NB: Star Herald Article Violates Canons of Journalism; NSBA Violates Law

September 29, 2013 by Robert Franklin, Esq.

As I said in my previous post, this article on Nebraska’s LB22, the shared parenting bill that will once again be considered by the state legislature, is woefully lacking in the basics of journalism (Star Herald, 9/25/13). Briefly, the sources it quotes (mainly State Bar President Marsha Fangmeyer) frankly and knowingly mislead readers about the clear terms of the bill. They claim it would force judges to “veer away” from the “best interests of the child” standard in child custody cases, despite the fact that the bill clearly conditions all such decisions on the best interests of the child. They further claim it would force judges to start at 50-50 parenting time, but LB22 nowhere refers to equal parenting time, 50-50 parenting time or any other similar concept. The bill is not complicated, so the people quoted in the article can’t simply be mistaken. The unfortunate conclusion is that they know what LB22 would do if passed and have chosen to misrepresent it.

That leads us to the Star Herald article itself which is about as bad as journalism gets. Most obviously, the reporter, Maunette Loeks, violated the very first principle of journalism — get both sides of the story. She didn’t and, given the absence of any statement such as “calls to supporters of the bill were not returned,” it’s clear she made no effort to obtain any information other than that supplied by the bill’s opponents.

Of course there are supporters aplenty. A quick electronic trip to the website for the state legislature would have given her not only the bill’s sponsors, but their contact information too. She didn’t pick up the phone and call any of the sponsors of LB22.

Had she visited the legislature’s website, she’d have been a just a couple of clicks away from the language of the bill itself. In 5 minutes, she could have read the whole thing for herself, but of course she didn’t. If she had, she’d unquestionably have noticed certain stark differences between the bill’s actual words and the claims made about it by bar president Marsha Fangmeyer, et al. But Loeks didn’t read the bill, preferring to parrot the frankly false claims of its opponents.

On those bases alone, Loeks’ article would merit an ‘F’ if submitted by a first-year student in a journalism class. But she doesn’t stop at merely ignoring the other side to the story or failing to do the most basic research into her topic. No, giving an exclusive forum to those whose aim it is to convince Nebraskans that black is white and up is down about LB22 wasn’t enough for Maunette Loeks.

She violated yet another canon of journalism by inserting her own opinions into an article that is at least nominally not an editorial.

The Nebraska Legislature may be telling parents involved in divorce or child custody cases how to parent, if some people have their way.

Huh? Reasonable minds would like to know where in the world Maunette Loeks got that notion. Obviously, there’s not a word in LB22 about “telling parents how to parent” any more than there is in the current Parenting Act. Oh, judges and existing law clearly favor certain ways of parenting over others, as they should. For example, child abuse is generally not preferred while feeding and sheltering kids and sending them to school generally is. And if one parent does the former and the other the latter, judges may well reward the latter more than the former.

So in that way, current law does in a sense tell parents how to parent. But even a mind as incurious as Loeks’ wouldn’t object to that.

Where does Loeks get the idea that LB22 tells people how to parent? I have no idea and I suspect neither does she. After all, having made that her lead sentence, Loeks entirely abandons the concept, never returning to it in any part of her article.

I’d call that extremely strange except for the apparent fact that the sentence isn’t there to make sense or describe reality, but to prejudice readers about the topic at hand. Its purpose apparently is not to inform but to bias.

Ignorant as she is about the simplest matters related to LB22, it’s no surprise that Loeks doesn’t know one other small matter. I don’t fault her for that because, astonishingly enough, Marsha Fangmeyer, President of the Nebraska State Bar Association, apparently doesn’t know it either.

“We did nothing initially on this bill until it became clear that this was the focus, making it a presumption in child custody cases that have to go to trial that the judge has to start with the 50-50 presumption,” Fangmeyer said. “For a lot of reasons, the bar decided to take the position opposing the bill.” Admittedly, Fangmeyer said, the NSBA should have taken a position on the bill sooner than it did. Some “parents’ rights” organizations have become the most vocal proponents of the bill, saying that the bill doesn’t require shared custody unless its in the best interest of the child.

Yes, the NSBA took a position in opposition to LB22. It even hired a lobbyist to urge legislators to vote against it. All of that is made clear in the Star Herald article. But what neither Loeks nor Fangmeyer nor apparently anyone else in the governance of the bar seems to know is that all of that opposition and all of that lobbying are plainly illegal. Put simply, what Fangmeyer and the NSBA are doing violates the law. Given that she’s, you know, the president of the bar, and the NSBA is the bar, wouldn’t you think they’d know the law governing bar activities?

Of course maybe they do. Maybe they know the law perfectly well, but simply have the same respect for it that they have for the truth about LB22, i.e. not much. Who knows?

You see, the NSBA is what’s called an “integrated” bar. That’s a discreet way of saying membership is mandatory. If you want to be licensed to practice law in Nebraska, you have to be a member of the NSBA, and that means you have to pay dues. There’s no choice about that.

Now, back in 1990, the U.S. Supreme Court ruled in the case of Keller v. State Bar of California that integrated state bars are sharply limited in what they can do. Here’s its holding:

The State Bar's use of petitioners' compulsory dues to finance political and ideological activities with which petitioners disagree violates their First Amendment right of free speech when such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services.

In other words, when a bar association forces members to pay dues, it can’t use those dues to lobby state legislatures on matters about which its members may disagree with the bar’s position. To do otherwise would violate the members’ right of free speech because it essentially forces them to support (with their dues) bills they don’t support or oppose bills they do support.

Integrated bar associations like the NSBA are prohibited by law from taking any action that’s not directly part of their legitimate function of regulating the practice of law or improving the quality of legal services. Clearly, opposing a shared parenting bill has nothing to do with policing lawyers or providing legal training, so it’s unquestionable that Fangmeyer and the NSBA are violating the ruling in Keller as well as the First Amendment rights of its members.

To no one’s great surprise, Nebraska lawyers have sued the bar in federal court under exactly that theory. And yet, faced with the clear ruling in Keller and a federal civil rights lawsuit based on it, Fangmeyer and the NSBA go right ahead lobbying the legislature against shared parenting.

Stupidity? Incompetence? What explains Marsha Fangmeyer’s repeated frank misrepresentations about LB22 and the NSBA’s obvious violation of the law under her leadership? That’s a question I can’t answer, but what matters for now is that the two of them — the NSBA and its president — be brought to heel.

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