By Benjamin Kabak*

A pdf version of this article may be downloaded here.

Three days after Election Day 2010, Politico, the multimedia news outlet that covers all things politics, dropped a bombshell on the political media world. Keith Olbermann, MSNBC’s lead commentator and the host of the increasingly controversial Countdown, donated money to three Democratic politicians in advance of Election Day.[FN1] Olbermann confirmed to Politico that in late October 2010, he gave $2,400, the maximum amount allowed by federal campaign contribution law, to Rep. Raul Grijalva, Rep. Gabrielle Giffords and Jack Conway, the Democratic nominee and eventual loser in the race for a Kentucky Senate seat.[FN2] These donations violated NBC News’ own internal policies barring personal contributions; as Politico’s Simmi Aujla reported, news organizations and reporters “consider[] it a breach of journalistic independence to contribute to the candidates they cover.”[FN3] NBC News eventually suspended Olbermann indefinitely, and he did not host Countdown on either Friday, November 5 or Monday, November 8, 2010.

Olbermann returned to the airwaves on Tuesday, November 9, 2010, one week after Election Day and just two days after he was suspended. MSNBC President Phil Griffin announced the end of the suspension: “[A]fter several days of deliberation and discussion, I have determined that suspending Keith through and including Monday night’s program is an appropriate punishment for his violation of our policy.”[FN4] When he returned to the airwaves, Olbermann defended his actions, saying that the NBC News policies he allegedly violated were “not in his contract” and were “probably not legal” either.[FN5] Still, he apologized to his viewers for various breaches of trust, yet maintained that he made “legal political contributions as a U.S. citizen.”[FN6]

In the weeks following his suspension, commentators wrung their hands over the Olbermann controversy. In this paper, I will add my voice to the fray as I explore and analyze the Olbermann suspension and discuss the legal ramifications of both his claims and those of NBC News. In Part I, I will further explore the circumstances surrounding the suspension, how the story broke and the reaction and fallout to the story. In Part II, I will delve into the rationale behind the increasingly more opinionated television news offerings and what Olbermann termed “the realities of Twenty-First Century journalism.”[FN7] Part III will examine various standards and practices codes put forth by news organizations, and Part IV will examine these codes in the context of employment in the entertainment and news industry. I will conclude with my own thoughts on the legality of Olbermann’s suspension and the tension between NBC News’ standards and practices and MSNBC’s mission and liberal viewpoint. In an age where news commentary and news reporting have become increasingly segmented, I believe NBC News’ policies do not fit its news presentation scheme.

I. The Keith Olbermann Suspension

A. MSNBC’s Rise to Prominence

In 1996, after seeing CNN’s popularity and ratings grow and recognizing that cable news could be the next great money-making frontier for major television networks, NBC and Microsoft joined forces to launch MSNBC.[FN8] Originally intended as a joint venture consisting of a cable channel and an Internet news site, the fledgling cable news network struggled to find an audience during its early years. In fact, in mid-2006, one newspaper columnist questioned the viability and success of the network. Calling it a “[w]eb site with a cable channel,” Don Kaplan of The New York Post noted that the leaders in the cable news field – Fox News and CNN – “regularly average three or four times as many viewers” as MSNBC.[FN9] Today, MSNBC is the second-most watched cable news network, and 2010 marked the second year in a row that MSNBC’s prime time ratings for the year outpaced CNN’s by a wide margin.[FN10]

How has MSNBC managed to attain such a quick turnaround over a period of less than four years? Olbermann himself termed the focus of the turnaround a part of the “realities of 21st Century journalism.”[FN11] In essence, MSNBC has discarded programming that features seemingly unbiased news reporting and has replaced it with commentary, particularly in its primetime lineup, that features a strong leftward slant. Instead of presenting itself as an unbiased news outlet such as CNN and the New York Times news section, the network has become the liberal equivalent of Fox News, more akin to the opinionated editorial pages of a major newspaper. The change, as Howard Kurtz of The Washington Post explored after the 2008 Presidential election, occurred as the race between John McCain and Barack Obama unfolded. With Olbermann leading the political charge, the channel’s hosts no longer hid their biases, and commentators like Rachel Maddow, Chris Matthews, Andrea Mitchell and David Gregory further contributed to the channel’s left-leaning bent. Even as NBC Senior Vice President Phil Griffin disputed charges of partisanship, only one conservative host, Joe Scarborough, remained with the network, and Republican operatives highlighted Olbermann’s Countdown commentary as a clear sign of bias.[FN12]

