I. PREFACE II. INTRODUCTION III. THE PROBLEM OF MEDIA COVERAGE OF PUBLICITY-SEEKING CRIMES A. Intimidation B. Imitation C. Immunization D. Imperilization 1. Media dissemination of information 2. Media interference with law enforcement IV. THE MEDIA'S REASONING V. SOLUTIONS A. Noncontent-related Suggestions B. Content-related Suggestions C. Providing Information VI. THE FIRST AMENDMENT A. Prior Restraint B. Subsequent Punishment C. Access Restrictions D. FCC Regulation VII. CONCLUSION VIII. APPENDIX A: NONSTATE SPONSORED TERRORISTIC CRIMES COMMITTED FROM 1958 TO 1982 IX. APPENDIX B: NONSTATE SPONSORED TERRORISTIC CRIMES COMMITTED FROM 1982 TO PRESENT
"There is no need to cry in the wilderness when anyone so inclined can plead his case on national television." (1)
The following piece, written twenty-five years ago, (2) is remarkable for four reasons: (1) it illustrates that terrorism and/or publicity-seeking crime and the media coverage of it were concerns being discussed twenty-five years ago; (3) (2) it is prophetic as to many issues; (4) (3) there has been little development in the law in this area, (5) despite an explosion of both broadcast technology/coverage (6) and publicity-seeking crime (7) since that time; and (4) there has been little to no coverage of it in legal journals. (8)
In the twenty-five years prior to the Article being written in 1982, approximately sixty incidents of non-state sponsored terrorism were documented within the United States or targeting United States citizens--more than there have been since 1982, although much of it was due to the racial unrest and antiwar sentiment in the United States at that time. (9) By 1982, media coverage of such acts was being discussed within the media itself, (10) in general publications, (11) and in higher education journals, both in the schools of journalism (12) and law. (13)
In 1982, the ability to cover publicity-seeking crime and broadcast it quickly and to large numbers of people was only in its infancy. Electronic news gathering ("ENG") (14) had only just begun (15) Satellite broadcasting technology, enabling broadcasts from a distance, had only been developed in 1962, (16) the United States had only placed its first true geostationary satellite in space in 1974 (17) and by 1979, the United States had only three geostationary satellites in space. (18) Cable television was a recent invention with few people having access to it. (19) Mobile phones had only just been introduced to journalism in the 1980s, (20) and did not contain texting or imaging capabilities as they do today. Digital cameras were not created until the late 1990s. (21) The Internet was in its infancy, (22) the IBM personal computer having only been created in 1981. (23) The first twenty-four hour news channel, Cable News Network ("CNN"), was only launched in 1980. (24) Of course, today, all major media outlets have websites.
Since 1982, there have been at least 522 documented incidents of non-state sponsored terrorism throughout the world, (25) thirty-seven on American soil or targeting American citizens or assets. (26) Today, publicity-seeking criminals--such as Osama Bin Laden, (27) the Virginia Tech shooter, Seung-Hui Cho, (28) and Jack McClellan (29)--unabashedly use the media to carry their message directly to the world.
Since 1982, the lower federal courts in the United States have dealt with the balance between media and the First Amendment in only limited ways. They have dealt with the reporter's privilege and found it insufficient to block the government's access to phone records relevant to funding of terrorism (30) or defendants' access to videotaped interviews of terrorists, (31) they have restricted media coverage of deportation proceedings where terrorism is involved, (32) and they have found no right of the media to imbed a journalist with the troops. (33) They have also dealt with civil claims against media alleging that the media outlet aided and abetted crime (34) or negligently caused harm to another person. (35) The United States Supreme Court has remained silent. The more interesting legal developments have been in the international arena with the United Nations (36) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (37) passing resolutions that affect media coverage of terrorism and with three cases in international courts that affected media coverage of terrorism. (38)
Very little has been published on media coverage of terrorism or publicity-seeking crime in the mainstream law journals or in books. (39) Most of what has been published has been on the Freedom of Information Act. Interestingly, like this initial piece, most of what has been published on the media's connection to terrorism is student-authored. (40)
In 1982, could we have imagined that a terrorist such as Osama Bin Laden would directly use the media to spread his message of terror around the world? In the balance of American constitutional rights and freedoms, is this the outcome desired? Why did the scholarly debate on this issue stop in the 1980s? Hopefully, this Article might serve as a catalyst to stimulate other scholars--in both the legal and journalistic fields--to reconsider this very serious issue.
