FISH AND THE FIRST AMENDMENT

The First Amendment to the United States Constitution reads,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people to freely assemble, and to petition the government for a redress of grievances.”

Those are a lot of freedoms to pack into a single sentence, and far too many to discuss in a single essay, but that’s not a problem, given that the freedoms that I planned to talk about today are the freedom of speech and, in that context, freedom of the press.

I view those as the bedrock on which the other freedoms are built, since a government that can shelter itself from criticism, and can make such criticism a crime, or at least subject to severe civil penalty, is a government that can, for the most part, also shelter itself from accountability.

A free press, in all of its messy and undisciplined glory, is the beating heart of a free state.

The United States Supreme Court has long recognized the important connection between free speech, a free press, and public participation in the governing process.  Its 1957 decision in Roth v. United States noted that the First Amendment’s free speech protection

“was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,”

while its older, 1931 decision in Stromberg v. California stated that

“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be made by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”

Recognizing that editorial passions can sometimes run high, and that the language used in some publications can trend toward lurid purple prose, the Supreme Court observed, in its 1941 decision, Bridges v. California, that intemperate speech is also protected, as it

“is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.”

Given that background, when deciding the landmark case of New York Times Co. v. Sullivan in 1964, that court recognized the

“profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,”

and found that

“The constitutional guarantees require…a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Thus, the court set an appropriately high bar, to best guarantee the press’ ability to investigate, report on, and comment on government actions, to shine bright sunlight into the darkest corners of the bureaucracy and so keep the public fully informed on what is going on.

Freedom of the press is an important right, guaranteed by the nation’s highest court.  But what is equally important, if the public is to be fully informed, is that the press live up to its obligation to accurately report what’s going on, and not shelter behind the First Amendment’s shield while intentionally or carelessly perverting the public’s perception of events.

Such obligation, which cannot and should not be codified, is frequently ignored by today’s media, and probably nowhere more often than in the angling press, where editorial efforts to undermine the federal fishery management system, disguised as editorials or even, sometimes, as objective reporting, are commonly seen.

I wrote about that a few years ago, describing not only how editorials in the saltwater angling press are often slanted against the fishery management system, in order to please advertisers who want to see laxer management approaches that, they believe, will lead to higher short-term sales, but how one of those advertisers once sent me a message that effectively threatened that, if I wanted to continue to write for advertiser-supported publications, I’d better not take positions that displeased the recreational fishing industry.

But I’m raising the issue again, for about a week ago, I came across an article in a Delaware newspaper that was so dismayingly filled with unjustified, and uninformed, vitriol that a friend all the way down in the Gulf of Mexico asked if I had seen it.

It was that bad.

The title, “Bureaucrats are ruining the sport of fishing,” should have let me know what was coming, although that title was broad enough that it could have addressed a host of issues, from the ASMFC's failure to rebuild the striped bass stock to restrictions on fishing from public beaches.  But once I read the first paragraph, it became clear that the article was just another one of those 98% fact-free diatribes that appear all too often in the sporting press.

“I know some of you will read this just until I explain how our fishing regulations work, and then your eyes will glaze over and you will move on to the classified ads.  Please don’t do that, especially if you are a saltwater fisherman.  Our sport is in jeopardy of being ruined by a bunch of bureaucrats who have never caught a saltwater fish and have only seen them in photos.  They are using a set of numbers developed by a fatally flawed system known as the Marine Recreational Information Program or MRIP.”

It's hard to count all the misinformation in that single paragraph, but it’s easy to discern the author’s intent.  Everything that follows will be just another rant that fishery managers’ data is bad, fishery managers aren’t fishermen and don’t know what they’re talking about, and that the data-gathering process—MRIP—is unreliable.  Allegations will be strewn hither and yon, while supporting proof will not be found.

Even so, that sort of rant can cause real harm, when people believe the writers’ unfounded claims and lose faith in the management process.

In fact, the writers’ claims, which continue throughout the piece, aren’t merely unfounded, ut demonstrably wrong.

