The SAGE Guide to Key Issues in Mass Media Ethics and Law

William Babcock, William H. Freivogel

• Publisher: SAGE Publications, Inc
• Year: 2015
• ISBN:
  9781506317274
• Edition: 1

The SAGE Guide to Key Issues in Mass Media Ethics and Law is an authoritative and rigorous two-volume, issues-based reference set that surveys varied views on many of the most contentious issues involving mass media ethics and the law. Divided into six thematic sections covering information from contrasting ethical responsibly and legal rights for both speech and press, newsgathering and access, and privacy to libelous reporting, business considerations, and changing rules with social media and the Internet, the information in this guide is extremely relevant to a variety of audiences.This guide specifically focuses on matters that are likely to be regular front-page headlines concerning topics such as technological threats to privacy, sensationalism in media coverage of high-profile trials, cameras in the courtroom, use of confidential sources, national security concerns and the press, digital duplication and deception, rights of celebrities, plagiarism, and more. Collectively, this guide assesses key contentious issues and legal precedents, noting current ethical and legal trends andlikely future directions. Features:

• Six thematic sectionsconsist ofapproximately a dozen chapters eachwritten by eminent scholars and practitioners active in the field.
• Sections open with a general Introduction by the volume editors and conclude with a wrap-up “Outlook” section to highlight likely future trends.
• Chapters follow a common organizational outline of a brief overview of the issue at hand, historical background and precedent, and presentation of various perspectives (pro, con, mixed) to the issue.
• “See also” cross references guide readers to related chapters and references and further readings guide users to more in-depth resources for follow-up.

This reference guide is an excellent source for the general public, students, and researchers who are interested in expanding their knowledge in mass media and the ethics and law surrounding it.

Section 1 Ethical Responsibilities Versus Legal Rights

When it comes to the media, what is the relationship between ethics and law? When ethics is the focus, the inherent flexibility can make for a wishy-washy scenario where rights and wrongs are difficult to come by. When the focus is on the legal arena, rights-based principles prevail, and inflexible standards can become the norm. Should solutions be seen as being charcoal or ivory, or should a black/white outcome be the goal?

Is the American First Amendment model, revered in most media circles in the United States, well suited for nations in the rest of the world, where citizens’ use of social media is seen as a threat to governments? And even in the United States, does the First Amendment overly protect new-media excesses in a manner the Founding Fathers never anticipated and might not have condoned?

The individual/libertarian focus of the Founding Fathers perceived citizens as being inherently good and teachable, and such a citizenry was best served with a media-provided informational marketplace of ideas. But in the twenty-first century, has the world become so complex that a more communitarian focus would protect the greater good of the people?

The First Amendment has become a powerful, amoral instrument that protects hate speech, careless journalism, nasty hyperbole, violent video games, and multi-billion-dollar advertising campaigns funded by corporations and other wealthy interests seeking to buy political influence. Internet sites have immunity from the defamatory postings of third parties. And any law that discriminates against a particular viewpoint—even if it is the viewpoint of the Ku Klux Klan or the Nazis—runs counter to the First Amendment.

First Amendment advocates say that encouraging a wide-open, robust public sphere is the best way to find the truth. But ethicists wonder whether the power of the First Amendment to protect evil and false speech has tipped the scale too far toward rights rather than responsibilities.

When the press misbehaves, is a constitutionally based democracy better able to protect its citizens, or is the British model better able to serve the needs of its people? And given how notions of media ethics differ around the globe, is there any likelihood of having a single media ethics standard?

Fewer people now than in years past, especially in the United States, think their media are believable. Should this trend be troubling? If so, what can be done to help improve credibility? Is it enough to encourage members of the press to be more accountable, or are more legal sanctions the answer, and if so, what impact would this have on a “free” and “open” mass media?

The authors in the first section of The SAGE Guide to Key Issues in Mass Media Ethics and Law grapple with these and related questions in an attempt to find the best twenty-first-century balance between ethical “shoulds” and legal “musts.”

1 Ethical Responsibilities Versus Legal Rights

Section 1

In most areas of law, the norms incorporated into statutes reflect society’s judgment about what is moral, right, and just. Homicide laws incorporate the norm that murder is wrong. Armed robbery laws are based on the norm that people should not steal. Torts are based on the idea that a person should be compensated if another person harms him or her in a way that is unreasonable.

But one area of law is amoral by design—the First Amendment. The rules that the U.S. Supreme Court has devised to protect expression make it unconstitutional for society to outlaw unethical, immoral, hateful, divisive, untruthful speech. The core principle that the Court has devised— that laws regulating speech must be content and viewpoint neutral—ensures that legislatures do not force-feed their views of what is moral, ethical, or right. Put simply, the whole point of the First Amendment is that the government cannot tell people what to think or believe. The nation does not need a First Amendment to protect speech of which society approves. It needs a First Amendment to protect speech that society detests.

Three developments have heightened the protection of offensive and invasive speech in recent years—the Internet, the birth of the “citizen journalist,” and society’s fixation on entertainment-related gossip. Federal law provides Internet Service Providers—Google, Facebook, Twitter—with legal immunity for objectionable third-party posts that appear on their sites, often written by faceless, anonymous posters. The arrival of the citizen journalist has led to publication of news and gossip that lacks the traditional vetting of a professional journalism organization. And American society’s fixation on entertainment makes TMZ and Reddit more influential in some crowds than the New York Times.

