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| Prisoners are crammed into a cell at El Salvador's CECOT (Reuters) |
The U.S. press has been afflicted for at least eight years by a trait called "bothsidesism." Joe Patrice, a journalist (who also happens to be a lawyer), says in an op-ed piece at the Above the Law legal website the problem has become particularly acute in an era when the Donald Trump administration has made it a policy to detain U.S. residents and ship them to a foreign prison -- most notably El Salvador's CECOT facility, which is infamous for human-rights abuses. All of this is done without due process of law, to which detainees are entitled under the law.
There can be no "both sides" when it comes to coverage of the Trump deportation program, Patrice argues. The administration is on the wrong side of the law and morality, and journalists must not succumb to the temptation of using "bothsidesism" to essentially whitewash clear wrongdoing, such as that involved in the abduction and imprisonment of Maryland resident Kilmar Abrego Garcia. Under the headline "Maybe Don’t ‘Both Sides’ Disappearing People To Foreign Gulags, OK?" Patrice writes:
Every so often, someone pings the tipster line and asks some variant
of, “Why aren’t you more bipartisan?” Many times this is couched in a
stream of expletives. Often it’s technically addressed to a guy that hasn’t worked here since before the pandemic.
I don’t know if these people just don’t know that Elie Mystal left or
if they find addressing their remarks to him provides a better hook for
the racial slurs they want to drop.
In any event, even the comparably polite versions of this query are
always delivered from anonymous burner accounts so there’s not even an
opportunity to engage in an honest dialogue. Assuming that’s something
they would welcome anyway. So let’s deal with this criticism here: why
does Above the Law in 2025 mostly render scorn on the Trump
administration and its Federalist Society minions?
There’s a lot to be said, but the short version is that — as writers
and lawyers — we have dual ethical hangups about stopping mid-article to
say, “But on the other hand, consider the upsides of disappearing
citizens into foreign slave camps….”
The Onion, as usual, best captures the “debate” these people want — Historians: Quibbling Over Exact Definition Of Concentration Camp Sign Of Healthy Society.
Patrice is not the first journalist to wrestle with the watered-down "objectivity at the heart of "bothsidesism." In fact, he points to a well-known journalist, author, and countercultural figure who wrestled with objectivity and came down on the side of reality-based reporting. Patrice writes:
As I often quote, Hunter S. Thompson said everything that needed to
be said on the subject of objective journalism: “Don’t bother to look
for it here—not under any byline of mine.” It’s not “neutrality,” it’s
an invitation for bad actors to launder talking points under the guise
of “balance.” Our job is to tell it as it is based on what we’ve
learned, not give audiences competing press releases about what reality
might be. And as lawyers we have obligations not to facilitate or effectuate
efforts to undermine the rule of law. If a law school professor
wouldn’t have entertained this shit on a final exam, why should we
platform it in a news cycle?
That might be a lot of high-minded principled talk for an author who also writes about lawyers streaming porn in their offices, but I’d rather be making fun of lawyers going to hearings naked while grounded in these principles than being so adrift from any core value that I’d turn my pro bono practice over to the ever-one-upping whims of a tinpot dictator. Before we proceed, let's try to determine what an amorphous term such as "bothsidesism" actually means. The best description I've found comes from Democracy Toolkit. Under the title "Avoiding Bothsidesism," the Toolkit states:
Also known as false equivalence, bothsidesism happens when people use
objectivity as an excuse to give equal weight to opposing viewpoints,
regardless of merit or factual accuracy. In bothsidesism, false
information and ill-formed arguments may be presented as equally valid
responses to arguments based in reality. Bothsidesism in journalism
makes it difficult for audiences to differentiate between baseless
claims and rigorous reporting, all while simultaneously legitimizing bad
actors.
Bothsideissm threatens democracy because it erodes trust in credible
journalism. Beyond that, it also creates an atmosphere where important
issues are watered down to a two-sided conflict with a superficial
“balance,” which hinders the public’s understanding of the things that
impact them.
