‘Catch and Kill’ Endangers the Free Press Nicole Scott Free Inquiry

To exist, a society must adapt to its physical and social environments. It must achieve goals necessary for its continued survival, such as obtaining sufficient food, securing protection from internal and external enemies, engaging in reproduction and socialization of new members, etc. To attain these and similar goals, a society must have the relevant knowledge with which to make rational decisions and rationally implement them.1 One major source of this necessary information in the modern world is the free press. But what exactly is the “press,” and what is it free from?

The press (newspapers, magazines, the internet, television, radio, etc.) can be broadly divided into news and entertainment functions. The press obviously cannot perform its news function of (ideally) providing clear, complete (with legitimate exclusions based on national security, obscenity, defamation, etc.), objective, truthful, and relevant information about society, elections, and candidates if it is limited by interfering forces.2 These forces include: (1) lack of sufficient resources (financing, qualified personnel, time, etc.); (2) governments and laws that restrict the press; (3) unethical (inconsistent with general and journalistic ethics) behavior of editorial personnel; (4) certain market forces (e.g., profit maximization) that may lead to ignoring local developments, excessive consolidation, and media monopolies; and (5) ideological and personal biases of the editorial staff and publisher. 

First, financial resources for necessary equipment, personnel, physical resources, etc., are required for the press to do its job. Second, if the government does not recognize the value of the free press and passes laws unreasonably restricting its power, then the press cannot write and publish about social conditions or criticize the government. Third, news media economics must not conflict with information-gathering and dissemination. For example, if the press were only and primarily interested in maximizing profit, it may choose not to report certain stories relevant to political debate, such as the impartial evaluation of government actions and non-actions, or certain candidates and their proposals.

In addition, if  editorial and publishing groups choose to ignore, suppress, or distort information before reporting it, this would also be a contradiction of its function as the free press. “Catch and kill” is such a practice, and it must be abolished. Certain publications acquire stories only to “kill” or suppress them and never publish them. For example, some women who allegedly suffered from the improper conduct and sexual assault by former President Donald Trump entered into exclusive contracts with publications such as the National Enquirer, to which they told their stories. But the Enquirer editors never intended to publish them so they could protect the alleged perpetrator, Trump. Catch and kill is not new in the publishing business, and it is unconstitutional and unethical for several reasons.

First, to suppress information relevant to the election process based on publishers’ and editors’ political and/or personal preferences conflicts with the function of the free press. The free press is central to a free, knowledge-based, democratic society. Second, a free press is a sine qua non for the growth of knowledge. John Stuart Mill, the nineteenth-century British philosopher, argued that free speech and free debate are the only ways to establish the truth of claims and provide the information necessary for the growth of knowledge.

Moreover, free and open debate is necessary to develop the intellectual habits of critical thinking and rational intellect. Individual autonomy and human rights are impossible without the development and constant improvement of the mind, Mill argued. Most important, the free press exists to help citizens make informed choices in electing their representatives. Citizens need to know candidates’ beliefs, values, character, proposed policies, and positions on contemporary issues. And a free and impartial press is needed to keep the public informed on the ongoing activities of the elected government and so keep public servants accountable to and serving the public interest.

If the free press is not to devolve into propaganda outlets, it must be absolutely committed to telling the whole truth. Catch and kill must be abolished, because it contradicts the very foundation and purpose of the press. When those who sell their story with the understanding that it will be published realize that the original publication does not intend to use it, they must be allowed to sue the publication to cancel their exclusivity clause and have the opportunity to have their story published by another newspaper, magazine, or website. If the individual who told the story does not sue the publication, then any other publication or citizen must have the right to bring a lawsuit to make the story public.

The right to contract might be used to defend the catch and kill practice. But it is clear the publication does not enter the contract in good faith if it never intends to publish a story. Moreover, the right to contract is not absolute even though most function within the principles of a free and democratic society. Lochner v. New York (1905) argued for the right to freedom of contract as basic and intrinsic to the U.S. Constitution, but it was reversed in cases such as Nebbia v. New York (New York could regulate the price of milk, 1934) and West Coast Hotel Co. v. Parrish (minimum wage legislation is constitutional, 1937). In Lochner, the court was repudiated for its judicial activism and reading into the constitutional rights and an ideology of laissez faire capitalism not found or intended by the framers of the Constitution. Moreover, it usurped power rightly belonging to Congress and the right of the political process to address pressing social and economic problems, such as poverty, unemployment, and the increasing wealth gap between the classes. Clearly, catch and kill contradicts this understanding of the nature of the right to contract and so cannot be used to defend it.

The U.S. Supreme Court has not explicitly ruled on catch and kill, but it has made landmark decisions on the free press that are relevant to the question of its constitutionality. In The New York Times v. Sullivan (1964), the court decided that a newspaper can only be sued for libel when it publishes something false and slanderous about a public figure with malice, i.e., if it knowingly prints something false or recklessly disregards the truth of the statement. One rationale for the decision was to protect the freedom of the press by offering it legal protection when it might otherwise be too timid to publish negative information on a government official or candidate in fear of being sued. Catch and kill is a violation of the spirit, if not the letter, of the Sullivan decision. If a publication chooses not to print something about a public person it knows is true (or reasonably suspects may be true), it is showing malice toward the public by denying it relevant information.

Another defense of catch and kill may be the right to private property. Because the press is privately owned, it could be said that the owners have the right to use their property as they see fit, which can even include acquiring stories that they never publish. Like the alleged right to contract, the right to property is not absolute. The right of eminent domain is the right of government to take private property (with compensation) for some legitimate public purpose, such as building a road or school. Applying this principle in the case of catch and kill, one can argue that the government has the right to take privately held information (a form of property) and require its publication, because it is essential for a public good, i.e., if it will result in a more informed electorate and election. The courts have ruled that censorship is unconstitutional for the government (except for in cases of national security in time of war), and so censorship should also be unconstitutional for the press to impose on itself as well, because it negates the basic function of the press and abuses its special role and position in a free society.

Catch and kill also contradicts journalistic ethics and the moral foundation of the profession of journalism. Various professional organizations of journalists agree that journalists should be dedicated to the truth, accuracy, and impartiality of the press and protect the conditions necessary for the free press to exist. Ideological suppression of information perverts the free press into a slave of the political elite and their ideology. In addition to legal challenges against catch and kill, journalists who work for establishments that practice catch and kill should lose their status as journalists and any privileges associated with the profession.

Free speech and free press are the crown jewels of a free and open democratic society. They are part of a mighty fortress against tyranny and oppressive government and the sine qua non of human rights and the progress of civilization. Those who corrupt democracy through ideological distortion and narrow selfish political goals must pay the price for catch and kill before it kills democracy.

[1] Talcott Parsons, The Social System. New York, NY: The Free Press, 1951. 
[2] Noam Chomsky and Edward S. Herman, Manufacturing Consent: The Political Economy of the Mass Media. New York, NY: Pantheon Books, 1988.

To exist, a society must adapt to its physical and social environments. It must achieve goals necessary for its continued survival, such as obtaining sufficient food, securing protection from internal and external enemies, engaging in reproduction and socialization of new members, etc. To attain these and similar goals, a society must have the relevant knowledge …

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