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Brian Burke: About Your Divorce (Column 152) — Reckoning with ‘Alternative Facts’

Oblique Strategy #46 — Did Chuck Todd smoke Kellyanne Conway on Jan. 22, 2017?

I. Meet the Alternative Fact

The phrase “alternative fact” came to national attention on the Jan. 22 broadcast of Meet the Press.

Chuck Todd asked Kellyanne Conway why Sean Spicer, for his first press conference, was instructed to insist that the audience for the 2017 Inauguration was the biggest in history, when aerial photographs taken from a variety of locations demonstrated that it was not.

There is an online transcript of every Meet the Press program. This one is instructive. The question was asked and the response was a 306-word political message that doesn’t include an answer.

Todd asked the question again, and Conway deflected it by asking a question of her own. That was followed by 23 exchanges during which Todd said twice, “You didn’t answer the question,” and Conway said, “Yes, I did.”

Todd, for the third time, asked: “Why did Spicer undermine the credibility of the White House Press Office by making a claim that had been proved to be false?”

Conway replied (taken from the transcript), “Don’t be so overly dramatic about it, Chuck. What — You’re saying it’s a falsehood. And they’re giving Sean Spicer, our press secretary, gave alternative facts to that ...”

Conway said, “Wait a minute — Alternative fact?”

There were four more exchanges/interruptions before Todd said, “... Four of the five facts he uttered were just not true. Look, alternative facts are not facts. They’re falsehoods.”

I was engaged by this segment of Meet the Press and fascinated by a review of the transcript.

When Todd said, “... an alternative fact is a falsehood,” I thought: Finally, someone on a major network is refusing to pretend that a verbal exchange is being done in good faith when it’s not.

II. Alternative Facts and Divorce

Since early 2016 there’s been an open question about how the media should cover controversies in which one side has a history of advancing verifiably false information.

Are all sides nonetheless entitled to neutral reporting? Is there an obligation to point out falsehoods? What about likely falsehoods? Should each story include an account of the history of similar inaccurate information advanced in the past?

A false statement can be made and disseminated to millions in an instant. It can require hours, days or months of work to produce a boring story demonstrating that the statement was false. Then it’s old news.

Listening to or reading the exhibition of the lie is always more tedious than listening to the lie itself.

So what can be done on the spot?

When Todd exposed Conway’s notion of “alternative facts,” it first felt like a sign the media was learning how to report on governmental officials who deplore those they deem to be dishonest, while spewing out new falsehoods and repeating old ones every day.

Did he hit on something that can be used in everyday “real life?”

III. Hope Dashed

At first I thought it could and decided to write this column to explain why. But writing requires thinking, and that’s caused me to change my mind. There are two problems. One is that there really are “alternative facts.” The other has to do with the slippery nature of notion of the FACT.

IV. Facts can be both true and wrong.

There are alternative facts. The size of the inauguration audience is a trivial example, and I’ve seen photos taken of the inauguration crowds from where the president speaks.

The audience looks huge in all of them, and I could forgive any president who looked out at the crowd and the defining moment of his or her life and concluded that there couldn’t have possibly been so many people at any inauguration in the past; thus, his or her integration was the greatest.

That’s what s/he saw and believed.

Todd’s question might have been answered, “That’s what it looked like to the president from where he stood. I was there too, and it didn’t seem possible that there could be more people.

“That’s what I saw and what he saw. I haven’t looked at photos and neither has he. Surely, there is more important information to report to your viewers. ”

That’s an alternative fact. It could have been honestly perceived and recalled, even if wrong.

V. Fact as Opinion

Given the way the law works, most facts are a combination of perception and opinion.

Trials involve the re-creation of a slice of reality in sufficient detail to allow the judge or jury to decide if a claim is true/false, guilty/not guilty, liable/not liable. The Evidence Code determines what kind of information can be presented to the judge or jury.

The Evidence Code begins by saying that all relevant evidence can be considered, unless there’s another law to the contrary.

Evidence is testimony of a witness, writings and things.

Relevant evidence must have tendency in reason to prove or disprove a disputed fact that matters to the determination of the issue before the court.

An ordinary person (non-expert) can testify to facts within her personal knowledge and acquired with one or more of the five senses. Just the facts ma’am; keep your opinions to yourself.

Neither FACT nor OPINION is defined in the Evidence Code. It’s a good thing, too, because testimony about a FACT comes from the witness’s first-hand sensory perception; it’s an OPINION about what that sensory experience means.

I heard my mother’s call can be broken down to: I heard a sound. It was a human voice. I lived with my mother for 18 years, and I’ve talked to her once a week for the last 10 years. I recognize her voice. It was she who called.

Here’s another example: Reading is the interpretation of marks on a surface. People who see the same marks in a language can understand the words to mean different things.

Place the stress on each word in the sentence below to see if you can get seven meanings from this one seven-word sentence: I never said she stole my money.

Stuck? Try: I never said she stole my money. Then try: I never said she stole my money.

VI. So what?

Calling out those who advance “alternative facts” is not useful, and the belief that news reporting should be divided between facts and opinion is flawed at the outset because of the overlap between the two.

What I’ve learned from this exercise is that, as far as I can tell, the media’s attempts to deal with the current political scene have nothing to teach about dealing with divorce.

However, the current political scene itself provides divorcing couples with an example of discourse they should avoid copying in whole or in part.

Two of the tasks couples must complete during Stage III (quasi-bargaining) of the Grief process associated with divorce are to learn or create a new, non-intimate way to talking to each other. The Jan. 22 transcript of Conway and Todd is instructive and will be the subject of the next column.

Next column: Oblique Strategy #47 — Does Kellyanne Conway have something to teach you?

— Brian H. Burke is a certified family law specialist practicing family law and mediation in Santa Barbara. A researcher and educator in the field of divorce and family conflicts, he is also the creator of the Legal Road Map™. Click here for more information, call 805.965.2888 or e-mail [email protected]. Click here to read previous columns. The opinions expressed are his own.

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