The following is a transcription of the July 2, 2005 edition of "FOX News Watch," that has been edited for clarity:
ERIC BURNS, HOST: This week, on a Fourth of July edition of "FOX News Watch," polls say that people don't trust journalists. Are the courts turning against them too?
Who will the president turn to for the Supreme Court (search ) vacancy?
Are reporters patriotic enough these days?
A gay wedding on TV?
And so what if Michael Jackson's innocent? Sharks are guilty, aren't they?
First the headlines, then us.
BURNS: This week, journalists lost an important battle in the courtroom. Let's see how they how they do on "FOX News Watch," where the judges, as usual, are Jim Pinkerton of "Newsday," syndicated columnist Cal Thomas, Jane Hall of the American University and media writer Neal Gabler.
I'm Eric Burns. "FOX News Watch" is coming right up.
The Supreme Court has refused to help a couple of journalists who wanted to protect their sources. Judith Miller of "The New York Times" and Matt Cooper of "Time" magazine wanted to keep their sources secret for information they gathered about the outing of CIA agent Valerie Plame. Now the court's decision meant that Miller and Cooper either had to fess up or go to jail.
"Time" decided to fess up, announcing on Thursday that it will hand over Cooper's notes.
JANE HALL, AMERICAN UNIVERSITY: Well, I'm not sure. I think -- I was somewhat persuaded by Norman Pearlstine's argument that nobody should be above the law, that Richard Nixon had to ultimately turn over tapes.
BURNS: And he said we have to behave.
HALL: And we have to behave.
BURNS: ...the way ordinary citizens do.
HALL: Right, and The New York Times is -- has said that they are deeply disappointed, and I think that Time made the decision on a more corporate level. And I think that may be the difference between the two.
BURNS: What does that mean, corporate level? It means you think they made it for.
BURNS: .for business reasons as opposed to journalistic reasons?
HALL: Well, no. Now, I don't -- I'm not implying that, although I think a lot of people are questioning that.
Pearlstine said he made the decision based on Time Inc. And Matt Cooper did not want them to do that.
HALL: The New York Times is saying we are backing our reporter to the hilt.
CAL THOMAS, SYNDICATED COLUMNIST: The delicious irony in this, if I may suppress a smirk which I feel coming over me, is that the very people now who have been victimized by this, who were the perpetrators of the idea that there should be a special counsel, and they got Patrick Fitzgerald, who in my judgment has gone against precedent and the interests of the First Amendment and come down hard on the media in a way that will affect future cases.
This has opened a Pandora's Box (search) for sources. It's going to hurt journalism; it's going to hurt the First Amendment; it's going to hurt our country. But these people brought it on themselves through their arrogance.
BURNS: I don't see how you can defend keeping sources secret, Neal, in this case for a story that not only gave people information they didn't need, but hurt the career of a CIA agent who can't be covert anymore. On what grounds.
NEAL GABLER, MEDIA WRITER: Well.
BURNS: .do you withhold that information?
GABLER: Yes, I don't want to get into the particulars of this case because it's so complicated.
But I disagree with Cal. I don't think this has opened a Pandora's Box. And I do agree with you.
You know, it seems to me, in Bransburg case in 1972, the Supreme Court ruled that there was no absolute privilege for the press to protect their sources. And in a concurrence that's very, very important by Justice Powell, he said, Look, this is a balancing act. You have to balance the right of the free flow of information to the public against the rights of a prosecutor, a defense, a plaintiff in a civil case.
BURNS: Which is to say.
GABLER: ...to get information.
BURNS: Which is to say things should be case by case.
GABLER: Exactly. And in this case, I think you can make the case that they should have released this information.
On the other hand, I would make this distinction: it's one thing for "Time" to give this material. It's another thing for the reporters to say, We're not going to give the material. Now that's a - may seem like splitting hairs, but I could see where reporters say, Look at it, we do not want to give up our sources. It's going to have a chilling effect if we do.