"Terrorism" is a word which conjures up images of guerillas, foreign nationalists, and government overthrow. However, the term encompasses far more (41) and for the purposes of this discussion includes all violence aimed at influencing the attitude and behavior of one or more target audiences, or, to coin a term, publicity-seeking crimes. (42) In the past decade, the number of publicity-seeking crimes has escalated to a point where thousands of lives, (43) forty-two per cent of them American, (44) are taken each year and whole societies are held captive by one or more misguided individuals.
One of the problems of combating incidences of publicity-seeking crime is media involvement. Violence or threats of violence have long been deemed "newsworthy" (45) items by the media. Publicity-seeking criminals have recognized this fact and put it to full use. By attacking highly visible targets in a dramatic manner, publicity-seeking criminals guarantee themselves saturated news coverage. They make a shocking appeal to traditional news values by making full use of the news industry's attraction to the dramatic, conflict-laden, and potentially tragic event. The media thus furthers the criminals' objectives by publicizing an incident that was staged for the very purpose of obtaining media coverage. This has come to be called by many a "symbiotic relationship." (46)
Critics both within (47) and outside (48) the news industry have begun to voice an awareness, if not a concern, for the ease with which such criminals obtain publicity on both a national and international platform. And yet, since 1977, when most of the self-appraisal and outside criticism dramatically increased, (49) no real changes have been made. Although a number of self-regulating guidelines have been promulgated by various broadcasting organizations, (50) it has been the general consensus that the First Amendment bars any government regulation in this area. It is the thesis of this Article that this may not be true in all cases. An analysis of the First Amendment as it applies to various forms of government regulation will follow the discussion of the problems created by publicity-seeking crimes and the media coverage thereof.
III. THE PROBLEM OF MEDIA COVERAGE OF PUBLICITY-SEEKING CRIMES
The objectives of terrorists, other than seeking publicity, are often coercion, extortion, disorientation and despair, provocation of unpopular countermeasures, and (with regard to the terrorists themselves) morale-building. (51) M. Cherif Bassiouni, a leading scholar on international terrorism, has identified four types of publicity-seeking criminals based on their motivation: (1) the common criminal motivated by personal gain; (2) the person acting as a consequence of a psychopathic condition; (3) the person seeking to publicize a claim or redress an individual grievance; and (4) the ideologically motivated individual. (52) This last category of individual is the one most frequently associated with the term "terrorism." It has been noted, however, at least in the area of assassination, (53) that the emphasis may be shifting to individuals seeking self-definition (54) or self-assertion. (55) William R. Catton, professor of sociology at Washington University, observes that although
some of the groups so desperate for publicity want it as a presumed means of attaining political, economic, or nationalistic goals [(instrumentally--oriented terrorists)] ... [others] appear to crave publicity for its own sake [(expressly-oriented terrorists)]--i.e., as an antidote to the ignominy of seeming superfluous in a world too vast to have otherwise noticed their existence. (56)
If nothing else, commentators seem to agree on one thing: to these people, more conventional means of communication seem to be unavailable or ineffective. (57)
Scattered, isolated incidents of violence by themselves are of little use to publicity-seekers in producing their objectives of fear, coercion, and publication of a cause or self-identification. Terrorists rely on the psychological impact of acts rather than their immediate destructive consequences. (58) To achieve such impact, publicity-seeking criminals need to publicize their acts as widely as possible. Since the mass media have the ability to confer importance upon an individual or an event merely by presenting it, (59) they play a major role in the spreading and intensification of the desired psychological impact. With the advent of increasing numbers of technological communicative advances, (60) publicity-seeking criminals are able to command the immediate attention of millions, enabling these criminals to work their felonious will on whole nations rather than just the hostages in their presence. (61)
The media has been described as "a powerful force, sometimes more influential than government itself." (62) In fact, Iranian Acting Foreign Minister Abol Hassan Banisadr, during the taking of American hostages from the U.S. Embassy in Iran, exemplified this attitude when he said, "Diplomats cannot solve this problem. We want to solve it through 'newspaper diplomacy.'" (63) This influence through the media could be a good thing if only the actions necessary to get this attention and consequential influence could fall short of violence.
