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This article was published 4 year(s) and 7 month(s) ago

The Honorable Brian R. Merrick: Our own facts?

Brian R. Merrick

May 3, 2021 by Brian R. Merrick

“You are entitled to your own opinion. But you are not entitled to your own facts.”

― Daniel Patrick Moynihan

The words of a senator, who had previously served in domestic and foreign positions under both Republican and Democratic presidents, strike the ear and brain as a self-evident truth. 

Pat Moynihan would be horrified to return to life and see a nation rent into alternative realities. 

Those alternate realities — Conservative/Right/Republican and Liberal or Progressive/Left/Democratic (which can be used here almost interchangeably) — were initially political but have spread to law, crime, sports, religion, science and all aspects of our culture.

The division has emerged over decades. Certainly, the rift was exacerbated by the intentionally contentious presidency of Donald Trump, but those who seem to recall the opposition to former Presidents as golden ages of civility delude themselves. 

Reagan and both Bushes were derided as not just mistaken but dangerous to our safety and freedom, as were Clinton and Obama in their turns. There have been heated political arguments throughout the history of our Republic, but their increasing intensity has to do with our sources of information.

During the earliest days of our Republic, we obtained news and facts from newspapers every bit as partisan as today’s. Indeed, many were blatantly so, often containing the party names, “Federalist,” “Democrat” or “Republican.” 

Our revered founders were viciously and often personally attacked by the opposition papers. The papers were rewarded by a circulation fattened, like ours today, by what we now call “confirmation bias” — an individual’s tendency to accept information that conforms to his existing beliefs. 

When a paper’s party was in power, there was the additional reward of legal advertising revenue. An even less reliable and more partisan source of news was the tavern, our earliest form of social media. The difference between those early sources of news and today’s media is the extent and intensity of their reach.

In the late 19th century and the first 75 years or so of the 20th century, our national news narrative was formed; first, by the advertiser-dependent newspaper chains of Hearst, Pulitizer and Patterson and a few dominant regional newspapers of the Ochs-Sulzbergers, Otis-Chandlers, Binghams and Taylors, then wire services and radio and television networks. Mostly conservative publishers set editorial policy and generally more liberal reporters undermined it, all combining into a center-left view of things upon which most Americans settled. There was a variety of outlier opinion to both left and right but most Americans adhered to the consensus and confined their information collection to a daily newspaper and an evening radio or television network news broadcast.

With the advent of cable television, entrepreneur Ted Turner developed CNN, a network devoted entirely to news — including a lot of news commentary shows. In 1996, NBC News entered the lists with its own 24-hour news network, MSNBC.

Also in 1996, Roger Ailes founded the Fox News Network for Rupert Murdoch. Ailes had perceived a dissatisfaction of a large segment of the public with what they saw as an increasingly liberal spin in story and fact selection by the major networks and CNN in their news broadcasts. 

Fox News was a great success and, from 2002, led the three cable news networks in the ratings. Fox’s success did not move the other news networks toward the center. Rather, if anything, the other networks turned to the left to obtain the benefit of that confirmation bias from the progressive direction.

None of the news organizations were initially intentionally reporting “fake news” (long before the expression came into common use), but story and reported fact selection can “spin” or cast events in different lights on many political issues. 

The immediacy of cable television news networks with a 24-hour news window to fill has intensified the divide. Any single isolated incident can be made to feel like a nearby and national crisis affecting the viewer personally. 

The rise of near-universal email and social media — Facebook and Twitter in particular — has only intensified the problem. 

This is the point where I would like to bring out a “solution,” but I have none. Historically, a great national crisis, like a war, generally perceived to be a “good war,” might bring out unity. The last such war ended 75 years ago. 

The COVID-19 pandemic, far from bringing unity, has become just another divisive issue. One side’s “follow the science to prevent COVID spread” stands against the other’s “shutdowns are harmful, too.” 

On an individual basis, I am as guilty as anyone of the quick snarky reply to a troll. 

Lately I have tried restraint, asking myself if there is any chance I could say something that would change the mind of anyone reading. The answer is always “no,” and I find that ignoring obvious trolls is somewhat relaxing. 

Also, we can check our facts before we pass them on. Some individuals, forwarding emails to a list of like-minded friends or posting online, have no such constraints. You may trust the friend, but does the item show it’s from a reliable source? Stories one sees online that seem “too good to be true” usually are just that. 

It would be good if either or both parties, at least after the primaries, could turn from firing up the base to trying to reach that middle group or even some of “the persuaded” on the other side. I believe the last election turned on many of “the persuaded” on the Republican side staying home or voting for Biden, because President Trump became so personally obnoxious to them.

All media, including any social media, that undertakes the role of publisher, should be held accountable under the law of libel for false statements about public figures. 

The rule in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), protecting the press against falsehoods made against public figures, and especially later cases which broadened the rule, should be revisited. The media, including social media that undertakes editing for truth, are, in Senator Moynihan’s observation, entitled to their own opinion. They are not entitled to their own facts.

Brian R. Merrick, a former Nahant resident who currently resides on Cape Cod and in Florida, was a district court judge for 25 years, including five years in Lynn District Court. His column will run periodically. 

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