JIM PINKERTON, "NEWSDAY": I don't think this is a balancing act; I think this is a power move. I think that conservatives and those other libertarians who are critical of the mainstream media ought to realize that now we're starting to see the fist of the government against the media. In the great power struggle between the First Estate and the Fourth Estate, the First Estate, which is the government, is winning.
They have divided and conquered the media. They've split Time and The New York Times; they've Matt Cooper from his own management on this. And they have had a vast and cruel chilling effect on free speech, and I am just -- in terms of larger issues here, I'm just reminded of what John Milton, the poet of "Paradise Lost," wrote in 1644. He said, "It's only through confronting mistruth and untruth that we find the truth." And the media -- the government now has put the big hammer on free expression and challenging government power.
BURNS: You then disagree with me that the free expression in this case did no positive good, and simply hurt a woman's career?
PINKERTON: I think this is a runaway prosecutor who is ought to chill the First Amendment.
HALL: I completely agree with Jim. I think the First Amendment and journalists need to do a public-relations campaign explaining why we need the First Amendment. You need people...
BURNS: The First Amendment does not protect sources.
HALL: Well, but...
GABLER: ...not in a criminal case it doesn't.
HALL: I agree without arguing the rest of the case, this is a fishing expedition who hasn't built a case except going after these two reporters. And you're right, there's a terrible irony in that Democrats wanted this special prosecutor.
I think the bigger question is -- I realize believe that the media need to explain themselves better, that they're not in this to be -- to be, you know, specially privileged. The idea is that we need the media to help people come forward with information that is valid.
BURNS: ...and so the ruling -- the ruling was, in this case..
HALL: ...there are already other cases.
BURNS: So we should have had the wrong ruling here to help in future cases?
PINKERTON: It wasn't - it wasn't lousy information, it was true information. Somebody from the White House leaked this story -- Matt Cooper and Judith Miller printed it. [Editor's note: Judith Miller did research on the story but never published a report on her findings.]
BURNS: The information served no public good, and it hurt the journalists period.
PINKERTON: No, Eric, that's not the way truth works. Truth is not judged by whether it serves the public good or not. Truth is truth, period.
BURNS: And if hurts somebody, and has no constructive purpose.
PINKERTON: That' s the First Amendment process, free speech.
GABLER: The First Amendment is limited when you're dealing with crime, and this is a criminal... (INAUDIBLE)
HALL: We don't even know if a crime was committed.
THOMAS: Here is the big question that nobody is really asking: where is Robert Novak in all of this? The syndicated...
THOMAS: ...columnist who broke all of this -- did he cut a deal with the grand jury? Did he cut a deal with the special prosecutor? All he'd have to do is speak up. He says, presumably he's going to write a column about it sometime. And Bill Safire, back in The New York Times, on the op-ed page this week, said that he owes that to his readers under the country.
BURNS: I think Novak ought to write a book about it because you get bigger advances!
GABLER: I think he also should say that Senator Dodd has introduced a bill in Congress protecting privilege, essentially codifying the Powell concurrence in Bransburg. And now the issue is going to be, "Who is a journalist?"
THOMAS: There you go.
GABLER: Is a blogger a journalist?
HALL: You know, one of the things that's not mentioned - usually it's that the state attorney generals (sic) wanted the Supreme Court to consider this -- 49 states have shield laws for journalists. This is not journalists making this up for their own good.
PINKERTON: One last - one last point: Time magazine -- Time Warner, CNN, that whole corporate environment -- they're a bunch of weenies. They should have stuck to their guns, like the Times -- like The New York Times did.
BURNS: Well, I disagree, but it's your last word. No, actually, that was mine, wasn't it? Sorry, I got that wrong, Jim.
It's time for a break. We'll be back with the perfect topic for a Fourth of July weekend.
ANNOUNCER: People aren't upset with the media just because they use anonymous sources too much. They're upset because they don't show their patriotism enough.
More "FOX News Watch" after this.
BURNS: How patriotic are journalists? How patriotic do you want them to be? According to a new poll, 42 percent of you believe that the media usually stand up for America. About 40 percent believe they are too critical.
