Fighting "fake news" allegations and the trickle-down effect of national news to give SD reporters a shield
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We had him. Then we lost him.
Republican state Rep. Tom Pischke of Dell Rapids voted for the reporter-shield bill in the House Judiciary Committee last legislative session, then he voted against the bill on the House floor.
A flip-flop? I wouldn't say that. But then, I’m not that big on calling flip-flop. It was a change of mind, of heart, and of vote, based on one of the most fundamental of legislative influences: constituent contacts.
“Some constituents emailed me and their concern was that they (reporters) have enough protection with the First Amendment of the Constitution,” Pischke says. “And when I made my vote on the House floor, I kind of thought they didn’t need that additional protection, too.”
It wasn’t just the “additional protection” question, however. There was some talk of “fake news,” too.
Uh-oh, here we go.
“Not so much from here in South Dakota,” Pischke says, referring to what constituents told him. “But the big ones, like CNN and NBC. They (some constituents) feel like they can’t trust a lot of the news from them.”
Apparently there was no mention of Fox News. Oh, well.
So Pischke joined 19 other House members — all Republican — in voting against the bill, which passed on the House floor with a bipartisan 47-20 vote.
So make no mistake, there was plenty of Republican support for the measure, beginning and ending with Gov. Kristi Noem, who championed the idea of the shield law going into the session and signed it going out. Along the way, there were some interesting points of discussion.
After comfortable approval by the House, HB 1074, which was titled “An act to provide a privilege for journalists and newscasters regarding refusal to disclose information,” did even better in the state Senate. It passed 33-1, with only Republican state Sen. Jeff Monroe — a chiropractor from Pierre who has so far not returned my call seeking an interview, and possibly a consultation on my chronic stiff neck — voting against the measure.
(Come on, senator, my neck needs you!)
Pischke said his ultimate opposition to the bill wasn’t full of great passion. More like constituent concerns. And he thinks South Dakota reporters are more reliable and fairer than some reporters at the national level.
Feeling that national news effect here at home
There’s no doubt that the big names in national news, particularly on TV, and their sometimes theatrical, often-overwrought reporting style affects how some here in South Dakota might view the local news media, Pischke said.
Then there’s always the confusion between reporters and commentators, the latter of whom seem much more interested in theater than a reasonable discussion of current events and candidates. All told, the "news" shows can hurt the journalism business, even here at home.
“When the big dogs are doing that, it kind of gives the impression that even reporters here in South Dakota may not be giving the whole truth,” he said.
I think by “the whole truth” he means not telling the whole story or not telling the story fairly. That can be a problem for any reporter who isn’t paying close attention to his or her work. But that “whole truth” thing, well, that’s hard.
Even a really well-reported, well-written newspaper story might fail to tell the whole truth. Giving a lot of facts and comments and perspectives from relevant news sources in a balanced story can take you a long way toward the whole truth, by offering many truths.
I once told a younger reporter who criticized me for being “afraid to tell the truth” in my reporting that I wasn’t in the truth game, I was in the facts game. I said I tried to present as many facts arranged in logical story flow to arrive at some degree of truth, and thus help readers find what they might determine to be the whole truth, or something close to it.
I think most South Dakota reporters do their best to do the same thing. As you might imagine, Dave Bordewyk, agrees with me. He’s the executive director of the South Dakota Newspaper Association, after all, and also an experienced lobbyist in the state Capitol in Pierre.
This week Bordewyk got capital experience on a grand scale, when he joined Sioux Falls Argus Leader staffers and lawyers at the U.S. Supreme Court in Washington, D.C., for oral arguments in an inspired and inspiring (to me, at least) case on open records the Argus has worked on for years.
Bordewyk was a spectator for the high-court show. But he was right in the middle of things, as usual, during the 2019 session, and says he was a bit surprised by some of the intense opposition to the reporter-shield bill.
Running into opposition over perceptions of "fake news"
Bordewyk first saw and heard the unhappiness after HB 1074 passed committee. He was down on the House floor doing what lobbyist do — maintaining relationships and trying to be persuade lawmakers one way or another on specific bills.
“Suddenly I was surprised by some of the pushback by some of the legislators on this bill (1074), and it had to do with sort of their distrust and dislike for the media,” Bordewyk said.
So he did what lobbyists do in such situations. He engaged and questioned and conversed.
“I’d get into conversations on specifics, on what they meant specifically,” he said. “I understood going in the national-level discourse we have on ‘fake news.’ But, no, this was also something held in contempt about media within our state. Some were quite open about the fact that they didn’t think some in the news media in South Dakota were playing fair, were objective, but were biased and just pushing an agenda.”
I remember Bob Mercer once said he had a bias toward the truth. And I’ve often said I had a bias toward the integrity of my stories. I wanted them to be as professional, accurate and balanced as possible.
I’ve also said that in almost all instances I care more about the story I’m writing than I do about the people or the issues it covers, no offense to them. But the story is my job. Also my obsession. I love news stories. News stories have been my professional life. They have given me regular paychecks, led me to meet extraordinary people and presented me with inspiring situations that offered inestimable rewards in professional and even personal satisfaction.