The danger to society in this new world of socially mediated data and information racing around the world at the speed of light was especially apparent with the suicide of a young man identified through crowdsourcing as a suspect in the Boston Marathon bombing in 2013. Sunil Tripathi, a twenty-two-year-old Brown University student, was found dead after an episode of crowdsourcing on Reddit and Twitter had singled him out as one of the possible bombers based on photos released by the FBI. Eric Martin, general manager of Reddit, apologized to the family, saying that “dangerous speculation” had “spiraled into very negative consequences for innocent parties.”

Martin was asked at the ABA’s Forum on Communications Law in the winter of 2014 what he would tell readers of Reddit about what they should believe on the Internet. His answer was simple. “One should assume that everything they see is wrong,” he said. That is about 180 degrees in opposition to the New York Times’ promise that readers of its pages will find “all the news that’s fit to print.”

James Goodale, a former lawyer for the Times, quipped at the same ABA conference that legal protections for the Internet together with First Amendment protections for the media have resulted in “two million people libeling each other all day long.”

So why not fix the problem? Why not turn back the clock? Why not apply ethics and civility to bring order to this crazy world of divisive media? Maybe a more civil media would result in a more civil society.

There are two reasons not to use government muscle to impose ethics of speech and thought. One is that technology has outstripped society’s ability to control it. There are simply too many millions of posts on too many thousands of websites for the government to regulate them without interfering with core expression. The other reason is that social control of media is antithetical to freedom of thought, expression, and conscience.

Protecting Offensive Speech

There is no doubt that the First Amendment has come to protect all sorts of unethical, immoral, disturbing, distasteful expression. For example, it protects:

• Publishing a parody depicting a fundamentalist minister having had sex for the first time with his mother in an outhouse (Hustler v. Falwell);
• Burning an American flag, or a Bible or a Koran, in protest (Texas v. Johnson);
• Burning a cross in a field as part of a Ku Klux Klan rally (Brandenburg v. Ohio);
• Burning a cross on the front lawn of a young African-American family who had just moved into the neighborhood (R.A.V. v. City of St. Paul);
• Selling violent video games to children, including games that show terrorists murdering people in an airport and game players urinating on nonplayers and setting them on fire (Brown v. Entertainment Merchants);
• Using pornography in the home (Stanley v. Georgia);
• Homophobic funeral protests claiming that fallen U.S. soldiers died as God’s punishment of the United States for permitting homosexuality (Snyder v. Phelps);
• Nazis parading in front of Holocaust survivors (National Socialist Party of America v. Village of Skokie);
• Lying in a political campaign by claiming to have won the Congressional Medal of Honor (United States v. Alvarez);
• Publishing illegally taped conversations (Bartnicki v. Vopper);
• Publishing national security secrets that could damage the United States (WikiLeaks);
• Publishing the name of a rape victim (Florida Star v. B.J.F.) ;
• Publishing the name of a juvenile offender (Smith v. Daily Mail);
• Refusing to publish a reply from a public official who had been attacked by the newspaper (Miami Herald Publishing v. Tornillo)
• Publishing an ad with careless mistakes about a public event (New York Times v. Sullivan)
• Publication by an Internet Service Provider of a third-party post with false, libelous claims (Zeran v. AOL)
• Posting a fake, nasty MySpace message telling a teenage girl in the neighborhood that the world would be better off without her (U.S. v. Lori Drew);
• Misleading campaign ads funded by millions of dollars from corporate treasuries (Citizens United v. FEC);
• Advocating in writing or speech the overthrow of the U.S. government, as long as that overthrow is not imminent (Yates v. United States);
• Wearing a jacket that reads “Fuck the Draft” in a courthouse (Cohen v. California);
• Singling out women approaching an abortion clinic and beseeching them not to go through with the procedure (McCullen v. Coakley).

Historical Basis

Ever since the Enlightenment, philosophers have believed optimistically that truth would prevail over evil—whether it was in the field of battle, the marketplace of ideas, or some other metaphorical venue.

John Milton famously wrote in his seventeenth-century Areopagitica: “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

The Constitution was ratified only after the Founding Fathers promised anti-Federalists to include a Bill of Rights. Yet, less than a decade after the adoption of the First Amendment, the Federalists and President John Adams enacted the Sedition Act, making it a crime to criticize the president. The law was directed at pro-Jefferson newspaper editors who made often colorful, exaggerated, unethical charges against Federalist officeholders about both their public and private lives. One would hardly characterize the editors as acting upon the highest principles of journalism, yet the Father of the Constitution and author of the Bill of Rights, James Madison, came to their defense.

Consider the quality of the journalism that Madison defended: James Thomson Callender, the editor who had disclosed Alexander Hamilton’s extramarital affair, wrote that the Adams administration was a “continual tempest of malignant passions” and that Adams himself was a “repulsive pedant, a gross hypocrite and an unprincipled oppressor” to say nothing of being “one of the most egregious fools upon the Continent.” Callender was convicted, fined $200, and sentenced to nine months in jail. Jefferson himself had read Callender’s article before publication. Another editor punished under the law was Matthew Lyon, a Democratic-Republican congressman who wrote in the Vermont Journal that the Adams administration was guilty of “ridiculous pomp, foolish adulation, and selfish avarice.” He was fined $1,000 and sentenced to four months in jail. A third Jeffersonian editor, Benjamin Franklin Bache, editor of the Aurora, even accused George Washington of incompetence, irregularities, and monarchical ambitions. Bache died of yellow fever before he could go to court.

Madison came to the defense of the editors with his Virginia Resolution about the importance of free speech and press. Madison wrote:

This state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, “the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extr...