Regulation by Non-regulation

by R. Michael Dunnigan, JD, JCL, Charles M. Wilson

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These days, Catholics who wish to know and live by the teachings of the Church certainly have their work cut out for them. They are subject to the distractions and temptations of the corrupt temporal order in which they live and, moreover, face similar trials originating even from within the Church. As most CHRISTIFIDELIS readers know from long, sad and frustrating experience, "official" sources such as parish religious formation programs, parochial schools, Catholic institutions of higher learning, diocesan newspapers and media outlets directly operated by ecclesiastical authorities cannot always be relied upon to present Catholic teaching without error, ambiguity or distortion.

With most Catholics already in varying degrees of confusion, matters have been made more complex by the appearance of a legion of broadcasting stations, publications and Internet websites, adding their voices on matters pertaining to the Catholic faith. They range from impeccably Catholic to utterly loathsome.

Considerable financial wherewithal is required to start and operate broadcasting networks and stations, so economic reality acts to keep their visibility high and their numbers relatively small. Internet websites, as we know, are another story. A site can be established with virtually no capital and can be reached by anyone in the world with a computer and a modem. No one knows how many websites there are whose primary purpose is to express opinions on Catholic teaching, discipline or related subjects. There are probably thousands, if not tens of thousands, and the number grows every day.

As one might expect, this led individual bishops to express concerns to the National Conference of Catholic Bishops. The Conference responded by approving a statement called Civility in Media and a Protocol for Catholic Media Programming and Media Outlets (hereafter referred to as the Protocol) at its Spring General Meeting held in Milwaukee June 15-17.

This article analyzes the two measures, especially the Protocol, and offers comments. The full text of the Protocol appears on page three of this issue.

The Non-Binding Nature of Both Statements

At the outset, it is important to note that neither Civility in Media nor the Protocol has the force of law. Civility in Media is a policy statement calling upon media outlets to refrain from personal hostility in discussing controversial issues. The Protocol establishes a voluntary system for the approval of Catholic programming and media outlets. Binding decrees would require a mandate to legislate, the approval of two-thirds of the bishops, and review by the Holy See. In this case, there was no prior mandate and both measures were approved only by voice vote, although without audible objection. Neither will be reviewed by the Holy See.

Civility in Media

Civility in Media, could be a useful document, although we believe that it would have benefited from additional editing. It addresses a practical and pastoral problem with some sound advice. In its present form, however, the statement lacks the refinement that one would expect of a conference statement.

For example, the statement would have been improved by emphasizing that the vocation to work in the information media is a vocation to serve the truth. In addition, the section concerning particular behaviors evidencing a lack of civility requires additional specificity. Although the list of examples of such behaviors address personal hostility emanating from media outlets, it does not address personal hostility directed against media outlets, especially when they attempt to uphold Catholic teaching or reveal truths that some in high places do not wish to hear.

No further analysis of this statement is made in this article.

The Protocol for Catholic Media Programming and Media Outlets

The Protocol is a curious document. In his presentation before the Conference, the Chairman of the Committee for Communication, Bishop Robert M. Lynch, frankly admitted that the Protocol is "an imperfect response." This may be the understatement of the year.

The Protocol replaces a previous draft that was put forward at the NCCB's November 1999 meeting and approaches Catholic broadcasting from an entirely different direction. Whereas the former draft focused on ecclesiastical vigilance over the individual or individuals who expound Christian doctrine, the new draft focuses exclusively upon the broadcaster or media outlet.

Although a conference of bishops has some authority to enact norms concerning radio and television broadcasts (cf. cc. 772, §2, 831, §2), the NCCB Committee for Communications made a conscious decision to propose a Protocol that exceeds the bounds of the NCCB’s legitimate authority. Bishop Lynch provided documentation to the members of the NCCB concerning the background for the draft of the Protocol and stated directly that, "Because the Protocol went beyond the scope of the canon, the Canonical Affairs Committee did not feel that it could make it part of its own work." Nevertheless, the Canonical Affairs Committee believed that the work done by the Committee for Communications might prove helpful for establishing a process "by which radio and television programmers or outlets who seek approbation from the conference or who seek to use the name 'Catholic’ in their titles could proceed to receive recognition or permission." The Protocol covers both Catholic programming on non-Catholic media outlets, such as CNN or NBC, and also Catholic media outlets. This article will discuss only the latter.

