An intersection of law and public diplomacy? International defamation law

This is a summary and review of the article Should states have a legal right to reputation? Applying the rationales of defamation law to the international arena by Elad Peled. It appears in the Brooklyn Journal of International Law (35 Brooklyn J. Int'l L. 107).

Summary:

In this law review article, Elad Peled explores the possibility of an internationally recognized right to state reputation. Despite the mouthful, the basic idea is pretty simple. Most individuals have limited knowledge of foreign states, and foreign affairs (pg. 11). Thus, the media significantly shapes the political positions a person holds in the arena of foreign policy (pg. 7). Also, public opinion of global actors may help shape a responsive government’s foreign policy (pg. 11). Indeed, “[s]ince the global phenomenon of democratization has increased governments' attention to their citizens' views regarding foreign policies, mass media and public opinion have come to play major roles in international politics” (pg. 7). As such, the perception of a foreign state impacts the choices of state’s officials regarding interactions with that foreign state (pg. 6).

Peled goes on to argue that states honor their international commitments because non-compliance to international norms and standards is damaging to their economic and foreign policy well being, as it would deter global actors from interacting with them (pg. 7, 9). But currently international publics may be wrongly informed of the compliance of states to such standards.  “[D]efamatory falsehoods reduce states' incentives to comply with international law, and render global decision-making less informed and, consequently, less efficient” (pg. 2). Thus, a statutory mechanism protecting state reputation would increase the efficiency of foreign policy and global politics (pg. 8).

Peled cites an international jurisprudential consensus on a crucial aspect of this possibility, stating, “…almost every state in the world has a civil or criminal law protecting individual and institutional reputation against defamation…” (pg. 2). Just as in other markets, market failures occur in the marketplace of ideas, and as such many feel regulation is appropriate. Peled assures us that this structure would only protect against factually inaccurate assertions of concrete events, and thus would not threaten damaging opinion or political rivals of any given state for mere dissent (pg. 3). Ultimately, Peled argues that such regulation is only justified if the benefits outweigh the costs, and that information must be reliably accurate in order to be valuable (pg. 10, 15).

Review

While it is important that such limitations on free speech remain restrained, this limitation may cover too few utterances to be effective and produce benefits sufficient to outweigh the costs. As many know from consuming media, there is a fine line between an assertion of fact and a mere opinion. For example, according to the National Park Service, “more than 110,000 men, women, and children” of Japanese decent were interned during World War II (http://www.nps.gov/manz/index.htm). What if a Japanese news agency were to report that “we believe that 150,000 people” were interned? Would it be actionable under this proposal? What if the news agency said “some have suggested that nearly 200,000” were interned? Would that be actionable? It seems unlikely, as neither of these statements present “inaccurate statements of fact depicting concrete events”, but merely statements of opinion (pg. 3). The amount of energy expended, political compromises hatched and sovereignty questions raised may not be worth outlawing such a narrow range of statements.

Moreover, I feel that one must question the sufficiency of this mechanism which aims to limit harm to states based on such false information. While reputation may be ultimately protected, truth may not. Inaccuracies which hurt a state would be punished, but inaccuracies which help a state would not. Thus, by bringing to international attention one type of falsity, this structure may implicitly give credence to an arguably congruent falsity: propaganda. However, we all learn in public diplomacy that positive news often simply is not news. So perhaps this may not have a much of a reputational impact as damaging news, but I feel it still would likely remain an important factor for consideration.

I find the possibility of protecting state reputation to be a fascinating idea. And while the reputation of a state is very important, a statutory structure such as this may not currently be the most efficient approach. The global arena is still considerable governed by anarchy, though the United Nations and other NGOs are trending our world into a more structured future. Until that world is reached, an institution charged with protecting state reputation will likely gain little response from states with inflexible definitions of sovereignty. Presently, it seems the best way to protect and maintain state reputation is the use of strategic public diplomacy, as there is still unrealized potential there.

A short note about reapportionment and democracy

As you likely know, the decennial census counts the population of each state and distributes seats given to each state in the House of Representatives for the next decade. The census purports to do this proportionally. However, the data show that this is not done proportional enough, at least not to meet our modern conception of democracy.

The 2010 census has told us that the most populous state is California with 36,961,664 people. As such, the state has been given 53 representatives in the House. Wyoming is the least populous state with 544,270 people, getting only 1 representative in the House. Thus, in the House, Wyoming has 544,270 people per vote while California has 697,390 people per vote. Each representative’s vote in the House is equal. As such, 544,270 Wyomingites are equal to 697,390 Californians. Wyomingites have 1.28 times greater voice than Californians in the House. Following that formulation, in the Electoral College Wyomingites have 3.64 times greater voice than Californians do; 2.8 times less democratic than the House!

