A Law Against Lying on the News

Why Canada has one and the U.S. doesn’t.
Fox News Mic by Tangchalermkul

It’s not often that goings-on in Canada interest the American news media, but a rather small decision by a relatively small government agency—the decision not to revoke a rule that bans lying on broadcast news—in Ottawa has made a pretty big splash.

It stems from the planned April launch of Sun TV, a Canadian analog to FOX News—i.e., a broadcast news outlet with a decidedly conservative perspective. Among its top executives is a former communications director to conservative Prime Minister Stephen Harper, evoking former Reagan/Bush adviser Roger Ailes’ role at the helm of FOX. That executive, Kory Teneycke, told the Toronto Star that Sun TV is “taking on the mainstream media [...] smug, condescending, often irrelevant journalism, we’re taking on political correctness [...] by bureaucrats for elites and paid for by taxpayers.”

Given that the posture, tone, language, and buzzwords of the nascent network could have come so easily from Bill O’Reilly, outsiders promptly branded it “FOX News North.”

The very notion is almost shocking: You can ban lying in the news?!

The launch drew attention to a seldom-scrutinized regulatory agency called the Canadian Radio-television and Telecommunications Commission (CRTC), similar to the Federal Communications Commission in the United States.

With little fanfare, the CRTC last month scrapped a proposal to revoke or relax a rule on “prohibited programming content” that includes “broadcasting false or misleading news.” The CRTC withdrew the plan when a legislative committee determined that the rule does not run afoul of the Canadian Charter of Rights and Freedoms, which like the U.S. Constitution, guarantees press freedoms.

The Canadian media speculated that the withdrawal may have been provoked in no small part by the large sector of the public that voiced its displeasure at the idea of Sun TV coarsening the public discourse and deliberately muddying the political waters, akin to what they see in American media. The agency’s chair denied that Sun TV factored in at all, noting that the plan to rescind the rule had been in the works for 10 years, and that the rule has never been invoked.

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Still, U.S. media pricked up their ears at the news, inviting Canadian legal experts to explain the issue, a rather foreign concept to the American mind. The very notion is almost shocking: You can ban lying in the news?!

The question was asked time and again: Could something like that happen here?

The short answer is, no.

The First Amendment does not permit government interference with “the freedom of the press.” What that freedom is, is among the great undefined terms in American jurisprudence. But its enduring strength is that few are willing to take the first step down the slippery slope of determining who is a journalist and who is not, and what constitutes good journalism and what does not. It’s all protected, for good or ill.

But no scholar on the topic would argue that it’s all for the good.

There are plenty of examples of constitutionally protected bad journalism. In the 1991 case Masson v. The New Yorker, the Supreme Court ruled that deliberately, falsely attributing quotes to a speaker does not necessarily give rise to a defamation claim, even when the manufactured quotes cast the “speaker” in a negative light. That is, it is not “actual malice,” in legal terms, to act with malice.

An even more egregious story from 1997 involves Jane Akre and Steve Wilson, TV journalists pressured by their employer, Tampa-based Fox affiliate WTVT, to alter a story on the use of recombinant bovine growth hormone (rBGH) in dairy production and its potential health risks to consumers. Akre and Wilson said they were ordered by Fox executives to change the story by inserting statements from rBGH manufacturer Monsanto that they knew to be false. They claimed that they were fired after refusing to do so and threatening to report the station to the FCC.

They sued for wrongful termination, asserting that their firing violated Florida’s whistleblower protection statute. A jury ruled in Akre’s favor, awarding her $425,000 in damages.

In short, the court bought Fox’s argument that there is no law to stop them from deliberately falsifying the news.

But a state appeals court overturned that decision in 2003, finding that the FCC’s policy against “distorting the news” does not rise to the level of a law or regulation. In short, the court bought Fox’s argument that there is no law to stop them from deliberately falsifying the news.

“False,” of course, is often conditional and sometimes subjective. It’s a standard that would be hard to enforce, subject to the whims and political ideas of judges and juries. Who determines that something is false? On what basis? And what review mechanism could ensure that the decision was reached fairly in most instances, let alone every one? And that’s before you even get to the question of what news is, and what it means to practice journalism.

No, those are questions that can’t be answered with any reasonable reliability. The best we can hope for is transparency, integrity, and accountability.

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There is no licensing authority for journalists as there is for lawyers or doctors, but the Society of Professional Journalists puts forth a set of ethical standards, though it has no means to enforce them. First among them is: “Deliberate distortion is never permissible.” It should go without saying, but there it is.

The rest of the standards touch on basic tenets of honesty (don’t fabricate, mislead, deceive, silence opposing views), humanity (show compassion, respect and sensitivity to subjects who have undergone trying or traumatic events), and integrity (avoid conflicts of interest and disclose those that cannot be avoided).

That’s not too much to ask, is it? Seek the truth as best you can determine it, go about it with candor and compassion, and do so “without fear or favor”—a phrase attributed to New York Times patriarch Adolph Ochs, conveying independence and impartiality.

It remains the controlling principle in most of the news media, but too often, editorial decisions are made that bring the entire profession into disrepute. And that harms not just the journalists, but the rest of us, too, as our discourse is steeped in distrust, cynicism and vitriol.

Maybe Canada is onto something.