If I fail to give my stories what they deserve, I fail as a professional journalist. And I hate to fail.
Which doesn’t mean I haven’t. I have. Most reporters do, from time tot time. We make mistakes. We get stories out of balance. We let our emotions affect our journalism. And we try to do better next time. And especially in the daily news game, that next time comes quickly.
You have a lot of chances to get it right, and to do it better. If you don’t, you’re just not serious about it.
Most of the time, most professional reporters get most things right and do a pretty good job of setting aside personal bias for the good of the story. Also for the good of the people and issues being covered — and, of course, for for the readers, listeners and viewers.
That’s certainly true here in South Dakota. And from what I know, it’s true in most places, including at the national level. Which is kind of the argument Bordewyk made, using specific names of high-quality South Dakota reporters as examples. But the pushback, from some, remained.
“I sad, ‘Come, on, for the most part the news media does a good job here, and we have had and have some great reporters,’” Bordewyk said. “But I was taken back by some of the pushback and distrust, even for the news media in South Dakota.”
Yes, it's changing, partly because of Trump
How would those negative feelings toward the South Dakota news media compare what he had confronted in past years?
“Is that new? No, it’s always been there,” Bordewyk said. “But what seemed new to me was that it was tied to sentiments at the national level, and filtering down to local media. And I found that unfortunate.”
Part of that is President Donald Trump. It has to be. He certainly wants it to be. It’s part of his strategy. It’s also part of his nature.
“Trump’s railing on the media has an effect. I think it has to. That constant drumbeat of ‘the fake news media, the failing news media, the crooked news media,' whatever the tweet of the day is. It’s just relentless,” Bordewyk says. “I think without a doubt it has an effect. Everyone hears it and sees it and feels it. It has to have an effect.”
Bordewyk says journalists fight back most effectively with hard work and a professional demeanor.
“In this profession, the best thing we can do is to do our jobs well. That’s the best pushback to that sort of thing,” he says. “I still believe in the end that will win out. I think that’s the best strategy in overcoming this constant drumbeat coming from the White House.”
I wrote about that drumbeat and its effects in more detail last week in a story here on this blog. And, oh yes, this is a blog, and when I write for it I’m a blogger. I bring that up becuase bloggers were excluded from the reporter-shield law, an issue we'll touch on down below. I argue that my blog is different becuase it's written by a long-time mainstream media reporter and columnist, and edited by similarly experienced news professionals at public broadcasting.
So I begin with a mainstream-media sense of fairness, even though I have more flexibility in commentary now that I'm semi-retired. I also have to explore my work live on the radio each week during as segment of In the Moment with the ever-insightful Lori Walsh, who doesn't hesitate to ask probing questions. She is yet another layer of accountability for me.
And I keep my hand directly in mainstream media work in South Dakota by writing regular columns and occasional news stories for one of my previous full-tine employers, the Rapid City Journal.
My roots in the South Dakota journalism fields are deep. And I’m probably a bit of a “homer” when it comes to how our journalists measure up to those elsewhere — which is, I think, pretty well.
There are some things about national news outlets that trouble me. There’s a level of hype that’s worrisome, and a level of ego that regularly diminishes the news product. More and more there’s a mixing and blurring of commentators and reporters. And the pile-on panels of “experts” -- sometimes six or eight deep -- that the cable-news shows feature tend to be repetitive and superficial, and oh so rant heavy.
Some otherwise really fine reporters at that upper level have had difficulty disguising their outrage at things President Trump says and does. And some haven’t attempted to disguise it or done a very good job of keeping it from coloring their stories.
Those are failures, albeit understandable ones given Trump's relently personal attacks on the news media.
Most reporters, though, even at that national level where media stars are born and egos are wildly inflated, are doing a better job than their harshest critics will admit. They are doing exemplary work in many instances, Pulitzer-level work in a few. And in those instances they’re strengthening not just our business but our nation.
Some of that good-job work has been confirmed by the Mueller report, months after it was labeled “fake news” by the president.
A reminder of what home-state reporters do and don't cover
At home, it’s wise to remind critics of the news media in South Dakota that most of our work has nothing to do with Donald Trump or the bristly political divide in Washington, D.C. It’s just about covering real South Dakota people and real-life issues and trying to do our best to keep our government here accountable at all levels.
In doing that, the protection provided by the First Amendment is essential. But I think the reporter-shield law is an important added layer of protection. We're grateful for that.I’m grateful. I’m also hopeful that it’s a sign that this governor and the Republican-heavy Legislature will continue the work started by former Gov. Dennis Daugaard in making government more open and accountable. There is still much to be done on making more government documents available to the public.
That’s me showing my bias, by the way, and letting it show in my story. But that’s something I get to do now that I’m no longer working full-time for a news outlet as a regular reporter. When he was still governor, Daugaard playfully described my role these days as more of a “political philosopher.” And on good days that might be true.