            What’s worse is the Senate. Now, the whole reason for the Senate is to give each state equal voice in the federal government. The original Constitution gave the power to appoint Senators to the state legislatures, meaning the voice being distributed was quite literally to the states, not the people. Due to the 17^th Amendment, we now popularly elect senators. Since each state gets 2 senators Wyomingites get 67.9 times greater voice than Californians in the Senate!

It’s clear that the structure of our bicameral national legislature favors less populous, usually agrarian states. This is unsurprising considering the mostly rural past of this country. But just like all of electoral engineering issues there are trade-offs and big political implications.

·         Without giving the least populated states inflated power, California and a few other large states could dominate national politics. However, one could counter that those states deserve to benefit from such domination; they have the population to back it up.  

·         Also, the least populous states often favor more conservative politics, likely giving Republicans unrepresentative power on Election Day.

·         Pork projects and subsidies are currently often found in states with low populations; think Bridge to Nowhere and Ethanol subsidies.

Lastly, note that the Constitution only reads, “[t]he Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative…” In 1790 the U.S. population was 3,929,214, and the 1787 document allots for 65 representatives, giving 60,449 people per representative. In 2010 the national population is 307,006,550. However, the number of representatives has remained constant at 435 since the passage of the Permanent Apportionment Act of 1929. Thus, we now have 705,762 people per representative.

My purpose for pointing out such numbers is to show that each generation must look at the decisions made by generations past We must recognize that the old adage of ‘one person, one vote’, is overly simplistic and misleading. If the spirit of the saying was ever true, it certainly isn’t now. Note that gerrymandering and corruption needn’t be invoked. In the final analysis, the only thing holding our nation to our skewed system is ourselves.

The Over-Reaction to WikiLeaks

“If you want safety, peace, or justice work for competency, honesty, and transparency.”

Dr. Bill Corcoran

Politicians and commentators from across the country and across the aisle reacted worrisomely to the WikiLeaks cables released over the past months. From Congressman Peter King to the more legally nuanced position of Vice President Joe Biden, the word terrorism has been brought up in discussions of the actions of Assange & Co. Simply put: the American reaction to WikiLeaks tells the world more about America than the cables have. That reaction has been a dangerous one.

1.      Public Diplomacy

In general, Americans would like the world to view America as an ethical entity. Our foreign policy generally supports governments we feel are controlled by The People and the democratic peace theory is often a core assumption of our foreign policy. Recently the Obama Administration praised Google for standing up to China by refusing to censor search results. Several years ago the Bush administration condemned China’s treatment of political dissidents. After all, the President of the United States is the ‘Leader of the Free World’.

Despite this, America’s collective national knee-jerk reaction to WikiLeaks was to yell ‘terrorist!’ and to have the site shut down, as evidenced by reactions of Amazon, PayPal, MasterCard, etc. In terms of maintaining trusting relationships, honesty and staying true to one’s values are best practices. This goes for personal relationships and inter-governmental relationships alike. How America’s public and private sectors react to journalists show the world what America values. We as a people can’t condemn China for silencing whistleblowers and dissidents when our own corporations and politicians are trying to stamp them out as well. We must realize that if we wish the world to value openness in governance, we too must value it.

2.      Civil Liberties

The labeling of WikiLeaks as a terrorist organization is worrying. WikiLeaks has simply published material, the veracity of which the government has not denied, against the interest and wishes of the government. It’s true that material has been classified, but the simple fact that no actually crucial or important security information has been leaked is proof that this material was not deserving of such a designation in a government of The People. If a legal case against WikiLeaks were to be successful, no organization or individual would publish leaked material, denying citizens that rare glimpse into a government that is supposedly run by them.

 The 1^st Amendment to our constitution reads, in part, "Congress shall make no law... abridging the freedom of speech, or of the press..." While that right has never been absolute, the language of the text and the case law which has followed hold high the burden on the government when attempting to act against journalism. This is partially because journalism and whistleblowing like WikiLeaks is actually a social benefit. Democracy only works in the world of perfect information: every voter has all the information he/she needs to make the best choice in the voting booth. However, without things like the Pentagon Papers or WikiLeaks, voters would have little knowledge of what the government is doing. Thus, there needs to be a vocal critic of the government, ready to report mistakes and to publish information otherwise unavailable to voters.

