2 Chapter 2: Media Law and Ethics

In Chapter 1, we introduced the concept that journalism is made up of broccoli and chocolate news. Broccoli news is good for you to know. It will help you in some way. Call it “information nutrients.” Chocolate news is more fun to consume but not as beneficial to you as a reader. It is time to eat our vegetables with media law and ethics. You can’t learn to write news stories until you know the rules that govern them.  

As a journalist, you have a megaphone that will blast out information to the masses. That voice comes with responsibilities. If you are wrong or provide information that is unethical or illegal, your audience will stop listening to you. Without an audience, you are not a journalist.

An open-source book titled “Ethics in Journalism and Strategic Media” by a professor at the University of Arkansas features an interview with Steven Holmes, a member of a New York Times team that won a Pulitzer Prize in 2001 for coverage of race relations. As he says in an audio recording, “We’re given particular rights under the Constitution and the Bill of Rights, the First Amendment, which means that we have the ability to do things that other people cannot do. But with that right comes responsibility, and one of the things that we have to make sure that we’re responsible for is to do things in a way that generates trust in what we do.”

Holmes points to a current environment where many readers distrust the news media. To fight that, we need to reinforce ethics to build back our reputation.

“This is really especially true these days when you got people saying that we’re dishonest, we’re fake news or biased,” Holmes says. “The main thing that we have to try and maintain is a level of trust with the public and the way we can do that, probably the only way we can do that, is living by a specific code of ethics.”

Ethics

Journalism ethics is the cornerstone of all news writing. News organizations across the U.S. have established ethical guidelines that they publicize and follow. Many use some version of the rules set by a national journalism organization called the Society of Professional Journalists.

According to its website, SPJ is “the nation’s most broad-based journalism organization, dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior.” It was founded in 1909 and promotes free journalism-related information to its 6,000 journalist members in professional development, ethics and advocacy.

Reuters, the world’s largest international news wire service, produced a similar ethics guide outlining the rules that a news writer should honor when working for the organization.

It begins by laying out what defines a Reuters journalist, writing that “what must unite us is honesty and integrity.”

Other media organizations have their own codes. ProPublica’s ethics page features a bolded message to all its writers: “When in doubt, ask.” The message continues: “It is an essential prerequisite for success in the news business that we tell the truth, and that our readers believe us to be telling them the truth. If we are not telling them the truth — or even if they, for any valid reason, believe that we are not — then ProPublica cannot succeed.”

Truth/Accuracy

As a journalist, you must strive for the truth in every paragraph, sentence and word. That is harder than it sounds. But news writers need to pledge an oath to find out the objective facts and triple check everything they write.

SPJ’s guidelines read: “Ethical journalism should be accurate and fair. Journalists should be honest and courageous in gathering, reporting and interpreting information.”

In other words, you cannot just “know” or remember that something is correct. You need to find a source (or two or three) that can verify every fact. A good reporter triple checks that they are right. As a former newspaper staff writer reporting on a power plant under construction in the city I covered, I once called an engineer three times during his daughter’s wedding because I was still unclear on the nuances of power generation. I had to make those calls to ensure that my article was accurate.

The truth behind how a power plant works is hard enough, but it gets even trickier when humans are involved. Think back to a fight you had with your sibling/partner/friend. Now imagine if a neutral reporter asked both of you why you were fighting. Would they get the same account? Probably not.

As a journalist, it is sometimes hard to tell what happened, as people tend to see a version they can live with. The way to continue to seek the truth and be accurate in such situations is to ask more people. Was there a person who witnessed this fight between you and your friend? They may offer a version that is closer to the truth. A good rule of journalism is that the more people you interview and the more research you conduct, the closer you get to circling the truth. You may never find the absolute truth in some situations, but you can approach it with diligent reporting.

Harm

The second area of journalism ethics is handled differently by different news organizations. SPJ calls it harm while Reuters includes parts of it under the category of integrity. Under the heading of “Minimize Harm,” SPJ writes, “Ethical journalism treats sources, subjects, colleagues and members of the public as human beings deserving of respect.”

Reuters sums it up nicely on its website: “When covering people in the news, Reuters journalists:

• Treat victims with sensitivity
• Avoid needless pain and offense
• Seek clear, unambiguous accounts of the facts
• Avoid sensationalism and hype
• Are on alert for spin and other forms of media manipulation
• Are wary of assumptions and bias, including our own as journalists”

The website continues, “A Reuters journalist shows integrity, impartiality, persistence, accountability, and humility when covering people. When these principles are applied, we should be able to defend any story to ourselves, our sources, and our readers.”

