2010 Midterm Election Ads Spark Lawsuits; Journalists' Contributions Raise Ethical Questions

The midterm elections of 2010 saw a variety of issues involving media ethics and law: lawsuits and threatened lawsuits over campaign ads, a reporter detained by private security guards, and a revived discussion about whether reporters and other news commentators should make political contributions.

Murkowski Threatens to Sue TV Stations Running Pro-Miller Ads

Lawyers for Sen. Lisa Murkowski (R-Alaska) threatened legal action against local television stations which aired a campaign ad on behalf of her opponent, Republican candidate Joe Miller. Murkowski's campaign claimed the ad contained false statements and could expose the stations to legal liability.

According to an October 5 post on Anchorage television station KTUU's website, an ad titled "Arrogant Lisa Murkowski--You Lost!" painted a negative picture of Murkowski, who ran against Miller as a write-in candidate after losing to him in Alaska's Republican primary election. The ad accused Murkowski of having "not earned" her Senate seat because she was initially appointed to the seat by her father, Frank Murkowski, after he vacated the seat to assume Alaska's governorship in 2002. Although Murkowski was initially appointed to her seat, she won re-election in 2004. The ad also claimed that Murkowski improperly influenced the absentee vote count in the Republican primary, and that she attempted to manipulate Alaska's Libertarian Party into giving her its spot on the ballot for the general election after Murkowski lost to Miller, according an October 4 story posted on Alaska Dispatch, a news and politics website. The Washington Post reported October 4 that Libertarian party chairman Scott Kohlhaas said that although he met with Murkowski's campaign manager after the primary, he did not feel "manipulated."

The Miller ad was funded and produced by Tea Party Express, a political group financed and controlled by Our Country Deserves Better, a California-based political action committee. Tea Party Express supported Miller in the Republican Primary.

On October 4, Murkowski's lawyer, Timothy McKeever, sent a letter to local broadcasters in Alaska which said the broadcasters were under a "legal and moral obligation" not to air the ad, The Washington Post reported. McKeever's letter went on to say that "[w]hen a station broadcasts false or incorrect advertisements, the station can be held liable for such action in a court of law and can lose their broadcasting license," according to Alaska Dispatch. The letter asked the stations not to broadcast the ad until they could verify its substantive accuracy.

KTUU attorney John McKay said he did not believe that a legal challenge to the ad would be successful, according to an October 5 KTUU story. "Stations that I know in town and work with are careful about these things anyways, they wouldn't knowingly run things that are false," McKay said.

Unofficial results had Murkowski winning reelection by more than 10,000 votes, according to The New York Times on November 19, but Miller challenged that result in a state lawsuit. When the Bulletin went to press, the dispute had not been resolved and an official winner had not been declared, although Murkowski claimed victory on November 17.

Miller Security Guards Detain Reporter

On October 17, private security guards detained and handcuffed a newspaper reporter who was trying to ask Republican Alaska Senate candidate Joe Miller a question at a public event at an Anchorage middle school. Miller did not deny that his employees--some of whom were active-duty U.S. soldiers--detained the reporter, but claimed that they did so to protect the candidate from threats and aggressive behavior that the reporter displayed.

An October 17 story on the website of Anchorage TV station KTVA reported that Tony Hopfinger, a reporter for the website Alaska Dispatch, approached Miller with a small digital video camera and asked him questions about whether he was ever formally reprimanded in 2008 when he worked as an attorney for the Fairbanks Northstar Borough, which governs the city of Fairbanks and the region surrounding it. Three men, who did not identify themselves, told Hopfinger to stop asking questions. When Hopfinger continued to ask questions while videotaping Miller, the men restrained Hopfinger, handcuffed him, and led him to the end of the a school hallway where he was held for 30 minutes until police arrived and released him.

According to Miller's version of events, posted on his campaign website the day of the incident, Hopfinger made threatening gestures toward Miller, "in an attempt to create and then record a 'confrontation' with the candidate." Miller's website said that "the blogger [then] physically assaulted another individual and made threatening gestures and movements towards the candidate," at which point the guards detained him.