Now, this is a pretty significant change from two years ago, when 51 percent of those polled said the media usually stand up for America. And 33 percent said they were too critical.
We could argue with the numbers, Jane, but the general conclusion seems to be, that one of the many reasons people are turning on the media these days is we are insufficiently patriotic.
HALL: Well, it depends on what you define as "standing up for America." And I noted that -- in that poll that people were critical of the media, and yet they value what the media can do. And they were more critical of saying we always go for our ratings.
So the ratings were more mixed. I noticed, for example, that -- I think the war in Iraq is obviously a very divisive issue. I think people who want -- want more support for the president's point of view, that Rumsfeld this week said there was too much negative coverage. When President Bush went on the air, after the speech, media commentators asked other people what they thought.
Now, is that anti-patriotic or not? That's one of the dilemmas.
BURNS: But that's how we're defining patriotism these days, Cal, is simply, How do you feel about what's going on in Iraq?
THOMAS: It would have been interesting had been taking in the immediate aftermath of the beginning of the Iraq war, when anchors all over the place, especially on this network, were, and many still are, wearing American flag lapel pins and going rah-rah for the administration and the war. And Dan Rather famously said on Letterman in tears, Tell me where to sign up, Mr. President. I'll go and sign up.
The media does its best job in faithfulness to this country and its patriotism when it seeks and reports the truth without fear or favor, as corny as that may sound.
BURNS: And actually, Rather now has the time...
THOMAS: He does have the time, yes.
BURNS: ...to go.
THOMAS: He may be a little old though!
PINKERTON: I have never been in a house with more flags than the house of Norman Lear (search), who has a place in Vermont. He has got flags, constitutions, patriotic memorabilia all over the place. He is definitely a liberal -- he is the founder of People for the American Way (search).
I think it is a bad business to start saying that people who disagree on issues are either patriotic or unpatriotic. However, it is true that from the absolutely unanimity about American purpose after 9/11 to the near unanimity about Afghanistan to the Iraq war is a steep plummet, and there are hard feelings and divisive feelings on both sides. That's for sure.
GABLER: Couldn't agree with Jim more.
This does not measure patriotism. This does not measure patriotism at all. This is a very diverse country. To say that you're pro-American or anti-American - what America? I mean, we're Democrats and Republicans. We're liberals and conservatives. We're blacks, Hispanics and whites. We're straight and gay. So, I mean, the question is framed in a meaningless way.
What the question's really asking is, Are you pro-Bush or are you anti-Bush? And that's why the results skew so heavily to political affiliation. Democrats that we're, you know, sufficiently patriotic and Republicans seem to feel that the press is not sufficiently patriotic.
PINKERTON: Now, it is true that -- there' s a guy named John Fonte at the Hudson Institute (search) who's coined the phrase "Transnational Progressivism," which deals with the general phenomenon of a big chunk of the elites. And that's not just the media -- it's also business and so on -- just simply loyal to kind of a vast, global jet stream of capital and ideas and information and so on and so on.
And they do have a different perspective on things like the Iraq war and just nationalism in general. And frankly, it cuts against the grain of American traditionalism. But it's also, ironically, sort of what you need if you're going to play in the global world. Let's face it: the war in Iraq is more of a hearts and minds war -- we have to learn Arabic and know Al-Jazeera (search), as opposed to simply talk about American values.
HALL: But it's also a hearts and minds war for the American people. I thought one of the most interesting things I saw coming out of Bush's speech this week was General Barry McCaffrey (search) saying basically we're in a race against time to shore up public support, that that's Bush's goal. And they've even hired someone who's been a historical expert on public opinion to try to help them shore it up and try to get Iraqi police up in time. I mean, it is a very difficult situation.
THOMAS: The media are the only industry that never responds to consumer complaints. If you can imagine a gas station, a car dealer or a hamburger joint having criticism of its product from many consumers to the point where they begin to go to competition or competitors or stop watching at all, they never respond.
The media have a credibility problem. They don't address this at their own peril.
BURNS: How did Milton feel about Transnational Progressives?
