Bill: Stop press from being ‘slander machine’

Scholars: Frustration with media drives bill, but legislation unconstitutional

By: - April 2, 2021 11:46 am

The First Amendment of the United States Constitution (Wikimedia Commons, usage CC-SA 4.0)

A bill to “stop the press from serving as a slander machine” passed Thursday in the Montana House Judiciary Committee with language and a title that are nearly boilerplate to legislation that’s cropped up in other states.

Sponsored by Rep. Mark Noland, R-Bigfork, the “Stop Guilt By Accusation Act” aims to mandate media outlets cover specific proceedings a particular way, such as court rulings when a person accused of a crime is found not guilty. Its stated purpose in part is to prevent news organizations from “selective reporting” that causes people to be “shunned and avoided by the general public due to a cloud of suspicion or wrongdoing … .”

Rep. Mark Noland, R-Bigfork, is sponsoring the Stop Guilt By Accusation Act. (Provided by the Montana Legislature)

House Bill 711 was introduced just three days before it was heard. No one testified for or against it, but GOP legislators expressed enthusiasm for the proposal before voting 12-7 in favor. “Definitely aye,” said Rep. Derek Skees, R-Kalispell.

Rep. Jane Gillette, R-Bozeman, noted readers in Europe can report unethical journalism to a regulatory body: “This bill doesn’t go far enough.”

The language of the bill came from John Gunter of the Special Forces of Liberty/De Facto Attorneys General, according to email exchanges about the legislation, including one from Gunter to Noland. The Office of Legislative Information Services provides the public, including media, correspondence involved in drafting bills.

When reached for comment, Gunter declined to answer questions about the legislation without permission from superiors; he declined to identify them, and the website does not name any board or staff, although it lists other bills it’s pushing.

Media and legal experts note the bill is problematic, albeit born out of oftentimes legitimate vexation with the press. But longtime freedom of information lawyer Mike Meloy of Helena said the law won’t fly: “That’s dictating what a news or media outlet can publish, and that’s patently unconstitutional.” (Meloy is representing media outlets including the Daily Montanan in a lawsuit against the chair of the House Judiciary Committee.)

David McCumber, a veteran journalist, author and regional editor for Lee Enterprises, described the bill as “ridiculous overreach.” He said legislation that calls on the government to regulate journalistic decisions runs contrary to the often-heard criticism the government is stepping in unnecessarily: “It’s anti-democratic, and it’s certainly against the spirit of good government.”

But the sentiment in the bill is understandable, and it’s an important reminder to journalists, said Al Tompkins, with the Poynter Institute. Poynter describes itself as a global leader in journalism and champion of the freedom of expression and healthy democracy.

“This is really unwise legislation,” said Tompkins, Poynter senior faculty. “There’s no chance it will stand up legally. But it does speak for the frustration that some people have with media and how media covers people who are accused of crimes. And it’s a signal to journalists that we should be paying attention to what happens after we have covered an arrest.”

Lee Banville, professor and media law scholar at the University of Montana School of Journalism, said controversial stories in particular, and unfair or perceived unfair treatment, drive that frustration: “If you’re in the spotlight at some point, and you feel like you are vindicated, you want the spotlight to be equal after the fact. That is understandable.”

At the same time, he said the bill is unconstitutional, albeit one of a kind: “It is a level of government interference in free press that is pretty unprecedented, in at least the last decade of my life in Montana.”

Committee takes fast action

The committee moved quickly on the bill. In his introduction to it, Noland read as much of the bill’s language verbatim as time allowed, and he didn’t stop until Chair Rep. Barry Usher told him to wrap it up. (A lawsuit filed in February against Usher, R-Billings, by media organizations including the Daily Montanan alleges a practice among Republican lawmakers of informally convening in private is unconstitutional.)

At Thursday’s hearing, Noland took questions about the Fairness Doctrine, the influence of social media, and the problem with omissions in stories. Generally, Noland said he was interested in making sure the media tell the truth; part of the language he read, which echoed language Gunter provided, said, “the state has a compelling interest to compel the press to promote the truth because, without the truth, there is no freedom, as freedom comes from the truth.”