Hopfinger did not deny shoving one of the security guards, but claimed the guard shoved him first, according to an October 17 report on CNN.com. Lt. Dan Parker of the Anchorage Police Department told CNN that under Alaska law, private security guards are allowed to make "private person arrests," similar to citizens' arrests, but said his department was still looking into whether criminal charges would be filed against the guards.

According to an October 17 blog post by Glenn Greenwald at Salon.com, two of Miller's security guards were active duty U.S. soldiers. Greenwald noted that Department of Defense directive 1344.10 prohibits activity duty military personnel from "participat[ing] in partisan political management, campaigns, or conventions." The Anchorage Daily News reported October 18 that Maj. Bill Coppernoll, public affairs officer for the Army in Alaska, said the two soldiers did not have permission from their current chain of command to work for a private security detail, but the Army did not know whether their employment was authorized by previous company or brigade commanders.

Coppernoll told the Anchorage Daily News that the Army allows off-duty soldiers to take outside employment if the job does not interfere with readiness, risk their own injury or negatively affect the "good order" and discipline of their unit.

Fox News Sues Missouri Democrat Over Campaign Ad

Fox News Corporation sued Missouri Democratic senate nominee Robin Carnahan for $75,000 over footage in a Carnahan campaign ad that Fox claims made it appear as though host Chris Wallace endorsed Carnahan.

Politico blogger Josh Gerstein reported September 16 that the ad, which was posted on Carnahan's campaign website and ran on Missouri television stations, contained footage from a 2006 interview Wallace conducted with Carnaham's Republican opponent, Roy Blunt, who was a congressman at the time. In the interview and the ad, Wallace said "You just said a moment ago that you have to show that you're the part of reform ... but some question whether you are the man to do that. Are you the one to clean up the House?" While a graphic showed on the screen, Wallace noted that Blunt paid $485,000 to a firm connected to disgraced lobbyist Jack Abramoff, and that Blunt aided tobacco company Phillip Morris in 2002 while Blunt was dating a lobbyist for the company. The ad left out Blunt's answer to Wallace's question, instead freezing on an image of Blunt while an announcer said "Roy Blunt. The very worst of Washington."

The lawsuit, filed September 15 in federal court and in which both Fox News Corporation and Wallace individually are named plaintiffs, advances two claims. First, the suit alleges that the ad violated the Copyright Act, 17 U.S.C. §101, et seq., when it used Wallace's image from the interview with Blunt. Fox News alleges that the network "has filed with United States Copyright Office an application for copyright registration in the FNS interview." That application was filed September 24, according to an October 12 story on Reuters' website.

The suit also claims that Wallace's privacy was violated under Missouri common law when the ad misappropriated Wallace's image. Specifically, the suit claims that "the selection of distinctive and stylized camera angles" made it appear as though Wallace was endorsing Carnahan by criticizing Blunt.

Lawyers for Carnahan's campaign filed a two-page motion to dismiss Fox's case on October 8. The motion noted that Fox filed its copyright claim to the Wallace interview after it filed its lawsuit against Carnahan. "Because the Fox Network commenced its copyright claim prematurely, the Court cannot grant the Fox Network relief on its copyright infringement claim and must therefore dismiss this claim" under 17 U.S.C. § 411 (a), the motion argued. According to Reuters, the 8th U.S. Circuit Court of Appeals is unsettled on the issue of whether a party can prevail on a copyright claim where the copyright is filed after litigation commences. On November 17, U.S. District Judge Gary Fenner denied Carnahan's motion to dismiss, noting that although Fox News's original complaint did not indicate that the interview had been copyrighted, the company subsequently amended its complaint to reflect an effective copyright filing.

