NPR's Free Speech Dilemma

Lisa Simeone

Just when NPR thought the Juan Williams fiasco was behind them, another issue concerning the First Amendment rights of employees has arisen. This time it involves someone on the cultural side of the organization - a talented on air host called Lisa Simeone.

Unlike Juan Williams, Lisa Simeone is not an NPR News employee and her work and voice are not heard on any NPR News programs. Juan Williams, you may recall, was fired from NPR for statements he made as a commentator on Fox News.

This time it involves Lisa Simeone, a freelance announcer who has been the host of "World of Opera" and a documentary program called "Soundprint" - both programs are produced by member stations and not by NPR.

For some months, Lisa Simeone has been part of the "Occupy DC" movement. She also appeared on a youtube video as a spokesperson for the cause. At no time in the video is she identified as a public radio broadcaster. Juan Williams, on the other hand, while in the employ of NPR, was on Fox regularly as a paid pundit and was identified by Fox as an NPR News analyst.

Williams' appearances on Fox, and his opinions were frequently the subject of complaints to me as the Ombudsman. During my tenure, management demurred and preferred to allow Williams to express himself, along with other NPR journalists who would appear on other media. I made my opinion known to management, but to no avail.

Earlier this year, Williams seemed to go too far when he stated that when he sees Muslims at airports dressed in their "traditional garb", it makes him nervous. NPR summarily fired Williams for that statement but did so in a way that appeared to some observers to violate his First Amendment rights.

Simeone has been involved in the Occupy movement for months so her profile has been higher than that of the rank and file. According to the Baltimore Sun, she saw no conflict between her work as a broadcaster and an activist:

"I'm not an NPR employee ... I'm a freelancer. NPR doesn't pay me. I'm also not a news reporter. I don't cover politics. I've never brought a whiff of my political activities into the work I've done for NPR World of Opera. What is NPR afraid I'll do -- insert a seditious comment into a synopsis of Madame Butterfly?"

My own view has been that NPR is right to question Simeone's role as an activist. The public views NPR essentially as a news organization and the nuances of public radio are lost on most people outside the organization. NPR employees - staff or freelance - have a right to their opinions; they do not have a First Amendment right to work for NPR.

But a learned legal friend in Washington informs me of a ruling called the Pickering Balancing Test. He writes: If NPR is a governmental actor, it raises First Amendment issues.  The courts apply the "Pickering" balancing test, weighing the government's interest with the individual's right.  If her NPR commentary is limited to opera, what is NPR's interest in getting her fired for this? 

Pickering was a New York State civil servant (a corrections officer) who decided one day to fly a Nazi flag from his from porch. His employer (the State of New York) told him not to. He sued and the court ruled that Pickering's First Amendment rights trumped any efforts by a government body to restrict his speech.

That seems clear but can demonstrating for a cause would create widespread doubts about NPR's public mission as a broadcaster? In the Pickering case, flying a Nazi flag by a civil servant would not cast doubts on the government who employed him (I assume). The State of New York does not advocate the Nazi philosophy. But could NPR be reputationally affected by the statement of its employees attempting to exercise their First Amendment rights?

If NPR management assumes that an employee who engaged in free speech would damage NPR's reputation for excellent news coverage, even slightly, they could ask that person to desist.

But after the Pickering case, the employee would also have the right to refuse.

The Modern News Ombudsman: A User's Guide

(This is an excerpt from the soon to be published Handbook for News Ombudsmen. Details on how to obtain your copy will be available on the ONO website www.newsombudsmen.org.)

INTRODUCTION: What is a news ombudsman?                  

         The loneliest job in the newsroom

                                                               Anon.

Why should your media – or any media organization for that matter - have an independent news ombudsman? And why would anyone want this job, which to the uninitiated can seem like being the grumpy in-house scold?

From the beginning, there is the idea – inherent in the position itself – that there must be something wrong with the news organization in the first place, or why would management bother to create this position?

Many journalists, when faced with the prospect of having to deal with an ombudsman, assume that management is simply fed up with having to deal with complaints, so someone has been hired to handle the traffic and catch the flak.

And the public might also see the creation of an ombudsman as a tacit admission that the newspaper, website or broadcaster is admitting that it is a flawed enterprise.

While some of these assumptions may on occasion, be true, the reality is often quite different: all organizations – media or otherwise – can suffer from an affliction known as “groupthink.” This is the delusionary idea to which all organizations are occasionally susceptible. It is the notion that inside the newsroom, whatever happens must be for the best, in this best of all possible media. And that anyone who says otherwise, must be mistaken, or an outsider who can’t or won’t understand how well-intentioned the organization really is.

A news ombudsman is not there to confirm the worst suspicions of the public, neither to placate management, nor to support the newsroom.

An ombudsman is there to act as a counterweight or antidote to the natural assumptions of any organization that everything that happens is usually for a good reason or is done for the best of motives.

An ombudsman is there to ask simple questions: “Are you sure?” “How do you know?”

S/he is there to connect the public with the media organization to assure that the content produced is of the highest standards. And if not, why not? The readers, listeners and viewers deserve no less.

Those of us who have done the job all have stories about what works and what doesn’t. This handbook is to help new and still active ombudsmen navigate through the cross currents of 21^st century media. It is also a guide for students of journalism, as well as interested members of the public. When it comes to high-quality journalism, we are all in this together.

Before we do, that vexing issue of gender and language needs to be acknowledged.

“Ombudsman” may evoke strong feelings from those who feel that the word excludes women from the job. Far from it. The word itself is Scandinavian in origin. Even so, the word may have implications that don’t sit well with our 21^st century sensibilities; for some, it may imply that a woman’s place is not in the newsroom. That’s why some prefer a more accurate and neutral phrase such as “readers’ representative,” “public editor” or “readers’ editor.” In the Organization of News Ombudsmen we feel no particular ownership of the word.  There is no sexist or discriminatory implication here.

The important thing is that the job is done and done well, by those of ether gender who occupy the position, whatever it may be called.

Not every ombudsman does the job in the same way. But some similar challenges and dilemmas occur. We’ll try to identify the most helpful suggestions. One thing all ombudsmen share: a powerful commitment to making journalism better by letting the public inside the process of information gathering, editing and distribution. There can be no finer goal.

The Organization of News Ombudsmen and the Open Society Institute are supporters of this handbook. Both believe that excellent journalism is predicated on that concept. Given the state of journalism today, being an advocate for that ideal can be tough. But the future of journalism itself and, by extension, democracy itself, are ultimately what is at stake right now.

That is why ombudsmanship matters.