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From the Summer 2003 issue of The News Media & The Law, page 16.
By Wendy Tannenbaum
The journalism industry endured its most shocking ethics scandal in recent history when in May New York Times reporter Jayson Blair was found to have systematically plagiarized and fabricated material in numerous stories he wrote for that newspaper and possibly others.
Blair's reporting, described as a "profound betrayal of trust" in a lengthy correction published by the Times on May 11, led to the resignation of the two top editors at the Times and prompted the news media to re-examine the way it conducts and oversees its business.
The story is one that has been -- and will continue to be -- debated from every angle by journalism ethicists.
But unless the Times is sued over Blair's indiscretions -- a not-so-remote possibility, according to some reports -- the scandal is more ethical in nature than legal. Federal prosecutors have said they will not pursue criminal charges against the former reporter, and no libel suit had been filed as of July.
The rules and standards that govern journalism ethics are different from the legal rules imposed on the press by courts and legislatures. Nevertheless, journalism ethics can be a factor in lawsuits brought against the press.
And according to some experts, news organizations have reason to worry that the Jayson Blair scandal and others uncovered in recent months could have negative repercussions for the media in the courtroom.
Ethics in legal proceedings
There is no legal cause of action for breach of a journalism ethics rule, and the U.S. Supreme Court has made sure that the press is liable only for its most egregious actions. But ethical breaches by journalists can and do make their way to the courtroom from time to time, often as evidence in a case for defamation or invasion of privacy.
Former First Amendment scholar and now federal appellate judge Robert D. Sack wrote in his treatise on libel: "Whether the defendant departed from accepted journalistic practice is a standard of liability that has been explicitly rejected by the Supreme Court, and such a departure is relevant only indirectly as evidentiary support for the ultimate conclusion as to whether the defendant believed what he or she said. If this evidence, typically presented vehemently by a journalism professor apparently paid by the decibel, is to be admitted, it should be with caution lest the jury be misled into believing that culpably bad journalism is equivalent to" defamation.
A reporter may violate a canon of ethics and be in no danger of legal liability. On the other hand, it is possible for a journalist to be on the wrong side of the law when no ethical standard has been breached.
According to Washington, D.C., media attorney Charles Tobin, plaintiffs who sue the media always ask to see a news organization's book of internal rules governing reporters.
If a company does not have such a book, the plaintiff will rely on industry rules, such as the Code of Ethics developed by the Society of Professional Journalists or a similar code used by the Radio-Television News Directors Association.
"Plaintiffs' lawyers use it to try to create an atmosphere of incompetence, violation of written rules and the like," Tobin said. "But they've never done it very effectively in any of the cases I've been involved in."
The toughest part for the media party is making it clear to a judge or jury that the standard for libel cases is distinct from any journalistic code of ethics.
Supreme Court case law requires that in cases brought by public figures or public officials, a successful plaintiff must prove that the media defendant acted with "actual malice," defined as knowledge of or reckless disregard for falsity. In private figure cases, the standard may be lower.
"It's not an objective standard that you can measure up against the rules. It's a subjective standard that gets into the reporter's head and asks whether they knew what they did was wrong," Tobin said. "So whenever a plaintiff's lawyer cites the code of ethics in an actual malice case, you always have to make that argument. And in my experience, judges understand it and will apply it."
Indeed, some judges have been careful to point out the distinction in their written rulings.
In the 1995 case Kendrick v. Fox Television, for example, the District of Columbia Court of Appeals rejected an attempt by a plaintiff to use journalistic codes as evidence in a libel suit over television news reports about a drug raid.
The plaintiff, who was the landlord of the building in the report, cited rules from the American Society of Newspaper Editors about fairness, lack of bias, publishing unofficial accusations and corrections. The court said the rules were irrelevant because the plaintiff could not prove they were customarily followed by journalists.
In a recent decision by the U.S. Court of Appeals in San Francisco (9th Cir.) in the case of Suzuki Motor Corp. v. Consumers Union, the court noted that "although expert testimony regarding [Consumers Union's] departure from accepted professional standards is not sufficient by itself to establish actual malice, it does shed light on the propriety of [Consumers Union's report] and, thus, is entitled to be given appropriate weight." Suzuki cited journalism standards as evidence that Consumers Union had acted maliciously when it published an unfavorable review of the Suzuki Samurai.
In some cases, media defense lawyers have used journalism ethics codes in their favor, arguing that their journalist client could not possibly be liable without having even violating one industry rule. Such evidence can be effective where the standard for liability is negligence. Nevertheless, some media lawyers avoid this tactic.
