03/03/2011 04:24 pm ET | Updated May 25, 2011

There Used to Be a Law

As a clinical teacher of law, one of the things I try to do is to engender discussions in class that go beyond just the law or the cases our clinic is working on (not that we don't spend quite a bit of time on those subjects), and to look at issues that affect defending capital cases that fall into the larger political and policy spheres. Yesterday, my advanced clinic class had a free-ranging discussion on the effect of media reporting -- that is, over reporting -- of crime, and how that affects many decision makers in the system: jurors, judges (who run, unfortunately, for election here) and prosecutors. We read my colleague Susan Bandes' excellent article "Fear Factor: The Role of Media in Covering and Shaping the Death Penalty"( 1 Ohio St. J. Crim. L. 585 (2004))

We ended talking about what passes for news in our country, how there is little if any nuance in reporting about crimes and criminals, and how over-reported crime is (even though crime rates are down, reporting of crime is up and people remain fearful out of proportion to reality), and how television crime show entertainment and news are almost indistinguishable any more. We were discussing this in the context of how difficult it is to walk into court presumed innocent in light of all the other prejudices which occur naturally and those fostered by the crime-as-entertainment industry.

I said to my students that much of what we were seeing could be directly related to President Reagan's actions in abolishing the "Fairness Doctrine" in 1987. In the frenzy of deregulation, this regulation went by the wayside, and now we have fake news. The question of commentators who operate with no requirement that they be accurate, or even informed, had disturbed me for some time, and we talked about that too.

And then I read Mr. Kennedy's encouraging piece here in the Huffington Post about Canada's /" target="_hplink">" target="_hplink">rejection of the bid by Sun TV News (referred to by Canadians as "Fox News North") to move into that country because Canadian regulators turned down efforts by Canada's right wing Prime Minister, Stephen Harper, to repeal a law that forbids lying on broadcast news. What an amazing concept! If we simply had a law here that said reporters can't lie on the news -- like we used to -- then maybe we would see reporting of facts again. After all, there are not two "sides" to the story about a hurricane or a crime or efforts to stop unions' collective bargaining -- these things happened, or they did not. None of this would mean that folks couldn't express their opinions -- editorials would still be available, but they simply could no longer be called "news." As Mr. Kennedy wrote, Canadians enjoy high-quality news coverage including the kind of foreign affairs and investigative journalism that flourished in our country before we deregulated the truth.

So here is my proposal: Let's all lobby our congress for a new "Truth in Broadcasting" law: a "No Lie Zone" requiring that broadcasters may not broadcast any false or misleading news. That's what Canada has, and it would mean a return to fact checking and some level of objectivity in the United States news media. It would not mean opinions could not be expressed -- Mr. Limbaugh could continue his third-grade level attacks on the first lady if he wishes -- he just couldn't say it was "news".

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