We as a people should condemn the actions and statements of our politicians and corporations as attempts to silence a legitimate whistleblower. Our government and our people must apply the principles of our founding to be viewed legitimately abroad and to protect our liberties at home.

Whiteness: A Bundle of Privileges

Introduction

This post discusses the scholarship of race in the field of public relations. It begins with the concept of whiteness and how to think of the concept. It then flows to practical outcomes of that concept and the future of such issues. 

Whiteness

Whiteness indeed is invisible to those who exist within it. (Edwards, 2010; p. 206) And for this reason, many young whites don’t understand the important social advantages they are given. Many people in the professional world today grew up in majority white communities, and went to majority white high schools and colleges. In some instances, these institutions aren’t simply white, they are blindingly white. Here, I will consider whiteness a bundle of privileges. At any given time people may have all, some, or none of these privileges. What makes these privileges important is their invisibility to those who have them (Edwards, 2010).

For these reasons, one shouldn’t be surprised that during discussions about race, the ‘white innocence’ defense is often raised. For those inside ‘whiteness’, the white innocence defense sounds like this: ‘to end issues of race, let’s simply treat everyone equally now, and everything will be fair’. To those who have realized the existence of this whiteness, such a defense sounds like this: ‘for centuries people who happen to look like me have set up institutional structures and social norms which implicitly benefit me, and of which I take advantage. While such benefits aren’t afforded to you, I didn’t create those structures, so sorry.’ As Edwards writes, “Recognizing whiteness means recognizing its effects and the unearned advantage it represents” (p. 207).

Merit

Another reaction by those within whiteness that goes hand-in-hand with white innocence is what is often called ‘pretextuality’. This is the simple act of setting ‘color-blind’ criteria for admissions or hiring purposes. The problem here is that people within whiteness don’t realize that most criteria used are skewed toward white applicants. Edwards discussed the discourse of merit here (pp. 210-213). Some issues here are more economic, while others are more cultural. While these biases do affect low income white applicants, there is a disproportionate effect on non-whites.

            Economic issues begin with pre-school programs. Children who learn basic social concepts such as sharing and educational concepts such as their letters and numbers before beginning their compulsory education are advantaged over others. Also, placement in elite private schools or well funded public schools helps to drive these differences.

Extracurricular activities can also be part of this discourse. They can cost money, require parental participation, require transportation, or sometimes simply require time. If a parent must work two jobs, and cannot bring a child to scout meetings, or cannot pay for youth sports, or must rely on the older child to care for the younger children after school each day, the children effected will not appear ‘well rounded’ in applications to colleges.

Moreover, SAT prep courses, ACT prep courses, campus visits, and even college admission consulting firms are available to those who are able and willing to pay for these services. The discrimination here is clear against those who live paycheck to paycheck. The issue of ever-increasing cost of education serves only to chill those who must face debt larger than the yearly income of anyone they know.

Culturally, many communities don’t value education. Simply put, money gets you food and shelter, a job gets you money, and school takes time and money away from a job and thus food and shelter. While one might say, ‘education can get you a better job with more money’, the reality is that food is needed today. The rent is needed tomorrow. Thinking about going to college is often simply too abstract to think about when one fears that if they quit their job, they have nothing left. In addition to that, it is discouraging if you wish to work in fields such as public relations, law or business, and you know no one doing that kind of work. Further, in many non-white communities, simply studying and caring about school may represent ‘acting white’ and be grounds for teasing, bullying, and harassment (Obama, 2004). Additionally it has been shown that admissions tests such as the SAT favor white applicants by making Euro-centric references and assumptions in their questions (Santelices & Wilson, 2010).

The reflexive question is this: how many privileges from the bundle do whites in public relations have?

Affirmative Action

Regarding affirmative action, I would agree with the points made in class that few people of our generation have consciously or actively engaged in overt discriminatory practices which have led to the subjugation of non-whites. However, it is important to note that many take advantage of the above-mentioned privileges of being white. Like running with the wind at one’s back, being white aligns one’s cultural goals, values, and mores with those that are accepted and furthered as worthy for the whole of society.

Edwards argues that for non-whites who have attended prestigious schools (such as Newhouse) or have political or elite connections share cultural capital with their white peers, and may not feel that race is an important identity for them (pg. 215). Essentially, Edwards is saying that non-whites who are able to reap the benefits of society traditionally reserved for white, effectively become white themselves. This discussion is about how many privileges in the bundle one has. How many must one have to be considered in whiteness? How many would put someone outside of whiteness?

