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American and Norwegian Press' Approaches To AMERICAN AND NORWEGIAN PRESS’ APPROACHES TO IDENTIFICATION OF CRIMINAL SUSPECTS OR ARRESTEES: THE PUBLIC’S RIGHT TO KNOW VERSUS THE PRIVATE CITIZEN’S RIGHT TO PRIVACY, REPUTATION, AND PRESUMPTION OF INNOCENCE by JONATHAN O. BOWERS A THESIS Presented to the School of Journalism and Communication and the Graduate School of the University of Oregon in partial fulfillment of the requirements for the degree of Master of Arts September 2013 THESIS APPROVAL PAGE Student: Jonathan O. Bowers Title: American and Norwegian Press’ Approaches to Identification of Criminal Suspects or Arrestees: The Public’s Right to Know Versus the Private Citizen’s Right to Privacy, Reputation, and Presumption of Innocence This thesis has been accepted and approved in partial fulfillment of the requirements for the Master of Arts degree in the School of Journalism and Communication by: Dr. Scott Maier Chairperson Dr. Tom Bivins Member Dr. John Russial Member and Kimberly Andrews Espy Vice President for Research and Innovation; Dean of the Graduate School Original approval signatures are on file with the University of Oregon Graduate School. Degree awarded September 2013. ii 2013 Jonathan O. Bowers This work is licensed under a Creative Commons Attribution-NonCommercial- ShareAlike 3.0 License (United States) iii THESIS ABSTRACT Jonathan O. Bowers Master of Arts School of Journalism and Communication September 2013 Title: American and Norwegian Press’ Approaches to Identification of Criminal Suspects or Arrestees: The Public’s Right to Know Versus the Private Citizen’s Right to Privacy, Reputation, and Presumption of Innocence This thesis examines the processes the American and Norwegian press go through when identifying (or not) private citizens who are suspected of or arrested for a crime. Four central principles are explored in detail and elaborated upon as they relate to the press and individuals in the criminal justice system: the public’s right to know, the right to privacy, protection of reputation, and presumption of innocence. Three Norwegian newspaper editors and an independent consultant to the Norwegian Institute of Journalism elaborated on how identification of criminal suspects is determined in Norway. The Norwegian case study provides an alternative approach to identification. Both legal and ethics solutions are proposed as a way to help protect the privacy, reputation, and presumption of innocence of private individuals suspected of or arrested for a crime but without unconstitutionally intruding on press freedom. iv CURRICULUM VITAE NAME OF AUTHOR: Jonathan O. Bowers GRADUATE AND UNDERGRADUATE SCHOOLS ATTENDED: University of Oregon, Eugene University of Oslo, Oslo, Norway DEGREES AWARDED: Master of Arts, Communication & Society, 2013, University of Oregon Bachelor of Science, News/Editoral and Communication Studies (double major), 2009, University of Oregon AREAS OF SPECIAL INTEREST: Privacy Freedom of Expression Law Ethics GRANTS, AWARDS, AND HONORS: “Outstanding Graduate in Communication Studies,” University of Oregon School of Journalism and Communication, 2009. PROFESSIONAL EXPERIENCE: Copy Editor, Emerald (formerly Oregon Daily Emerald), Eugene, Oregon, 2011- 2013. v ACKNOWLEDGMENTS Many thanks to: Scott Maier for becoming my advisor and committee chair on such short notice, offering me positive support, and patiently guiding me through my thesis idea every time I got lost. John Russial for his questions, insights, and copy editing. Tom Bivins for getting me to think about the larger picture of privacy and ethics. University of Oregon faculty and staff Leslie Steeves, Petra Hagen, Janet Wasko, Rebecca Force, and Kyu Youm for their input, conversations, and direction. My good friends Tyree Harris, Thomas Kyle-Milward, and Philipp Gerhardy — nuff’ said. My former professors at the University of Oslo, Norway, Prof. Gunn Enli, who was gracious enough to help me find material for my thesis, and Prof. Lee Bygrave for not only getting me hooked on the issue of privacy, but also answering my odd assortment of questions to him on the subject during the ensuing years. Hallvard and Martine for taking time out of their busy schedules and translating text from nynorsk to bokmål, and to Hallvard for fine-tuning my bokmål-to-English translations. Most of all, my undying gratitude and love to my little sister, Marisa, for listening to me, giving words of encouragement, and picking me up every time I fell down these past two years while not only going through graduate school and writing this thesis, but also helping me cope with Kjersti being torn away from life so suddenly on July 22, 2011 at the Ministry of Justice in Oslo. vi Til Kjersti Berg Sand — som lærte meg til å elske. vii TABLE OF CONTENTS Chapter Page I. INTRODUCTION.................................................................................................... 