Chris Muns to the Media: Do Not Bear False Witness

Howard Altschiller

Rep. Chris Muns

Alfred Dreyfus 

Chris Muns, a Hampton Democrat recently introduced a bill in the New Hampshire House of Representatives which would require news media to remove from their websites stories about individuals arrested for crimes if these people were subsequently acquitted.  
Mad Dog has not spoken with Mr. Muns about his thinking on this legislation, but on first consideration, the motivation must be to right a wrong committed against the accused, who was later exonerated. At first blush, this sounds like an acknowledgement that being accused of a crime of which you are innocent is a terrible thing. And the harm continues as long as your picture and the accusation and the report of the trial remains on the internet. At least in past centuries, the records would fade with memories, newspapers would be used for kindling and a person could put the whole experience behind him. Now, not so much. The internet is eternal. In fact, the problem on the internet is frequently distinguishing a report which is a decade old from one which happened today.

Howard Altschiller, publisher of the Portsmouth Herald, predictably, objected. His paper can report on an arrest, a trial, splash it all over the front pages and then simply not report the acquittal, or bury that story in the back pages. And he likes it that way. It's his right, guaranteed by the First Amendment, to say whatever he likes about anyone and to keep it out there.

Full disclosure here: Mad Dog is a lifetime member of the American Civil Liberties Union. Mad Dog applauded when the ACLU supported the right of the Ku Klux Klan to march through a Jewish suburb in Michigan with anti Semitic placards. (Best thing for a bad product is good advertising.) But Mad Dog has always been aware the ACLU, which supports Mr. Altschiller and opposes this bill, is absolutist about the First Amendment.  It is easy to be consistent and pure, when you are an absolutist, but the wisest course often lies in the middle. For the pure ACLU zealot, the man who cries "Fire!" in a crowded theater when there is no fire, has the right to do that. Not for Mad Dog; certain circumstances demand some restriction of the right to free speech if that right tramples on other important rights.

So Mr. Altschiller says it is important to put on the public record the accusation (the arrest and trial) and to keep it there, even if the outcome of the trial  is exoneration. What he is really saying is that in some cases the only punishment meted out to guilty parties is the arrest, the "perp walk" the photos of the accused in handcuffs, humiliated, shuffling with chains binding his ankles, and the trial. And if the jury votes not guilty, well, that's just the jury getting it wrong, but we can make that accused pay every day thereafter, by keeping his image on our website and keeping the accusation fresh every day, because we know he's guilty; judicial process be damned.

"O.J. Simpson was acquitted of second degree murder charges; George Zimmerman was acquitted of second degree murder and manslaughter in the killing of Trayvon Martin," he notes. Which is to say: They got away with murder, but as a newsman, I can keep after them.

But what of the unjustly accused and legally exonerated?  

Alfred Dreyfus is the  name which has become symbolic of unjust accusation and the harm  that can do.  Unjustly accused of treason, he was railroaded toward conviction, before it was overturned and it eventually became clear who the real culprits were and how Dreyfus was chosen as the fall guy because he was Jewish in a France where anti-Semitism was a fact of life.  

What of the man accused of a rape or murder he did not commit? Should he continued to be dogged by this suspicion because a newsman or a cop has decided he was guilty, no matter what the jury thought?

In a less dramatic way, Mad Dog has felt the sting of an accusation which has become indelible in the record. In 1975, Mad Dog responded to a Code Blue, ran up 8 flights of stairs to the operating room, where a man had gone into "complete heart block" when the anesthesiologist put him under general anesthesia.  Mad Dog placed a temporary pacemaker, trundled the patient off to the ICU, wrote a note and left the patient in the care of the ICU staff. Two years later, a sheriff showed up at Mad Dog's with lawsuit papers. The patient had died and the lawyers were suing anyone who had written a note in the chart.  For having saved the patient (temporarily) Mad Dog endured several years of depositions, trips to New York City, and small outrages connected with frivolous charges of ineptitude. From that day onward, every time Mad Dog applied for a license to practice medicine in a new state, every time he applied for hospital privileges, he had to write another essay about that lawsuit. 

So charges, false charges which cannot be put to rest, which continue to haunt you are a violation; they are an offense against the falsely accused. 

Mr. Altschiler cites the First Amendment, but there is also a Fifth Amendment, which says the accused shall not be "deprived of life, liberty, or property without the due process of law."  Can it not be argued the man unjustly accused has been deprived of liberty? We ordinarily think only the government can deprive a man of his liberty--by jailing him, but there are other ways to deprive a man of liberty without the government depriving him: The man who cannot apply for a job, who cannot walk into a bar or join a club because he is listed on the internet as an accused felon, or a sexual pervert, is he not deprived of liberty by unbridled freedom of accusation, unrestrained freedom of speech?

And then there is the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."  Which is to say, just because we haven't said so specifically, that doesn't mean the right to enjoy a reputation unsullied by judicially refuted accusations is not contravened simply because we haven't mentioned that specifically. 

You may say, there is another remedy, short of muzzling a free press: The man who was found not guilty can sue the Portsmouth Herald for slander.  But the bar for "slander" is rightly set high: You must prove the defendant 1. Published accusations he knew were false  and published these with 2. Intent to harm (malice of forethought)   and 3. Harm was actually done, specifically and how and how much.  Not likely that remedy is going to help many unjustly accused and found innocent. 

Mr. Muns is running for New Hampshire State Senate. He has taken on the media. He has not done this because he is a conservative who hates the media. He is not a conservative, nor even a card carrying liberal. He is simply thoughtful, and this bill is where his thoughts have led him.  It is not a politically smart move. 

As someone said in "The Wire":  "It's not a good idea to piss off people who buy printer's ink by the barrel."