But sometimes, while seeking the truth, you will harm your sources. You will have to decide where the balance lies. For example, when I was a cub reporter for a local newspaper, a city official’s husband was killed in his car by a train. When I dug into the story, the police report said the car was parked on the train track and that it was an apparent suicide.

When I called the city official to talk about her husband, she burst into tears and asked me not to include the suicide detail. She had told her children that the death was an accident, and she hoped that they never would know differently. In this case, the truth was that police believed it was a suicide, but printing that would harm both the official and her children. This is where ethics get tricky. What would you do?

I did what Reuters suggests and asked my editors. We sat in a room and discussed the issue with the journalism guidelines to help us. Some argued that we should include the suicide fact, as the death was a public one in which others could have been killed. Others thought that the harm to the family was greater than readers’ need to know why the husband was killed. My editor decided not to mention the suicide, but the other newspaper in the area did include it, so the truth got out anyway.

Act Independently/Independence

My husband covered the San Diego Padres baseball team for several years. He would sit in the stadium press box during the games. The Padres’ public relations officials always had cold soft drinks and a popcorn machine in the press box. They were free and available to the media throughout all home games. Great, right?

Wrong.

Taking anything free from a source is a conflict of interest, even something as inexpensive as popcorn or a single soda. Why? It’s the perception that you are on the side of the Padres. When my husband was reporting on the team, he was not their cheerleader. His job was to write objective stories about how the baseball team was doing as a neutral observer. If he is munching on free popcorn as he writes, he might — subconsciously or otherwise — show partiality to the team. This is just one of the ways that journalists need to be vigilant in their work.

SPJ’s guidelines insist that independence allows a reporter to report objectively. The guidelines maintain that “the highest and primary obligation of ethical journalism is to serve the public.”

As a news writer, you must avoid all real and perceived conflicts of interest. The case of the Padres popcorn is a perceived conflict. It would not have affected his coverage, but it could appear to, and that matters as much. The real conflicts are a little easier to call.

Here are a few of the common conflicts that new journalists might face:

• If you are a member of the track team, you can’t cover the track team for your school’s news outlet.
• If your friend is a member of the track team but you are not, the same rule applies. Ethically, you should not interview your friend.
  • This guideline applies to any friend. I call it the Coffee Test: If you know someone well enough to grab a coffee with them, you shouldn’t interview them. The reason is that you can’t be objective when reporting on a friend.
• You shouldn’t interview family members for a news story. Good or bad, you can’t be objective about your relatives.
  • Note: Major news organizations are breaking this rule and interviewing friends. When they do this, their coverage suffers. Plus, it’s lazy.
• They might offer, but you shouldn’t let a source buy you a coffee/soda/snack during an interview.
• You shouldn’t let a source pay for a coffee after an interview, either. Even if the story has been published, the perceived conflict is still there.
• You must not pay a source for information.
• Your press pass does not allow you free entry to a concert, film or other event. Remember to pay your share for anything you do in the name of journalism.
• Avoid socializing with a source. It can be tempting as a means to build trust, but it can mislead your source into thinking you are their friend when your job is to report.
• Ethically, you must not date your source. Don’t ask them out and decline their invitations (this happens more than you would think).
• Don’t allow sources to read your story before it’s published. They might ask in the name of ensuring accuracy, but the act allows them to give suggestions that put the story’s objectivity in question.

Be Accountable and Transparent/Freedom From Bias

I love to watch films about journalism, but so many of them have ethical problems. One of the biggest violations occurs in movies where journalists go undercover to get a story. They pretend to be someone else and then write a gotcha story that uncovers wrongdoing. Big no-no. Ethics require that journalists be transparent and accountable to sources and readers. Surreptitiously recording someone and using what they tell you in a news story is not only unethical but illegal (we will get to the law stuff later).

You should always identify yourself as a journalist and tell people what you are doing. Do not trick them into an interview. It is best not to mislead them in any way. The same applies to readers. Be honest with them in your writing. Did a source not call you back? Explain in the story that you tried five times, but they did not respond. Or tell the reader that a door was slammed in your face while you were reporting on the story.

A crucial aspect of accountability comes when a reporter makes a mistake. Of course, the goal is not to make mistakes, but it happens. Ethics rules require that a reporter not ignore or hide the error. Instead, a correction should be written and published in the same spot where the story first ran.

Rules also dictate that covertly fixing the error online is unfair to the reader. Instead, fix the error online and include a note at the bottom of the story explaining that a correction has been added. It is best not to reiterate the error and perpetuate bad information, but to put forward the accurate information and apologize.

It is painful to publicly own your mistakes, but it’s necessary to adhere to journalism ethics. Admitting errors is as important as getting to the truth. It’s how we build back or maintain trust with our audience.