BURNS: But of course I ask that when the segment's over and there's no time for an answer. You were spared.
PINKERTON: That's next week. Next week.
BURNS: You were spared.
It's time for another break. We'll be back with our "Quick Takes" about Sandra Day O'Connor (search) stepping down and...
ANNOUNCER: Shark attacks on the news and gay weddings in the news, when "FOX News Watch" continues.
BURNS: It's time for our "Quick Takes" on the media:
Headline number one: "Today" Goes Gay?
For the last six years, the "Today" show on NBC has had a contest in which the winning engaged couple gets married on the program. The contest used to be open to heterosexual couples only. It is now open to gay couples as well.
Jim, it's as a result of some gay groups protesting. Here's my question: I wonder if the "Today" show did this just to say, Well, gay couples are eligible now, but they'll never choose one because they're afraid of backlash or they...(INAUDIBLE).
PINKERTON: Well, we'll find out if they -- if it's a big fake on the part of the gay-couple thing or not.
But I - my guess would be that the -- NBC owns Bravo (search), which runs "Queer Eye for the Straight Guy," and that's a hit.
PINKERTON: I think they're just figuring they can actually get ratings with this, as the gay issue goes from Christopher Street to Main Street.
GABLER: I -- television shows do not offend their audiences. And I think this is a case in which the "Today" show, primary addressing a female audience, like the audience for Ellen DeGeneres (search), like the audience for Rosie O'Donnell (search) before that, is saying, Look it, you know, you are almost ahead of the politicians in this. We're not going to offend you, because you're accepting of this.
THOMAS: One more reason for me not to watch the "Today" show.
Look, this is a campaign going on from with inside -- from within these organizations. From newspapers to certainly Hollywood to now the broadcast networks.
BURNS: You were just saying in the last segment that journalists are never responsible -- or responsive to people.
BURNS: Here they are now being responsive.
THOMAS: Sure, to liberal social activists-types going against the grain of traditional values and the rest. Sure, they'll be responsive to that.
HALL: They're in a -- they're in an awkward situation. If they open up the possibility and then they don't have somebody, they're going to have groups mad at them.
BURNS: "Quick Take" headline number two:
Journalism Gets Its Summer Blockbuster
On Friday, Justice Sandra Day O'Connor announced that she is retiring from the Supreme Court. It's obviously a huge story which we are treating not as a huge story, Cal, because we don't know anything yet about what the coverage will be like. But what.
THOMAS: That never stopped us before, Eric!
I mean, look, this is going -- this is going to be...
THOMAS: This is going to be the blockbuster speculation. At least she's not young, blond and missing. So maybe we can elevate a little bit the level of intellectual discussion.
BURNS: Yes, maybe -- maybe this story is going to force journalists, at a slack news time, Jane, to be more substantive. But I assume pretty controversial, too, in the coverage.
HALL: Well, it's likely to be very controversial. I saw on FOX right off the bat, they had [Judge Robert] Bork. You know, they had Bill Kristol (search) gazing into his crystal ball. There's going to be a lot of speculation about who will be picked and when that person will be picked.
PINKERTON: Two points: once again, proof that nobody knows nothing!
They said -- the retirement was supposed to be Rehnquist, not O'Connor. And all the speculation on that was wrong.
Second point: this is the first -- this will be first Supreme Court nomination fight since 1994. We've had a new media -- Drudge Report, FOX News, the Internet, Rush Limbaugh -- all these forces are now -- well, Limbaugh was before. But nonetheless, for the most part, the new media are going to play in this battle as they never have before. And who knows what effect that will have.
GABLER: I'm not a prognosticator, but here's a prediction nevertheless: I don't think there are going to be much -- many legal issues discussed here. This is going to be about horse race (ph) -- Democrats versus Republicans. Will Bush get what he want? Or won't he get what he wants? I mean, this is going to be a fight, because that's the way it's going to be framed by the press.
BURNS: And it's going to, I think, divide people very much, liberal and conservative media.
PINKERTON: I don't agree with Neal. It's not going to be Democrats vs. Republicans; it's liberal vs. conservative.