Despite the fact that the Protocol extends "beyond the scope of the canon" and therefore beyond the area in which canon law allows the national conferences to enact norms, the Protocol establishes an elaborate and pervasive regulatory system. However, because there is no canonical sanction for such a system, Bishop Lynch acknowledges that, "In the Protocol, these processes are voluntary." By proposing a Protocol, instead of binding norms, the Committee for Communications put forward a document that represents nothing more than the desires or personal preferences of the bishops who voted in favor of it. Most broadcasting outlets are inter-diocesan or international in their reach, although a diocesan bishop possibly could promulgate those portions of the Protocol that apply to websites as particular law for his diocese. As of now, however, a media outlet or website is free to decide whether or not its interests are served by participating in the new regulatory system.

In addressing the particular deficiencies of the Protocol, one faces the quandary of the proverbial mosquito in the nudist camp: where does one begin? We approach this daunting task by limiting the list of problems to the most serious:

Each of these five deficiencies could be discussed at length and the Foundation has done so in a fifteen-page opinion on the next-to-last draft prepared just before the June meeting of the Conference. For the purposes of this article, we will offer abbreviated comments on four points.

A. Pressure on Media Outlets to Volunteer

Despite the fact that the regulatory system of the Protocol is "voluntary," it is possible that media outlets that do not apply for approval may be called into question unfairly. The Protocol itself expresses the value judgment that media outlets "should voluntarily seek ecclesiastical approbation." The Protocol has no authority to make this judgment because it addresses a subject over which canon law recognizes no competency on the part of the NCCB. This language can easily convey the impression that there is something amiss with a media outlet that exercises its legitimate right not to apply. Moreover, Bishop Lynch’s Memorandum gives additional reason to believe that independent media outlets may be called into question. He stated that, despite the voluntary nature of the Protocol, "[I]t does allow for a Bishop or the National Conference to indicate whether or not a particular media outlet claiming to be 'Catholic' has gone through a process which would help to guarantee its Catholic authenticity."

It would indeed be appropriate for a bishop or the NCCB to indicate whether or not a particular media outlet has submitted to its regulatory system. However, such a response would be misleading unless it also made clear that the system is entirely voluntary and that there is no reason to question the "Catholic authenticity" of a media outlet that exercises its legitimate right not to participate in the system. Omission of this additional information would be inconsistent with the voluntary nature of the Protocol.

B. Use of the Name "Catholic"

There are many unanswered questions concerning the use of the word "Catholic" in the names and descriptions of the work of apostolates that are neither public juridic persons nor private associations with juridic personality. Given the complexities, it is regrettable that the Protocol said anything at all on the subject.

Canons 216 and 300 permit ecclesiastical authorities to regulate some uses of the word "Catholic," but the draft Protocol exceeds the bounds of this legitimate regulation. The canons read as follows:

Canon 216. Since they participate in the mission of the Church, all the Christian faithful have the right to promote or sustain apostolic action even by their own undertakings, according to their own state and condition. Nevertheless, no undertaking is to claim the name "Catholic" without the consent of competent ecclesiastical authority.

Canon 300. No association is to assume the name "Catholic" without the consent of competent ecclesiastical authority according to the norm of can. 312.

Note that the canon permits Church authorities to control use of "the name 'Catholic.'" That is, the canon concerns inclusion of the word "Catholic" in the actual name of an organization or association. The comments of the Canonical Affairs Committee are consistent with the canon. Those comments indicate that the NCCB could establish a process for granting permission to radio and television programmers or outlets "to use the name 'Catholic' in their titles."

However, the Protocol regulates use of the word "Catholic" more strictly than the canon contemplates. Its regulation of the word "Catholic" is not constrained to the contexts specified by canons 216 and 300. With regard to non-Catholic media outlets, the draft Protocol states, "Without this approbation, outlets may not claim that programming is 'Catholic.'" Thus, the Protocol would regulate not only the names or titles of organizations, which canons 216 and 300 allow, but also the mere attempt to identify the subject matter of the programming. Canons 216 and 300 provide no support for regulating this application of the term "Catholic." This provision should have been modified to fit the parameters of these canons.

C. Unlimited Episcopal Discretion and Vagueness of Standards

Another serious problem with the draft Protocol is that it leaves the bishops with unlimited discretion in deciding whether to grant approval and provides no protection against arbitrary decisions. The Protocol requires a diocesan bishop to give "careful consideration" to an application for approval, but it provides no criteria whatsoever to govern his decision. The Protocol provides no right on the part of a media outlet to a written description of the reasons for a denial of approval. Similarly, it provides no right of appeal from a decision to withhold or withdraw approval. Worse yet, the Protocol allows a bishop to withdraw approval for any reason whatsoever.