To some extent, I agree with Edwards. A white prospective student or employee may have come from a family which does not value education, which is poor, which could be either urban or rural. At the same time, a non-white can come from well-off families who emphasize education, and come from suburbia. This is a possibility, and it needs to be admitted. However, it is not a majority of the time. Many schools and companies seek socioeconomic diversity just as much as they seek racial and gender diversity. A point worth noting here, however, is physical characteristics. The simple act of being a different color is instantly visually noticeable and unchangeable. Social class needn’t be worn on the sleeve, and can be altered. That, I feel, is an important distinction to make here. The color of white skin itself is a privilege in that bundle.

Race in Public Relations and the Future

Simply put, nothing said in the chapters about the current state of race in public relations cannot be said about race in fields such as business, law, math, science, or medicine. Although the point regarding the timing of the development of public relations is well taken, the advancement of non-whites in the fields mentioned above has been similarly woeful (Edwards, 2010). The first step toward improving the state of race in not only public relations, but other fields, is discussion of why racial differences are important. An organization simply cannot assume that their employees have come from diverse enough backgrounds to understand the privileges of whiteness. There needs to be a genuine understanding of why diversity is important for serving publics, especially if the publics themselves are diverse (Waymer, 2010). One may ask, ‘where does it end? When do we need to stop considering diversity when hiring or in admissions?’ This simple answer is never. Colleges, Universities, small companies, large corporations, the government, and even high schools have a legitimate interest in exposing their members and institutional structure to a wide array of world view. As such, factors that may affect one world view should be put on the table when the time to make decisions arises. Factors such as age, prior life experiences, social economic background, country of origin, religion, political ideology, education, interests, ethnicity, culture, and yes race should be honestly considered. In fact, many, if not all, of these already appear on most applications. Like any tool, this information can be used maliciously or benevolently, but if an organization honestly wishes for a wide array of creative discourse and the best output, it will use this information to be inclusive, and to counteract the biases of society and history, albeit in some small way.

Conclusion

            Whiteness is a bundle of privileges. However, in our modern day, there is no dichotomy between ‘whiteness’ and ‘non-whiteness’. It would be more accurate to view this concept as a spectrum. On one end, the power and prestige of educational elitism, political inclusiveness, material wealth, social ‘normality’ and acceptance is occupied primarily by whites of the upper-class. On the other end, the shut doors of political invisibility, minimal job prospects, poverty, social un-acceptance, and educational failure is occupied primarily by non-whites of the lower-class. While most of us are somewhere in the middle, we must be cognizant of the structural difficulties for those from the latter category. Although America has a traditional discourse encouraging individuals to ‘pull oneself up by one’s bootstraps’, we must realize that in order to do so, one must be able to afford bootstraps in the first place.

References

Edwards, L. (2010) “Race” in public relations. In R. L.Heath (Ed.), The SAGE handbook of public relations (pp. 205-221). Thousand Oaks, CA: Sage Publications.

Obama, B. "2004 Democratic National Convention Keynote Address" 2004 Democratic National Convention. Boston. 27 July 2004.

Santelices, M.V., & Wilson, M. (2010). Unfair treatment? The case of Freedle, the SAT, and the standardization approach to differential item functioning. Harvard Educational Review, 80(4), 160-134.

Waymer, D. (2010) Does public relations scholarship have a place in race? In R. L.Heath (Ed.), The SAGE handbook of public relations (pp. 205-221). Thousand Oaks, CA: Sage Publications.

Toyota Practices: A How-Not-To in Reputation Management

Introduction

            This post discusses the actions of the Toyota Motor Corporation from late 2009 to early 2010. Toyota began recalling many of its vehicles due to several reports of unintended acceleration. As the story unfolded, Toyota broadened its recall several times, consumer concern increased, and media coverage skyrocketed. Toyota’s response was investigated by the U.S. government, and Toyota was subject to Congressional hearings. It’s clear that Toyota did not follow the best practices of reputation management; the corporation was not transparent, honest, nor presented as concerned for their relationship with their customers.

Best Practices

            Managing ones reputation is important in public relations. Good reputation comes directly from being transparent, authentic, and responsive to publics. Reputation is also related to the identity and the image of an organization. The identity of an organization is “what is central, distinctive, and enduring about an organization…” (Brønn, 2010, p. 307). Identity must be built on a consensus of both internal and external stakeholders, and must be obvious to those outside the organization. Image is simply what the member of the organization believes others think of the organization itself. The image of an organization should reflect its identity. Finally, reputation is what external publics actually think of the organization. Reputation is not only important for the organization’s relationship with external publics, but also internal publics. In general, people wish to work for organizations about which they feel highly, and they may wish to invest in those organizations, as well. Indeed, reputation is mostly about relationships, because “the quality of relationships determines reputation, that quality relationships and reputation result more from the behavior of organizations than from messages disseminated, and that the value of relationships includes the value of reputation” (Brønn, 2010, p. 307-10).

