoulders of some predecessors. That mathematicians demand so much rigor from themselves is helpful, because most fields of science demand that mathematics be reliable for the reliability of their own, less purely mathematical, conclusions.

The Rest of Them

Scientists are not alone. Lay people often plow through their experience and anecdotes, their own and those of other people, to find data they can use. Even if that data is not considered by scientists as known, it is known to some laity, and, at some point in time, scientists may be exposed to it as folk knowledge, even if they disbelieve all of it, and they may well try to. Sometimes, scientists use some of the data sourced to laics and stir in scientific curiosity to explore whether a good scientific theory can be developed. Most times, data from lay sources fails scientific validation. However, sometimes, a new theory is successfully developed on the inspiration of folk knowledge.

One scientist reported on his use of data supplied by indigenes he trusted enough to test the data about an allegedly boiling river. He found that the river identified by the indigenes had temperatures near the boiling point.¹ A hot river is remarkable even if it was not actually boiling (and, especially as steam was rising from the river, it may have been boiling near the bottom, the source of the heat having been left as moot). Probably the indigenes’ claims were not all true; but that was less important than that scientific colleagues’ doubts that any of the indigenes’ data could be true was refuted by the scientific validation of some of it. Even lay subjectivity helps us develop knowledge, both objective and subjective, of the universe, including useful knowledge. Indigenes in what is now called South America probably developed some mathematics before colonists ever arrived from Europe (and destroyed native records). All scientific knowledge has roots traceable, eventually, to folk knowledge.

Faith is contrary to science, yet it offers what we are told are objective truths. Some correspondents cover theology, especially that within a single larger faith community, and some cover it as true. As many faith communities and leaders contend that their faith-wrapped statements are objectively true, for a journalist to deny the objectivity in favor of subjectivity would lead faithful consumers to distrust the journalist and render their journalism less trustworthy for consumption.

Some topics are associated with especially high degrees of emotion among consumers and, probably, among correspondents. Crime, death, war, interlocal sports, and largely uncontested popular views are among them. Reporters report on crime from the standpoint of most people as most people are victimized by the crime on which being reported and not generally the standpoint of the criminals. Obituary writers, not if close to the deceased but acting as professional correspondents applying journalistic ethics, report on death by emphasizing the positive about the newly deceased, usually completely excluding the negative. Journalists report on war from, usually, the standpoint of a journalist’s own side, sometimes allies, and occasionally neutrals and much less on the enemy’s standpoint. They tend to report on interlocality sports from the standpoint of fans nearby and not elsewhere. Calling Rembrandt’s work classic is safe. None of those choices are consistent with objectivity. Reducing objectivity is likely popular among consumers in all these cases; generally, it raises certainty against crime and increases public safety, it’s therapy for the grieving, it reinforces loyalty that helps win a war, and it helps local teams find fans and perhaps therefore win against out-of-towners or at least sell more tickets. These may all be excellent goals. However, excellence of goals like these does not make the reporting, even excellent reporting, more objective.

Marketing is Easier with Objectivity

Journalism is expensive and needs to be paid for. Whether consumers pay directly for it or pay advertisers to pay for the journalism, if consumers are to consume more of it and if the public is to support it the public must want to support it. To add to consumers’ trust and gain public reliance on the journalism, whether it is fundamentally objective or not, an ingredient is to present it to prospective consumers as objective.

Law as Applied

Presence

But the societal acceptance of journalism depends on more than marketing. It also depends on conformance with law. The society likes having law, it has plenty of it (including restrictive and permissive), and most people in the society expect it to be followed.

The law thus has a hand in journalism. The relevant law is national, in the U.S. not necessarily Federal but treaties and other superior law are, in this context, less influential than domestic national law. In other nations, national domestic law is also influential; nowhere does it not matter. The content of national domestic law will shape the practice of correspondents in each nation. Usually, no one wants to go to jail or become poor.

Getting Dragged

In the U.S., if someone complains that something about the journalism was unlawful, such as by defamation of character, its author and its publisher can be required to present their work for judgment by the judiciary. Few articles are brought into court, but the risk of an article being brought into court applies to all publications and some unpublished work. Before the judiciary decides, the defendant has to pay for the defense; legal counsel is costly and preparation takes, e.g., costly staff time. If the judiciary agrees with even part of the complaint, the publisher may have to pay money to the complainant, go to prison, embarrass itself with a retraction, and fulfill other adverse impositions from the judiciary (if this would be by settlement, any settlement being approved by the judiciary would make the settlement a judicial act). This can put the publisher out of business and the reporter behind bars, both in bankruptcy and poverty, and the reporter could be never hired again to report and their children can be put into foster care or up for adoption. Even comedic reporting is seriously burdened and burdensome, and is to be committed only by the serious.

