Legislating Ethics   

Will detailed codes make newspapers more honorable and help them regain public confidence? Or are they an invitation to a libel suit?

Last winter the Kansas City Star got a hot tip: Municipal employees were selling city-owned asphalt mix to a privately owned gas station. The Star sent a reporter to the scene. The station operator asked the reporter for $30 to cover the payment, the reporter agreed and the asphalt was dumped.

Once the city was notified, it quickly picked up the purloined asphalt mix and later fired two employees. In journalistic terms, it was a slam dunk. Only the story was never written. Star editors considered the reporter's decision to provide cash a serious ethical mistake.

"At this moment, the Star became a part of the story it was there to report," Editor and Vice President Arthur S. Brisbane wrote in a column. "It is our job to witness and publish – not to participate in the making of the news."

After that incident and another involving a conflict of interest, Star editors decided to take a close look at the various guidelines used by departments around the newsroom and consolidate them. "It surprised us that some things we thought were common knowledge weren't," Managing Editor/News Mark Zieman says.

The Star is not alone. From the tiny Napa Valley Register in California, which doesn't have formal written guidelines, to the Hartford Courant, which is updating its seven-year-old code, newspaper editors are talking about ethics. Should they have a written code like doctors, lawyers and a growing number of businesses?

Few newspapers are vehemently opposed to written codes. Yet less than 100 newspapers have them, according to a survey by the Associated Press Managing Editors (APME). More editors now believe written codes – not just broadly stated principles – are necessary and are writing or considering their own.

Many say a strong ethics code will enhance credibility in an industry that has been losing public confidence. They say reporters need to know the ground rules and that a code should be written down and discussed; editors can't just assume reporters – who change jobs relatively often – will know the guidelines.

But how specific should such codes be? Editors like Zieman say if they aren't very detailed, they're meaningless. Others, like Managing Editor Earl Maucker of Fort Lauderdale's Sun-Sentinel, say if the documents have too many rules, they won't be followed. And some media lawyers think writing a detailed ethics code is the equivalent of handing a plaintiff's libel attorney a manual on how to win.

Many papers loosely rely on codes offered by the American Society of Newspaper Editors (ASNE) and the Society of Professional Journalists (SPJ). But some say those codes are too vague and outdated.

The APME leadership is lobbying for a highly detailed, controversial code that was circulated at the group's annual meeting last September in Minneapolis. Eight members of APME, headed by David V. Hawpe, editor of Louisville's Courier-Journal, spent a year researching and writing guidelines on deception, fact-checking, freebies, conflicts of interest, confidential sources, electronic polls, gifts and pre-publication review of articles.

Hawpe's group wants ethics codes written down and, rather than languishing in editors' top drawers, published in papers and regularly discussed with the staff. The entire APME membership will vote in September on whether to accept the proposed code. APME leaders aren't seeking to set industrywide standards; rather, they are offering their code as a prototype for papers to adopt or consider when modifying or creating their own codes.

While the APME code was generally well received at the organization's annual meeting, sections that call for systematic fact-checking when feasible and condemn the use of deception except as a last resort are drawing the most criticism.

APME leaders see their new code as a vehicle to encourage everyone – the public, journalists and lawyers – to consider the need for clearly defined standards and what their effect would be. The debate – to have or not to have, to be specific or not – has encouraged them. Discussion is exactly what they wanted to create when they wrote their five-page Declaration of Ethics.

Regaining Public Confidence

Journalism "is among the most ethically sensitive of crafts," says Hawpe, whose paper has yet to adopt a comprehensive code. "But there is a need for an ongoing conversation about ethics. That's what this is all about."

Hawpe and Gannett News Service Editor Robert Ritter, a driving force behind the code, believe a newspaper's greatest asset is not its staff or advertising lineage, but its credibility. And newspaper credibility has been on a downhill slide for a long time. According to a Los Angeles Times poll in March 1993, only 17 percent of the American public believes the media do a very good job – down from 30 percent in 1985.