Unfortunately, this has not been the case. William Raspberry, a columnist for the Washington Post, lamented on the use of violence as a means of gaining needed attention in the Watts Riots of 1965. (64) He pointed out that the attention received during the violent riots that summer brought home to the black people and other poor people that they could command the attention of the press. They realized that riots, threats of disorder, or demonstrations that had the prospect of getting out of hand always got the press out there. They found, for the first time, that this attention could lead to some positive gains for them and that was one of the reasons rioting flourished. (65)
Why, then, must violence be resorted to in order to gain the "needed attention"? Is it just an example of the age-old maxim, "The wheel that squeaks the loudest is the one that gets the grease?" (66) Or, is there more to it?
American mass media--electronic (television and radio) and print (newspaper and magazine)--are commercial enterprises just as any other business. They exist and thrive by making profits. Profits are obtained from selling time or space to advertisers at rates determined by circulation or audience size. (67) The larger the audience, the more each medium prospers. The availability of attention-getting content serves the audience-attracting needs of the industry. (68) The dramatic, often emotional events staged by publicity-seeking criminals make news, sell newspapers, and draw millions to the television set. This adds handsomely to the profits of media owners, advertisers, shareholders, and employees (and no doubt to the job security of the journalists covering the event) (69) and contributes to the overall "success" news reporting has seen in recent years. (70)
The supposition that "news" is becoming a more popular form of television "entertainment" is illustrated by such articles as The Coming Explosion in TV News. (71) Television tops all media in the number of people relying on it as their primary news source. (72) Urban stations are doubling and tripling the time they devote to news and nonfiction features. (73) Cable networks have already created one 24-hour news channel and are working on two more. (74) In fact, a former news chief at CBS predicts that news will soon become the prime staple of the American viewing public. (75) As the line between "news" and "entertainment" grows less and less visible, and as the commercial objectives of news carriers become more and more evident, publicity-seeking criminals can be expected to continue, if not escalate, their efforts to feed on this audience-attracting need.
In fact, according to a 1979 CIA report, (76) the nature and intensity of publicity-seeking crimes will fluctuate widely in the future. (77) The composition and character of such crimes will continue to change and increase in number although the regional patterns will stay the same. (78) According to the CIA, representatives of affluent countries, particularly government officials and business executives, will continue to be the primary targets for assassinations and kidnappings although the majority of incidents will continue to be bombings and incendiary attacks. (79) The CIA does voice a concern--as do others worried with nuclear development (80)--that overcoming present tactical and technological limitations may permit use of more sophisticated devices such as heat-seeking missiles and the like. (81)
The trend, as shown by the previous incident and death statistics, (82) is on a dramatic incline. Professor Catton believes that, in addition to feeling significance deprivation, (83) all people, especially Americans, are losing faith that any shortcomings of the present can be rectified in the future. (84) The combined effect of these feelings of insignificance, frustration with the system, and incompetence could lead to an increase in American-based expressly oriented acts. Brian Jenkins, director of the RAND Corporation program on political violence agrees. (85) He feels that although the American political system has an enormous co-optive capacity, (86) some "engines of terrorism" (87) that did not exist in America in the past could be emerging. He pointed to the peoples' perception of the economy and the development of single-issue politics as examples. (88) These changing societal factors combined with the high rate of relative success achieved (89) and the continued media saturation coverage (90) indicate little hope of de-escalation.
What if this situation continues to exist? What are the consequences?
Professor Bassouini has determined four main effects of media coverage of publicity-seeking crimes: intimidation, imitation, immunization, and imperilization. Media coverage of publicity-seeking crimes often (1) enhances the environment of fear and coercion the terrorists seek to generate (intimidation factor); (2) encourages other individuals to engage in such conduct (imitation factor); (3) dulls the sense of outrage and contempt in the general public (immunization factor); and (4) endangers hostages' lives and interferes with effective law enforcement (imperilization factor). (91)
Considered alone, each publicity-seeking act is not nearly as ominous as it appears to be. More than twice the number of people who have died in terrorist incidents between 1968 and 1975 have died from asthma in a single year in the U.S.; ten times as many have died from influenza. (92) By focusing on terrorist events and giving them a disproportionate amount of news coverage, the media engenders the feeling in the viewing public that such events are more common and, therefore, more dangerous than they really are. (93) Media, particularly television, gives the effect of authenticity per se. (94) It gives the criminal the auspices of power in a short time, with little effort, on a wide scale. In some respects, the modern "terrorist" is "created" by the media: they magnify and enlarge him and his powers far beyond its true magnitude. (95) In effect, television puts everyone at the scene of the crime, helpless to do anything, engendering feelings of anxiety and fear--the terrorist's instruments of coercion. This public anxiety enhances the perceived power of the terrorist in his own eyes as well as the eyes of his peer group and others. (96) This enhanced power often leads to imitation (97) and the cycle repeats itself.