Yet, despite this rise to prominence borne seemingly on the back of a progressive bent, MSNBC remains very much a work in progress. Amidst the network’s move toward the left, Griffin denied that his network was “tied to ideology.”[FN13] In fact, not until mid-2010 did Griffin discuss MSNBC’s push to reclaim an audience of left-leaning viewers who had no obvious liberal equivalent to the conservative Fox News channel.[FN14] Lately, armed with a new tagline – “Lean Forward” – the network has clearly been “embrac[ing] its progressive political identity.”[FN15] However, as the network moves leftward, it seems to be suffering from an internal identity crisis thanks to its close relationship with NBC News. MSNBC shares some on-air talent with NBC News, and NBC News’ standards and practices guidelines apply to MSNBC. In 2007, MSNBC.com reprinted various news organizations’ policies on campaign donations and included in that list was MSNBC’s and NBC News’ own policies, which state:

“Anyone working for NBC News who takes part in civic or other outside activities may find that these activities jeopardize his or her standing as an impartial journalist because they may create the appearance of a conflict of interest.  Such activities may include participation in or contributions to political campaigns or groups that espouse controversial positions.  You should report any such potential conflicts in advance to, and obtain prior approval of, the President of NBC News or his designee.”[FN16]

It is this guideline that Keith Olbermann violated in October 2010.

B. What Keith Did

As MSNBC’s star rose, so too did Keith Olbermann’s. His “is one of MSNBC’s most recognizable faces, and [he] has emerged as one of the country’s most prominent liberal commentators. A former ESPN star, Olbermann’s ‘Countdown With Keith Olbermann’ started in 2003 as a traditional news show but evolved into a left-leaning opinion program – and in some ways, led the network into its new identity as the cable-news voice of the left and an attempt to be a counterweight to Fox News.”[FN17] Today, Countdown averages over 1.038 million viewers per episode and is considered MSNBC’s flagship program.[FN18]

On Thursday, October 28, 2010, Raul Grijalva, a four-term incumbent Democratic House Representative involved in a competitive race in Arizona, appeared on Countown. As Olbermann explained in a statement issued on November 5, 2010, it was after this interview with Grijalva that he made the controversial contributions to three congressional campaigns: “One week ago, on the night of Thursday October 28, 2010, after a discussion with a friend about the state of politics in Arizona, I donated $2,400 each to the reelection campaigns of Democratic Representatives Raul Grijalva and Gabrielle Giffords. I also donated the same amount to the campaign of Democratic Senatorial candidate Jack Conway in Kentucky.”[FN19] Olbermann continued, “I did not privately or publicly encourage anyone else to donate to these campaigns, nor to any others in this election or any previous ones, nor have I previously donated to any political campaign at any level.”[FN20]

Shortly after Election Day, which saw Grijalva and Giffords emerge as winners and Conway return home, Politico uncovered Olbermann’s campaign donations, and NBC News suspended him for violating their policies. Phil Griffin, the president of MSNBC, issued only a perfunctory statement: “I became aware of Keith’s political contributions late last night. Mindful of NBC News policy and standards, I have suspended him indefinitely without pay.”[FN21] Two days later, as the media firestorm swirled, MSNBC reinstated Olbermann. Upon returning to the air, he apologized for his ethics breach, but seemed to be basking in the limelight of political attention he had garnered during his two days off the air.[FN22]

C. A Swift and Divisive Reaction

As news of Olbermann’s suspension spread, commentators from all walks of life voiced their opinions. Olbermann had recently engaged in a heavy-handed attack of Fox News’ less restrictive campaign donations policy,[FN23] but his suspension earned him supporters from the left and the right. William Kristol, Fox News commentator and the editor of The Weekly Standard, supported Olbermann: “[H]e’s not a reporter. It’s an opinion show. If Olbermann wants to put his money where his mouth is, more power to him…Republicans of the world, show you believe in the free expression of opinion! Tell the crony corporatists at NBC—keep Keith!”[FN24]

Others weren’t nearly as dogmatic as Kristol. Greg Sargent of The Washington Post interpreted NBC News’ standards and practices policy as applying only to those who wished to project a “standing as an impartial journalist” – something Olbermann does not appear to desire – and wondered if other politically active reporters for the network were subjected to the same rigorous standards as Olbermann.[FN25] Politico’s Michael Kinsley called the suspension “absurd in so many ways it’s hard to keep track.”[FN26] He continued:

If Olbermann had merely put these politicians on his show, representing a viewpoint he obviously shares, that would have been worth more than a campaign contribution of a few thousand dollars, but Olbermann would be considered blameless. Does anyone think that by suppressing the expression of his views (via these donations), Olbermann would have stopped having them? Does anyone doubt what Olbermann’s views are on politics in general and these races in particular? Most journalists try to suppress their biases — Olbermann gets paid to flaunt his biases. On a crude political scale, Olbermann is a left-wing liberal. MSNBC hired him to be a liberal and last week suspended him for the same thing. Or rather, not for being a liberal but for revealing it.[FN27]

Joshua Greenman of the Daily News praised NBC News for sticking to its policies, but highlighted the partisanship inherent in cable news coverage today. He wrote: “Let’s not pretend that everyone is playing by the same rules. Fox News’ parent company, News Corporation, gave $1 million to the Republican Governors Association, making no mistake that the entire network is in one partisan corner.”[FN28]

Ultimately, the Olbermann suspension snared another MSNBC commentator as well. Joe Scarborough, the conservative host of the network’s Morning Joe, had donated $4,000 over five years to political candidates, and as the network came under fire for suspending Olbermann but not Scarborough, its executives had no choice but to keep their morning show host off the air for two days as well. “It is critical that we enforce our standards and policies,” Phil Griffin said.[FN29] Left unanswered in the controversy were questions surrounding the role of the partisan news organizations in American democracy and the interplay between NBC News employees’ legal obligations and the ramifications of the suspensions. In the next sections, I will tackle these issues.

II. On Cable, A Partisan Media Emerges

A. A Viewpoint Emerges Out of Objectivity

In the early 1980s, cable news appeared to occupy a highly specialized market without the potential for earning strong viewership totals or millions in revenue. The Cable News Network, more commonly known as CNN, had yet to emerge as a popular source of news coverage, and network coverage had long been ruled by the Fairness Doctrine. The FCC has always exercised jurisdiction over traditional broadcast networks but has had limited oversight of cable networks.[FN30] The agency’s stance was that network broadcasters were “responsible for providing the listening and viewing public with access to a balanced presentation of information on issues of public importance. The basic principle underlying that responsibility is ‘the right of the public to be informed, rather than any right on the part of the Government, any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter.’” This became known as the Fairness Doctrine.[FN31] Two events – a war in the Middle East and the end of the Fairness Doctrine – would set the stage for a rise in partisan news coverage and analysis.

In 1987, over the objections of Congress, the FCC repealed the Fairness Doctrine and released broadcasters from their obligation to be truly fair and balanced. According to one commentator, “[a] dramatic consequence of the Fairness Doctrine’s repeal was the rise of talk radio in the 1990s. Previously there had been discussions about unheard voices, and the underlying assumption was that they were on the left – but talk radio went right. It turned out that many conservatives believed that their voices were not being heard and that ABC, CBS, and NBC, as well as the major newspapers, were liberal organs, slighting conservative issues and viewpoints. Thus, many conservatives migrated to talk radio to listen to Rush Limbaugh and his imitators – programming that would have been impossible before the repeal.”[FN32]

Meanwhile, a few years later, in the early 1990s, CNN would garner praise, Emmy Awards, viewers and, more importantly, advertiser dollars with its 24-hour focus on the Gulf War and later the Black Hawk Down incident in Somalia. As the talk radio ad dollars poured in and CNN emerged as a leader in the television news field, media companies and the television networks turned to cable and new on-air experiments in news coverage. Fox News and MSNBC both launched in 1996, and Fox eventually emerged victorious in the ratings war. Fox’s programming consistently outpolls that of the other cable news networks,[FN33] and it has a balance sheet to match. In 2008, the News Corp. cable giant drew in revenues in excess of $1 billion and turned a profit of nearly $450 million.[FN34] In 2009, its profit surged to nearly $500 million.[FN35] Fox News has become a success largely by advocating for and featuring conservative and “right-wing” hosts. Despite its promise of “Fair and Balanced” coverage, Fox News is home to such hosts as former Republican presidential candidate Mike Huckabee and the extremely conservative agitators Glenn Beck, Don Imus and Bill O’Reilly. Fox News does not hide its biases. Although the network, in response to the 2004 film Outfoxed, denied an editorial bias, today, it serves as a de facto cable news outlet for Republican talking points.[FN36] As previously mentioned, News Corp., the parent company of Fox News, donated $1 million to the Republican Governors Association in early 2010, and Roger Ailes, the station’s president, previously worked for three Republican presidents.[FN37]