“I don’t know if any of you have been abused or accused. Some of us have, and doggone it, it hurts,” said Noland, who did not respond to a voicemail Thursday requesting more information.

The committee voted 12-7 in favor of the legislation, with all Republicans in support, and all Democrats in opposition.

Meloy, the freedom of information lawyer, countered that hurt feelings don’t trump the Constitution: “That’s precisely why we have a First Amendment, so that people can say whatever they want about their public officials.”

Tompkins, with Poynter, said in 47 years, he hasn’t come across any bill quite like HB711, but he’s seen legislation with similar goals.

“One thing they always have in common is there is a root incident that propels this kind of legislation,” Tompkins said. But he said the “firehose” approach to an incident is ultimately a bad idea.

The problem, though, is that ethics is situational, he said. For example, the bill would let people cleared of a crime demand to “take down any unflattering pictures or a mug shot of the accused used in the original publication.”

Although many media organizations have steered away from using mug shots, at least as prominently, Tompkins said there are situations that call for the headshots. For example, a mug shot of a mayor or police chief, even if unflattering, might be newsworthy, he said. And it also might be important to show the picture of a person severely beaten up in the course of their arrest, he said. Additionally, if someone with a common name gets arrested, it would be unfair to the other people with that name to withhold a mug shot.

In looking at the mug shots of the Minneapolis police officers charged in the death of George Floyd, he said a viewer sees they’re all men, but not all white. Generally, he said journalists can ask themselves questions about value: “What would we learn by looking at those photographs, and what does it tell us, if anything?”

In Europe, he said a law called “The Right To Be Forgotten” reflects ideas similar to the “Stop Guilt By Accusation Act,” and it allows people to try to clear their names from negative coverage. More recently, Tompkins said the Boston Globe has allowed people to petition to have material removed from its websites and archives, and it considers them on a case-by-case basis. He said some universities also consider the same for student newspapers with the idea that someone in their late teens or early 20s might not deserve to have a crime follow them.

“The compulsion behind this feeling is certainly understandable. At some point, do you have the right to be forgotten after you’ve been accused of something? The answer is no. You don’t have a right,” Tompkins said.

At the same time, he said the issue is something journalists need to grapple with: “What do we owe to people we cover who show up in our news in an unflattering way?”

Analysts note legal problems

Noland’s bill appears to be a nonstarter legally. A review by legislative attorneys quotes the First Amendment: “Congress shall make no law … abridging the freedom of speech, or of the press …”

The analysis notes that the U.S. Supreme Court previously determined that statutory requirements to publish specific information were unconstitutional. In Miami Herald Publishing Co. v. Tornillo, the court looked at a “right of reply” statute and found the law to be “an unconstitutional violation of the guarantees of a free press,” according to the legal note.

In other words, the law intruded into the work of editors, who get to decide what gets covered and how, and how extensively. The legislative lawyers found HB711 tries to establish restrictions that are similar to the Florida statute.

Banville, with the UM School of Journalism, said the law falls under a category called “compelled speech,” which isn’t allowed. The government isn’t allowed to tell anybody what to say, or how to size an image on a page, or how prominently to display a photograph, he said.

“There’s a very strong history in this country of the people not letting the government decide how and when things are written or said. And this piece of legislation seeks to change that,” Banville said.

He noted the bill also appears to clash with the spirit of another piece of legislation lawmakers have taken up where they want to protect free speech on campus: “It’s strange when you say the speech is free, but the press should work a certain way and cover things a certain way. It’s the same amendment.”

Anthony Johnstone, a law professor and constitutional scholar at UM, said the bill tries to create a kind of Fairness Doctrine for people accused of wrongdoing: “Its strange wording does not appear to be the product of any professional legislative drafter, and it may be both unconstitutional and unenforceable.”