But even with my semi-retired freedom of expression — which reporters really don’t have completely during the course of a regular journalism career, at least not in terms of public expression — I hope to be fair and reasonable.
And it’s fair and reasonable to say that I understand why some legislators thought the First Amendment is enough, and even that I understand why some think “fake news” is more real than I think it actually is.
But I’m still awfully glad the bill was introduced and passed. And I’m glad legislators like Republican state Rep. Jon Hansen were willing to carry it through to Noem. A lawyer from Dell Rapids, Hansen said he didn’t hesitate when approached by Bordewyk and his lobbying partner, attorney Justin Smith, to carry the bill as prime House sponsor.
“I didn’t have any reservations about it,” Hansen said. “I think it’s important that our reporters are protected from criminal liability when they’re doing their jobs.”
Hansen said he understands that argument that the protection is already there but believes clarifying it adds a level of comfort and security that’s important.
“You can make the argument that the right is already there so there’s no use codifying it. And that should be true, I suppose,” he said. “But this provide another layer of protection, and clarifies these things.”
It defines specifically protection for the reporter from being forced to disclose a confidential source or notes and other materials “obtained or received in confidence.” And it clarifies that: “No fine or term of imprisonment may be imposed upon any journalist or newscaster for asserting a privilege” defined in the law.
The new law also clarifies who is protected by its provisions — essentially being reporters, editors and other news staffers from mainstream media print and broadcast news outlets.
And bloggers? Not so much. Not with this law. Not yet. But it was discussed during consideration of the bill.
“Committees in both the House and Senate had good debates on the bill," Bordewyk says. "And the question came up in both committees: ‘Why is this bill limited to journalists who work for newspaper or broadcast outlets? Why not the bloggers and others?’”
And the response from Bordewyk and others seemed logical — to me, a mainstream media reporter.
“Our response was: ‘Look, one: Try to do that and you open up the privilege to everybody, because everybody’s a blogger or can be a blogger. And two: Those who work for newspapers and broadcast outlets, there’s that gatekeeper process, with editors and folks who check the reporter’s work,” he said. “It’s going through a process.”
Indeed, it is. It’s not the process in newspapers, for sure, that it used to be. There aren’t as many eyes on a news story as it moves through the editing process. And those eyes often aren’t as experienced as at least some of them used to be.
During the best of times in the newspapers business as I knew them, my stories would be seen by at least two editors and sometimes three, not to mention one or two more on the copy desk. Usually the editors had extensive experience, and good background in the area. So did the copy desk.
Staff reductions over the last 15 to 20 years at newspapers have reduced the scrutiny a story receives at mainstream news outlets, but it still receives it. And there are still dedicated, high-quality reporters and experienced editors out there doing what they do, and generally doing it well.
But bloggers were left out of the bill
Arguments similar to that helped the bill, as did the decision to not include bloggers.
“If we had opened the bill to include bloggers, a lot of legislators would not have been comfortable with that,” Bordewyk said. “They understand that professional journalism still has a gatekeeper role in place.”
Beyond that, there is the difference in intent and focus. MSM reporters focus on the story and its integrity. Bloggers tend to focus on an issue and using journalism to affirm and promote one side or the other of an issue. It’s advocacy journalism at best, something much less than that at worst.
And there’s plenty of “worst” out there, although not much of it in South Dakota.
As you can imagine, bloggers tend to disagree with their absence in the bill and my affirmation of it. Those in disagreement include Pat Powers of South Dakota War College, who hopes lawmakers aren't finished working on the shield issue.
“I think the measure as passed is a start,” Powers says. “However, as South Dakota argued before the Supreme Court in the Wayfair case, our world has changed where many things don’t require a physical presence.”
In Wayfair, the U.S. Supreme Court ruled 5-4 in favor of South Dakota and its tax on sales to out-of-state companies without a physical presence in the state. Just as the reality of changing commerce was acknowledged by the high court, Powers thinks state officials will eventually come to a similar conclusion on bloggers and their rightful place under the shield law.
“If we’re legislating based on the media standards of 1950 instead of preparing for 2050, I expect the legislature will be compelled to revisit the law at a future date,” Powers said.
It’s an interesting question, as the lines between mainstream news outlets and mainstream reporters and more casually constructed, online-based bloggers and commentators and investigators are blurred.
For now, though, the law seems to make sense, as written and as limited.
“A majority of the legislators said they were comfortable with the fact that this privilege they were putting into law extends just to journalists who work for traditional news outlets,” Bordewyk says. “Some ask: What about the day when everything is more strictly digital? Look, that’s coming and evolving. But we’re not there yet.”
Should we be? I’m not sure. But Powers and another well-known South Dakota blogger, Cory Heidelberger of the Dakota Free Press, certainly think so. And they make some compelling arguments, I’ll admit.
I’ll have more from both of them on the blogger issue in my next piece here. I’ll also have duet of Woster stories dealing with how the reporter shield law might or might not have come into play in reporting situations my brother, Terry, and I both found ourselves in, after being called by the courts to give information about our stories in contested legal cases.
And with that, I’m out of words. For now.