Legal Proof Fails as Ethics Standard

News Media and the Law, Summer 1998 | Go to article overview
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Legal Proof Fails as Ethics Standard


Americans are a litigious bunch. For every insult and every offense, they demand a legal remedy.

A recent poll suggests that the public thinks there should be legal recourse against news stories that are "inaccurate." Prior to the Supreme Court's 1964 decision in New York Times v. Sullivan, an aggrieved news source's best remedy against a journalist who "got it wrong" was a libel suit. Because false and defamatory speech was not entitled to First Amendment protection, a reporter could be held strictly liable for inaccurate statements, at least if they tended to harm someone's reputation.

But everything changed with the Sullivan case. Although truth was still a defense, most post-Sullivan libel trials turned on whether the journalist had acted with "actual malice" - knowingly or recklessly telling an untruth. The reporter's state of mind, as well as newsgathering tactics and ethics, became a matter for scrutiny by juries and courts.

Between the fallout from Sullivan and the relatively recent desire of journalists to consider themselves as practitioners of a "profession," ethical statements adopted by news organizations and voluntary journalists' groups began to resemble the legally enforceable codes of conduct that govern lawyers, doctors and accountants. Without a formal licensing regime, no one could use these codes to divest violators of their journalistic credentials, but having them in place made the good guys feel more virtuous, and gave them an excuse to castigate the bad ones.

Then plaintiffs' lawyers, thwarted in their attempts to secure damage awards for clients who felt they had been given a raw deal by the press, began to trot out arcane legal theories such as misrepresentation, fraud, interference with contract, or failure to fulfill some unspecified duty, in the name of making news reports fair and accurate and journalists accountable.

For their part, defense lawyers and their media clients began to worry more about what the law allowed than what good journalistic practice demanded. As two recent incidents illustrate, the consequences can be disquieting, if not perverse.

Near the end of June, The Cincinnati Enquirer published a page one apology to Chiquita Brands International. It repudiated a series of critical stories about the world's largest banana producer on the grounds that an Enquirer staffer was involved in what it called "the theft" of corporate voice mail communications underpinning the newspaper's investigation "in violation of the law."

Despite Chiquita's claim of vindication, most observers agree that the paper's apology doesn't appear to say that its story was false. In fact, the SEC is reportedly investigating charges similar to those outlined in the Enquirer's story.

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Legal Proof Fails as Ethics Standard
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