Caught in the spin zone

The sordid legal drama now surrounding Fox News commentator Bill O’Reilly is the sort of thing that would raise any number of delicate ethical questions inside most news organizations.

Should O’Reilly’s nightly broadcast -- whose 2.5 million viewers make him cable news’ most watched personality -- be suspended until the sexual harassment charges against him are resolved?

Should Fox direct O’Reilly not to discuss on the air either his own case or the suit he’s filed against his accuser? Should he refrain from commenting on any such case until his own is settled or adjudicated?

Should Fox launch its own investigation into the allegations, since Andrea Mackris, the 33-year-old producer who made them, is one of the network’s employees?

Does Fox owe its viewers any public explanation of how it has decided these issues and why?

Probably not, since as far as any reasonable observer can determine, being Fox means never having to say you’re sorry. All their spokeswoman is willing to say is that O’Reilly will remain on the air.

One of the reasons organizations like Rupert Murdoch’s Fox and the right-wing Sinclair family’s broadcasting chain so assiduously promote the notion that the mainstream news media is suffused with a liberal bias is that it’s the perfect alibi for their own conduct. So if Fox’s commentators behave like a Republican cheering section, it’s because CNN, CBS, ABC, the Los Angeles Times and everybody else are out to get the GOP. If Sinclair executives decide to order all their stations to air an anti-John Kerry agitprop film in prime time, it’s not because they have the ethics of streetwalkers but because everybody else is out to get the incumbent.

Actually, O’Reilly did announce at the top of his broadcast Thursday night that he would no longer comment on his case -- on the advice of counsel.

That doesn’t surprise Jane Kirtley, the Silha professor of media ethics and law at the University of Minnesota. “Since Fox and O’Reilly are both named as defendants in this case, their decisions are going to be made by lawyers and not by people asking what they might want to do ethically as journalists.”

Was it an abuse of his position, however, for O’Reilly to go on the air, as he did twice Wednesday, to denounce his accuser and her allegations? Might he have used his celebrity advantage to prejudice potential jurors?

“It’s hard for me to say that anything he did was more of an abuse of his position than what he normally does on that show,” Kirtley said. “As far as potential jurors go, we live in a country that’s now so polarized that I suspect the result will be pretty much what you saw after Rush Limbaugh was accused of drug abuse -- or after the presidential debates, for that matter: People who like O’Reilly will believe him; people who don’t like him won’t.”

It’s a fair point. Conventional journalists have readers or an audience who may respect what they do. Personalities attached to the news, like O’Reilly or Limbaugh, have fans -- sort of like professional wrestlers.

In any event, the squalid little business into which the Fox news star has fallen probably is more interesting from a legal standpoint than it is from a journalistic one. For example, before the lid came down Thursday, O’Reilly told Newsday that he was unwilling to say whether he had sexually explicit phone conversations with Mackris, as she charged in her lawsuit.

“My lawyers have said to me I can’t talk about anything remotely associated with their case because of the severity of our lawsuit,” he said. “There are a whole bunch of legal things that are in play here, and they don’t want to have any kind of interference, and I understand it.”

O’Reilly’s lawyer, Ronald Green, has been similarly scrupulous about denying that his client had sexually explicit telephone conversations with Mackris. “Bill believes in retrospect that the conversations may have been recorded, and he’s confident that if they exist in an unadulterated state, it will be exculpatory,” the attorney said, suggesting that complete tapes might indicate that the telephone chats might have been “initiated for the purpose of entrapment.”

You don’t have to be Clarence Darrow to see a defense in the making, particularly if you recall that O’Reilly pilloried former President Clinton for lying about his relationship with Monica S. Lewinsky -- If the tapes hadn’t been tampered with, they’d show I was enticed into having phone sex with that woman.

In fact, one of the interesting features of the lawsuit Mackris filed against O’Reilly is that it contains extensive verbatim quotations of his allegedly harassing comments but nothing of her actual responses, though she is variously characterized as “frightened ... angry, abused and disgusted.”

Did a 33-year-old woman who has worked as a news producer for Fox and CNN sit mute through these repeated rants? Never said stop? Never said go take a cold shower you ridiculous old lech? Does she not know how to hang up the phone?

Something about all this reminds one that not all lawsuits are meritorious and not all lawsuits are malicious, which is why you have courts to conduct a truth-seeking process.

When it comes to assessing the journalistic implications of this situation, Kirtley points out that O’Reilly’s is a special case. “He’s not, as a reporter would be, a detached observer,” she said. “As a commentator, he’s made a calculated decision to put himself at ground zero on issues like this. In some sense, he opened himself up for exactly this kind of thing.”

Still, Kirtley is concerned that the frenzy over O’Reilly’s troubles is but the latest and gaudiest manifestation of a trend that may be undermining the nerve that makes the news media’s independence more than a pious cliche.

At the heart of this tendency is the notion that journalists should be accountable not for what they write, broadcast or photograph, but for what they think or how they conduct their personal lives. In fact, the essence of the current obsession with alleged media bias -- one from which O’Reilly and Fox News have profited handsomely -- is the insistence that journalists’ private beliefs ultimately must subvert training, self-discipline and editorial standards.

“There’s a new kind of McCarthyism settling over the American media,” Kirtley said, “with people snooping under every journalist’s bed for evidence of bias or what they think of as bad character. That’s a dangerous business, even when the target is Bill O’Reilly.”

Politicians have suffered from a similar presumption on the press corps’ part ever since presidential candidate Gary Hart came to grief on the stern of the Monkey Business, and some might reasonably argue that what’s sauce for the goose is sauce for the gander. The fact is it’s a sour sauce no matter who has to eat it.

It is amusing, though, to watch how hard-headed social conservatives like O’Reilly and Limbaugh suddenly can discover the indispensability of due process. No more sneering at lawyers and technicalities; these guys sound like the chairmen of their local chapters of the American Civil Liberties Union.

Few among us learn much from experience these days. The surfeit of unexamined opinions that clog our media arteries like so much ideological plaque prevent it.

If it were otherwise, somebody might recall the old maxim that you don’t support due process out of altruism. You support it because, while you can guarantee that you’ll never commit a crime, you can’t guarantee that one day you won’t be accused of one.