The terrorist is a star! Regulating media coverage of publicity-seeking crimes.

• Author: Ghetti, Michelle Ward

1. PREFACE II. INTRODUCTION III. THE PROBLEM OF MEDIA COVERAGE OF PUBLICITY-SEEKING CRIMES A. Intimidation B. Imitation C. Immunization D. Imperilization 1. Media dissemination of information 2. Media interference with law enforcement IV. THE MEDIA'S REASONING V. SOLUTIONS A. Noncontent-related Suggestions B. Content-related Suggestions C. Providing Information VI. THE FIRST AMENDMENT A. Prior Restraint B. Subsequent Punishment C. Access Restrictions D. FCC Regulation VII. CONCLUSION VIII. APPENDIX A: NONSTATE SPONSORED TERRORISTIC CRIMES COMMITTED FROM 1958 TO 1982 IX. APPENDIX B: NONSTATE SPONSORED TERRORISTIC CRIMES COMMITTED FROM 1982 TO PRESENT "There is no need to cry in the wilderness when anyone so inclined can plead his case on national television." (1)

1. PREFACE

   The following piece, written twenty-five years ago, (2) is remarkable for four reasons: (1) it illustrates that terrorism and/or publicity-seeking crime and the media coverage of it were concerns being discussed twenty-five years ago; (3) (2) it is prophetic as to many issues; (4) (3) there has been little development in the law in this area, (5) despite an explosion of both broadcast technology/coverage (6) and publicity-seeking crime (7) since that time; and (4) there has been little to no coverage of it in legal journals. (8)

   In the twenty-five years prior to the Article being written in 1982, approximately sixty incidents of non-state sponsored terrorism were documented within the United States or targeting United States citizens--more than there have been since 1982, although much of it was due to the racial unrest and antiwar sentiment in the United States at that time. (9) By 1982, media coverage of such acts was being discussed within the media itself, (10) in general publications, (11) and in higher education journals, both in the schools of journalism (12) and law. (13)

   In 1982, the ability to cover publicity-seeking crime and broadcast it quickly and to large numbers of people was only in its infancy. Electronic news gathering ("ENG") (14) had only just begun (15) Satellite broadcasting technology, enabling broadcasts from a distance, had only been developed in 1962, (16) the United States had only placed its first true geostationary satellite in space in 1974 (17) and by 1979, the United States had only three geostationary satellites in space. (18) Cable television was a recent invention with few people having access to it. (19) Mobile phones had only just been introduced to journalism in the 1980s, (20) and did not contain texting or imaging capabilities as they do today. Digital cameras were not created until the late 1990s. (21) The Internet was in its infancy, (22) the IBM personal computer having only been created in 1981. (23) The first twenty-four hour news channel, Cable News Network ("CNN"), was only launched in 1980. (24) Of course, today, all major media outlets have websites.

   Since 1982, there have been at least 522 documented incidents of non-state sponsored terrorism throughout the world, (25) thirty-seven on American soil or targeting American citizens or assets. (26) Today, publicity-seeking criminals--such as Osama Bin Laden, (27) the Virginia Tech shooter, Seung-Hui Cho, (28) and Jack McClellan (29)--unabashedly use the media to carry their message directly to the world.

   Since 1982, the lower federal courts in the United States have dealt with the balance between media and the First Amendment in only limited ways. They have dealt with the reporter's privilege and found it insufficient to block the government's access to phone records relevant to funding of terrorism (30) or defendants' access to videotaped interviews of terrorists, (31) they have restricted media coverage of deportation proceedings where terrorism is involved, (32) and they have found no right of the media to imbed a journalist with the troops. (33) They have also dealt with civil claims against media alleging that the media outlet aided and abetted crime (34) or negligently caused harm to another person. (35) The United States Supreme Court has remained silent. The more interesting legal developments have been in the international arena with the United Nations (36) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (37) passing resolutions that affect media coverage of terrorism and with three cases in international courts that affected media coverage of terrorism. (38)

   Very little has been published on media coverage of terrorism or publicity-seeking crime in the mainstream law journals or in books. (39) Most of what has been published has been on the Freedom of Information Act. Interestingly, like this initial piece, most of what has been published on the media's connection to terrorism is student-authored. (40)

   In 1982, could we have imagined that a terrorist such as Osama Bin Laden would directly use the media to spread his message of terror around the world? In the balance of American constitutional rights and freedoms, is this the outcome desired? Why did the scholarly debate on this issue stop in the 1980s? Hopefully, this Article might serve as a catalyst to stimulate other scholars--in both the legal and journalistic fields--to reconsider this very serious issue.