Ritter hopes adopting strict, specific ethics codes will help recapture public confidence. As president of APME last year, he began giving serious thought to a strong ethics code when he realized the organization had not taken a hard look at its own in 18 years. A lot had changed.

Journalists stumble all the time into territory that has no ethical road map. Technology alone has created a mushrooming set of dilemmas. Many existing codes offer no advice on how to handle electronic polling results or what to do about the rapidly growing field of computer-assisted journalism.

Tabloid-style broadcast "news" programs like "Hard Copy" and "A Current Affair," where the line between fact and fiction is often blurred, are causing problems for newspapers.

So are media mistakes and their subsequent negative publicity.

"There was a tremendous amount of talk earlier this year about breaches in ethics in television and newspapers," Ritter said in October. He pointed to the explosion staged by "Dateline NBC," USA Today's use of a misleading photograph of gang members in Los Angeles, and questions raised when the New York Times, in a story about attorney general-nominee Kimba Wood, quoted an unnamed source – Wood's husband.

Conversation led to action. APME ethics chairman Hawpe sent out 1,500 surveys last spring to newspaper editors. More than 570 replied. Some 43 percent said they feel under greater pressure than ever about ethical issues, while 71 percent said corporate pressure for profit has a greater effect on news coverage than in the past. They also said it's now harder to avoid giving advertisers special treatment.

Before writing the new 3,000-word code, Ritter and Hawpe held all-day seminars in Hartford, Nashville, Kansas City and Sacramento. They recruited ethicist Michael Josephson to assemble groups of politicians, executives, reporters, community activists and members of the public to talk about how newspapers do their jobs.

"They don't understand how we go about our work and how we edit our work," Ritter says. "They don't think we have much regard for privacy. They don't understand why journalists choose not to participate in the community or understand the difference between off and on the record. What we see as arm's length, they see as arrogant."

In July, the APME ethics group began revising its code and presented it at the organization's annual meeting, where actor Tom Selleck spoke on its behalf. Selleck, a target of the tabloid press, has donated money won from lawsuits to the University of Southern California to develop media ethics programs.

Selleck participated in a lively panel discussion with journalists, a lawyer, a businessman and a local politician. Of the nine panelists, only two – Fort Lauderdale's Maucker and AP attorney Richard Winfield – opposed the code.

Maucker says it's too detailed to be worthwhile. "It's simply not realistic to expect our staff to follow every line and every paragraph and every nuance," Maucker says. "So what good is it?"

The editor believes that newsroom directives should be very clear but also contain some flexibility. "I agree a code should be in writing but you can't cover every contingency nor should you attempt to," Maucker says.

Winfield, who handles AP's libel suits, calls detailed codes "toxic' ' because they provide too much courtroom ammunition to newspaper adversaries.

Others on the panel disagreed. "When we deal with the newspapers, we don't know what the standards are," said Michael Wright, chairman and CEO of Supervalu Inc., a large food wholesaler. "They don't check facts or get quotes that support the facts of a pre-existing premise and they ignore quotes to the contrary... I think it's desperately needed."

Seeking Feedback

Before APME members decide later this year whether to adopt the code and recommend it to member papers, Hawpe wants feedback. He hopes newspapers around the country hold debates and consider what they want in an ethics code. Parts of APME's code are likely to be revised before the vote.

"I would be surprised if that detailed a code indeed becomes the code adopted by APME," says Jennifer Carroll, managing editor for the Lansing State Journal in Michigan and a vice chair of APME's ethics committee.

Brigham Young journalism professor Ralph Barney would vote to reject the code. Barney, the co-author of "Doing Ethics in Journalism," says the more specific a code is, the more dysfunctional it becomes.

"It's always dangerous to be specific because there always seem to be exceptions," he says. "The question is, shall people think for themselves on the basis of general principles or just follow the rules?... These codes are almost insulting for thoughtful people, but they are useful for ignorant people."