In a September 24 post on the website Slate, property law professors Sonia Katyal of Fordham Law School and Eduardo Penalver of Cornell Law School argued that Fox's case was substantively "bogus" and that the ad's use of Fox's footage falls into the "fair use" exception found in § 107 of the Copyright Act. The professors noted that in a fair use claim "courts examine the character of the use. Political commentary and criticism are especially favored. Commercial uses are not." Fox's argument that the use of its footage was commercial because it appeared in a campaign ad was weak, the professors wrote, because "courts have repeatedly rejected the proposition that [using video in campaign ads] makes a campaign ad commercial. This is why the claim about Wallace's publicity rights also fails."

In addition to fighting the lawsuit in court, Carnahan's campaign fired back politically. On September 21, Carnahan said in a press release that her campaign "stands behind" the ad, and although the campaign temporarily removed the ad from its website, the ad continued to air on local television, according to a September 21 post on the Washington Post blog 44. Carnahan lost her bid for Senate, and the "media" page of her campaign website--which had continued to host the ad during the campaign--is no longer online.

The Citizens United Decision and the Midterm Elections

According to experts and government agencies, the Supreme Court's Jan. 21, 2010 decision in Citizens United v. Federal Election Commission had a significant impact on how donors spent money in the 2010 midterm elections.

The ruling struck down portions of a federal campaign finance law, asserting that the law impermissibly discriminated against the First Amendment rights of corporations to support political candidates for office. Justice Anthony Kennedy, writing for the five-member majority, wrote that there is no principled way to distinguish between large media corporations, which effectively participate as speakers in the marketplace of ideas, from other corporations, which were foreclosed by the law from participating in the same way. "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech," Kennedy wrote. Citizens United v. FEC, 130 S. Ct. 876 (2010)

According to an October 2010 study by the Campaign Media Analysis Group, a nonpartisan organization that tracks money in politics, television advertisement spending by third-party interest groups not associated with a specific candidate for federal office more than doubled in 2010, compared to the 2006 midterm elections.

The amount of money flowing into the midterms was directly attributable to the Citizens United ruling, according to Trevor Potter, a former Federal Election Commission (FEC) Chair and critic of the decision. Potter told The New York Times on October 7 that the Court's ruling was significant for its "psychological" impact on donors. Potter said that even if wealthy donors do not understand the nuances of the case, they understand its thrust to be that citizens and companies are allowed to spend more on political campaigns. Potter added that more "casual observers" believe that corporations may spend unlimited amounts of money after Citizens United. "That change in psychology ... has made a difference in terms of the amount of money now being spent," he added. Steven Law, head of the conservative organization American Crossroads, a tax-exempt fundraising group and a supporter of the Citizens United ruling, agreed. "The principal impact of the Citizens United decision was to give prospective donors a general sense that it was within their constitutional rights to support independent political activity," Law told the Times. For more on the Citizens United decision, see "Supreme Court Strikes Down Campaign Finance Regulation for Corporations" in the Winter/Spring 2010 issue of the Silha Bulletin.

Journalists Gave More than $469,000 in 2010 Elections

Two high profile suspensions followed revelations that cable news pundits violated their employer's ethics policies by contributing to political campaigns. But a study of journalists' political donations suggests that fewer journalists consider political donations to be an ethical breach.

On November 5, MSNBC commentator Keith Olbermann was suspended without pay from his on-air role as host of the show "Countdown" after the network discovered that Olbermann donated to the campaigns of three Democratic candidates for federal office.

The donations--each in the amount of $2,400, which is the maximum individual donation allowed under federal law--were to the campaigns of Arizona Representatives Raul Grijalva and Gabrielle Giffords, and Kentucky Senate candidate Jack Conway. The Grijalva donation occurred on October 28, the same day the congressman was a guest on "Countdown."

NBC News has a policy against employees contributing to political campaigns without obtaining prior approval from management first because it considers such donations a breach of journalistic ethics, according to a November 7 post on the website Politco.