2. INTRODUCTION

   "Terrorism" is a word which conjures up images of guerillas, foreign nationalists, and government overthrow. However, the term encompasses far more (41) and for the purposes of this discussion includes all violence aimed at influencing the attitude and behavior of one or more target audiences, or, to coin a term, publicity-seeking crimes. (42) In the past decade, the number of publicity-seeking crimes has escalated to a point where thousands of lives, (43) forty-two per cent of them American, (44) are taken each year and whole societies are held captive by one or more misguided individuals.

   One of the problems of combating incidences of publicity-seeking crime is media involvement. Violence or threats of violence have long been deemed "newsworthy" (45) items by the media. Publicity-seeking criminals have recognized this fact and put it to full use. By attacking highly visible targets in a dramatic manner, publicity-seeking criminals guarantee themselves saturated news coverage. They make a shocking appeal to traditional news values by making full use of the news industry's attraction to the dramatic, conflict-laden, and potentially tragic event. The media thus furthers the criminals' objectives by publicizing an incident that was staged for the very purpose of obtaining media coverage. This has come to be called by many a "symbiotic relationship." (46)

   Critics both within (47) and outside (48) the news industry have begun to voice an awareness, if not a concern, for the ease with which such criminals obtain publicity on both a national and international platform. And yet, since 1977, when most of the self-appraisal and outside criticism dramatically increased, (49) no real changes have been made. Although a number of self-regulating guidelines have been promulgated by various broadcasting organizations, (50) it has been the general consensus that the First Amendment bars any government regulation in this area. It is the thesis of this Article that this may not be true in all cases. An analysis of the First Amendment as it applies to various forms of government regulation will follow the discussion of the problems created by publicity-seeking crimes and the media coverage thereof.

3. THE PROBLEM OF MEDIA COVERAGE OF PUBLICITY-SEEKING CRIMES

   The objectives of terrorists, other than seeking publicity, are often coercion, extortion, disorientation and despair, provocation of unpopular countermeasures, and (with regard to the terrorists themselves) morale-building. (51) M. Cherif Bassiouni, a leading scholar on international terrorism, has identified four types of publicity-seeking criminals based on their motivation: (1) the common criminal motivated by personal gain; (2) the person acting as a consequence of a psychopathic condition; (3) the person seeking to publicize a claim or redress an individual grievance; and (4) the ideologically motivated individual. (52) This last category of individual is the one most frequently associated with the term "terrorism." It has been noted, however, at least in the area of assassination, (53) that the emphasis may be shifting to individuals seeking self-definition (54) or self-assertion. (55) William R. Catton, professor of sociology at Washington University, observes that although

   some of the groups so desperate for publicity want it as a presumed means of attaining political, economic, or nationalistic goals [(instrumentally--oriented terrorists)] ... [others] appear to crave publicity for its own sake [(expressly-oriented terrorists)]--i.e., as an antidote to the ignominy of seeming superfluous in a world too vast to have otherwise noticed their existence. (56) If nothing else, commentators seem to agree on one thing: to these people, more conventional means of communication seem to be unavailable or ineffective. (57)

   Scattered, isolated incidents of violence by themselves are of little use to publicity-seekers in producing their objectives of fear, coercion, and publication of a cause or self-identification. Terrorists rely on the psychological impact of acts rather than their immediate destructive consequences. (58) To achieve such impact, publicity-seeking criminals need to publicize their acts as widely as possible. Since the mass media have the ability to confer importance upon an individual or an event merely by presenting it, (59) they play a major role in the spreading and intensification of the desired psychological impact. With the advent of increasing numbers of technological communicative advances, (60) publicity-seeking criminals are able to command the immediate attention of millions, enabling these criminals to work their felonious will on whole nations...