Another journalism professor, Lee Wilkins at the University of Missouri, also would cast a nay vote. "What I don't like – and it's why I'm not fundamentally a strong supporter of codes – is they too often take on the easy issues, like no freebies and always tell the truth," she says. "They don't have the capacity to change over time. In most organizations, somebody has to make a real extreme boner to have a code rewritten."

APME's proposed code has many provisions that are standard procedure at most newspapers. Many are the "easy" ones Wilkins refers to: The draft would forbid accepting gifts, insist reporters pay their own way and avoid any financial interest or conflicts with newsmakers. But the code goes further than many when it comes to community involvement.

"We think journalists shouldn't be involved in any organization they cover, shouldn't participate in demonstrations or sign petitions," Ritter says. "Nor should they serve as decision makers or fundraisers in community organizations."

Strict ethics codes like APME's aren't easy to swallow for small-circulation papers. Larger newspapers absolutely prohibit taking freebies of any sort. But it's not so simple for managing editors like Doug Ernst of the 21,000-circulation Napa Valley Register in California. His paper has no formal code and often struggles with how to handle free tickets to cultural and athletic events.

"If you don't take the tickets, you don't get to go," Ernst says. "Then we don't get the news into the paper and that's not fair to readers... If I take the tickets and I bash them, is that fair? We get those problems all the time."

Editors at small newspapers, however, are not without a sense of humor. "I joke our ethics code is that nobody is allowed to accept gifts of less than $50 because they demean the newspaper," says Chris Powell, managing editor of the 50,000-circulation Manchester Journal Inquirer in Connecticut.

As for deception – using trickery, misrepresentation, hidden cameras or tape recorders – the APME draft calls the practices "outside the bounds of generally accepted journalistic behavior." It does provide five exceptions when deception may be used if there is no other way to get a story of crucial public interest.

Critics say there are too many loopholes for this approach to be effective. Editor & Publisher cited the deception provision – and the code's detailed standards – as reasons to reject the APME draft.

If undercover techniques are used, the proposed code mandates that a paper must run a sidebar explaining why the editors thought it was appropriate. In fact, disclosure sidebars are a theme throughout the draft. If you use a confidential source, explain why the source must remain unidentified. If a picture is posed or altered, explain why. If a poll is done, explain how it was taken and its limitations – no more simply describing it as unscientific. If someone on the paper has a financial conflict, reveal it.

"The theory behind the code is the general notion that whatever you are going to do, be as open and as accountable as possible," says Josephson.

Accuracy is another major issue. "Newspapers," says the draft, "should develop and use safeguards to avoid error. These should include systematic verification of facts and quotations and corroboration of critical information." This section draws the most criticism, especially from libel attorneys.

Fact-checking, according to the code's authors, can be anything from replaying a taped interview to reading a quote back to the source or calling a second party to verify it.

"Any story where someone is put in a bad light, we have an obligation to double-check and make sure we're damn right," says Michael Waller, editor of the Hartford Courant and an APME code author. "Why would anyone object strenuously to this section?.. Corroborating critical information is what we should be doing now even without a code."

Alice Neff Lucan, a newspaper lawyer in Washington, D.C., thinks that provision is elitist. "Small newspapers – especially weeklies – cannot do many of the things the code would require," such as double-checking facts, because they don't have the staff, Lucan says. "It works well at the Louisville Courier, but don't put this down the throat of my clients."

No one disagrees with the notion of corroborating facts. What concerns lawyers like the AP's Winfield, however, is how the code could be used against the paper if facts aren't double-checked.

"If a newspaper doesn't have a fact-checker or doesn't verify quotes for an article," he says, "it gives the plaintiff's lawyer the opportunity to challenge the absence of a systematic verification and to show the newspaper violated the national standard set by a prominent and prestigious organization. Therefore, the newspaper has been at fault. Write your check. In the real world, that's how it works."