Patrice earned his J.D. at NYU School of Law before working as a litigator at two prominent New York law firms -- Cleary, Gottlieb, Steen & Hamilton and Lankler Siffert & Wohl -- beginning in 2001. Patrice left legal practice in 2012 to pursue a career in writing.
It did not take Patrice long to understand that law and journalism, when practiced properly, share an allegiance to truth and honesty -- and those concepts go beyond party lines:
Look, when I started writing for Above the Law, there’s an argument
that the two most thoroughly and reliably right-wing judges in the
federal judiciary were the Fourth Circuit’s J. Harvie Wilkinson III and
J. Michael Luttig.
[Four days ago], Wilkinson threw a Molotov cocktail on the Trump administration’s deportation regime,
not even waiting for the plaintiff to file papers before dropping a
withering broadside against the head of the party that appointed him.
The government is asserting a right to stash away residents of this
country in foreign prisons without the semblance of due process that is
the foundation of our constitutional order. Further, it claims in
essence that because it has rid itself of custody that there is nothing
that can be done. This should be shocking not only to judges, but to the
intuitive sense of liberty that Americans far removed from courthouses
still hold dear.
Judge Wilkinson was the judge who saw no problem holding enemy
combatants indefinitely without access to lawyers or judicial review — a
ruling that Scalia and Rehnquist both considered wild executive
overreach. The same guy wants to make it very clear that Trump’s policy
shocks “the intuitive sense of liberty that Americans far removed from
courthouses still hold dear.”
Luttig has gone even further! A judge who mentored a generation of
hardline conservative clerks — including Solicitors General in both
Trump administrations and coup-coup-ca-choo lawyer John Eastman — is now a go-to expert for the #resistance. He said this week: “The President of the United States of America is at war with the Constitution and the rule of law.”
Those were the furthest right-wing judges I could think of back in the day!
And it’s not just the judiciary. David Brooks is out here citing the Communist Manifesto and floating a mass uprising! Paul Clement is defending law firms against Trump’s authoritarian demands. The National Review — THE NATIONAL FRIGGIN’ REVIEW — is writing “A
test of the rule of law is coming. It is not enough to write about this
phenomenon with clinical detachment; it must be opposed.”
George W. Bush’s strongest warriors are talking tougher about
stopping Trump than Chuck Schumer. The same folks who gave us Gitmo and
WMD scavenger hunts are now the last line of defense for habeas corpus.
That’s your bipartisanship. That’s the “both sides” right now. They
just happen to be all lined up against the same guy. If you’re still out
here asking me to present “the other side,” you’re not interested in
hearing from the intellectual opposition, you just want a platform for a
paranoid, extralegal clown show careening toward despotism."
When did bothsidesism become part of the media landscape? The Nation magazine traces it to the rise of Fox News, plus Donald Trump's role in helping false equivalence flourish. Under the headline "‘Bothsidesism’ Is Poisoning America; Zealous coverage of political point scoring doesn’t help anyone outside Washington," The Nation's Laila Lalami writes:
The slogan “fair and balanced,” coined by former Fox News head Roger
Ailes in the late 1990s, was an early indicator that false equivalence
would become part of the daily news. But Trump, who has proved to be
extremely savvy with social media, has benefited tremendously from it.
The truth is that most people have neither the time nor the luxury to
read the newspaper from front to back or to watch television coverage
all day. They have jobs to do, classes to attend, families to take care
of, which means they have only a few minutes each day to catch up on
what’s happening in the country. And if what the media tells them is
happening seems entirely disconnected from their lives or muddied by
bothsidesism, they have no reason to care. There is more to political
life than the competition between the two major parties. Zealous
coverage of the political points being scored by either side isn’t going
to help anyone outside Washington, but it will certainly ensure that
the media becomes ever more remote from the electorate it is meant to
serve.
The Conversation U.S. magazine examines the dangers "bothsidesism" poses for democracy, focusing heavily on the 2024 presidential election. Under the headline "‘Suicide for democracy.’ What is ‘bothsidesism’ – and how is it different from journalistic objectivity?" Dennis Muller writes:
“Bothsidesism” is a term of disparagement against a form of
journalism that presents “both sides” of an issue without any regard for
their relative evidentiary merits. . . .
