Written rules can be hazardous

A lawyer views ethics codes

A media defendant that does not live up to its own rules is a juicy target for plaintiff’s counsel.

By George Rahdert

George Rahdert, a partner in Radhert & Anderson in St. Petersburg, FL, specializes in First Amendment law.

Author bio information is from the time of article submission and may not be current.

Source: FineLine: The Newsletter On Journalism Ethics, vol. 1, no. 10 (January 1990), p. 1, 8.

This case was produced for FineLine, a publication of Billy Goat Strut Publishing, 600 East Main Street, Louisville, Kentucky 40202. Reprinted with the permission of Billy Goat Strut Publishing. This case may be reproduced for classroom and research purposes. Publication of this case in electronic or printed form requires written permission from the publisher and Indiana University. An exception is granted for use in readers designed for specific academic courses.

 

The law has had a tenuous and at times perverse relationship to ethics. The effect of negligence law is to penalize the written expression of high ethical aspirations and reward minimum standards of professional conduct. This is most certainly so in the case of ethics codes for journalists.

While providing licensure and regulation of virtually any other profession is a logical purpose of government, the First Amendment and our colonial history teach us that similar control of the press is unwise and unconstitutional. Thus to regulate the conduct of the press, government has had to take the much more subtle measure of tort law, and arguably that subtlety leads to perversity in its practical result.

The tort system is the law’s great regulator of human conduct. The law focuses on the base level of conduct, drawing a line between the minimally acceptable and unacceptable through imposition of criminal and civil punishments, reparations and injunctions.

Ethical systems ideally function at a loftier level, asserting principled goals for which principled men and women strive, measuring their success by how close they come.

Lawyers have not been spared the impact of negligence law on the ethics of their own profession. In fact, avoiding heightened liability for legal malpractice is one of the articulated reasons for a recent national move to alter legal ethics.

In very broad terms, the ethical rules of lawyers of past decades were divided into two components, Disciplinary Rules and Ethical Considerations.

Like other systems, the Ethical Considerations articulated lofty ideals.

To the dismay of lawyers, courts began to cite Ethical Considerations as establishing standards of conduct in malpractice suits, using the breach of these loftier ideals as evidence of negligence.

However, replacement of this ethical system is now well underway by the substitution of the American Bar Association’s Model Rules. These take a more middle-of-the-road approach, which in broad measure defines unacceptable conduct by a combination of arbitrary, prohibitory rules and common-sense guidelines.

In the decade following the Supreme Court’s 1964 decision in New York Times v. Sullivan, the law of libel underwent several major changes that ultimately emphasized established tort law principles of negligence. 

Sullivan rejected the old common rule that liability for defamatory speech was automatic, called “negligence per se.” Instead, for articles discussing public officials, press liability would not pertain unless the press acted with actual malice — that is, knowingly lying or recklessly disregarding reasons to doubt the accuracy of the story.

That doctrine was easily extended from public officials to public figures and, at the apogee of First Amendment interpretation of libel law, to articles about matters of public interest.

In the 1974 decision Gertz v. Welch, the Supreme Court retracted from a malice test for public interest articles and instead articulated that for private figures, the First Amendment demanded only a “fault” or negligent standard, allowing states to erect higher barriers if they wished.

Courts define negligence as the breach of a duty or a departure from a reasonable standard of conduct. The analysis was further refined to the question of whether a journalist’s actions would be measured against a “reasonable man” or “reasonable journalist” standard, the latter prevailing in most jurisdictions.

Of course, a “reasonable journalist” libel standard focuses the law upon standard journalistic practices. Commonly in a private-figure libel trial, the plaintiff will find a disgruntled journalist or J-school professor to come to court and expound, with the benefit of hindsight, upon the defendant’s failure to live up to exquisite, lofty standards of conduct by journalists. Consequently, the articulation of industry-wide codes of good journalism is deadly to the defense of libel suits.

A similar risk inheres in a press organization’s own code of standards. Nothing is more delicious to a good plaintiff’s lawyer than the irony and

hypocrisy of a defendant that fails to live up to its own rules. In the Westmoreland libel suit, CBS was severely challenged for failing to live up to its own news standards. It is for this reason that a vast majority of media lawyers, including this writer, counsel clients against adopting any form of ethical code, whether expressed as a statement of principles, a statement of corporate policy, standards contained in personnel manuals or even style-book or training materials.

The effect is unfortunate. These defensive tactics clearly bear an adverse effect on the ability of news organizations to establish principled corporate culture, to train new members of the profession and to reinforce these standards in writing. As a result, newspapers are left to express and reinforce standards in one-to-one contacts and orally in formal training sessions.

The larger irony here is that the application of negligence law to codes of ethics is self-defeating. Use of codes of ethics to create liability engenders enormous disincentives to articulate, adopt and apply sound professional principles.

If there are to be written standards, media lawyers will argue for the bare minimum. The law imposes an extra penalty on loftier expression of ideals; indeed, it has eliminated its own.

This underscores a deeper philosophical concern for a negligence system that encourages the bare minimum of normative conduct and punishes the expression of higher aspirations. In so doing, the law impedes one mechanism — written codes of ethics — by which we can all seek to improve upon established standards of conduct.

For another view, see “The problem is in the writing.”

 

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