In recent years, MSNBC has adopted a more partisan approach, similar to that of Fox News, and as its ratings and revenues climbed. MSNBC projected a 25 percent increase in revenues in 2008 over the previous year.[FN38] Furthermore, viewer opinion shows how bifurcated and partisan cable news has become. A 2009 Pew Research study revealed how American attitudes toward news coverage had changed over time.[FN39] In 2007, 66 percent of Americans felt the press favored one side of the story over the other, and by 2009, that number had climbed to 74 percent. Seventy-two percent of Republicans gave Fox News a favorable rating while just 43 percent of Democrats agreed. MSNBC earned praise from 60 percent of Democrats and just 34 percent of Republicans. Just 26 percent – down from 36 percent in 1985 – of respondents viewed news organizations as “careful to avoid bias,” and 60 percent said news organizations are politically biased, a 15 percent increase over similar surveying in 1985. For better or worse, television news viewers believe that their news coverage now comes with a partisan viewpoint from which the media companies profit. Meanwhile, news commentary and news reporting have become two distinct parts of the television news package. This is what Keith Olbermann means when he urges NBC News to “adapt to the realities of 21st Century journalism.”

B. The Media and Democracy: Biases Trump Objectivity

As TV journalism reaches new levels of partisanship and the dollars flow in, political commentators, who have long believed that the news – the so-called Fourth Estate – should serve an educating function in American democracy, see an uncertain future. Blake D. Morant summarized this theoretical concept:

Media’s status as the fourth estate conjures images of an industry that fosters democracy through the dissemination of information that ensures self-governance. The industry’s legitimacy and utility hinges upon the fulfillment of this important societal duty. This duty takes center stage during elections, which are bedrocks of a functional democracy. Media’s coverage of elections should focus public attention on the conduct of elected officials and the generalized workings of government. Adherence to this essential task should legitimize the industry’s role in a complex democracy.[FN40]

Yet, with the rise of the Internet and the ever-expanding reach of do-it-yourself journalists and bloggers, this model for the media seems to be under attack. It is easy for politically-interested readers to find themselves inside an echo chamber, where expression may not be stifled, but only one viewpoint is being expressed. Some believe this isolation began with cable news.[FN41]

Some media analysts think this segmentation could lead to an ill-informed public who watch only commentary programs and not traditional news reports. Mark Emery, writing as a law student at the University of Notre Dame, called upon the FCC to avert a democratic crisis:

FCC regulation of the content of televised news is the best option available if we want to preserve televised news as a medium that promotes a just, democratic society. The public’s choice is between government content regulation, with the ever-present risk of government censorship, or the risk of the private managerial censorship of new outlets. Without reasonable, government-enforced standards for minimal news content, there is a risk that managerially censored news will descend into a Roman circus, a popular public forum where small pieces of important news are lost in a forum for appetite and entertainment, to the neglect of serious affairs of state, the marginalized, and suffering.[FN42]

Writing from a “confessedly moral” viewpoint, he believes that without regulation, “the content and quality of reporting…[will] quickly slip []away.”[FN43] What Emery views as a crisis in news is simply a distinction between opinionated commentary and objective news reporting that many news companies have embraced lately. It is debatable whether or not this new paradigm will bring about a crisis amongst the electorate.

While Emery may be of the school that believes journalists can maintain true objectivity in the face of personal and social biases, his belief seemingly ignores history. For centuries, objectivity in the press was consigned to the news pages while the editorial and opinion pages have been rife with so-called biased commentary. As Watergate and the drive to expose scandals gave rise to celebrity investigative journalists, objectivity in news gathering remained a true concern for news editors. Yet, as Edward Bernays proposed in his influential 1928 book Propaganda, politicians and society’s leaders had long used news coverage and the open forum journalists provided to shape public opinions and put forward a viewpoint.[FN44] Borne out of the yellow journalism from the turn of the 20th Century, Bernays’ Propaganda found a media willing to be influenced by politicians and politicians willing to use the media to influence constituents and potential voters. Nearly 70 years before Fox News and MSNBC would first begin broadcasting (and, in fact, long before Bernays put his thoughts to the paper), the news was a malleable media, and those with the right access could use it to shape a message. Democracy has survived, news companies are making hundreds of millions of dollars, and viewers at home watch by the millions.

