Summary, Conclusions and Afterthoughts
The conference was convened using the Bernardin affair as a case study because it appeared to frame the recurring issues of guilt by publicized allegation so vividly. Here was a case in which the allegations appeared suspect from the outset, yet the news media jumped on the story because a lawsuit ostensibly legitimized it. As the conference convened in May 1994, criticism was building against both the attorneys who filed the suit and the news media, in particular CNN, for feeding rapaciously on the societal problem of sexual abuse by clergy.
A survey of the predispositions of the 300 attendees as they entered the conference indicated that they were evenly divided on both how they would rate news coverage of the Bernardin allegations and on whether the coverage was favorable or unfavorable to Cardinal Bernardin. They left no less divided but were better briefed on how one person's scandalous inferences may be another's exercise in professional judgment.
Even those who considered the news coverage of the Bernardin allegations exemplary came to the uneasy realization that others accused might not emerge as fortunate, and that Bernardin himself endured more in the public arena than anyone who is falsely accused should. And to those who had little but disdain for the professional conduct of lawyers or journalists in the Bernardin case, there were few handy prescriptions that could be dispensed for future cases.
Yet the phenomenon of inflammatory and highly publicized allegations is recurring with numbing regularity. Every community has its own, and as a national community we move from one to the next, whether it is Clarence Thomas, Robert Packwood, Michael Jackson, President Clinton, O.J. Simpson, or Ben Chavis.
If anything, the lessons learned from the Bernardin case pose further questions
for continuing reflection:
- How certain should a lawyer be of the facts before filing a civil suit? Should it be nothing more than a good faith belief in the client? Is investigation of the facts necessary? Must a lawyer factor into the decision how believable the client will be on the stand, or is it up to the client to assume the risk of being brutally cross-examined?
- Should the considerations differ in a high profile case? Should the accused be given a chance to convince the accuser and the lawyer not to file suit? Is it better to keep inflammatory allegations confidential, even if the resolution involves the payment of money and no admissions of wrongdoing? Is it wrong to seek out media attention or necessary to do so?
- Is it a journalist's duty to decide if a person's allegations are true before running a story? Should there be at least a threshold determination that an allegation is bona fide? Is that presumptively met by the act of filing a civil suit and not met until the suit is filed?
- How should the news media treat such phenomena as recovered or repressed memory, the use of hypnosis, or the larger context of sexual abuse, specifically by clergy? How should they respond to the consideration that once allegations against a high profile individual are out, restrained coverage may appear to be meekly favoring the more powerful individual?
- Is it appropriate or naive for journalists to assume that the legal system has effective ways to deal with the filing of frivolous suits? Although civil cases are different from criminal cases, should the news media be as questioning of allegations in criminal prosecutions as of those in civil suits?
- During the period when allegations are still unproven, how should the news media frame stories about the individuals? If the institutions involved take action against the individuals while allegations are pending, how can the news media convey a presumption of innocence?
In cases of inflammatory allegations, more than in other news stories, we rely on the public's ability to be discriminating, to ruminate on rather than swallow the allegations. In a media environment in which a "rush to cover," as the Cincinnati Enquirer's Ben Kaufman put it, is virtually reflexive, we may have to try harder to ensure that the rush to cover is not synonymous with a rush to judgment.
News organizations too must do their part. They are not without tools or institutional memory. Even though each new inflammatory allegation carries its own set of circumstances, news organizations are aware of larger contexts. They know about the litigation explosion and that lawyers can be creative or manipulative far beyond the ultimate merits of a case. They know that the tabloidization of the media and the allure of celebrity status have combined to drag out anything fit to titillate. They know about episodes of trumped-up or inflated allegations, including those of sexual wrongdoing, which pit accuser against accused in a made-for-the-media truth-telling contest. And they ought to know that publicized allegations can leave an indelible imprint on a person's character and reputation. At the very least, news organizations should think twice before publishing the inflammatory allegations made in a lawsuit if they would have been unwilling to publish them before the lawsuit was filed.