Tompkins said the Fairness Doctrine, which required broadcasters offer balanced coverage of public issues, was crafted when there were limited places people could be heard, but it went away under the administration of President Ronald Reagan. Tompkins said the argument for allowing all sides equal space faded with the proliferation of cable television and the internet.

“The whole idea that alternative views couldn’t be heard evaporated with technology,” Tompkins said. “It gave rise, by the way, to what we now know as Talk Radio, which obviously doesn’t give equal voice to opposing sides.”

Power behind bill remains mystery

On Feb. 11, Gunter of the Special Forces of Liberty emailed Noland letting him know two of his “team members, Christine and Chris,” would be at the Capitol that day and the next to talk about five bills.

“We are looking for shell bills and prime sponsors,” Gunter wrote.

One of the bills was the Stop Guilt By Accusation Act, and Gunter described it in his email: “This bill promotes truth in reporting and restricts the fake news media from engaging in defamation in-kind.” The email sent a dropbox link to boilerplate language.

(Other bills were the Stop Social Media Censorship Act; the Life Appropriation Act, dealing with public funds for “abortion providers”; the Establishment Act, related to “Biden’s transgender agenda”; and one related to human trafficking and child exploitation. The email said Rep. Mallerie Stromswold wanted to carry the social media bill, but Gunter was looking for sponsors for the others. Stromswold, R-Billings, is not sponsoring a social media bill this session, according to legislative services’ roster of bills associated with her. It does not appear the other bills were introduced.)

It isn’t clear exactly what the Special Forces of Liberty/ De Facto Attorneys General is, but the website notes Gunter and Chris Sevier as contacts. Gunter said he and his team work directly with legislators and try to “totally” stay away from journalists.

“We’re not really supposed to talk to reporters,” Gunter said.

Gunter declined to provide contact information for anyone at the organization who would be able to speak to the press but requested the Daily Montanan email him the request for an interview; Gunter, who said he did not know what his title was with Special Forces of Liberty, had not replied to the email, sent Thursday afternoon, by press time.

“I hate to be kind of a jerk, but there’s so much misinformation out there, so we don’t like to go on record,” Gunter said.

When asked in a phone call about the Stop Guilt By Accusation Act in Montana, Sevier asked for a bill number. After being provided it, Sevier told the Daily Montanan, “I don’t know what you’re talking about. Thank you,” and he hung up.

Last month, the Missouri Independent, a sister publication of the Daily Montanan, published a story about Sevier after a lawmaker there introduced one of Special Forces’s bills, the Stop Social Media Censorship Act. Sevier testified in support.

The story said Sevier may be best known for suing states that wouldn’t recognize his marriage to his laptop in a move to protest gay marriage, noting he has pushed anti-LGBTQ legislation and anti-porn bills around the country.

The story noted that in February, “Sevier was escorted by security out of the Oklahoma Capitol after an altercation with a lawmaker. Three years ago in Rhode Island, a state senator withdrew a bill pushed by Sevier, citing its ‘dubious origins.’”

In 2019, when the Missouri Senate administrator sent an email with Sevier’s picture and the subject line, “security concern” to state senators and staffers, Sevier filed a lawsuit against the administrator alleging he stalked Sevier and colluded with the Democratic party and the media, the Missouri Independent wrote. The story said Sevier asked for $36 million in damages, but the lawsuit was dismissed the same month.

The Stop Guilt By Accusation Act bills have been introduced in a number of other states, and a story this month from the Sun Journal in Maine noted they have “flopped in several statehouses across the country.” The bill in Montana will head to the House floor.

Noland’s bill had a $10 appropriation from the general fund to the Department of Justice. The deadline to introduce general bills was Feb. 24; March 29, the day this bill was introduced, was the last day to bring in appropriations bills. Already, lawmakers are considering the possibility the session pushes past its original end date.

“There seem to be more pressing issues for the state of Montana that the legislature could address,” said McCumber, the Lee Enterprises editor who oversees newspapers in Montana, North Dakota and South Dakota.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.