Ultimately, then, the Olbermann scandal is not about projecting an aura of impartiality on the part of MSNBC of NBC News. It is, rather, about reconciling competing approaches to news coverage. Just as The New York Times editorial pages contain opinions, so too do the programs of MSNBC. The network cannot overtly proclaim its Democratic sympathies any more than Fox News cannot proclaim itself to be an unofficial arm of the Republican Party. Yet, through signals – such as politically loaded slogans, corporate campaign donations and opinion-based news magazine programs – the networks accomplish just that. They do not need to tell their viewers the shows they watch are slanted. The viewers, as surveys show, simply know and accept that fact. The Olbermann scandal is instead about how news organizations’ standards and practices codes interact with employment provisions and news anchors’ legal rights in the new era of 21st Century television reporting and commentary. It is to those concerns that I now turn.

III. Standards and Practices Codes in Journalism: A Self-Policing Mechanism

A. What Purpose Newsroom Codes?

As journalists and news organizations are, in part, in the business of bringing information to a skeptical public, they have to do so with a degree of reliability and integrity. Thus, “all media, whether broadcast or print, have codified rules of professional responsibility. These various codes share language that confirms the importance of truth and accuracy in the reporting of news and information.”[FN45] Morant elaborated on the roles of ethical codes in the newsroom:

Ethical codes function both internally and externally. As rules of reporting behavior, they regulate the internal processing of news that is reported. They establish professional order and certainty, and serve as goals for professional conduct. The external operation of ethical codes relates to their demonstration of media’s intent to report responsibly and respect the collective interests of society. When dogmatically followed, ethical codes enhance credibility and impose an almost moral obligation for media to act responsibly, thereby ensuring that subscribing sources will avoid distortion, bias and falsity. Operating under such rules, media garner a presumptive degree of credibility that is further established, or even increased, by its actual behavior.[FN46]

These codes create a “culture of responsibility” within newsrooms, as colleagues, producers and corporate leaders know that their employees – the journalists reporting and writing stories – will obey the codes. Ideally, ethics codes compel journalists to “consider deliberately responsible journalistic behavior. The ingrained obligations of truth and good faith, which all ethical codes reinforce, become operational tenets that, if violated, prompt a degree of cognitive dissonance. A breach of an ethical code, thus, compels the individual to justify her conduct.”[FN47] Keith Olbermann, for instance, went on the air to justify his conduct once his standards and practices violation became public knowledge.

For media consumers these codes are designed to signal credibility. If the code is designed to convince consumers that news reporters it have adhered to industry standards, those consumers should feel confident that they are getting a version of events that closely resembles the truth. Thus, news organizations publicize their standards and practices codes and expose those who violate them in order to show potential audience members that they take their craft seriously. “Because public perception of media credibility is an inexorable part of audience size, the industry must also externalize the influence of ethical codes by informing the public of the importance and influence of these norms on journalistic behavior. Increased public awareness of the operation of ethical codes in the industry fosters greater public confidence in the reality of media responsibility and veracity.”[FN48]

B. How Standards and Practices Codes Work

By and large, news organizations adopt their own internal standards and practices codes, and many of those codes are available online.[FN49]Employees are contractually required to abide by their codes. The Radio Television Digital News Association has put forward a model code that highlights the ways in which journalists should remain independent of their sources and those they cover. Journalists must strive to be fair and must avoid “real or perceived conflicts of interest.”[FN50] To adhere to these goals, journalists should not pay sources or “engage in activities that may compromise their integrity or independence.”[FN51] These are vague standards that allow for journalists to interpret them at their own discretion, and often, newsrooms will promulgate their own rules and codes, especially in the realm of political activity where conflicts can be viewed as a sign of journalistic bias.

As seen with the Keith Olbermann debacle, NBC News has a policy against campaign contributions without the permission of the network president. The New York TimesNewsweek, ABC News, CBS News and National Public Radio have similarly restrictive codes while Fox News, Forbes and Reuters are among those that allow political activity within limits.[FN52] Fox News, for instance, requires that “any employee who becomes involved with a political group must make it clear that his or her activities are being conducted purely in a personal capacity and not on behalf of or in connection with the Company.”[FN53] While NBC News’ policy strives for impartiality, Fox News’ policy recognizes that its employees will inevitably support candidates and causes. If the viewers – and more importantly, station executives – expect an opinion and understand the personal biases of those providing the commentary, the standards codes are relegated to relics from another era, and the tension between these codes and the current model of television news programming may just be what ensnared Olbermann.