            Reputation is also about trust. There are five stages of losing trust, disappointment, surprise, concern, disgust, and outrage. After publics lose trust in an organization, the organization loses those publics. Trust must come from communication and openness. To maintain high reputation, an organization must communicate visibility, distinctiveness, authenticity, transparency, consistency, and responsiveness. To be open, an organization must communicate information that is detailed, timely, accurate, and comparable to previous experiences (Brønn, 2010, p. 311-14).

Toyota Practices

Over the course of several months, Toyota announced three recalls surrounding the unintended acceleration of several of their vehicles. Each recall expanded the scope of the problem and the number of vehicles affected. On January 29, 2010, an automotive research analyst at HIS Global Insight said, “[Customers are] saying ‘Well, gee, the one pillar Toyota built its brand on was reliability, quality.’ Now that quality is questionable, and suddenly they’re looking at the Hyundai dealer across the street” (Haq, 2010). On February 2 the BBC reported Toyota's executive in charge of quality said, "The sales forecast is something that we're extremely worried about" (BBC, 2010). Although this may have been only one of several statements this individual made, this comment can clearly be taken as a callous one, as these defects reportedly led to several deaths around the country. On February 5 the USA Today reported that the recalls would hurt current Toyota owners, stating, "with safety shortcomings in some of the vehicles laid bare, it may become harder to resell their new cars when they go on the used-car market" (Sullivan, 2010).

Later in the timeline of this crisis, concern turned from the unfortunate nature of the recalls to Toyota’s possible negligence in the handling of safety concerns. On February 22 the Associated Press reported that Toyota’s first recall of floormats began in hopes of avoiding a more expensive recall of the accelerator pedal itself (AP, 2010). This “could raise concerns in Congress over whether Toyota put profits ahead of customer safety and pushed regulators to narrow the recalls’ scope” (AP, 2010). This led federal prosecutors to launch an investigation in pursuit of criminal charges against the corporation (AP, 2010). Because public apologies are admissible in court, this development likely limited what Toyota was able to release to the public regarding the recalls (AP, 2010). On April 5 the National Highway Traffic Safety Administration (NHTSA) announced it would bring action against Toyota “for failing to notify the auto safety agency of the dangerous ‘sticky pedal’ defect for at least four months, despite knowing of the potential risk to consumers” (NHTSA, 2010). On April 16 Toyota agreed to pay a $16.375 million fine as a result of NHTSA’s legal action (NHTSA, 2010).

Conclusion

            Best practices states that an organization must stay true to its core goals and values, be distinctive, and be transparent. The organization must honestly and effectively communicate with its publics. Finally, the organization must work on its reputation with its publics by being actively engaged in relationships with them.

By compromising the principles of reliability and quality, Toyota compromised its reputation. By not being transparent with the core issues in the initial recall, Toyota violated the trust of prospective buyers. Finally, by publicly worrying about its own profits while its customers were losing value in resale price, Toyota damaged its relationship with established customers and dealers. Because of these failings, it is clear that Toyota’s performance is a ‘how-not-to’ in reputation management.

References

Associated Press. (2010). U.S. launches criminal probe into Toyota safety. Retrieved from http://www.msnbc.msn.com/id/35520628/ns/business-autos/

BBC News. (2010). Toyota call recall may cost $2bn. Retrieved from http://news.bbc.co.uk/2/hi/business/8493414.stm

Brønn, P. S. (2010) Reputation, communication, and the corporate brand. In R. L.Heath (Ed.), The SAGE handbook of public relations (pp. 205-221). Thousand Oaks, CA: Sage Publications.

Haq, H. (2010). Toyota recall update: dealers face full lots, anxious customers. Christian Science Monitor. Retrieved from http://www.csmonitor.com/USA/2010/0129/Toyota-recall-update-dealers-face-full-lots-anxious-customers

National Highway Traffic Safety Administration. (2010). Additional information on Toyota recalls and investigations. Retrieved from http://www.nhtsa.gov/Vehicle+Safety/Additional+Information+on+Toyota+Recalls+and+Investigations

Sullivan, J. (2010). Toyota recalls will cost owners in lower resale values. USA Today. Retrieved from http://content.usatoday.com/communities/driveon/post/2010/02/toyotas-woes-will-cost-owners-in-lower-resale-values/1