According to leading sociologists, "among all the different ways one might behave in given circumstances, any particular way is more likely to be repeated when the circumstances recur if the previous time it was done it was followed by some gratifying experience." (98) This is referred to as the "operant conditioning model." (99) This can also occur as a result of vicarious reinforcement through observational learning. (100) In other words,
If a person observes another individual, with whom he more or less identifies, and sees that in certain circumstances a certain action by that other individual tends to be followed by an experience that is rewarding to that other person, the probability that the observer would behave in those circumstances in about the way the observed person did is enhanced. (101)
Therefore, if a would-be terrorist sees someone else's terror-inspiring act succeeding (i.e., resulting in a gratifying experience) then the probability that the would-be terrorist will engage in similar acts is increased. If publicity is what these individuals seek, then receiving such publicity is gratifying and rewarding. By providing such a "reward" to publicity-seeking criminals, media is reinforcing and encouraging present and future terrorists. (102) An excellent example of such a phenomenon took place during the Iran crisis. (103) Shortly after the incident began, United States' Embassies were attacked in Bangladesh, Libya, and Pakistan, basically following the steps of the successful Iranians. (104)
Of course, the information on operant conditioning and vicarious reinforcement is theoretical and data on such social phenomenon will never be clear enough to convince all social scientists and all legal scholars. But, to quote former Surgeon General Jesse Steinfield, "There comes a time when data are sufficient to justify action." (105) There is a strong argument that the time is now. Ninety-three per cent of police chiefs surveyed in a recent study felt like live television coverage of terrorist acts encouraged terrorism. (106) Sixty-four percent of the general public surveyed in a 1977 Gallup poll believed detailed news coverage of terrorism encourages others to commit similar crimes. (107) It is also suggested that terrorist groups conform to certain media stereotypes in their internal organizational structure, chain of command, choice of targets, time, place, and manner of action, and even in the attitudes of their members. (108)
Professor Catton warns, though, that the distinction must be made between "instrumentally-oriented terrorists" and "expressly-oriented terrorists." (109) For instrumentally-oriented terrorists, publicity about their goals would be reinforcing, but publicity about their actions and not their goals would not be reinforcing. For expressly-oriented terrorists, any publicity--even negative publicity--would be reinforcing. They seek publicity for its own sake, for self-identification. Any media attention provides relief from their "significance deprivation." (110)
Constant and detailed coverage of publicity-seeking crimes has three less immediate and perhaps more subtle effects on society. First, it increases the level of public tolerance of such crimes and lessens the feeling of righteous indignation. (111) This, one might argue, is good because it thwarts the terrorist's goal of intimidation by removing the shock factor. (112) On the other hand, more persons will feel less constricted by conscience as a result of the lessening social opprobrium. (113)
Second, the portrayal of all terrorists as crazies or as individuals and/or organizations beyond society's means of control suggests to the public that there is nothing that can be done to solve the problem. The problem is explained away thus lessening the chance of actively seeking solutions and thereby increasing the probability that such acts will continue unhampered.
Third, repeated coverage of terrorist events tends to conceptualize the act. (114) Instead of seeing an individual criminal, an individual victim, or an individual policeman, the public perceives roles--i.e., terrorists, hostages, law enforcement agencies--being played in a huge chess game. The individual act becomes an event and the human dimensions become lost.
Ongoing coverage of hostage-taking incidents is the hotbed of the media coverage controversy, and yet the problems seen there are probably the most susceptible to legal solution. (115) There are two general areas of conflict: (1) media dissemination of information tactically useful to the publicity-seeking criminal and (2) media interference with an effective law enforcement response. (116)
1. Media dissemination of information
Media can serve as the "intelligence arm" (117) of the criminal in many ways. Today, in most hostage situations, the criminal has a television or radio device within near proximity. By broadcasting police strategies, (118) activities, plans, or the presence of hidden persons (119) or escaping hostages, the media endangers the lives of the hostages, (120) law enforcement personnel, and innocent citizens. (121) They also assist the criminals in determining escape routes and repelling police assaults. (122)
2. Media interference with law enforcement
The physical presence of the media often interferes with the law enforcement agencies at the scene that are trained to effectively handle such situations. The somewhat obtrusive equipment interferes with their free movement and attracts crowds which …