The judiciary relies on juries. After potential jurors are asked about employment and recent media consumption, juries reputedly tend to superproportionately include jurors who read simpler tabloids rather than long broadsheets, tabloid readers being easier to persuade when they usually are not permitted to ask questions directly of witnesses or lawyers (sometimes jurors fall asleep and some lawyers like that (Ron Kuby, criminal defense lawyer, said on WABC radio that he liked it)), and who are paid full employment income in lieu of jury pay, those often being union-contracted civil service workers, who, in their jobs, tend to follow directions without question more than do many other people and make human answers neatly fit checkboxes and forms. Scholars legally can be on juries, but, after attorneys for the parties in a case are done participating in jury selection, scholars are less likely to be allowed to serve on cases. The journalism in question has to be defended largely before people who may not understand the profession, may not understand the topic of the reporting, and may not be sympathetic to anything about it. Witnesses, including reporters, who would gladly address for jurors whatever concerns they may have are not told of those concerns and usually find that jurors are all silent.

A correspondent testifying to a jury that their article is even partly subjective and the opposing lawyer can shred the journalism. If the correspondent is the plaintiff’s witness, the defense is limited to asking about subjects raised by the plaintiff’s side. If the correspondent is the defendant’s witness, the plaintiff’s lawyer is the last to ask you questions in front of the jury. Should the witness feel accused of an offense not stated in the instant case and tries to defend as if a defendant, the judge will likely order the witness to answer only the questions asked and may issue a reminder that only the defendant is on trial, no matter what seems to be plainly happening for all to see.

Planning For Prevention

Journalists and publishers have to plan for the trial; and the safest plan is generally one in which they can win a case hands down and therefore a complainant does not even begin a court case.

The planning begins with planning the publication and its business organization, such as by insuring to cover liability for publishing perils, which is insurance sold as a rider on standard liability insurance, thus almost certainly at a substantially higher price. The only exception is a small media organization, when the owner can just shut down when merely threatened without testing an adverse claim. Small- and medium-sized media can go out of business after one loss. Cases are usually dismissed or settled and some trials are held by judges without juries but all cases have to be handled by both sides as if they will go to juries.If the insurance has to pay for counsel or a judgment, the premium will likely go up soon thereafter, even if a new insurer is selected for subsequent years. So, the planning will include more than insuring.

It will include the hiring, selecting, assigning (to beats and stories), supervising, and firing of reporters so that the reporters more likely to testify in court are those who will testify consistently with the law that is applicable to the case and favorable to the publisher. Since reporters as witnesses cannot be scripted for all of the innumerable trial questions that a judge may allow, the reporters chosen for the possibility of eventually testifying need to be those who agree with principles that are more persuasive of juries and in favor of publishers.

Objectivity as Principle

One of those principles is that the reporters, sources, editors, publishers, and some others involved with what was complained about are objective on the matters in question. Sincerity is also needed, during testimony and throughout one’s journalistic career. Thus, either the person has to be good at appearing sincere or has to sincerely believe that most of what is acceptable subjectivity is really objectivity.

Objectivity has to be asserted for each statement in the reporting that is challenged by the complainant. It is not enough to sweepingly defend the article as a whole. It is generally necessary to defend every challenged point separately (except any being conceded, at potentially a cost). Journalists must anticipate this point-by-point need, not only at the trial and the days leading up to trial, but back when they’re newsgathering and writing: when they evaluate a source, accept information from a source, produce a draft for publication, and follow the work through editing, including fact-checking, until it is published and, probably, afterwards. If the risk of being brought into court is higher for a given work, it will tend to be produced in a way more likely to withstand court scrutiny. The risk is higher if the article is substantially adverse to someone with the means and willingness to sue. As an editor said to an investigative reporter assigned to do a piece on such a lawsuit-happy individual, don’t say he has one head and two hands unless you counted them yourself.²

Defensive Editing

The caution may be evident to consumers in the work itself, long before someone complains to their lawyer. It’s usually unannounced. Inviting a lawsuit can be a bad idea. But signs may be present.

Some publications seem to play fast and loose with facts. One, according to its former executive editor, published predictions from a psychic; it also published serious stories about a notorious criminal trial. That weekly with a large circulation and a well-known name was a tempting target for libel lawsuits, although its losing a case was rare. A reader could get a clue as to whether a particular article was legally compliant by estimating whether anyone in that article could sue for libel. An article about Martians insulting each other should not be trusted, as Martians (even if they exist) can’t sue. But O. J. Simpson could have, if an article about him was libelous.

A more subtle clue may be available. The New Yorker, a magazine, published an article on the Church of Scientology. That Church had a reputation for suing people who disagreed with it. The publisher invested in lawyers’ time for the article, probably an expensive investment. The magazine had a high public reputation, one it has cultivated and earned. That reputation could be painted as good or bad, depending on who was painting it, the magazine’s lawyers or a complainant. The magazine could have been described by the complainant to a jury as an elitist, perhaps snobbish, slick magazine that is hard to read and understand; even if it is written for an eighth-grade audience, it is still topically sophisticated and editorially opinionated. The Church might even have introduced evidence about the magazine’s reputation in order to make the magazine appear less credible to a jury and especially to the tabloid readers among the jurors. If it’s elitist and snobbish, then, the argument might have said, it’s probably untrustworthy. If its editorializing is disagreeable, the Church might well have highlighted what it didn’t like.

