HEWITT: MAYBE NBC SHOULD BE SUED FOR REPORTING THE NEWS

I'm sure a lot of you don't think Cho Seung-Hui's videotape and photos should have been aired (I disagree, as I'll explain below), but Hugh Hewitt's response has more than a faint whiff of jackboot -- he seems to like the notion that NBC might be sued for this:

There is a tort --the intentional infliction of mental or emotional distress-- which punishes via civil liability parties whose outrageous conduct injures the emotional well-being of private parties.... I wouldn't be surprised to see a parent or spouse of one of the victims bring such a claim against NBC for its conduct yesterday as a vehicle to discover exactly what was said and done inside the news organization and to demonstrate that the public has lost its patience with the self-appointed lords of the public airwaves. The tort generally requires four elements: 1) the defendant(s) must act intentionally or recklessly; (2) the defendants' conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress.

... don't be too quick to assume that the First Amendment protects NBC in this instance. The closest Suprme Court case on point is the 1988 decision in Hustler v. Falwell, which while protected the right to satirize public figures in repuslive ways said nothing about news organizations obligations towards victims....

Talk about a slippery slope. If NBC can be sued for this speech act, what would be next? Pro-war troops' families suing news organizations for showing dead GIs or soldiers' coffins? Or suing news organizations for reporting on anti-war demonstrations? Or suing those who hold anti-war demonstrations?

Of course, Hewitt is probably being deeply cynical -- he's proposing something outrageous and chilling to basic freedoms just to boost his radio ratings and readership.

But his relish for this is made clear by his willingness to ignore the plain words "intentional infliction of mental or emotional distress" (which means -- I'm venturing an interpretation even though I'm not a lawyer -- having the intent of inflicting emotional distress, i.e., thinking, "Gee, let's put this on the air because we really want to make those people miserable") because he's rubbing his hands together in anticipation of a suit that would "demonstrate that the public has lost its patience with the self-appointed lords of the public airwaves."

Meanwhile, we in the public did watch didn't we? The "lords of the airwaves" couldn't force us to do that -- we did it on our own.

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I understand criticism of the decision to air this material, though I think people legitimately want to know what goes on in the mind of someone like this. I'll admit it: I do.

And what would have happened if the material hadn't been aired?

I think the tape would have acquired mythical status. I think conspiracy theories would have abounded: NBC isn't airing the material because it shows that the FBI or CIA was using this incident as a distraction from Bush's troubles. Or: NBC isn't showing it because the "MSM" is pro-terrorist and the material shows that Cho was a convert to jihad.

The former theory might have been expounded by a few nuts. The latter theory, on the other hand, might well have become a talking point all over the right-wing media. The same people who make up Hugh Hewitt's fan base would be arguing that NBC was suppressing the uncomfortable truth because NBC hates America and wants the terrorists to win.

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I think it might have been better for NBC to wait a while before airing the material -- but I don't agree that airing the material will make Cho a hero to a certain number of people. That was already likely the minute his death toll surpassed the one in Columbine. Will his face wind up on T-shirts? Maybe -- but it might well have even if the only photos we had of him came from other sources. Will songs be written about him and bands be named after him? Maybe -- but they'll be named Ismail Ax or Richard McBeef, and those terms entered the language before the package arrived at NBC.

What should we do? Should we take the approach suggested by Noel Sheppard of the right-wing site NewsBusters?

(Please be advised: I refuse to use his real name, or publish pictures of him, for reasons that should be obvious, and wish all members of the media would adopt the same anonymity strategy when referring to this animal.)

Is that how we should handle incidents of this kind? Treat them the way TV broadcasters handle fans who run onto the field at baseball games? Turn the camera away? Hell, maybe we shouldn't report these incidents at all. Is that the solution?

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UPDATE: Shorter Howard Kurtz: People all over America were so upset at the outrageous decision to air this material that they couldn't tear themselves away from it long enough to watch Alberto Gonzales.