THOMAS: That's right.
BURNS: "Quick Take" headline number three:
But Aren't You More Likely To Get Attacked by Martians Than Sharks?
No. But it's close!
There have been two shark attacks in the past few days, killing one person, injuring another. But based on the amount of coverage of these two attacks, it seems that the media smell blood no less than do the sharks.
So maybe this is the other side of the summer blockbuster picture: this is what journalists are hyping before they now can turn their attention to Sandra Day O'Connor.
THOMAS: Well, it's another case of focusing on things that don't matter. Let's not forget that four years ago, this is precisely the kind of story -- particularly on the cable networks-- shark attacks, women being attacked in the ocean, just before 9/11. And then, of course, the question became after 9/11, Gee, why didn't we see this coming? Because you were covering shark attacks and not terrorist attacks!
BURNS: But Jim, it's not just stories that don't matter. It's stories that are so aberrant that -- so unlikely to happen that people are frightened unnecessarily.
PINKERTON: I can't resist tweaking Cal here. If there's ever a case of the media responding to public appetite -- people love shark attacks. They just do.
THOMAS: No pun intended.
PINKERTON: Ever since the movie "Jaws" -- it's a chance to go to the beach, without having to diet to fit in the bathing suit.
HALL: I do think we're seeing something new here, which is this -- the debriefing of people. I watched and was, like, sort of embarrassed that I was watching -- an interview with the man who tried to rescue this young woman who died. And the CNN anchor was asking question after question, which you see on FOX a lot too, where you go through the experience with people. I think people are riveted by that.
GABLER: Jim hit the key word -- "Jaws." This is an opportunity for cable news to take the elements of movies and put it into the television news context.
BURNS: We have to take one more break. When we come back, it'll be your turn.
BURNS: About the new book so critical of Hillary Clinton, here's William from West Mifflin, Pennsylvania: "In the year preceding the 2004 election, I counted at least 15 anonymously sourced books that dredged up every possible criticism of George Bush. The crudity of the contents was disgusting. Where was the indignation of your pontificating puffball panel then?"
About the two former editorial writers for "The Indianapolis Star" who charged the paper with anti-religious bias, here's Bob from Collierville, Tennessee: "I now know that the opinions expressed on the editorial pages are not necessarily those of the person writing the piece, but rather the sanitized dogma of the paper's ownership. The First Amendment has never been clearer."
About NBC's promotion of the runaway bride, here' s Bob from Glen Allen, Virginia: "The real story is not that she has some deal with NBC, it is the made-up media event surrounding her disappearance . The media made it a major news story and then, frankly, turned on her when it became a non-story."
About Neal's comment about Senator Dick Durbin's comment comparing treatment of prisoners at Gitmo to Nazi treatment of prisoners, here's John from Severn, Maryland: "About 9 million people were massacred by the Nazis, Khmer Rouge and in Stalin's gulags. Comparing Guantanamo Bay interrogators to these mass murderers proves Neal Gabler is delusional."
But from Martha in San Diego, California: "I don't think Neal's remarks were at all out of line. Perhaps if during the early years of Hitler's reign of terror, someone had said, Watch out, we're leaning towards (some other tragic event in history), the whole thing could have been averted."
Finally, we have this from Nancy in Royal Oak, Michigan: "For an avowed conservative, Cal has appeared in unusually brilliant attire recently. His charade is over. There's a liberal within, struggling mightily to climb out."
Actually, Nancy, it's not a liberal; it's an interior decorate with a mail-order degree.
THOMAS: Hey, hey.
BURNS: And we hope he loses the struggle. Are you done?
THOMAS: I am, thank you.
BURNS: Here's our address: firstname.lastname@example.org . Please write to us. Tell us your full name, and let us know where you live.
That's all the time we have left for this week. Thanks to Jane Hall, Jim Pinkerton, to Cal Thomas, Neal Gabler.
And I'm Eric Burns, thanking you for watching. We hope you have a great holiday weekend, and we'll see you next week when "FOX News Watch" is back on the air.
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