Even the author's basic premise, that the sport of saltwater angling “is in jeopardy of being ruined” by the regulatory proposal to reduce black sea bass landings by 28 percent, is way, way over the top.  

Right now, Delaware anglers may retain 15 black sea bass each day, with a minimum size of 12 ½ inches and a season that runs from May 15-December 31.  As a recreational fisherman in New York, I’m fishing on a 3-fsh bag limit (7 after September 1), a 15-inch size limit and a season that doesn’t open until June 23.  The regulations in Connecticut, Rhode Island, and Massachusetts, although slightly different, average out to be much the same.  So pardon me if I don’t believe that cutting Delaware’s bag, even by half a dozen or so fish, and/or adding an inch to its size limit, constitutes “ruining” the sport.  Especially when the rules for summer flounder will probably be eased this season.  And let’s not forget that, thanks to the same “bureaucrats” that the writer derides, beginning in 2023 recreational fishermen in Delaware, and everywhere else in the mid-Atlantic and New England, will be getting a larger share of the black sea bass, scup, and summer flounder catch than they did before.

That hardly sounds ruinous to me, but to move on:

 The Marine Recreational Information Program is not“fatally flawed.” That is a phrase originally leveled at MRIP's predecessor, the Marine Recreational Fishing Statistics Survey, by the Chair of a National Academy of Sciences panel reviewing the earlier program.  Criticisms of such program may be found in the National Academies Press’ 2006 publication, Review of Recreational Fisheries Survey Methods. 

The Marine Recreational Information Program, on the other hand, received a generally favorable review from another National Academy of Sciences panel in 2017, which is available as the Review of the Marine Recreational Information Program (also published by the National Academies Press, with text available online).  The phrase “fatally flawed” has only been applied to MRIP by a handful of disgruntled outdoor writers; persons capable of understanding the National Academy’s 2017 report would never commit such an error.

Thus, when that same Delaware author makes comments such as

“if NMFS used this data to indicate if the fish population were going up or down, that would be bad enough, but no, they use their figures as if they were an actual count of the number of fish recreational fishermen caught during a certain time period,”

and

“when figuring out the sea bass recreational quota, which they call the Total Allowable Landings, the fish counters took the bad data from the new MRIP and applied even worse data from the old MRIP, and decided that recreational fishermen had overfished their quota and had to pay it back by giving up a 28 percent decrease in 2022,”

he not only demonstrates his lack of understanding about how the management process works (e.g., averaging recreational landings for three consecutive years did show that anglers exceeded the average annual catch limit for that period, triggering accountability measures, but those measures did not require anglers to “pay it back” with a 28 percent reduction; instead, the reduction was simply needed to keep anglers from overfishing in 2022, which was all that the accountability measures required) but, far worse, misled his readers into believing that there were real problems with both MRIP and the management process, undoubtedly causing some of them to unjustifiably lose faith in federal fishery managers.

The Supreme Court has said on multiple occasions that he has a First Amendment right to do just that.  In discussing federal fishery management policy, he has the right to be vehement, caustic, unpleasant—and wrong. 

The article in question checked off all of those blocks.

But there is something that ought to accompany rights, although in today’s age, it too seldom does.

That thing is responsibility.

In the fisheries arena, many anglers, unfamiliar with the fishery management process, rely on the angling press to lead the way.  When editors and writers fail to do so—when instead of doing the research and telling the truth, even if that truth is presented in a somewhat slanted way they spread misdirection and falsehood--in order to push their own views, or those of their advertisers, on trusting readers, they do a disservice to both their readers and to the First Amendment, which should promote a vigorous, informed discussion of pending issues.

As someone who was first published in the angling press nearly 50 years ago, and has been involved in public fisheries debates for about as long, I believe that it is good when people dissent, and healthy when people disagree.

But I also believe that integrity matters, and that it is detestable for anyone to hide behind the First Amendment’s shield, and intentionally, or ignorantly, mislead others.

Yet in the angling press, the detestable has become, far too often, routine.