Friends Don’t Let Friends Spin Them

By Kenneth Jost

Ronald Reagan reminded us, “Trust, but verify.” Poker players know, “You trust your mother, but you cut the cards.” For journalists – gay, straight, bi, transgender or whatever – one corollary might go like this: “Friends don’t let friends spin them.”

That’s what appears to have happened to some of the best in business, and me too, nearly a decade ago in the coverage of the landmark Supreme Court case Lawrence v. Texas. That’s the 2003 decision that struck down state laws that made “gay sex” a crime.

You might remember the magisterial closing by Justice Anthony M. Kennedy: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

You might also remember that the case started when a deputy Harris County sheriff entered the East Houston apartment of John Lawrence and found Lawrence and Tyron Garner engaged in anal sex.

A decade later, however, we learn from Dale Carpenter’s book on the case, Flagrant Conduct (W.W. Norton, March 2012) that that account is, well, wrong. Lawrence and Garner were not having sex when they were arrested on the evening of Sept. 17, 1998. They weren’t even naked. They weren’t lovers or boyfriends, not even fuck-buddies.

The lawyers from Lambda Legal who shepherded the case to the U.S. Supreme Court knew that all along, according to Carpenter’s account as summarized in an insightful review by Slate’s Supreme Court correspondent Dahlia Lithwick in The New Yorker. But Lawrence and Garner were persuaded to plead “no contest” to the charge of violating Texas’s gay-specific anti-sodomy law to pave the way for the long-sought vehicle for challenging such laws. And then, recognizing that Lawrence and Garner were not made-for-TV plaintiffs, the lawyers told them to stay out of sight.

As Lithwick recalls, the details of the case were “gauzy” to those of us covering the court back then. We knew that police responded to a false report of a domestic disturbance phoned in by a jealous boyfriend of Garner’s. We also knew, from photographs, that Lawrence was a middle-age white man and Garner a much younger and somewhat effeminate African American. We did not know, as Carpenter now discloses, that Lawrence and Garner both had police records. And we did not know that Lawrence and Garner were staying out of the limelight at their lawyers’ directions because the stories of their somewhat checkered lives would not generate the kind of sympathy and support that the gay rights lawyers wanted.

Carpenter, a law professor at the University of Minnesota, stresses that the Lambda Legal litigators never lied. Maybe not, but they certainly did nothing to avoid misleading. Thus, on the day of the decision (June 26), veteran Supreme Court correspondents wrote that Lawrence and Garner were “prosecuted for having sex” (Linda Greenhouse, New York Times); fined for “engaging in anal sex in their home” (Charles Lane, Washington Post); or “caught having sex” (Joan Biskupic, USA Today). My account in The Supreme Court Yearbook says that the deputy sheriff “came upon Lawrence and Tyron Garner in Lawrence’s bedroom, engaged in anal sex.”

With the spinning exposed a decade later, Lambda Legal executive director Kevin Cathcart was moved to protest in a non-denial denial in Huffington Post. The factual details, Cathcart writes, are “beside the point.” The point was to get a ruling on the constitutionality of anti-sodomy laws. “That is what impact civil rights litigation is about and why we are proud to use it as a tool to end discrimination,” he writes.

It takes nothing away from that worthy goal to note that the point about journalism is to tell the truth, the whole truth and nothing but, as best one can. Every good journalist knows to watch for spin when government officials hold press conferences, political candidates give speeches or industry lobbyists release reports. But it’s too easy to forget that supposed friends can spin too. That’s their job. The journalist’s job is to get past the spin to the real story.

Guest blogger Kenneth Jost is the author of the blog Jost on Justice. A former president of NLGJA’s DC Chapter, Jost, associate editor, CQ Researcher, and Supreme Court editor, CQ Press, has covered legal affairs as a reporter, columnist and editor since 1970. He is a graduate of Harvard College and Georgetown University Law Center, where he is an adjunct professor. Jost is author of The Supreme Court Yearbook (annual series) and The Supreme Court from A to Z and was editor of The New York Times on the Supreme Court, 1857-2008, all published by CQ Press. He was a member of The CQ Researcher team that won the 2002 American Bar Association Silver Gavel award for magazines. Jost also served as chief legislative assistant to then-Rep. Al Gore from 1977-80.


