Coming of Age in Minnesota

Some years ago, I spoke at a conference on privacy, hosted by the now-defunct Freedom Forum Pacific Coast Center in Oakland, California. (1) My fellow panelists and I spent about two hours discussing the law and ethics governing news gathering and privacy rights before an audience that included journalists from a variety of news media. During my presentation, I mentioned that several states, including California, have laws that make it a crime to tape record a conversation without the consent of all parties. (2) At the conclusion of my formal remarks, a broadcast journalist approached me. "What you had to say about the state law was really interesting," he volunteered. "I had never heard of that before. I always figured, unless the FCC told me I couldn't do something, it must be OK to do it." As an attorney, I was horrified by that reporter's remark. Here he was, working as a journalist in California, seemingly oblivious to the fact that his state legislature had laws in place criminalizing conduct that the Federal Communications Commission ("FCC") had no authority to interdict. Talk about a lawsuit, or a criminal prosecution, waiting to happen! (3) But as I pondered the journalist's remarks, I realized that there was more involved here than mere ignorance of the law. What I heard convinced me of something that I had long suspected: broadcast journalists exist in a state of perpetual adolescence. I was reminded of the conversation when I reread Newton Minow's "Vast Wasteland" speech, in which Minow observed that "[t]elevision has grown faster than a teenager, and now it is time to grow up." (4) But how can television "grow up" as long as the Commission tells it what to do? In a world circumscribed by rules, hearings, notices of apparent liability, and court orders, it is easy for broadcasters to conclude that the only thing that matters is what the Commission says matters. The kind of ethical decision making that print journalists routinely indulge in--asking not only what one has the right to do, but what is the right thing to do--is, at most, an afterthought for their electronic counterparts. For many broadcasters, it seems, unless the government specifically tells them that certain conduct is forbidden, it is allowed. By extension, that means it must also be "OK." Or so it seemed to me in 1996. As of 2003, have things changed? Has television heeded Minow's admonition to "grow up" (4) I asked myself this question after spending the evening of October 29, 2002--almost six years to the day after the Freedom Forum conference--watching local television in the Twin Cities of Minneapolis and St. Paul, Minnesota. (5) Granted, this was an unusual evening. The previous Friday, incumbent Senator Paul Wellstone, together with members of his family and campaign staff, died in an airplane crash in northern Minnesota. (6) The entire state reeled from the shock sustained less than two weeks before the midterm election. On this particular night, a memorial service was scheduled at Williams Arena on the University of Minnesota campus, and was expected to draw more than 20,000 mourners from both inside and outside the state. (7) Even with overflow seating, it was presumed that many of those who wished to attend would not be able to be accommodated at the site. So, like many Minnesotans, I elected to watch the service from the comfort of my home. I had no difficulty doing this. All of the network affiliates--ABC, CBS, NBC, FOX--had announced that they would carry the memorial service from beginning to end. One of the two local Public Broadcasting Service stations, TPT 17, aired the program as well, as did Minnesota Public Radio and other outlets. With saturation coverage on virtually every station except the home shopping and religious channels--and the WB network affiliate--no viewer who wished to see or hear the memorial service would be denied the opportunity, provided she could find an available television or radio. …