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Inferring the Obvious

It doesn't take psychoanalysis to figure out what Dan Rather's motivations were; the legal system has a process for recognizing bias.

11:00 PM, Feb 6, 2005 • By PAUL MIRENGOFF
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THE INDEPENDENT REVIEW PANEL which investigated CBS News's faked memos found no basis to accuse Dan Rather or Mary Mapes of political bias in connection with their roles in the offending 60 Minutes story about President Bush's National Guard service. In its report the Panel characterized the very question of whether a political agenda could play a role as "subjective" and "difficult." And panelist Louis Boccardi later explained that "bias is a hard thing to prove."

Yet questions about motivation lie at the heart of many garden-variety legal disputes, most notably cases involving issues of unlawful discrimination under various civil rights statutes. Recognizing that very few employment decision-makers will admit to bias, the Supreme Court quickly developed a construct for inferring the existence of bias through "indirect" evidence. Proving bias thus became no more difficult than proving other allegations of fact, a state of affairs consistent with Chief Justice Rehnquist's comment that the state of one's mind is just as much a factual issue as the state of one's digestion.

Since Richard Thornburgh, Boccardi's co-panelist, was in charge of enforcing several anti-bias statutes when he was the attorney general of the United States, it is odd that his panel did not look to this well-established anti-discrimination legal framework in determining whether Rather was motivated by bias, choosing instead to impose an elevated standard of proof.

Had the Panel applied in good faith the ordinary legal principles for assessing motivation, it almost surely would have inferred the existence of political bias on the part of Rather and Mapes. Under these principles, an inquiry proceeds in three phases. First, courts consider whether there's an event that needs to be explained (in the case of employment discrimination, it can be something as potentially innocuous as the rejection of a minimally qualified African-American applicant). If so, the defendant then offers an explanation for the event. Finally, that explanation is scrutinized in light of all relevant facts to see whether it holds water. No heightened burden of proof exists at this, or any other, point in the inquiry.

No one doubts that CBS has some explaining to do--that's why the Panel was convened in the first place. Indeed, the Panel found that CBS violated the core principles of fairness and accuracy to the detriment (at least initially) of President Bush's candidacy. Absent a convincing explanation by CBS, one would have to conclude that CBS was out to get President Bush.

The Panel found that CBS had an explanation for violating core principles of fairness and accuracy that did not involve political bias--the network's rush to get the story on the air. This explanation has a question-begging quality. Wasn't the rush itself the result of political bias? Not necessarily, said the Panel. Other major media outlets were pursuing the story. Thus, even a non-biased network might have rushed simply to beat the competition to a major story.

As weak as this explanation may be, the law doesn't require defendants to tell a great story when it articulates its "innocent explanation." Accordingly, let's give the Panel, and CBS, the benefit of the doubt and move on to the third and final stage of the inquiry.

At this stage, courts (or juries) determine whether the explanation offered by the defendant is the real reason for its action, or simply a pretext that masks bias. The key to this inquiry is context--how much sense does the defendant's explanation make on its own terms; how has the defendant acted in similar situations when someone of a different race or gender was involved; what is the defendant's overall track record when it comes to treatment of minorities; are there any statements by the defendant or its agents that suggest bias?

In the case of Rathergate, the context overwhelmingly points to political bias. First, CBS's explanation is flawed on its face. Haste can explain failure to check facts, but not the blatant distortion of the results of a fact check. How, for example, does haste explain the fact that, in the words of the Panel, "virtually every excerpt used from [the interview with the document examiner] was either inaccurate or misleading"? Similarly, haste provides no explanation for why CBS stuck to its story for two weeks after the memos had been exposed as fraudulent.