But, even if all of that was allowed by the judge, that alone would not have gotten a judgment favoring the Church. The complainant would have had to identify a fact showing unlawfulness with the magazine. If the article was alleged to defame the Church’s character or to libel the Church or any of its leaders, the complainant would have to identify a specific statement in the article that allegedly did so. Two ways to attack a sentence are available; one is that it is factually wrong in some way that matters legally. The other is that the way the sentence is written casts doubt on it and the jury turns against the magazine and the journalist.

The magazine was ready for that. Each sentence, to my recollection, was simple, and simpler than I used to find in The New Yorker. (I had hardly read it in years and there had been a change of owners and of editors-in-chief (called editors) in between and I had been a frequent and heavy reader earlier, for years.) Each sentence in this article was written as if to be easily defensible before a jury. It made the style a little duller than it might have been for some topic less likely to be hauled for pricey litigation, but I found this topic engaging, and so I happily continued reading from the beginning to the end. I thought it would be hard to show the jury any sentence in the entire article merely because that sentence was murky or had a bad attitude.

Being factually wrong, in some way that matters to the law, is the other vector of attack. Factual correctness is the responsibility of the correspondent, the magazine’s fact-checking department, et al., and they probably did enough to be able to assure the jury and the judges, trial and appellate, of the necessary degree of correctness to suffice for the assertion of objectivity in the eyes of the judicial deciders of fact and law. The complainant might have wished to attack the factuality, but the attack would have to have survived court review. If it failed that review, the entire case would have failed, which could have turned expensive for the complainant, especially if the publisher could have countersued the complainant for damages for having brought the case that ultimately failed. On the factuality, I trusted the magazine and therefore its author, based on its reputation for being very careful with fact-checking. What I noticed this time was the simpler writing style, one that should help a jury vote against a complaint and for the magazine and the author.

Outcomes

I do not know if the magazine or anyone with it was sued by the Church or anyone associated with the Church, but the author has gone on to write other content for the magazine. The Church may have been persuasive in stopping availability of the book resulting from the article in Canada and the United Kingdom, although, by implication, not in the U.S. I do not know the relevant law in Canada, but I understand that the law in the U.K. often forbids publication of content that is private to someone even if true, and provisions oppose causing ridicule or reporting fanaticism, among other possibilities. However, some time later, I saw the book was available through the Canadian and U.K. websites of Amazon (respectively, amazon.ca and amazon.co.uk (at least as visited from the U.S.)). That suggests several possibilities: different results are shown to visitors from a U.S. Internet connection (like mine); the law in the U.S. against libel tourism may apply to this book’s distribution; selling the book through websites to customers in the U.K. if done internationally is lawful; the Church didn’t notice the offers to sell; or Amazon was too wealthy for the Church to sue.

However, the victory of the magazine and the author (victory either in not being sued or in winning if sued) is, in a sense, limited. It is likely that only well-financed organizations can risk incurring the Church’s wrath. The Church has money and appears inclined to use it to use courts against those who can’t afford to defend themselves when the Church wants to squelch research and speech it dislikes.

Reform

Law perhaps should be amended. I’m not sure exactly how. I doubt it would be easy. Some reporters support a combination of press freedom and constraints on libel as sustaining the high quality of journalism. Maybe it should stay the same. Maybe reform efforts should be focused on what is likely the easiest to achieve: the needs of publishers who are less able to afford to defend potential lawsuits.

Adjectival law may be the biggest problem to be addressed. It’s about legal procedure. What occurs with juries in press cases also occurs in many kinds of cases, like medical malpractice, product liability, and personal injury. Being common may make reforming it harder.

The Need is Still Here

We need high-quality journalism. Journalism does great work, both the media I consume and their competitors, including some in other nations. We need more of it. (I’ve done a tiny little bit myself.) I’m better off with it; so is the nation and the world.

Yet most journalism is relative; likely all of it is. Even though some known mathematics is objective, journalism on that same mathematics is likely at least partly subjective. I won’t go so far as to claim that objectivity doesn’t exist, but subjectivity is present where we may wish it doesn’t.

Those who acknowledge subjectivity can do allied work. Political organizing and being a warrior (including a nonviolent warrior) come to mind. Maybe other nations are more welcoming of people endorsing subjectivity while being reporters; it depends partly on their laws.

Nonetheless, since we need journalism and we need it to thrive in the existing legal framework, if the producers of journalism all want to believe that what is relative is objective and say so, and the product is good, they can call it whatever they want. If hiring selectively for those who sincerely believe in their objectivity, even those reporting on someone as manic-depressive on a licensed clinician’s diagnosis, will further journalism at the cost of hiring those who don’t believe in it, until law is reformed we’ll have to accept that selectivity or sacrifice quality journalism.