There are very few people—maybe surprisingly few—rushing to defend Rob Ford’s silence on the explosive allegations made by the Star and Gawker that there’s a video out there that appears to show the mayor smoking from a crack pipe and making offensive remarks. Christie Blatchford, Jonathan Kay, Kelly McParland, Marcus Gee, even Conrad Black—the pile-on of sometimes-Ford-defenders continues as his silence on the issue stretches on. Even his buddy Jerry Agar—the emcee of last year’s Ford Fest—says it’s time for the mayor to “man up” and talk about this directly. But over at the Toronto Sun and in some corners of talk radio, there persists the instinct to defend.
Sue-Ann Levy does this by attacking the source, of course, pointing out that Gawker editor John Cook calls himself “left-leaning” and has views about Israel you might find in a Toronto Pride Parade, and taking gratuitous blind-item style swipes at John Tory and Royson James.
And then there’s Joe Warmington, who mounts the closest thing to a defence of Ford’s silence we’ve seen in a column today headlined “Mayor Rob Ford has not been charged“:
He has not been charged with a crime.
He is not under police investigation.
He is not under oath.
He is not obligated to discuss his personal life.
His own time is his own business.
Who he hangs out with or assists is up to him.
How he parties on private property is private.
On not discussing the contents of a video that has not been made public but allegedly contains 90 seconds of “crack smoking,” Mayor Rob Ford got it right Tuesday by choosing to remain silent.
There is no legal requirement for him to address it. And no upside for him to do so. [Absurd poetic line breaks in the original.]
There it appears to be, the best defence Warmington can think of for Ford’s political tactic: he has his Miranda rights, or whatever we call the equivalent in Canada, and we ought to acknowledge that Ford can not be compelled to testify in his own defence since he is not under arrest. This bit of crack legal analysis has some merits in many of its underlying facts. Indeed, Ford is not under arrest, and is not legally required to answer the allegations against him. But I do not think anyone has suggested he has any legal obligations to the press or his fellow councillors or the people of Toronto here. We’re talking about the mayor of a large city—a politician who volunteered to run for the job and for the infringements on his privacy that might entail. His obligation to answer the questions being put to him now are moral and political obligations, not legal ones.
One would think this an obvious point. So straightforward, it can be articulated clearly by Ford himself. For instance, when Ford was hospitalized briefly in 2011, he found himself under no legal obligation to discuss his situation at all. And yet he did answer questions about his health. Here’s how he saw it:
Mr. Ford made the comments in an interview on Toronto radio station AM640 following two days of intense public interest in his health – a phenomenon he said he welcomes as mayor.
“I think you have every right to know. You’re my boss, right?” he said. “You pay my wages and when something’s wrong the taxpayers should be the first to know. My life’s an open book and that’s how I keep it.” [via @larrylarry]
The people of Toronto—the voters—can legitimately ask a politician all kinds of things they have no legal right to know. For instance, what is his position on raising property taxes, or building subways? (He’s not under oath, he has no legal requirement to address these questions!) What sports team does he root for, and where did he go to school? (He is not obligated to discuss his personal life. His own time is his own business.) Is he fit to hold the job, especially since reports have arisen that seem to call that fitness into question? (Private property! Right to silence!)
Indeed, he has a legal right to remain as silent as he wants to be. And voters have the legal right to draw their own conclusions about what that silence says about him. Generally, the public wants to hear both sides of a story—freely offered, not compelled by subpoena—and then make up their mind. But when only one side of the story is offered, what are they to think?
Well, when that one side relies on HEARSAY evidence—I can hear the Law & Order fans who host talk-radio programs shouting—and there is no proof, then you can dismiss it, ’cause it’s hearsay. Jeff McArthur on AM640 loudly took a stab at this line of defence last Friday when the allegations first emerged.
Oy. A couple things. Certainly, in a court of law, second-hand information can be ruled out of order as hearsay.
But, first of all, in this case, what we are reading in the accounts on Gawker and in the Star are not second-hand accounts: It is eyewitness testimony from people who have seen the video. And they directly, in detail, describe what they saw in the video and the circumstances under which they viewed it. They talk about the conversations and negotiations they had with the people who showed them the video. That is not hearsay. That is direct evidence offered by eyewitnesses. And guess what? That is actually how a good deal of the reporting we rely on for most of our news is done!
For example, in that same report from the Globe and Mail about the mayor’s discussion of his health problems, we see the authors write:
Mr. Ford made the comments in an interview on Toronto radio station AM640 following two days of intense public interest in his health – a phenomenon he said he welcomes as mayor. “I think you have every right to know. You’re my boss, right?” he said. “You pay my wages and when something’s wrong the taxpayers should be the first to know. My life’s an open book and that’s how I keep it.”
Mr. Ford spoke to the radio station after leaving Humber River Regional Hospital by a back entrance Thursday, out of sight of reporters who had been camped on the hospital’s lawn for two days waiting for the mayor’s staff to make a live statement that never came. Instead, Isaac Ransom, the mayor’s special assistant for communications, tweeted news of Mr. Ford’s release, along with a picture of the mayor standing next to a nurse holding a bouquet of flowers.
Now, how do they know Rob Ford said that on the radio? Hearsay? No. They listened to it, and now they are telling us what they heard. How do they know reporters camped out on the hospital’s lawn? Hearsay? No, they were there and saw it—did it—themselves. How do they know this picture exists of the mayor standing next to a nurse? Allegedly holding flowers? I’m guessing they know because they saw the photo with their own eyes—and now they are telling us about it, and telling us where (Twitter) they saw it and who the source of the photo (Isaac Ransom) was.
That is not called “hearsay.” That is called reporting.
But wait! Even things they did not directly witness with their own eyes—even things that might be called hearsay—are still well within the bounds of normal journalism, the kind we rely on every day to form opinions about things. Look further down at the same Globe piece:
Councillor Doug Ford said Torontonians should not be worried about the mayor’s health or his fitness to stand for re-election in 2014. “Rob’s healthy as a horse. He’s a workaholic … sometimes you go overboard,” the councillor said.
Here they are telling us what someone else said about the situation—making allegations about the mayor’s apparent addiction to working and the equine state of his health. Doug Ford did not write this article—so you could call this report on his opinions hearsay. Or you could call it a “quote.”
And while it may or may not be admissible in a court of law, that’s not at all what we’re talking about. The court of public opinion has very different rules, traditions, and standards. And under the precedents of that court, legalistic arguments tend to be ruled out of order.
PHOTO: STEVE RUSSELL/TORONTO STAR