Impartiality does an indispensable service to democracy, whereas
bothsidesism does a serious disservice, allowing for the ventilation of
lies, hate speech and conspiracy theories, on the spurious ground they
represent another, equally valid, side of the story.
Reporting both sides of an issue is a basic requirement of journalism
– but this doesn’t mean giving both sides equal weight, regardless of
the facts. It requires giving each side equal consideration by reference to the available facts, but not necessarily equal treatment. . . .
Over time, an analytical style of reporting evolved, which went beyond a strict recitation of facts to include evaluation.
Yet many media platforms remain wedded to the idea that if someone
pokes their head up and wishes to comment on an issue, it is included if
there is news value in what that person has to say, on the basis it
represents “another side of the story.” The evaluative element goes
missing.
Muller points to the concept of balance as central to modern explanatory journalism:
Balance follows the weight of evidence. It forms part of the
evaluative and explanatory functions of impartial news reporting. It
provides the basis for a reporter to choose which evidence to give the
most prominence. It also informs their choices for the language they’ll
use to distinguish between stronger and weaker evidence, and to present
the facts underpinning these evaluations.
And on language, there is no need for impartial reporting to be
timid: a lie is a lie and a liar is a liar, where there is observable
evidence that this is so.
But what about cases where any contest over evidence is drowned out by the force of political rhetoric?
That brings us to the 2024 presidential between Donald Trump and Kamala Harris. Muller argues that Harris and Trump have different histories that warranted different types of coverage in the press:
Donald Trump and the media’s duty
A vivid example from the current US presidential election came from the Sept. 2024 debate between Donald Trump and Kamala Harris. Trump was fact-checked and corrected in real time
by the host broadcaster, the American Broadcasting Company (ABC), after
telling lies about abortion, immigration and the result of the 2020
election.
Harris was not fact-checked during the debate.
Why were the two candidates treated differently? Because of the
established facts on which such editorial judgments are made. CNN later reported that Trump made at least 33 false claims during the debate, compared with one from Harris.
Trump is an inveterate liar. The Washington Post recorded 30,573 lies told by him during the four years of his presidency, and he falsely claimed the 2020 election was stolen from him. Then, during the debate, he claimed that immigrants were eating
family pets in the town of Springfield, Ohio: something so outlandish
that leaving it unchecked would have been irresponsible.
Harris, by contrast, has no remotely equivalent history of lying. So
treating her as if she did would have been to seriously distort the
facts.
Another Trumpian example is his claim that his convictions for
falsifying financial records to cover up a sex scandal was the result of
a political show-trial conducted by a judge who was “a certified Trump-hater.”
He also warned
that he was “not sure the public would stand for it” if he was
imprisoned, adding, “at a certain point there’s a breaking point”. He
did not elaborate, but left the threat hanging in the air.
It is the duty of the impartial reporter to point this out. It is
also their duty to make clear that these veiled threats are similar to
those he made about the 2020 election having been stolen, which preceded
the insurrection in Washington on January 6 2021. These are facts,
based on observable evidence.
To not publish veiled threats to public order by a presumptive
presidential candidate in an election year is to rob the public of
information they need to have about the candidate.
Yet, to simply report Trump’s latest threats alongside statements of
condemnation from others would be an egregious example of bothsidesism.
Abandoning impartiality because of a mistaken conflation with
bothsidesism would only worsen the hyper-partisanship that is eroding
the democratic consensus.
It would also mean giving up on an ideal which is essential for a
functioning democracy to pursue. Walter Lippmann, the 20th-century
American political prophet and sage, writing a hundred years ago at a
time of similarly great social and political tumult, stated:
There is room, and there is need, for disinterested reporting … While
the reporter will serve no cause, he will possess a steady sense that
the chief purpose of “news” is to enable mankind to live successfully
towards the future.
