HOW SECURITY THREAT DISCOURSE CAN PRECIPITATE A PRESS CLAUSE DEATH SPIRAL Robert Bejesky* ABSTRACT Consistent with the rationales for the inclusion of the Press Clause in the First Amendment to the U.S. Constitution in 1791, international norms currently presume that an independent news media system is a pivotal element of democracy because broadcasters and news outlets can widely disseminate information to citizens, register alternative views on issues of public concern, and exercise oversight of government officials to reduce the incidence of imprudent, unethical, and illegal acts. These merits of the media are imperative during wartime and perceived national security crises due to the complexities in the sharing of constitutional war powers and the prospect of citizens bearing prolonged sacrifices and cost, but a security-imbued atmosphere of reporting poses distinct challenges to effective media performance. This Article applies a rational choice model to the events surrounding the Iraq War to depict how suboptimal reporting and the interrelated trajectory of public opinion and the tone of media coverage were a function of corporate power, profit motive, and structural characteristics of the media; the Executive’s ability to engage in agenda setting, frame official sourcing, and employ institutions of the Executive Branch to curtail critical reporting; and the news media’s choices regarding coverage of three essential variables—perceptions of security threats, patriotism for the military and troops, and facilitation of a humanitarian outcome. * M.A., University of Michigan, Political Science; M.A., University of Michigan, Applied Economics; LL.M., Georgetown Law, International Law. The Author has taught international law courses for Western Michigan University Thomas M. Cooley Law School and the Department of Political Science at the University of Michigan, American government and constitutional law courses for Alma College, and business law courses at Central Michigan University and the University of Miami. The Author would like to extend his sincere gratitude to Louis Sloven, Alexis Rowe, Corrin Hatala, and to all of the other editors at the Drake Law Review who worked on this article for their exceptional performance and dedication to producing the best final version of this piece. 1 2 Drake Law Review [Vol. 63 TABLE OF CONTENTS I. Introduction ............................................................................................... 2 II. Two Wars and Two Perceptions of the Press ........................................ 5 A. The Vietnam War .............................................................................. 5 B. The 2003 Iraq War ........................................................................... 10 III. Media Decisionmaking Premises .......................................................... 14 A. Framer Values and Corporate Media Profitability ...................... 14 B. Executive Expectations About the Media’s Rational Choice ................................................................................................ 26 1. A Framework ............................................................................... 26 2. An Equation ................................................................................. 30 IV. Application of Media Portrayals Prior to War .................................... 34 A. The Executive’s Agenda Setting .................................................... 34 B. Polls ................................................................................................... 42 C. Media Interpretations of Discourse ............................................... 47 1. Media Discretion to Present a Continuum of Diversity .......... 48 2. Premises That Shift Broadcasting Content ............................... 54 a. Executive Interpretation of Media Restraints ..................... 54 b. Substantive Content................................................................ 56 c. Protecting the Corporation .................................................... 61 D. Prewar Outcome .............................................................................. 63 V. Aftermath of Invasion ............................................................................ 68 A. The Transition .................................................................................. 68 B. Patriotism .......................................................................................... 73 C. “Independent” Military Analysts ................................................... 77 D. False Positive WMD Discoveries ................................................... 86 E. False Perceptions ............................................................................. 97 VI. Conclusion ............................................................................................. 104 I. INTRODUCTION The Framers’ aspirations for the Press Clause in the U.S. Constitution were to fortify the independence of publication entities, serve as an autonomous check on government, and support democracy by informing American citizens on the affairs of their government.1 Commentators 1. Branzburg v. Hayes, 408 U.S. 665, 729 (1972) (Stewart, J., dissenting) (stating that the media is obligated to “do far more than merely print public statements or publish 2015] Press Clause Death Spiral 3 maintain that today’s news media frequently fails to provide this check2 and instead abets the policy agenda of the government,3 reducing the efficacy of bidirectional influences between government and citizens and making citizen preferences less rational and more amenable to forthcoming policy actions.4 This Article emphasizes media industry variables that can foster prepared handouts” and must not be a “captive mouthpiece of ‘newsmakers’”); Michelle Ward Ghetti, The Terrorist Is a Star!: Regulating Media Coverage of Publicity-Seeking Crimes, 60 FED. COMM. L.J. 481, 501–02 (2008) (arguing that “freedom to report must be accompanied by the duty to report responsibly”); Leonard W. Levy, On the Origins of the Free Press Clause, 32 UCLA L. REV. 177, 182–83, 200–06 (1984) (emphasizing that the Framers’ intention with the Bill of Rights was to provide freedom to publish, not license to publish irresponsibly). 2. See TIMOTHY E. COOK, GOVERNING WITH THE NEWS: THE NEWS MEDIA AS A POLITICAL INSTITUTION 179 (1998) (demonstrating that the “presumption that the news media work to check government is simply empirically wrong”); Jonathan Mermin, Free but Not Independent: The Real First Amendment Issue for the Press, 39 U.S.F. L. REV. 929, 930–31 (2005) (maintaining that, while “[l]egal academics writing about the media have for the most part taken for granted that the press does function as an independent check on the government,” consistent marginalization of viewpoints not already represented within the government means that “the First Amendment ideal of a press independent of the government is not being achieved”); Malla Pollack, A Listener’s Free Speech, A Reader’s Copyright, 35 HOFSTRA L. REV. 1457, 1458 (2007) (opining that the media has abandoned its “traditional watchdog function”); see also Robert M. Entman, Putting the First Amendment in Its Place: Enhancing American Democracy Through the Press, 1993 U. CHI. LEGAL F. 61, 76 (1993) (“The commercial market underproduces news that enhances citizens’ political interest, knowledge, and sophistication, in large part because the commercial pressure on suppliers is to attract the largest audience possible.”). 3. See Mary-Rose Papandrea, Lapdogs, Watchdogs, and Scapegoats: The Press and National Security Information, 83 IND. L.J. 233, 248–49 (2008) (writing that the press is “commonly regarded as the ‘watchdog’ of the government,” but historically “the press has just as frequently served as the lapdog of the executive branch”); see also Richard B. Kielbowicz, The Role of News Leaks in Governance and the Law of Journalists’ Confidentiality, 1795-2005, 43 SAN DIEGO L. REV. 425, 430 (2006) (criticizing journalists’ asserted reliance on the press’s watchdog role because it “overemphasizes the adversarial nature of press-government relations by discounting the many ways that officials use the media to govern”). 4. See, e.g., Robert Bejesky, Cognitive Foreign Policy: Linking Al-Qaeda and Iraq, 56 HOW. L.J. 1, 68–82 (2012) [hereinafter Bejesky, CFP]; see also David L. Altheide, The Mass Media, Crime and Terrorism, 4 J. INT’L CRIM. JUST. 982, 995 (2006) (noting that “news updates from authoritative sources quickly merge with orchestrated propaganda efforts”); Pollack, supra note 2, at 1467–70 (“Consider also, for example, the President’s successful effort to silence New York Times’ reports about NSA activities, the attacks on Representative Murtha for rethinking the war in Iraq, the political appointees who tried to silence NASA scientists about global warming, and the Navy’s indirect ouster of the 4 Drake Law Review [Vol. 63 suboptimal citizen preferences during warmaking and within security threat atmospheres. After a contextualization of the query in Part II, Part III introduces a decisionmaking analysis that is circumscribed by premises that influence the choices of journalists and media organizations. Parts IV and V apply this framework to the invasion of Iraq and explain why the media was unavailing in constraining the Executive even after confirming that false allegations led to war5 and after it seemed evident that top officials knew that the evidentiary bases for war were unsubstantiated.6