Other Ethics Tools

While the guiding rules of journalism ethics are thorough, journalists will run into gray areas. The textbook “Ethics in Journalism and Strategic Media” outlines four ethical theories that journalists can use in tricky ethical situations.

1. Rule-Based Thinking When one ethical rule, such as truth or compassion, overrides all other considerations. The author writes: “For many journalists, truth is more important than any other ethical value. In most instances, journalists and media professional journalists should be truthful in their work.”
2. Ends-Based Thinking: Weighing the ethics in conflict rather than following a single rule. For example, consider what action would lead to the best outcome for most people.
3. The Golden Rule: Do what you would want others to do if you were the one affected by the decision.
4. The Golden Mean: Aristotle’s golden mean seeks a balance between two extremes. In other words, find the middle ground.

Other Temptations: Cheating

News writing is hard, and deadlines can be unforgiving. The temptation to cheat is a big problem in journalism, whether the method is plagiarism or using artificial intelligence (AI).

First, a few definitions. Plagiarism is the practice of taking someone else’s work and passing it off as your own. AI programs that came out in the fall of 2022 can do the writing for users once they enter a prompt. Using AI is taking credit for work that is not your own. Plagiarism in journalism breaks the rules of transparency and accountability.

Beyond the ethical problems, if you plagiarize or cheat in your news writing, you will get caught eventually. Your work is public, and people will figure it out. Consider the former journalist Stephen Glass, who worked for The New Republic in the mid-1990s until the magazine realized that many of his published articles were fiction. His public humiliation was dramatized in a major motion picture, “Shattered Glass.” Glass was fired and never found work as a journalist again. According to Wikipedia, he went to law school and passed the bar exam but also couldn’t land a job as an attorney because of his past. Consider his story a warning.

Journalists have played around with AI and found it both helpful and problematic. The Knight Foundation, which was studying AI even before the tools were available, says it can be a wonderful resource for data collection and analysis in newsrooms.

But AI has its problems. According to an article about ChatGPT on the website News Literacy Matters, “(The) information comes primarily from the internet and social media. Remember — AI chatbots do not generate original ideas; they cannot think independently. Yes, they can summarize and regurgitate, and some argue they can even reason, but in no way can they replicate higher-order thinking skills, ethical decision-making, or human consciousness.”

A funny anecdote: While researching a book, I asked Palomar College librarians for help. They used ChatGPT to generate a list of potential resources for me. One of the books on the list did not exist.

AI tools can be helpful, but they will never think like a human reporter. For new journalists, using such tools could hinder their natural development. How can you become a good news writer if you never write? It is essential to do the writing yourself and resist the temptation to cheat.

Media Law

The elements of a libel case are:

Let’s go into some detail so you know how this applies in your work.

Defamatory Statement

This part is simple. A statement isn’t defamatory as long as it’s true. If you triple checked those facts and your reporting is sound, you won’t have to worry about defamation. If you get the information wrong and that incorrect information defames someone, then they have the first element of a libel suit on their side.

This only pertains to facts. If you write a review bashing a new movie and that hurts the film’s ability to make money, you are safe. It falls into an area called fair comment and criticism. You have the right to critique anything. But even with critiques, any facts included are fair game for libel or slander. So if you write that you didn’t the film while falsely accusing the director of being a convicted felon, that director could sue you for libel.

About the Plaintiff

In some libel or slander cases, the victim is clear. They are named in the news article and the facts about them are incorrect and hurt their reputation.

Even if you did not publish a name, however, you still may have a problem. For example, if you wrote about a student in your chemistry class and reported something false about them, it would be harder to make the case that a single person was defamed. There is no way to know for certain who you are referring to. But if you described that person in a way that the reader could figure out their identity, this second element might still apply. It would all be decided through a court proceeding in which the person suing you for defamation would have to convince the court that a reader could tell they were identified.

Publication

The “Tort Law” book sums this element up nicely: “Remember, defamation vindicates reputational loss, not hurt feelings. … Defamation is not designed to protect against hurt feelings but rather to guard against the loss of standing in the minds of people other than the plaintiff.” If no one knows about the alleged defamation, it can’t harm your reputation. This area concerns whether other people have seen or heard it. The tort book notes that it doesn’t need to be published in a traditional medium (website, book or magazine). Oral communication even applies. Gossip between two people applies. “What matters is that it be an intentional communication to a third party,” according to the book.

Authorization

Sometimes information is expressed in a specific way that exempts it from defamation. One example is judicial proceedings. If you report something said in court and it ends up being false, you can’t successfully be sued for libel. Also, there are exemptions for employment and admissions letters.

Damages

The last element in a defamation case is that the person suing you must prove they lost money because of what you said or wrote. This is a tough to prove because, as the tort book notes, judicial precedent is on the side of journalists: “Harm has been sharply limited in our era due to the Supreme Court’s mandate that constitutional obligations to protect free speech take precedence over reputational interests in a number of scenarios.”

