To Err on the Side of Publishing: Harvard Law Professor Alan Dershowitz Urges Editors Not to Be Scared into Censorship by Advice from Cautious Lawyers
Garneau, George, Editor & Publisher
To err on the side of publishing
With advice from cautious lawyers, newspapers censor themselves in fear of costly lawsuits, according to civil libertarian and Harvard law professor Alan Dershowitz.
Knowing they probably will not be sued over what they do not publish, newspapers too often delete information that might expose them to litigation, and the public loses, Dershowitz told a session of the American Society of Newspaper Editors convention in Boston.
"If you must always be right, you won't publish a great deal of what in the end turns out to be right," Dershowitz said, arguing that newspapers have a constitutional right to be wrong - to publish what is later found to be wrong.
"I'm here to lecture you today about your responsibility to err on the side of publishing, to publish more rather than less," he said. "The citizenry is impotent in the face of your suppression. Whatever you fail to publish may be lost forever to history and kept out of the marketplace of ideas for all times."
Kitty Kelley's unauthorized biography of Nancy Reagan is one example. Despite questions about its veracity, it deserves publication, even if it turns out to be wrong, because of the Reagans' importance in American public life, he suggested.
Dershowitz, who was portrayed in the movie Reversal of Fortune for his successful murder defense of socialite Claus von Bulow, accused lawyers of playing "a distinctively destructive role in self-censorship" by advising caution, and he blamed newspapers for hiring "very, very cautious" lawyers. Trained to play it safe, newspaper attorneys often evaluate not whether a lawsuit could succeed - but how much it would cost, Dershowitz said.
Even without lawyers, newspapers censor themselves out of a sense of "do-gooderism" or simply to avoid criticism, he said.
ASNE counsel Richard Schmidt later denied that attorneys advise newspapers not to publish sensitive stories. Good lawyers simply advise clients of possible consequences, he said.
Schmidt agreed that some attorneys are too cautious and that particularly small papers have become cautious about what they publish for fear of long and expensive libel fights.
"It's purely economics. They cannot afford the fight," he said.
Dershowitz also urged newspapers to reconsider their blanket rule of not publishing the names of rape victims.
By routinely printing the names of suspects, newspapers tell a one-sided account and promote the alleged victim's version, he said. In a "conspiracy of silence" protecting the accuser's identity, newspapers contribute to the "sexist" notion that rape victims deserve shame, he suggested.
"You're contributing to the way the story is perceived and yet you think you're just engaging in a neutral act of decency," Dershowitz said. "Where do you get the right to sit in collective judgment about what is right and what is wrong about printing rape victims' names?"
In one case, he pointed out, police checked the background of a woman who accused a man of rape and found she had falsely accused 11 other men.
Courts have struck down, on First Amendment grounds, state laws prohibiting newspapers from disclosing rape victims' names. …