Articles published in the Richland County Bar Association's Richbar News

Something’s on the Floor

February 15, 2017Richbar News Articles

My oldest son, now a senior in high school, has grown into an amazing young man. Getting there was not always easy, and frequently characterized by moments like this:

Me: “Don’t dump cereal onto the floor.”
Him: “I’m not!”
Me: “I’m watching you do it RIGHT NOW!”
Him: “No you aren’t.”

His favorite (and still sometimes go-to) tactic was to reframe things in front of my very eyes in real time and try to neurologically reprogram me into thinking I was hallucinating. While never fully convinced, I’ll admit that the fatigue produced from having to constantly debate the very fabric of reality disarmed me into giving up (or giving in) more than I should.

Little did I know I was being conditioned for life in 2017.

You are no doubt aware of U.S. Counselor to the President Kellyanne Conway’s now infamous use of the term alternative facts in defense of Press Secretary Sean Spicer’s exaggeration of Trump’s inauguration attendance. Within a few hours, the phrase had its own Wikipedia page as part of a series on “Misinformation and Disinformation.” According to that page, within three days of Conway’s statement, sales of George Orwell’s 1984 increased by 9,500%.

Journalists exploded with indignation. Spicer’s original statement, that the inauguration had drawn the “largest audience to ever witness an inauguration – period – both in person and around the globe” had been aimed at “the media” whom he accused of deliberately underestimating the size of the crowd. The battle lines between the White House and the media were thus drawn on day one.

Meanwhile, across the globe, Syrian President Bashar Assad was dealing with media problems of his own. Confronted with Amnesty International’s report of torture and mass executions in his Sednaya Prison, Assad told Yahoo News that “anything can be forged,” and proposed that the Amnesty report was simply another product of a “fake news era.”

Alternative facts. Fake news. You’ve no doubt heard these words a thousand times in 2017 already. And – whatever your political orientation – you’re probably already tired of talking or thinking about them. And that’s exactly my point. A certain fatigue arises from the effort of having constantly to separate truth from lies, fact from fiction. And therein lies the real danger. Soon, lies becomes plausible, just as obvious truths seem fabricated. Soon, you don’t know (or care) whether there is cereal all over the floor.

But what does any of this mean for us, zoomed down to the level of lawyers in a County Bar Association? Two things: First, the truth exists, and it’s really important. Much of the public’s distaste for our profession comes from our perceived ability to bend facts to suit us. While our job is to investigate, question, and interpret facts, we must never let ourselves forget that facts – objective, provable, real – exist. We can’t ever take the easy way out by inventing some contrary fact. We can’t allow ourselves to cross the line between explaining the meaning of provable facts and inventing other facts from whole cloth. The opposite of a fact is not an alternative fact (or fake news). In this era, we need to take our role as guardians of the truth, the law, and the Constitution with dead seriousness. We took an oath, after all.

Second, we need to appreciate and support what it is that journalists do. Just as it’s our job to defend, it’s theirs to question. Too often and too easily Journalists are framed as “the media.” It’s one of those loaded phrases that conjures distrust in most people. That’s why the current administration talks in terms of its “running war with the media” instead of a war on “journalism” or “reporters.” As 31-year old senior White House Policy Advisor Stephen Miller put it on Face the Nation, “Our opponents, the media, and the whole world will soon see as we begin to take further actions, that the powers of the President to protect our country are very substantial and will not be questioned.”

Questioning is what journalists do, and must never stop doing. Not just of Trump’s administration, but every one that comes after, of whatever stripe. As Orwell himself wrote, “Freedom of the Press, if it means anything at all, means the freedom to criticize and oppose.” When journalists stop asking questions – or when we stop defending their right to do so (or any of the Constitution) – the American Experiment is officially over.

Our Oath says we that we defend the Constitution of our state and the United States. It says we maintain the dignity of our legal system. There is no footnote that allows us to call time out when we’re tired. See Rule 402, South Carolina Appellate Court Rules, if you don’t believe me.

It exists, I swear.

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