It is strange that the Protocol would urge Catholic media outlets to submit copies of their own standards and policies to the local bishop or NCCB, but that it would impose no standards whatsoever to govern the decisions of the Church authorities. From all that appears in the current draft, a bishop or the NCCB could deny approval for any reason whatsoever and would have no obligation to provide the media outlet with any justification for such a decision. By contrast, the code strictly constrains the authority of a bishop and his censor to deny a nihil obstat to a book:

Canon 830 §2. In fulfilling this office, laying aside any favoritism, the censor is to consider only the doctrine of the Church concerning faith and morals as it is proposed by the ecclesiastical magisterium.

Canon 830 §3. A censor must give his or her opinion in writing ...

The Protocol not only omits such limits, but it seems to manifest a specific intention to allow other considerations to dominate the decisions of Church authorities. Thus, to obtain approval, a media outlet must comply with an intrusive requirement for the production of a large number of materials. These materials include mission statements, goals, objectives, policies, resources, and lists of officers and board members. This is one of the most disturbing aspects of the Protocol. This intrusive request, coupled with the total absence of standards, raises the specter that decisions as to whether to grant approval may be made not on the exclusive basis of Catholic faith and morals, but on the basis of personal motives and preconceived perceptions about the persons associated with the media outlets in question.

A Catholic media outlet should not underestimate the potentially devastating impact that denial or withdrawal of ecclesiastical approval likely would have. In the case of a withdrawal of approval, the situation for the media outlet probably would be worse than if it had never sought the approval in the first place. Such a withdrawal would certainly result in adverse publicity and might convey the false impression that the Church had disciplined the outlet or that it was no longer operating legitimately. In such a case, the media outlet no doubt would regret its participation in the voluntary regulatory system of the Protocol.

D. The Complete Absence of Prior Consultation

Our final criticism deals not with the content of the Protocol but with the impenetrable secrecy in which it was prepared. Prior consultation with some of the Catholic media outlets that are actually working in this field might have helped to produce a Protocol that actually would have addressed the most pertinent issues. By contrast, when the NCCB was deliberating on norms for the implementation of Ex Corde Ecclesiae, the bishops engaged in extensive consultation with presidents and faculty of Catholic universities. No such consultation took place during preparation of the Protocol and the vast majority of the affected media outlets were not aware that it was even under consideration.

Bishop Lynch's Memorandum lists the names of 34 persons who worked on the draft Protocol, but all of these persons are either members or staff of the NCCB. None are owners or managers of any of the media outlets that are be regulated by the Protocol. Our opinion is that consultation with the actual media outlets working in this field is indispensable to establishing a workable system. The fact that such a system was established without the knowledge of (let alone consultation with) the affected parties is simply astonishing.

Conclusions

The Foundation’s opinion that the Protocol is inadequate should not be taken to disparage the efforts of the Committee on Communications, to call into question the good faith of its members or to deny the bishops' right to exercise vigilance over the means of social communication. Rather, this opinion stems from our respectful disagreement on a fundamental point. That is, the Foundation believes that the system of prior censorship and extensive regulation that the Protocol establishes is an ineffective and problematic way to meet the challenges posed by the electronic media in the Information Age. Our opinion is that a better way to meet these challenges is through establishment of a fair and efficient process for investigating (and, where necessary, correcting) actual speakers and programs that are known or credibly believed to be problematic from the standpoint of Catholic orthodoxy.

The interests of the Foundation are at stake here for two reasons. First, we operate our own website and, second, Bishop Lynch said quite clearly before the Conference that the process established by the Protocol could be applied, mutatis mutandis, to print media. Hence, we might be "invited" to volunteer for approval of CHRISTIFIDELIS.

The Foundation would not presume to suggest to other media outlets and websites whether or not they should apply for approval under the terms of the Protocol. However, we are now working closely with other apostolates that share our views and concerns and we expect to make a major contribution to the development of a common approach. Certainly, the Foundation stands ready to advise and assist any of these apostolates in considering whether to apply for approval.

We will keep you informed and ask that you remember all orthodox Catholic apostolates in your prayers in a special way.

© Christifidelis, St. Joseph Foundation

This item 2894 digitally provided courtesy of CatholicCulture.org