IV. Employment Agreements and Ethics Codes

When he returned to the airwaves after his two-day suspension for violating NBC News’ own internal policies, Keith Olbermann was highly critical of those policies. He claimed that the policies were “not in his contract” and “probably not legal” either.[FN54] NBC News is in the process of “adapting to the realities of 21st Century journalism,” and Olbermann , as the host of a show that presents opinionated commentary and has an agenda, clearly felt constrained by NBC News’ attempts to achieve impartiality in its newsroom.[FN55] That impartiality, he seems to believe, should apply to news reporting but not news commentary.

On the surface, Olbermann’s claim that NBC News’ limitations on political contributions is an extra-contractual enforcement mechanism may bear weight. NBC News’ standard provisions form contains no mention of the network’s own ethical guidelines. NBC News though can easily claim otherwise. One provision calls attention to internal guidelines. It reads, “The services and the material, if any, furnished by Artist shall comply with all of Company’s rules and policies, including but not limited to the then applicable news policies and/or guidelines.”[FN56] Another requires those at the company to comply with “procedures concerning the financial investments and holdings of its employees.”[FN57] Had NBC News failed to provide Olbermann with further explanations, the policies could easily have been construed as an attempt to control the actions of employees through mechanisms not agreed upon in contractual negotiations. But NBC News makes it clear that its employees and on-air talent must adhere to its standards and practices guidelines. Olbermann’s claims therefore rest on uneasy footing.

Olbermann raises a further concern of illegality as well. As the Supreme Court recently reinforced, political speech is “speech that is central to the meaning and purpose of the First Amendment.”[FN58] Thus, the government cannot promulgate regulations that would have a chilling effect on speech. Over the years, many have debated whether or not the FCC Fairness Doctrine had such effect.  Furthermore, as the elimination of the Fairness Doctrine led to an increase in the number of partisan news outlets, it is unlikely that the Court would uphold the Fairness Doctrine today. The FCC, therefore, could not place any restrictions on NBC News because doing so would serve to chill speech protected by the First Amendment. However, NBC News can, as a private employer, limit its employees’ actions without treading on their First Amendment rights. Therefore Olbermann’s legal claims seem weak at best and non-existent at worst.

Ultimately, though, these legal arguments are weaker than the ones based on public perception and the practical realities of MSNBC’s liberal bias. NBC News has maintained its relationship with Keith Olbermann because it believes his personal commentary and viewpoints generate an audience. The network executives see how popular his show has become and how influential he can be on the air. As Politico’s Michael Kinsley said, Olbermann’s views are well known and his job is to espouse them on television.[FN59] In an era when partisanship drives ratings and ratings drives substantial revenues and profits, news organizations should not restrain their commentators from espousing political viewpoints. If Keith Olbermann can give free airtime to a candidate and voice his support for the candidate on television while the audience watches with awareness of his personal biases, he should be able to make personal donations to the that candidate as well.

The current news policies, put forward in an another era, simply do not recognize the reality of expectations today. If partisanship is to be embraced on the air, it cannot be avoided off the air, and doing so creates unnecessary conflict between on-air talent and employers. The 21st Century, as Olbermann said, is calling, and NBC News’ standards and practices are seemingly outdated. The network should consider devising separate sets of standards for its commentators and its true news reporters. Olbermann’s words and actions have thrust him into the middle of that paradigmatic conflict.

V. Conclusion

In this paper, I have explored how changing paradigms in cable news have led to conflicts between a network’s push for profits on the one hand and on the other, its adherence to outdated ethical codes and internal policies. Through the lens of MSNBC’s rise to prominence and the controversy over Keith Olbermann’s suspension in November, it is possible to see how newsrooms are struggling to balance demands of impartiality with the expectations of both its on-air talent and its viewers. When impartiality is not to be expected on the air, it should not be expected off the air either.

