Table Of ContentLaw and Society
Recent Scholarship
Edited by Melvin I. Urofsky
A Series from LFB Scholarly
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Journalism Ethics by Court Decree
The Supreme Court on the Proper Practice
of Journalism
John C. Watson
LFB Scholarly Publishing LLC
New York 2008
Copyright © 2008 by LFB Scholarly Publishing LLC
All rights reserved.
Library of Congress Cataloging-in-Publication Data
Watson, John C., 1954-
Journalism ethics by court decree : the Supreme Court on the proper
practice of journalism / John C. Watson ; edited by Melvin I. Urofsky.
p. cm. -- (Law and society, recent scholarship)
Includes bibliographical references and index.
ISBN 978-1-59332-266-3 (alk. paper)
1. Journalists--Legal status, laws, etc. 2. Journalistic ethics--United
States. 3. United States. Supreme Court. 4. Press law--United States.
I. Urofsky, Melvin I. II. Title.
KF2750.W38 2008
343.7309'98--dc22
2008004168
ISBN 978-1-59332-266-3
Printed on acid-free 250-year-life paper.
Manufactured in the United States of America.
Table of Contents
Preface and Acknowledgements vii
Chapter 1 Introduction 1
Review Of The Literature.........................................................................3
Law and Morality 3
Imposing Ethics by Law 9
Law and Ethical Journalism 10
Five Fundamental Ethical Principles......................................................17
Chapter 2 Making Journalism Ethical:
Codes, Commissions, and Councils 23
Early Codes of Ethics.............................................................................24
Modern Codes of Ethics.........................................................................29
Codes and Lawyers................................................................................34
The Hutchins Commission.....................................................................41
The Warren and Kerner Commissions...................................................55
National News Council...........................................................................57
Summary and Conclusion.......................................................................61
Chapter 3 Truth and Truth Telling:
First Principle and Prime Directive 65
Times v. Sullivan: Undervaluing Truth...................................................68
Actual Malice and Pragmatic Instrumentalism.......................................76
v
vi Table of Contexts
Sullivan’s Progeny..................................................................................80
Expanding Protection of Falsehood........................................................85
Limiting Protection of Falsehood...........................................................88
Masson v. The New Yorker....................................................................94
Treatments of Truth Beyond Libel.........................................................97
Summary and Conclusions...................................................................103
Chapter 4 Privacy: A Matter of Morality, Ethics and Law 109
Privacy in Journalism Ethics Codes.....................................................112
False Light and Appropriation..............................................................118
Intrusion Upon Seclusion.....................................................................121
Rape Victim Privacy.............................................................................126
Juveniles’ Privacy.................................................................................130
Extending the Shield of Privacy...........................................................132
Summary and Conclusion.....................................................................142
Chapter 5 Civic Responsibility: A Casualty of Ethical Principle 147
Ethical Directives to Break the Law.....................................................149
Moral Duty to Obey the Law................................................................151
Ethical Justification for Lawless Conduct............................................155
Beyond the Reach of Law....................................................................160
Within the Grasp of Equity...................................................................169
Obeying the Law: An Emerging Ethical Principle...............................175
Summary and Conclusion.....................................................................177
Chapter 6 Conclusions and Recommendations 179
Court-Imposed Ethical Standards.........................................................183
Court Rulings Affirm and Undermine Ethics.......................................184
Eroding the Distinction Between Law and Ethics................................185
Ramifications of Court-Created Ethics.................................................187
Bibliography 189
Index 199
Endnotes 203
Preface and Acknowledgements
“You’re gonna to have to serve somebody,” is a line of gospel I heard
countless times from the Baptist preachers of my youth. It returns to
me now as I complete this book. Just as those ministers sought to
impress upon their flocks the necessity of choosing to serve a higher
purpose, this book seeks to impress that counsel on professional
journalists. In both instances a failure to choose is not a decision to not
serve, but actually a choice to serve a lesser purpose; because at the
end of the day we all will have served somebody.
Journalists arguably have chosen to serve the public interest and
do so by following their codes of ethics. But this often is neither true
service nor true choice because the profession has chosen to retain the
freedom to ignore the codes because freedom is a more cherished
value. And so there is no real decision to serve. In this void, the
government, through the U.S. Supreme Court’s rulings, is being
served by the press. These rulings, without any devious intent or
wicked conspiracy, are charting the path journalists take by allowing
some practices or by imposing or permitting penalties for others.
Clearly, some of the directions taken by the Court serve the public
interest. Others may not. In either case, these are matters better left in
the hands of journalists. The difference between servitude and service
is voluntary choice. It may be that journalists have failed to grasp their
responsibilities because they do not recognize that someone else is in
the process of doing it for them. I hope this book leads to recognition
and then perhaps a firm decision about whom we will serve and how
we will do it.
vii
viii Preface and Acknowledgements
I must express gratitude here to my wife Laura St. Martin for
supporting me as I made the transition from 21 years of daily
newspaper work into an often rewarding career in the academic world.
She has endured much and has always empowered me and enriched by
life in the most important ways. I also thank my daughters, Taylor,
Mikaela and Samantha for giving me three more excellent reasons to
smile when I wake up each morning.
I also offer gratitude to all those who helped me through the long
period of transition from newsroom to classroom. Prominent among
them are Professor Ruth Walden, The Freedom Forum, and R.S.
Zaharna and Rodger Streitmatter, my colleagues at American
University.
CHAPTER 1
Introduction
For nearly a century, journalism critics have been warning the
American news media that if they do not practice their craft ethically
and with a greater sense of social responsibility, they risk having the
law impose ethics or other systems of moral control on them. One of
the most articulate and well-reasoned of these warnings was sounded
in 1947 by the Commission on Freedom of the Press. This privately
assembled panel of thirteen intellectuals was led by University of
Chicago Chancellor Robert Maynard Hutchins and usually is referred
to as the Hutchins Commission. It conducted a two-year study of the
American mass media and issued criticism and warnings in a report
titled “A Free and Responsible Press, A General Report on Mass
Communication: Newspaper, Radio, Motion Pictures, Magazines and
Books.”1 Similar but less expansive criticism that focused primarily
on the news media’s handling of their responsibilities to the larger
society and warnings about government action to remedy irresponsible
journalism were made by the Warren Commission in 1964,2 the
Kerner Commission in 1968,3 and The Twentieth Century Fund Task
Force in 1972.4 The passage of time has proved those warnings to be
portents. This book chronicles pivotal moments in the transformation
of some ethical matters into law.
Clearly the law has not been used to impose ethical standards on
the news media on a wholesale basis. The United States does not have a
code of journalistic responsibility enshrined in law or an agency to
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