UPDATED: Resources for Reporting on the Ninth Circuit’s Prop 8 Ruling



Analysis is beginning to pour in.  For a good, meaty explanation of the legal issues, check out Lyle Denniston at SCOTUSBlog.  Another thorough look, including the background, is from Chris Geidner at MetroWeekly.

For a conservative take on the ruling, read Ed Whelan at National Review’s Bench Memos. A quick list of immediate reactions from LGBT and progressive groups was assembled by JoeMyGod.


UPDATE: The Ruling is in. 2-1 finding Prop. 8 is unconstitutional. A link to the decision is here.

The Ninth Circuit will issue its ruling on the challenge to Proposition 8, a voter referendum in California that barred same-sex marriages.  Here is the page that will feature the ruing and previous filings/rulings in the case.

For information on the court case, check out primers created by Chris Geidner at MetroWeekly, Ari Ezra Waldman at Towleroad and Lyle Denniston at SCOTUSblog.

Questions about covering marriage?  Check out NLGJA’s Getting the Marriage Story Right: the History, Current Law & the Future and NLGJA’s Stylebook Supplement.  And take a look at Press Pass Q’s analysis of the use of gay marriage versus same-sex marriage.

Here’s what NLGJA said in 2010 about how to cover the issue, and it is still great advice:

As a result of today’s ruling on Prop 8, the National Lesbian & Gay Journalists Association would like to remind journalists, bloggers, columnists and media analysts the important role they play in giving citizens the information they need to understand the full impact that today’s ruling will have in their communities and across the country.

Journalists covering the issues of same-sex marriage, civil unions and partnership rights should familiarize themselves with specifics of the California case, the history of other cases involving marriage rights for LGBT individuals and the 1996 federal Defense of Marriage Act.

Reporters should note the differences between marriage law and the legal designation of civil unions. Civil unions are presumed to extend marriage benefits and protections; however, they do not include federal benefits available to married couples. Civil unions also have no effect on religious congregations and their option to bless or not bless civil unions registered with these states.

As NLGJA has previously noted, the oft-used term “gay marriage” is both inaccurate and misleading. “Gay marriage” implies the creation of a new set of legal standards and guidelines as opposed to what is being sought by most advocates – the extension of currently existing benefits and responsibilities to include same-sex couples. More appropriate terminology in discussing such legislation would be “marriage rights for same-sex couples.” Or, in those instances where a briefer description is necessary, “same-sex marriage” as “same-sex” is a more accurate and inclusive description than “gay.”

Proper framing of stories is essential when considering potential sourcing. Same-sex marriage remains controversial, and many different sets of opinions may be individually valid, but may be less appropriate when played against one another. For example, legal expertise should be differentiated from religious quotes and opinions. A legal expert’s comments on points of marriage law and civil legislation should not be contrasted with opinions of theologians.

Journalists should also consider diversity of opinion when bringing these stories to readers, viewers and listeners. Look for voices other than the standard “go-to” sources quoted most often, and work to go beyond preconceived ideas regarding who would be the “pro” and “con” sides of the marriage debate. Not all members of the LGBT community are in favor of same-sex marriage; not all members of communities of faith are opposed.

Media Moves to Block Gag Order in High-Profile Trial

Three media entities–including a gay-run blog and the parent company of hyperlocal–have filed a motion to intervenee to challenge a gag order imposed in the civil trial of three gay men in DC who are accused in the wrongful death of a heterosexual man found dead in the home of the men who were in a three-way relationship.

The blog, Who Murdered Robert Wone,is joined by Albritton Communications–which ownd, the ABC affiliate in DC, Politico, and TBD TV–and Washingtonian magazine.  The “murder bloggers” have taken the lead in covering the mysterious death, including the failed criminal case against the three men accused of a cover-up. With the criminal case over, the family of Wone–who was spending the night at the home of his college friend who was also a prominent gay right activist when he was found dead and the scene cleaned up–has filed a multi-million dollar civil suit against the three men who acknowledge being in a three-way relationship that included BDSM role-play.