Ultimately, this conflict between Olbermann and NBC News should serve as a starting point for an examination of the role that standards and practices codes play in the news and entertainment employment contexts and their future in an age of partisan media. As more and more news coverage resembles entertainment programming, it does not make financial sense for a network or personal sense for on-air talent to have codes that constrain personal political dealings but encourage agenda-laden views on television. Network executives will have to determine if commentators should adhere to separate codes from their reporters. Olbermann’s star amongst liberals is brighter now than it was in late October, and as NBC News embraces the MSNBC format, those in charge will have to reassess the policies that impact their employees.

 


* J.D. candidate, NYU School of Law, 2011; B.A., Swarthmore College, 2005.

[FN1] Simmi Aujla, Keith Olbermann suspended after donating to Democrats, Politico, Nov. 5, 2010, http://www.politico.com/news/stories/1110/44734.html.

[FN2] Id.

[FN3] Id.

[FN4] Lisa de Moraes, Chastened Olbermann returns to MSNBC, a sadder but wiser man, The Washington Post, The TV Column, Nov. 10, 2010, http://voices.washingtonpost.com/tvblog/2010/11/olbermann.html.

[FN5] Countdown with Keith Olbermann (MSNBC television broadcast Nov. 9, 2010), available at http://www.msnbc.msn.com/id/40099422/ [hereinafter Olbermann Broadcast].

[FN6] Id.

[FN7] Id.

[FN8] Stefanie Olsen, Ballmer: Would not launch MSNBC again, CNET News, June 7, 2001, http://news.cnet.com/2100-1023-268073.html (last visited Dec. 20, 2010).

[FN9] Don Kaplan, Do We Need MSNBC?, N.Y. Post, June 14, 2006, at 99.

[FN10] Press Release, MSNBC, MSNBC Beats CNN For Second Year In a Row in Primetime 2010 Ratings (Dec. 20, 2010), http://tvbythenumbers.zap2it.com/2010/12/20/msnbc-beats-cnn-for-second-year-in-a-row-in-primetime-ratings/76083.

[FN11] Olbermann Broadcast, supra note 5.

[FN12] Howard Kurtz, MSNBC, Leaning Left and Getting Flak From Both Sides, The Wash. Post, May 28, 2008, at C1.

[FN13] Aaron Barnhart, MSNBC prez on Fox News: “You can’t trust a word they say,” The Kansas City StarJuly 18, 2008, http://blogs.kansascity.com/tvbarn/2008/07/msnbc-prez-on-f.html (last visited Dec. 26, 2010).

[FN14] Phil Rosenthal, MSNBC boss stands ready in ideological battle with Fox News, Chicago Tribune, May 2, 2010.

[FN15] Brian Stetler, With Tagline, MSNBC Embraces a Political Identity, N.Y. Times, Oct. 4, 2010, at B3.

[FN16] Newsroom policies vary on campaign donations, MSNBC.com, June 21, 2007, http://www.msnbc.msn.com/id/19178161/ (last visited Dec. 20, 2010).

[FN17] Aujla, supra note 1.

[FN18] Press Release, MSNBC, supra note 12.

[FN19] Washington Post Editors, Olbermann suspended indefinitely for donation to Dem candidates, The Wash. Post, 44: Politics and Policy in Obama’s Washington, http://voices.washingtonpost.com/44/2010/11/keith-olbermann-donates-to-dem.html (last visited Dec. 20, 2010).

[FN20] Aujla, supra note 1.

[FN21] Id.

[FN22] Olbermann Broadcastsupra note 5.

[FN23] The News Corp.-owned cable news leader allows and seems to encourage its reporters and commentators to be active in politics. Its ethics policy says, in part, “Personal involvement in political activity is permitted as long as the activity does not interfere with or impair the performance of the employee’s duties for the Company.” See Rosenthal, supra note 14. I will return to Fox News’ role in this controversy in the next section.

[FN24] William Kristol, Keep Keith!, The Weekly Standard, Nov. 5, 2010, http://www.weeklystandard.com/blogs/keep-keith_514980.html (last visited Dec. 20, 2010).

[FN25] Greg Sargent, Did Keith Olbermann even violate NBC policy?, The Wash. Post, The Plum Line blog, Nov. 5, 2010, http://voices.washingtonpost.com/plum-line/2010/11/did_olbermann_even_violate_nbc_1.html (last visited Dec. 20, 2010).

[FN26] Michael Kinsley, The absurdity of Olbermann’s sin, Politico, Nov. 9, 2010, http://www.politico.com/news/stories/1110/44855.html.

[FN27] Id.