Roberts, the textbook author, writes that many libel suits are unsuccessful and get dismissed because all five elements don’t apply. But she emphasizes that it’s still important for news writers to dedicate themselves to vigilant reporting.

She writes: “Careful information gathering, and rigorous fact checking are vital to avoid defamatory communication. Double-checking quotes and sources help minimize the risk of publishing libelous statements.”

Privacy

Where is the line that separates the rights of journalists from the right to privacy? A good rule of thumb is that a journalist is allowed anywhere the public can go. According to “The American Journalism Handbook” by Dr. Rodrigo Zamith, the Supreme Court has repeatedly ruled that journalists are free to photograph, film or record audio in public spaces, if they are not getting in the way. You don’t have to ask permission to record anyone in public. Note: When it comes to recording children in public, it is a good ethical rule to talk to the parents first.

Sometimes it’s hard to tell what a public space is. State-funded colleges are public by nature, but not all parts of the campus are considered public by law. Most colleges have some public spaces where people can gather and a journalist can freely record. But places like classrooms are off limits, according to the book. In restricted or nonpublic places, a journalist must ask permission to record.

It all centers around a recorded individual’s expectation of privacy. The courts have found that in a place where a “reasonable person” would not expect to be recorded, they may be able to make an intrusion on seclusion claim, Zamith writes.

Laws also prohibit journalists from publishing confidential information such as that relating to health.

Secretly recording people is problematic ethically and legally in some states. Zamith writes that recording laws vary by state.

“In some jurisdictions, journalists may record private exchanges (e.g., a phone interview) only if all people being recorded consent to the recording,” he writes.

That’s the case in California, a so-called “two-party consent” state in which the law requires both parties to know that a conversation is being recorded. But even for states that don’t require permission, journalistic ethics demand it. When you interview a source, you need to tell them up front that you would like to record it, ask for their permission, and then begin recording. Once the recording has begun, you should reiterate to the source that they are being recorded and get their consent on tape.

Copyright and Fair Use

The Supreme Court has repeatedly ruled that copyright laws and free speech are compatible, according to Zamith’s book. Copyright is an intellectual property that protects original works of authorship from being taken by others.

Zamith notes that information is not a copyright violation if it is rewritten. For example, he writes, “it is not possible to copyright the fact that Dr. Zamith gave a lecture about media law on a particular date. However, the exact expression, ‘Dr. Zamith spoke eloquently in a riveting lecture about media law that was met with great acclaim’ may be copyrighted by the author.”

Bottom line: You need to cite and rewrite all information to adhere to copyright laws.

There is a way out of this, but it’s a high bar. The Copyright Act of 1976, according to Zamith, allows journalists to use information verbatim if it passes a four-part test that’s assessed through individual court cases:

• the purpose and character of the use, including if it is for educational purposes
• the nature of the copyrighted work
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole
• the effect of the use upon the potential market for, or value of, the copyrighted work.

For new writers, it’s better to avoid going down this road and write everything yourself.

On the Record

On the record means that anything a person says to a reporter can be used in a news story. But many sources might not understand the concept, so you should explain it up front and get their name, title and age before the interview begins. Asking for their name off the bat makes it abundantly clear that you are interviewing them for a news story and you will use their name in print.

Some sources will not want to go on the record. When that happens, it’s important for the reporter to ask why. A reporter can dispel a source’s fears and keep them on the record. That’s always the goal. But if “on the record” is impossible, there are three other options:

On Background

News organizations describe on background “as an interview in which information can be published without a name but with some other identifying characteristic that’s negotiated between the reporter and the source. An example would be “a school administrator who declined to be named for fear of losing their job.”

Deep Background

Deep background occurs when information is published without attribution and the source is not identified in any way, according to the website News Literacy Matters. Often the source will be called anonymous.

Off the Record

Other Media Law Resources

If you need more legal advice as a news writer, free options are available.

First Amendment Coalition has a mission to “protect and promote a free press, freedom of expression and the people’s right to know.” Its website is designed to help journalists know their legal rights and get advice. The site has FAQs and the number of a legal hotline you can call free of charge with any questions.

Another excellent resource for student journalists is the Student Press Law Center. This nonprofit “promotes, supports and defends the First Amendment and free press rights of student journalists and their advisers,” according to its website. Among the most useful pages contains guidelines for student media, covering everything from what policies a college news site might want to include to what students can do if college leaders try to block or limit them.

A third organization that can help journalists is the Washington Coalition for Open Government (WashCOG), which also advocates for the people’s right to access government information. It too has a robust website of resources for journalists, including useful information on public records and how to get them.