Olbermann returned to the air on November 9, and on his program that night he said he was unaware of NBC News's policy when he made the contributions. He also criticized the Citizens United ruling and the lack of disclosure requirements for donations to nonprofit groups whose primary function is to advocate for candidates. "The point," Olbermann said, was "if I had given the money [to candidates funneled] through the U.S. Chamber of Commerce, you would have never, ever known."

A second MSNBC host--former Republican congressman Joe Scarborough--was also suspended for making donations. On November 19, New York Times Media Decoder blogger Brian Stelter reported that NBC News had suspended Scarborough for two days for making eight previously undisclosed contributions of $500 apiece to Republican candidates with whom he was personally close. In a statement, Scarborough said the contributions were "not relevant to my work at MSNBC" because he made them "to close personal friends and family members and were limited to local races." But he added that "there is nothing more important than maintaining the integrity of [NBC News'] highly respected brand."

The actions of Olbermann and Scarborough are not out of the ordinary for journalists, according to a September 2010 study of FEC filings by the Center for Responsive Politics (CRP), a nonpartisan think tank. The study found that 235 people who identified themselves as "journalists" or "media professionals" together donated over $469,000 to various candidates for federal office during the 2010 midterm congressional elections--donations which raised questions about the evolving state of media ethics in the 21st Century.

The study applied a broad definition of "journalist" and "media professional." The CRP's data set included journalists from what it called "hard" news sources, examples of which included The Washington Post, Vanity Fair, News Corp., The New York Times, and Reuters, and from "soft" news organizations such as ESPN, Vogue, and local community-based news sites.

Some individuals donated thousands of dollars to candidates. CRP reported that 65 percent of the individual donations went to Democratic candidates. Chris Hayes, Washington Editor for The Nation magazine gave $250 to Josh Segall--an Alabama Democrat and close friend of Hayes. Hayes told CRP that he has a personal rule against donating to politicians, but said he thought the Segall case was different because of his personal friendship with the candidate. His friendship would ethically prevent him from covering the race in Alabama's 3rd Congressional District anyway, Hayes said, so "whatever threat of conflict is already there. It seems like the least of it to throw an extra $250 on top of it," Hayes told CRP. Hayes was initially slated to be the fill-in host of "Countdown" during Olbermann's suspension, according to a November 7 Politico post, but the network withdrew from that arrangement after discovering that Hayes also donated to candidates.

Other journalists on CRP's list of donors see things differently from Hayes. Pulitzer Prize-winning investigative journalist Seymour Hersh, who donated $1,000 to Rep. Walter Minnick (D-Idaho) told CRP he sees no ethical conflict with reporters donating to political campaigns. "It's nobody's business," Hersh said. "I'm giving money to people I think are good people." Nicholas Benton, editor-in-chief of the Falls Church News-Press in Virginia, who donated over $4,000 to Democratic candidates and the Democratic National Committee, argued that if journalists are inactive in the political process, they become mere mouthpieces for campaigns and candidates. "To sit back passively and echo what political candidates and politicians say without providing the readers of an assessment of the relative merits on the standpoint of truth and of facts is a disservice," he said.

Many large news outlets, including The New York Times, Reuters, ABC News, and NBC News have conflict of interest policies that prohibit employees from directly participating in campaigns, which includes donations, according to the CRP. The Society of Professional Journalists' Code of Ethics says journalists should "remain free of associations and activities that may compromise integrity or damage credibility."

Aaron Quinn, a professor of journalism ethics at California State University, told the CRP that journalists are increasingly seen as public figures, which makes their personal decisions to donate to candidates more open to public scrutiny. He added that the appearance of a conflict of interest is the functional equivalent of an actual conflict. According to Hayes, at a minimum, reporters who donate should at least disclose their donations so that the public will not believe their reporting is compromised. "If you were paying for access," Hayes told the CRP, "that would be a scandal."

- GEOFF PIPOLY
SILHA RESEARCH ASSISTANT

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This page contains a single entry by cla published on January 5, 2011 4:51 PM.

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