[FN28] Joshua Greenman, Keith Olbermann’s suspension by MSNBC was right – but there’s a double standard, N.Y. Daily News, Nov. 5, 2010, http://www.nydailynews.com/opinions/2010/11/05/2010-11-05_keith_olbermanns_suspension_by_msnbc_was_right__but_theres_a_double_standard.html.

[FN29] Sam Schechner, MSNBC Suspends Scarborough for Donations, Wall Street Journal, Nov. 20, 2010, at B3.

[FN30] Due to the differences between cable and broadcast technology and Supreme Court limitations on the Federal Communication Commissions’s regulatory power, the FCC historically could impose more rigorous content standards on broadcast networks than it could on cable channels. Today, the FCC, thanks to Supreme Court rulings and Congressional action, has a very limited role in regulating cable content; in fact, some would call it no role at all. For more on the history of the FCC and its relationship with cable channels, see Pamela B. Gullett, The 1984 Cable Flip Flop: From Capital Cities Cable Inc. v. Crisp to the Cable Communications Policy Act, 34 Am. U.L. Rev. 557 (1985).

[FN31] CBS v. Democratic Nat’l Comm., 412 U.S. 94, 112 (1973).

[FN32] L.A. Powe, Jr., Free Speech and Press in the Digital Age: Red Lion and Pacifica: Are They Relics?, 36 Pepp. L. Rev. 445, 457 (2009).

[FN33] Bill Gorman, Cable News Ratings for Friday, December 17, 2010, TV By the Numbers, Dec. 20, 2010, http://tvbythenumbers.zap2it.com/2010/12/20/cable-news-ratings-for-friday-december-17-2010/76044.

[FN34] The Project for Excellence in Journalism, Cable TV Economics, 2009, http://www.stateofthemedia.org/2009/narrative_cabletv_economics.php?cat=2&media=7.

[FN35] Ryan Nakashima, News Corp. Earnings Up Surprising 11%, Fox News Income Grows 41%, The Associated Press, Nov. 4, 2009, http://www.huffingtonpost.com/2009/11/04/news-corp-earnings-up-sur_n_346080.html.

[FN36] Fox News, Fox News Channel Statement on ‘Outfoxed,’ July 13, 2004, http://web.archive.org/web/20060927182708/http://www.foxnews.com/story/0,2933,125436,00.html.

[FN37] Ben Smith, News Corp. gave $1 million to pro-GOP group, Politico, Sept. 30, 2010, http://www.politico.com/news/stories/0910/42989.html.

[FN38] Supra note 34.

[FN39] See generally Pew Research Center for The People & The Press, Press Accuracy Rating Hits Two-Decade Low, Sept. 14, 2009, http://pewresearch.org/pubs/1341/press-accuracy-rating-hits-two-decade-low.

[FN40] Blake D. Morant, The Inescapable Intersection of Credibility, Audience and Profit in Broadcast Media’s Coverage of Elections, 24 St. John’s J. Legal Comment. 479, 482 (2009).

[FN41] See generally Brian Lehrer, A Million Little Murrows: New Media and New Politics, 17 Media L. & Pol’y 1 (2008).

[FN42] Mark Emery, Note: Regulating Televised News: A New Season for the Public Interest Standard, 19 Notre Dame J.L. Ethics & Pub. Pol’y 737, 739 (2005).

[FN43] Id. at 740.

[FN44] Edward Bernays, Propaganda. Ig Publishing 2005 (1928).

[FN45] Morant, supra note 43 at 495.

[FN46] Id.

[FN47] Id. at 498.

[FN48] Id. at 502.

[FN49] See Ethics Codes, Pew Research Center’s Project for Excellence in Journalism (Dec. 20, 2010), http://www.journalism.org/resources/ethics_codes.

[FN50] Code of Ethics and Professional Conduct, Radio Television Digital News Association (Dec. 20, 2010), http://www.rtnda.org/pages/media_items/code-of-ethics-and-professional-conduct48.php.

[FN51] Id.

[FN52] Newsroom policies vary on campaign donations, supra note 15.

[FN53] Id.

[FN54] Supra, note 5.

[FN55] Id.

[FN56] Standard Provisions, ¶ 1(a) [(YEAR)]. NBC Universal’s Standard Provisions are on file with the author.

[FN57] Id. at ¶ 1(e).

[FN58] Citizens United v. FEC, 130 S. Ct. 876, 892 (2010).

[FN59] Kinsley, supra note 25.