Here’s the Washington Blade’s summary of the legal move by the three men trying to impose a gag order:

In a little noticed development, attorneys representing gay defendants Joseph Price, Victor Zaborsky and Dylan Ward filed an Oct. 8 motion in D.C. Superior Court asking for an order barring the attorneys from making “extra-judicial statements” about the case to anyone outside the courtroom.

“Most of the media coverage has clearly implicated the defendants of some wrongdoing, premised upon multiple inaccurate and untruthful assertions of the Metropolitan Police Department (“MPD”) and the U.S. Attorney General’s Office for the District of Columbia,” the defense motion states.

“The press coverage is necessarily having the effect of poisoning the jury pool, which [threatens] to make it impossible for the defendants to find an impartial jury,” it says.

The three defendants have been named in a $20 million wrongful death lawsuit in connection with the 2006 murder of D.C. attorney Robert Wone, who was stabbed to death in their upscale townhouse near Dupont Circle.

Earlier this year, a Superior Court judge found the men not guilty of conspiracy, obstruction of justice and evidence tampering in connection with the murder. No one has been charged with the murder.

“God Hates Fags” and Free Speech

Unless you are living under a rock, you probably know that Fred Phelps believes “God Hates Fags.”  Today, his right to say that at funerals–specifically, in this case, dead servicemembers’ funerals–finds its way to the Supreme Court in the case Snyder v. Phelps.

The case has attracted a lot of attention and its worth looking at some op-eds in the Washington Post, Los Angeles Times, and Wall Street Journal. For an excellent preview of the case, check out National Public Radio’s lengthy story by Nina Totenberg.

The issue is a complex and, as a former Supreme Court reporter, it’s interesting to see who filed “amicus curiae” (friend of the court) briefs in the case.  On behalf of the servicemembers’ family was a bipartisan group of 40 Senators, veterans’ groups, and 48 attorneys general.  In support of Phelps were briefs by First Amendment groups, the American Civil Liberties Union, journalists groups and media companies (including the New York Times, National Public Radio, Bloomberg, the Newspaper Guild, Dow Jones, and Associated Press), and the conservative Liberty Counsel.  Missing are any LGBT organizations.

Journalists groups raise concerns that allowing damages against unpopular speakers who allegedly create “extreme emotional distress” could be used against media organizations.  As the traditional protectors of the First Amendment, the media groups say:

Reporters, editorial boards, commentators, authors, and others in the press discuss both public and nonpublic figures in the course of their work. “One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials.”Time Inc. v. Hill, 385 U.S. 374, 388 (1967). Whether it consists of coverage of caustic and emotional debates, a scathing editorial cartoon, a letter to the editor, or an exposé revealing disturbing facts about an individual, the press often must go “beyond the bounds of good taste and conventional manners” in order to perform its constitutionally protected function. Hustler Mag. v. Falwell, 485 U.S. 46, 54 (1988) (citation omitted). Itcan do soon l y because the First Amendment protects expression on matters of public concern, particularly where such statements cannot reasonably be interpreted as stating actual facts about an individual.Id. at 50; Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).

Let us know what you think about the coverage.

NLGJA Stylebook: “Sodomy”

NLGJA’s Stylebook Supplement on LGBT Terminology is intended to complement the prose stylebooks of individual publications, as well as the Associated Press stylebook, the leading stylebook in U.S. newsrooms.

It reflects the association’s mission of inclusive coverage of LGBT people and includes entries on words and phrases that have become common. The Stylebook Supplement was translated into Spanish in 2005.

Periodically, we’ll be spotlighting some of the major entries.

Here’s our “sodomy” entry:

sodomy: Collective term for various sexual acts that some states have deemed illegal. Not synonymous with homosexuality or sex between gay men. The legal definition of sodomy is different from state to state; in some states, sodomy laws have applied to sexual acts practiced by heterosexuals. The U.S. Supreme Court decided in June 2003 that state sodomy laws targeting private, consensual sex between adult same-sex or opposite-sex partners violate the U.S. Constitution’s due process clause.

We look forward to your comments!

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