"You're better off not trotting out the same rules that you try to distance yourself from in other contexts," Tobin said. "Because no set of rules -- and that's the problem with them -- is going to anticipate every situation that comes along. And so every provision in a code of ethics that you can point to as evidence that your client followed good journalistic practice, a clever plaintiff's lawyer will point to a different provision to say that what the reporter did was wrong."
Some lawyers and ethics experts suggested that ethics codes have no place in the newsroom. The codes tend to be vague and over-inclusive, and their mere existence causes problems when lawsuits arise.
Bob Steele, Senior Faculty and Ethics Group Leader at The Poynter Institute for Media Studies in St. Petersburg, Fla., said he thinks having written standards is still a good idea.
"We should be cautious about stating things as rigid rules," he said. "When we do that, we potentially leave ourselves in a position where we could trap ourselves in legal liability situations. But that concern should not preclude writing down guidelines that help the journalists understand and follow the standards related to everything from conflicts of interest to sourcing to fairness and accuracy, promise-keeping, honesty and so-forth."
Tobin, who spent eight years as an assistant general counsel at Gannett Co., Inc., agrees that ethics codes can help in the newsroom.
"I would rather not have them involved in [a libel] case. I think they create more work for the defense bar as plaintiffs lawyers try and cloud the issues by bringing them out," Tobin said. "On the other hand, the legal profession, the accounting profession, all other groups that consider themselves professions do have codes that help in the management of their work and help managers manage the people within the organizations. And so from that standpoint, I can see why certain journalism managers would find them useful as a management tool . . . People like to know what the rules are."
In 2000, RTNDA modified the wording of its Code of Ethics and Professional Conduct, replacing instances of "shall" with the more flexible "should." The association's Web site says it made the change to "soften the guidelines" to make them compatible with the litigious climate of the new century.
The change reflects a fear that rigidly worded guidelines could be misinterpreted by courts and established as legal rules.
But there is an equal fear that a complete lack of guidelines also could have legal consequences.
"I have had plaintiffs' lawyers effectively argue that there are no rules, and that's a bad thing, and that if the newspaper only had rules that this terrible thing this might not have happened," Tobin said.
What it comes down to, he said, are the facts of the case and the strength of the plaintiff's arguments.
A Blair effect?
So will the Jayson Blair debacle have an effect on the outcome of future and ongoing lawsuits against the media?
In May, a plaintiff's attorney conducting a trial against WVIR-TV in Charlottesville, Va., discussed the Blair incident, which had no factual relation to the case, in court -- and won a $10 million judgment against the television station.
The case arose out of news segments that aired in April and October 2001 reporting that police seized cocaine from the home and business of the plaintiff. The information was incorrect, and the station did not air a retraction.
According to an article in The Washington Post, plaintiff's attorney Matthew B. Murray mentioned Blair repeatedly in his arguments to the jury, apparently as a reminder that journalists can be untrustworthy. Murray cited the Times' front-page correction as an example of what a responsible news organization should do.
The verdict came down the same week that Newsweek had the Blair scandal on its front cover, according to Christopher J. Robinette, one of WVIR's lawyers.
WVIR is requesting a retrial, claiming the award was excessive.
Whether the Blair analogy will be used by plaintiffs in future media litigation remains to be seen.
But few doubt that the media has taken a hit in terms of the way it is viewed and trusted by the public.
"Certainly some of the people I know have who are not journalists have been rolling their eyes and raising their eyebrows and chatting up a storm about what happened at The New York Times," said ethics expert Steele. "The cynics of journalism, of course, could use this as ammunition. They see what happened at the Times as reflective of all that's wrong with journalism."
Such negative sentiment could affect jury verdicts in media cases.
"I don't think anybody would disagree that any time there's a notorious incident involving a journalist that gets a lot of publicity, it excites the group of lawyers who make their living suing the media. So yes, they're probably going to use it," Tobin said.
On the other hand, the revelations regarding Blair's deceptions may serve to improve the level of journalism, thus decreasing the number of lawsuits filed against the press.
"The forced introspection the Times has been going through since the Jayson Blair story surfaced will, in the long run, be healthy," said an editorial published by the Times June 6. "A string of rather spectacular successes might have made us too cocky, too sure that the future would simply bring more of the same."
Steele said he has received calls since the Blair story broke from news organizations that are considering establishing ethics guidelines.
"I do believe that the Blair New York Times case, along with some others . . . have sparked renewed concern on the part of newsroom leaders to make sure that the organization measures up ethically and that the appropriate standards and guidelines are in place to help make sure that measuring up takes place," Steele said.