1 II. CRIME NEWS AND THE AMERICAN CRIMINAL JUSTICE SYSTEM......... 5 What Is Crime News? ............................................................................................ 5 How the Criminal Charging Decision Works ....................................................... 11 The Press’ Relationship with the Police, Prosecutors, and Defense Attorneys..... 18 III. NAMING OF CRIMINAL SUSPECTS OR ARRESTEES.................................. 23 Identification by the Press...................................................................................... 23 Identification by the Police and Prosecutors.......................................................... 32 IV. PUBLIC’S RIGHT TO KNOW............................................................................. 36 Background............................................................................................................ 36 How the Public’s Right to Know Can Be Used to Justify Identifying Suspects or Arrestees ....................................................................................................... 42 V. PRIVACY ............................................................................................................... 47 Privacy as It Benefits Individuals .......................................................................... 49 How Privacy Is Protected for Individuals in the Criminal Justice System............ 55 VI. REPUTATION ...................................................................................................... 59 Reputational Harm as It Relates to the Criminal Justice System........................... 64 VII. PRESUMPTION OF INNOCENCE.................................................................... 67 VIII. NORWEGIAN AND SCANDINAVIAN APPROACHES TO PRESS IDENTIFICATION................................................................................................ 72 Norwegian Law...................................................................................................... 72 viii Chapter Page Scandinavian Press Codes of Ethics ...................................................................... 74 Non-Legal Means of Addressing Complaints of Identification............................. 77 Norwegian Viewpoints on Identification............................................................... 80 Further Examples of How the Norwegian Press Handle Identification................. 88 IX. SOLUTIONS ......................................................................................................... 93 Remedies Involving the Law ................................................................................. 94 Remedies Involving the Press................................................................................ 96 APPENDICES ............................................................................................................. 100 A. QUESTIONS POSED TO NORWEGIAN PARTICIPANTS ......................... 100 B. EMAIL RESPONSE FROM TOR MØRSETH, BERGENS TIDENDE .......... 101 C. EMAIL RESPONSE FROM MORTON ABEL, AFTENPOSTEN .................. 105 D. EMAIL RESPONSE FROM JO RANDEN, DAGBLADET............................. 107 E. EMAIL RESPONSE FROM GUNNAR BODAHL-JOHANSEN, INSTITUTT FOR JOURNALISTIKK (INSTITUTE OF JOURNALISM) .... 109 REFERENCES CITED................................................................................................ 114 ix CHAPTER I INTRODUCTION In a comparative analysis of press practices in the United States and Norway, this thesis focuses on how private individuals suspected of or arrested for a crime are identified in newspapers.1 At what point in the criminal justice process is it ethically or legally feasible and fair to identify these individuals in a newspaper’s story? Both countries have constitutional free press guarantees and democratically elected governments. But Norway is selected for this thesis because of its press’ resoundingly divergent rationales to that of its U.S. counterparts for why they may or may not identify individuals caught up in the criminal justice system — from being a suspect to conviction or exoneration. Norway, too, consistently maintains a vibrant, consistently top-ranking and flourishing media system.2 So, what does the country’s press system do so differently? Is there anything the U.S. press can learn from this small country’s methods? When judicial proceedings begin, all parties to these proceedings have an opportunity to present their story, which the press conveys to its readers. Prior to proceedings in the United States, however, largely one version of a story related to criminal matters — that of the police and prosecutor — is relayed
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