Keep it General

Winfield and Lucan, like many of their colleagues, prefer a broadly written ethics code. Specifics, they say, complicate things for libel cases and don't work in a field where no code can anticipate every dilemma.

"It's the whole tone of the code that I don't like," Lucan says. "It speaks in terms of shoulds, must, never. You can't do that in journalism."

George Freeman, the New York Times' assistant general counsel, agrees and opposes any written code.

"Reporters understand that ethics is not something that can be put on two pieces of paper," Freeman says. "It's a matter of tradition, journalistic ethics and responsible journalistic procedures. Those aren't susceptible to being described in black and white."

Media lawyers cite instances where codes have been used against newspapers, but there are no statistics on the subject, according to Henry R. Kaufman, general counsel for the Libel Defense Resource Center in New York City.

Lucan cites a $370,000 actual malice verdict won by a neurosurgeon in Denver against a weekly newspaper called Westword. In that case, the plaintiff's attorney introduced the SPJ ethics code and claimed the paper violated it.

To prove libel, a plaintiff's lawyer must show actual malice – that the paper knew the information was false and published it anyway. That's tough to prove, says libel defense attorney David J. Bodney in Phoenix. Recognizing that, he says, plaintiffs' lawyers now try to turn actual malice cases into negligence cases, which are easier to win.

"The biggest boost they've got to win a jury over is an alleged violation of an ethical canon," says Bodney, who is handling Westword's appeal. "That's burned indelibly into a jury's memory."

But Bryan Morgan, the lawyer who defended Westword, says the introduction of an ethics code in this case made no difference. "I don't think the jury paid any attention to the ethics code or to the journalist experts who testified," he says.

Make it Specific

Morgan believes that if a paper is going to have a code, it should be specific. A vague code "leaves the impression that journalists don't have any rules to play by," Morgan says, "and the only way to make the bastards play by the rules is to sue them."

Some journalists concur.

"If lawyers and doctors were to conduct their professions the way we do, with nothing in writing except vague generalities," says the Courant's Waller, "we would be on our high horse about how lackadaisical that is. That appears to be a double standard."

Another reason to have a specific code, Louisville's Hawpe says, is to make sure reporters and editors clearly understand the newspaper's policies. If they do and they follow them, say APME code supporters, then no one has to worry about going to court. "The staff needs to know specifically how to operate," Hawpe says. "Should they record a conversation? If so, should they tell the person? It's an obvious obligation on our part to provide that kind of guidance with precision, specificity and clarity."

Josephson predicts ethics codes will become more common. "By the turn of the century, I believe 90 percent of newspapers will have codes," says the ethicist, who also helps businesses write codes. "It's just not rational anymore to leave to chance that a reporter, an editor or a photographer will know and understand the policies of the paper. The thing that has stopped code growth is news people hate rules and authority. They love to say: 'It depends.' "

But simply adopting a code is not enough. It must be an integral part of a newspaper's routine, says John Sweeney, ombudsman of the Wilmington News Journal, which has been publishing its code in the paper – without attracting lawsuits – for over a decade.

Recently Sweeney began conducting training sessions with News Journal staff members. They talk about decisions the paper has made and get reporters and editors to justify them. He also uses American Press Institute videos on ethical dilemmas, such as whether the name of Patricia Bowman, who said she was raped by William Kennedy Smith, should have been used. Such discussions have greater value, Sweeney believes, than a written code.

Los Angeles Times media critic David Shaw is in favor of ethics codes but doesn't want their value exaggerated. "I don't think an ethics code would change our credibility, our behavior would," he says. "I think [the public] would think better of us if we'd stop sticking microphones in the faces of mothers of accident victims, or stop going ape over whether Bill Clinton or Gary Hart can keep their fly zipped. That has less to do with a written code and more to do with behavior.

"If we think we've solved our credibility problem by writing [ethics codes] down and passing them out to new employees, we're crazy." l